The Arkansas Lawyer Fall 2015

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Inside: Arkansas Supreme Court Chief Justice Howard Brill Succession Planning for Family Farms 10 Things Every Lawyer Should Know About GMOs Behind the Screen: Truth, Lies and the Internet Arkansas’ New Covenant Not to Compete Law

Vol. 50, No. 4, Fall 2015 online at www.arkbar.com

arkansas bar association

Mid Year Meeting

January 27-29, 2016 Marriott Hotel, Little rock 4 CLe tracks over 2 days, featuring: • Controversial Legislative issues • Business & technology • Local Food & Libations

• Probate • PLUS—digital Forensics: On the trail of the Craiglist Killer Learn how the intricacies of this spellbinding case illustrate the interplay between digital and other forensic evidence at the heart of a modern police investigation.

All attorneys are invited to the Thursday afternoon reception following the seminars.

Watch for brochure soon in the mail and at www.arkbar.com/midyearmeeting/home

PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Haley Heath Burks Judge Brandon J. Harrison Ashley Welch Hudson Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Tasha C. Taylor David H. Williams OFFICERS President Eddie H. Walker, Jr. Board of Governors Chair R. Scott Zuerker President-Elect Denise Reid Hoggard Immediate Past President Brian H. Ratcliff Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Matthew L. Fryar BOARD OF GOVERNORS Arkie Byrd Thomas M. Carpenter Sterling Taylor Chaney Suzanne G. Clark Don R. Elliott, Jr. Frances S. Fendler Buck C. Gibson Amy L. Grimes Paul W. Keith Leslie J. Ligon Jeffrey Ellis McKinley Jerald Cliff McKinney II Wade T. Naramore Laura E. Partlow Kristin L. Pawlik Brant Perkins Robert M. Sexton Derrick W. Smith Brian A. Vandiver Danyelle J. Walker Andrea Grimes Woods LIAISON MEMBERS

Brian M. Clary Karen K. Hutchins

Judge James O. Cox Jack A. McNulty

Judge David F. Guthrie Richard L. Ramsay

Stephen A. Hester Judge Chaney Taylor

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202.

Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2015, Arkansas Bar Association.

All rights reserved.

The Arkansas

Lawyer Vol. 50, No. 4

features

12 Arkansas Supreme Court Chief Justice Howard Brill

By Anna Hubbard 16 Workers’ Compensation Law: How to Handle the Unfamiliar

By Melissa Wood

Cover photo by Steven Vech www.thinkdero.com

18 Succession Planning for Family Farms

By Trav Baxter

22 Wellness and Balance are Key to a Sustained Career

By Sarah Cearley 24 10 Things Every Lawyer Should Know About GMOs

By Margie Alsbrook 28 Arkansas’ New Covenant Not to Compete Statute: More than Codification of Common Law

By Anthony McMullen 34 Behind the Screen: Truth, Lies and the Internet

By Lee Curry and Paul Keith 40 Cloud Computing

By Dr. Gavin W. Manes 44 William Simpson Oldham

By Judge J. W. Looney 44 Report from the 2015 National Conference of Commissioners on Uniform State Laws

By Lynn Foster Contents Continued on Page 2

Lawyer The Arkansas Vol. 50, No. 4

in this issue ArkBar News

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Congratulations to the New Members

8

Legislative Package Timetable

10

CLE Calendar

43

Disciplinary Actions

47

Arkansas Bar Foundation Memorials and Honoraria

54

In Memoriam

55

Classified Advertising

56

columns President’s Report

7

Eddie H. Walker, Jr.

Young Lawyers Section Report

9

Matthew L. Fryar

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Vol. 50, No. 1, February 2015 online at www.arkbar.com

For information on submitting articles for publication, go to http://tinyurl.com/ thearkansaslawyermag or email ahubbard@arkbar.com

Inside: ArkBar Lawyer Legislators Tort Reform Retirement Planning Same Sex Marriage

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: William Fitzgerald Clark, Bob Estes, Matthew L. Fryar, Michael Scott Hall, Jason M. Hatfield, Brian C. Hogue, Leon Jones, Jr., Joshua D. McFadden, W. Marshall Prettyman, Jr., Sarah A. Sparkman, Rick Woods Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Michael Alan LaFreniere, Candice A. Settle, Samuel M. Terry Delegate District A-4: Sam D. Snead Delegate District A-5: Wade A. Williams Delegate District A-6: John D. Van Kleef Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Carrie E. Bumgardner, Bart W. Calhoun, Kenya Gordon Davenport, Edie Ervin, Caleb Peter Garcia, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Glen Hoggard, Amy Dunn Johnson, Jamie Huffman Jones, Joseph F. Kolb, William C. Mann III, Patrick W. McAlpine, Kathleen Marie McDonald, Jeremy M. McNabb, Chad W. Pekron, John Pesek, John Rainwater, Robin L Sullivan, W. Carson Tucker, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Robert J. Gibson, Hunter J. Hanshaw, Jason Mark Milne Delegate District C-4: Kara Lynn Byars Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Michael L. Murphy Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Kandice A. Bell, Brent J. Eubanks, John P. Talbot Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Lee Douglas Curry Delegate District C-10: George M. Matteson Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: Brian M. Clary, John Andrew Ellis, Law Student Representatives: David Trent Harrison, University of Arkansas School of Law; Eruore O. Oboh, UALR William H. Bowen School of Law

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The Arkansas Lawyer

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We’ve spent the past 50 years planning for retirement.

When did you start planning?

Planning for retirement requires forethought, perception, and a little patience. That’s why the American Bar Association created the aba retirement funds program (“the Program”) – a comprehensive and affordable retirement plan built exclusively to address the unique needs of the legal community.

Call an ABA Retirement Funds Program Regional Representative today!

866.812.1510 I www.abaretirement.com I joinus@abaretirement.com

The Program is available through the Arkansas Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security.

Securities offered through Voya Financial Partners, LLC (Member SIPC).

The ABA Retirement Funds Program and Voya Financial Partners, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services.

CN0311-8585-0415

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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ArkBar NEWS

Arkansas Bar Foundation Director Celebrates 20-Year Anniversary

Ann Dixon Pyle

Ann Dixon Pyle recently celebrated her 20-year anniversary as Executive Director of the Arkansas Bar Foundation with a reception at the Arkansas Bar Center. Ann is the Foundation’s first Executive Director who is responsible exclusively to the Foundation. Ann provides outstanding service to the Foundation, its Fellows and its officers.

Arkansas Bar Foundation President Judge James O. Cox said he has known Ann the entire time that she has been with the Foundation. “She is a splendid person and has given great assistance to all of the leaders of the Foundation for over 20 years,” Cox said. “I don’t see how we could do it without her.”

Where Has Your The Arkansas Lawyer Magazine Been?

Take your The Arkansas Lawyer magazine with you when you travel and send us your photo to include in our new version of a “Flat Stanley” feature. Two members for this issue were coincidentally both in London this summer on unrelated trips. Submit your photos to ahubbard@arkbar.com.

ArkBar Welcomes New CLE Director The Arkansas Bar Association recently hired Joie Ketcham as the new Continuing Legal Education Director.

Joie comes with over 11 years of experience in association management and continuing education.

Executive Director Karen K. Hutchins welcomes Joie to ArkBar’s 10-member staff. “I am very pleased to add someone with Joie’s unique association experience to our team,” Hutchins said. “Joie’s broad association knowledge and experience coordinating events will be asset. I look forward to her new ideas for CLE and anticipate that her energetic attitude will help invigorate our section activities.”

Joie is a graduate of the University of Central Arkansas Joie Ketcham and has completed the Institute for Organization Management, a professional development program of the U.S. Chamber of Commerce Foundation. She is a member of the American Society of Association Executives, Arkansas Society of Association Executives and the Association for Continuing Legal Education (ACLEA). Joie has two sons, four and three-years old, Joshua and Theo.

Johannah Walker at the University of Michigan Law School

Christian Brill at the Tower Bridge in London

2016 Mock Trial Competition Call for Volunteers It’s that time of year again! he ArkBar Mock Trial Committee has just released the case materials for the 2016 High School Mock Trial Tournament, and high school students across the state are beginning to prepare for trial this spring. The state tournament will be held in downtown Little Rock on March 4-5, 2016. We need YOU to make this tournament successful.

In preparation for what we anticipate to be record-breaking participation, we need over 100 attorneys and judges to commit to serving as scoring and presiding judges at our tournament. To volunteer, please visit tinyurl.com/MT2016.

For more information about the Mock Trial Program, please visit www.arkbar.com/ARMockTrial.

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The Arkansas Lawyer

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Above: Lori Howard at the Eiffel Tower in Paris; Below Lori at the Tower of London

ArkBar NEWS

Oyez! Oyez!

Accolades The UALR Institute on Race and Ethnicity honored Judge Olly Neal, Richard L. Mays and John W. Walker with plaques on the Arkansas Civil Rights Trail for their significant contributions to civil rights in Arkansas. Wiley Branton, Sr. and William Harold Flowers were posthumously honored. The Northwest Arkansas Business Journal selected the following members for inclusion in the 2015 “Forty Under Forty” class: Sean Evans, Friday Law Firm’s Rogers Office; and Colin Johnson of Davis, Clark, Butt, Carithers & Taylor, PLC in Fayetteville.

Appointments and Elections Chalk Mitchell was appointed to serve the remainder of the late 1st Judicial Circuit Judge L.T. Simes’ term, which expires at the end of 2016. Thomas Fowler was appointed as the Division 2 Judge of the Second Judicial Circuit to serve the remainder of the late Honorable William Lee Fergus’ term, which expires at the end of 2016.

Colonel Steve Dubriske was appointed as an appellate judge on the United States Air Force Court of Criminal Appeals. Thomas G. Williams of Quattlebuam, Grooms & Tull PLLC has been appointed to the Judicial Discipline and Disability Commission.

William A. (Al) Eckert III of Quattlebuam, Grooms & Tull PLLC has been elected to a six-year term on the Board of Directors for the Arkansas Environmental Federation. Sidney H. McCollum was recently elected president of the Association of Attorney-Mediators. The following members were appointed to the Youth Justice Reform Board: Judge Joyce Warren, Judge Troy Braswell, Kristin Martin, and Justice Rhonda Wood. The Arkansas Judicial Discipline and Disability Commission announced that Judge Edwin Alderson was appointed as Chairperson for the Judicial Ethics Advisory Committee.

Word About Town Quattlebuam, Grooms & Tull PLLC announced that Vincent O. Chadick has joined the firm of counsel and Philip A. Elmore has joined the firm as an associate in the firm’s Springdale office. Robertson, Beasley, Shipley & Redd, PLLC announced that Jay W. Kutchka joined the firm. Friday, Eldredge & Clark, LLP announced that four new associates joined the firm: Jordan Broyles, Katherine Stephens and Blake Lewis have joined the firm’s Little Rock office and Matthew D. Mitchell has joined its Rogers office. Patrick A. Burrow recently joined Simmons First National Bank as General Counsel, and Rosalind M. Mouser joined as Senior Vice President and Deputy General Counsel. Spicer Rudstrom, PLLC announced that Stephen Hester joined the firm’s Little Rock office. William T. Crowder and Corey D. McGaha have formed a new law firm Crowder McGaha, LLP in Little Rock with a focus on consumer protection cases. Justin Bennett has been named a partner at what is now Benson & Bennett, P.L.C. in Fayetteville with Joe Benson. Lucie K. Brackin, with The Landers Firm, PLLC in Memphis, has been certified by the Arkansas Alternative Dispute Resolution Commission to mediate cases from the Domestic Relations divisions of the Arkansas Circuit Courts. Relyance Bank announced that Tracey M. Dennis has joined the bank as Asst. Vice President and Trust Officer.

Arkansas Bar Association Selects Stephens Insurance, LLC as Exclusive Insurance Provider The Arkansas Bar Association has named Stephens Insurance, LLC as its exclusive endorsed insurance broker overseeing Lawyers Professional Liability (LPL) insurance as well as property, casualty, life and health benefits to its more than 5,000 members. Through “ArkBar Insurance Services, Exclusively Powered by Stephens Insurance, LLC,” ArkBar members will have access to affordable products and tailored services that help protect against liability exposures unique to attorneys.

“The Arkansas Bar Association is devoted to helping our members succeed in the increasingly challenging legal profession.

Working with Stephens Insurance, attorneys—practicing in both mature and upstart law firms of all sizes—can focus on their obligations with the assurance that the right resources are in place to address potential risks,” said Karen Hutchins, Executive Director of the Arkansas Bar Association.

“We selected Stephens Insurance for the depth of its risk management offering, strong advisor presence throughout Arkansas, and abiding commitment to client relationships.

This partnership furthers our mission to deliver value and critical solutions to our membership and protect the public.”

Marty Rhodes, President and CEO of Stephens Insurance, LLC, said, “We are honored to be endorsed by the Arkansas Bar Association as its principal insurance provider. We share Arkansas roots and a resolve to act in the best interests of Association members.”

“This distinction is a testament to our insurance group’s commitment to exceptional client service. We thank the Arkansas Bar Association and look forward to a longstanding relationship,” concluded Warren Stephens, Chairman, President and CEO of Stephens Inc.

Insurance Services We encourage you to submit Oyez! information to ahubbard@arkbar.com.

Exclusively Powered by Stephens Insurance

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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Two Members Announce Their Candidacy for Association President

news

Anthony A. (Tony) Hilliard and Paul W. Keith have announced their candidacies for President-Elect of the Arkansas Bar Association. The deadline for filing was October 31, 2015. Association members will receive ballots either electronically or by mail no later than November 20, 2015. The candidate receiving the highest number of votes cast in the election becomes the President-Elect Designee, and succeeds to the office of President-Elect at the conclusion of the 2016 Annual Meeting. Members are encouraged to vote and return their ballots by December 15, 2015.

The Arkansas Bar Association is crucial to our profession and Arkansas.

My involvement in the Bar includes serving on the House of Delegates; the Board of Governors as a Governor and Chair; Chair of the Tax Section; Secretary/Treasurer of the Arkansas Bar PAC; chairing several committees; and teaching CLE programs.

I’ve observed our Bar Presidents advocate good government; represent Anthony A. (Tony) our best interests before legislators; Hilliard work with Arkansas business leaders; and lead us as a Bar toward a better Arkansas. I humbly ask for your vote and commit to being a strong advocate for the Bar, our profession, and Arkansas.

I have been in the general practice of law for 21 years. It has been a pleasure to experience first-hand the genuine respect that our Bench and Bar have for the rule of law and for our justice system. We must continue to communicate this ideal to legislative and executive policymakers and to the general public. This is the critical mission of the Association.

I have been actively engaged in the Paul W. Keith Arkansas Bar Association for many years now. have served in the House of Delegates and on the Board of Governors and am a current member of the Board. I am a two-time recipient of the Association’s Golden Gavel award. I respectfully ask for your vote.

Congratulations to members of the Arkansas Bar Association Celebrating their 25th year of practice

Gene D. Adams, Jr. Marsha Talley Ballard Theresa Beiner Stephen Ray Bolden David R. Bridgforth Judge Kimberly Crawford Bridgforth Robin S. Brown Samuel W. Cason Robert S. Coleman, Jr. Mike Cone Craig L. Cook C. Joseph Cordi, Jr. Robert R. Cortinez II Bryant Keith Cranford Michael A. Crockett Larry M. Cross Nathan C. Culp Kirk D. Darbe Rhonda Gail Davis 6

The Arkansas Lawyer

Jack W. Dickerson Kirkman T. Dougherty Lynn Edward Estes, Jr. Dalton Alexander Farmer, Jr. Colene M. Gaston Nancie Givens Keith L. Grayson Kyle Havner Patricia Henry Robert T. James Judge Brad L. Karren Donald E. Kee Shannon L Langston Jerry Larkowski Scott Lauck Jeffery Carl Lewis Donna Hayden Lyles David E. Mackey Judge Bobby D. McCallister Jack Jay McCracken Elisabeth M. McGee James B. McHugh Rhonda B. McKinnis

www.arkbar.com

Keith M. McPherson Andrew R. Miller Stephen J. Miller James C. Moser, Jr. Judge Charles L. Moulton Bruce L. Mulkey Todd H. Murray Barry D. Neal Marshall S. Ney Carolyn O’Rourke Bobbi Dawn Patterson G. Alan Perkins Dale E. Plaxco William B. Putman IV Judge Jerry Don Ramey Judge Dale K. Ramsey Richard F. Rhodes, Jr. Jon P. Robinson D. Scott Rogerson Judge P. Luevonda Ross Teresa S. Severns Timothy C. Sharum Lynn J. Skinner

Robert Brannon Sloan, Jr. Joseph Timothy Smith Steven Richard Smith John McDonald Snyder, Jr. Michael W. Spades, Jr. Carla G. Spainhour Aaron L. Squyres Scott M. Stalker David D. Stills Kathryn A. Stocks Janet L. Thornton Andree L. Trosclair David R. Trussell Dr. Sherilyn Tucker Robert T. Veon John P. Verkamp Stephanie B. Wallace Allison Graves Warner Michael M. Watts Michael Scott Willhite Adam J. Williams M. Todd Wood Cary E. Young

PRESIDENT’S REPORT

Adversarial, Yet Civil!

By Eddie H. Walker, Jr.

These are troubled times!

A large segment of society is unhappy with Congress. The authority of the U.S. Supreme Court is questioned more often than in the past. Accusations of police brutality are on the rise.

In some places, racial tension is actually increasing.

As the world becomes more impersonal, the probability and intensity of conflict becomes greater.

So, what does this have to do with lawyers?

We are trained to be problem solvers; how we go about solving those problems will have a significant impact on society. Whether that impact is positive or negative depends on the approach we choose to take in meeting the challenges of the times.

Lawyers influence all strata of society. Lawyers touch the lives of the poor through pro bono legal services; we are involved in the legislative process; we help shape decision making in corporate boardrooms. Lawyers even often occupy the most powerful position in the world, president of the United States.

While many people like to tell “lawyer jokes,” clients typically trust their particular lawyer.

Therefore, the behavior of each individual lawyer is important regarding how the legal profession as a whole is viewed by society.

Unfortunately, many view lawyers simply as adversaries,

“If we incorporate civility and professionalism into our daily routine, we will find ourselves elevated from being a lawyer who sometimes becomes part of the problem, to one who actually facilitates a solution that respects the dignity of the legal process.” striving to win at any cost. As a result, much of the positive impact that lawyers should have on society does not occur.

Without doubt, lawyers have a solemn duty to zealously represent their clients; however, we must not ignore the fact that a lawyer’s responsibility is not limited to advocating the client’s position. The preamble to the Arkansas Rules of Professional Conduct suggest that “a lawyer owes a solemn duty to uphold the integrity and honor of the profession; to encourage respect for the law and for the courts; to act as a member of a learned profession; and to inspire the confidence, respect and trust of clients and the public.”

At minimum, a lawyer must provide competent representation to a client by possessing the basic legal knowledge and engaging in the preparation that is reasonably necessary for the representation; however, we are capable of and should strive for

so much more. If we incorporate civility and professionalism into our daily routine, we will find ourselves elevated from being a lawyer who sometimes becomes part of the problem, to one who actually facilitates a solution that respects the dignity of the legal process.

Being more solution oriented, and less fault focused, often allows a more civil atmosphere to exist during the process of dispute resolution. The tone of the interaction between parties is often set by the civility, or lack thereof, of the lawyers.

We are examples, good or bad, for society of how disagreements should be addressed and how different points of view should be considered and given appropriate weight. We can facilitate recognition that intolerance is counterproductive.

The results of being civil may not be immediate; therefore, it may be difficult to see the cause-effect relationship.

Eddie H. Walker, Jr., is the president of the Arkansas Bar Association. He is a partner with Walker, Shock & Harp, PLLC in Fort Smith.

However, civility ultimately always has a positive effect on someone. Each of us can make a difference and the fact that we sometimes feel we cannot do much to improve things does not justify us doing nothing.

The legal profession is the fiber that holds society together.

As we perform our jobs we should be mindful of the many opportunities that lawyers have to defuse otherwise volatile situations. We have the ability to help our clients develop reasonable expectations and understand that what one can do is not always what one should do.

Lawyers do a lot of great work; much of it is in the form of pro bono legal services. We should be intentional about encouraging each other to not lose sight of the fact that practicing law is more than a way to pay the bills.

The Arkansas Bar Association provides an effective opportunity for lawyers to pool their skills and talents and develop relationships in ways that not only benefit its members, but also benefit the public. Please remain a member and recruit a member! 

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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Congratulations to the New ArkBar Members Admitted to the Practice of Law On September 25, 2015, Arkansas Bar Association President Eddie H. Walker, Jr., presented the new admittees to Arkansas Supreme Court Chief Justice Howard Brill who administered the Attorney’s Oath of Admission. The Young Lawyers Section hosted a reception at the courthouse to welcome the newest members to the Association.

Joshua Lee Adkerson Reid Phillip Adkins John Edward Alexander Joshua Martin Allen Timothy James Anderson Westley Lamar Ashley Julie M. Atherton Jason Paul Bailey J. Lauren Hill Ball Marshall Wayne Blinzler Andrew Christian Branch Furonda Letrice Brasfield Jonathan Lynn Bridgeman Cory Lee Bridges Lindsay Bridges Christopher E. Brown Alyssa Jordan Broyles Mary Elizabeth Buckley Mark Loren Carpenter Courtney Nicole Cassidy Grace Catherine Casteel William John Changose Stephen M. C. Coger Brinkley B. Cook-Campbell Mary Megan Dauksch Meagan Elizabeth Davis Sarah DeLoach Whitney Erin Doolittle Philip Anthony Elmore Chloe Eleanor Fackler Jacob Post Fair Johnathan Faught

Jenna Reed Fogelman Brooks William Forrest Sevawn Shawn Foster Jacob Thomas Franklin Maryann Frances Furrer Josie Kathleen George Katie Webb Gladden Jennifer Elizabeth Glover Tiffany Nicole Godwin Micah Lane Godwin LaChrisha Marie Gray Tyler Austin Griffin Austin Louis Grinder Joshua S. Mark Hallenbeck Geoffrey Denzil Hamby Ziad Hamdon Everette Milton Hatcher Kalee Richae’ Haywood Basil V. Hicks Luke Burrow Hill Mary Hoshall Hodges Danielle Leigh Hoefer Andrew Tyler Hudgens Mary Claire Hyatt Michael Anthony Hylden Sarah Coppola Jewell Alexander Taylor Jones Thomas Christoph Keller Meaghen D. Kelleybrew Austin Andrew King Dominique T. King Amelia Theresa LaFont

George A. Lea Sara Catherine Lewey Erin Warden Lewis Michael Conner Lewis Destiny L. Logan-McHughes Kirk Bennett Lonidier Miriam Edith Martinez Charles Caldwell Mashek Glenn Ellis Mathis Rebecca Lilley Matlock Edmond Joseph McGehee John David Milum Ralph Tyler Montrone LaKesia Rhea Morrison Peyton Tyler Murphy Trae Aaron Norton Richard Keith Owen Brannen David Payne Laura Peterson Jordan Shelby Phillips Rebecca Nicole Powell Carmen Pruitt Jessica Kaitlin Pruitt April Rheaume Lanny Dwight Richmond Trenton Scott Rigdon Andrew Rittenhouse Christopher Colt Roan Jordan Andrew Rogers Ralph Downing Scott Zeb Tyler Scott Kayla Lynne Shirey

Jon Thomas Shirron Daniel John Shults Taylor Nicole Shultz Amelia Lynn Sipes Christopher D. Skelton Taylor Ray Slaton J.B. Smiley Charles Derrick Spakes Katherine Harriet Stephens Hillary Ann Stone Amanda Manatt Story Lauren Gail Summerhill Sara M. Swearengin Graham Caughman Talley Andrew Samuel Tarvin Steven Lynn Taylor Gregory Martin Thomas Gary Clayton Tinkes Ellen Jean Tinnin Kristin Nicole Titley Cara Elizabeth Turbyfill Kendon Reese Underwood Mary Evelyn Ward David Alton Warford Kaylee A.Wedgeworth Clinton Michael White Seth Allen White Quinten J. Whiteside Hannah Wood Jacob Andrew Worlow Jing Zhao

ARKANSASFINDALAWYER® Market Your Law Practice for only $75/year Potential Clients Can Search for You By Practice Area and Location An ArkBar Member Benefit

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YLS REPORT

Chasing the Mythical Work/Life Balance

By Matthew L. Fryar In the last issue of The Arkansas Lawyer, I introduced you to my beautiful daughters and discussed some of the lessons I’ve learned from them over the past six years of being their daddy. Another of the many pieces of very important knowledge I’ve gained from them is the name and special ability of each of the ponies from My Little Pony—Twilight, Sparkle, Applejack, Rainbow Dash, Rarity.... These mythical cartoon characters completely capture their imaginations!

I’ve learned that we, as attorneys, are similarly fascinated by something else which is equally mythical to our adult minds: work/life balance. But why does the idea of being able to balance the demands of our jobs with the other responsibilities in our lives have to be as magical as a bunch of flying ponies from Equestria?

I would say (1) work/life balance is actually a lot simpler than we have been led to believe and (2) we should leave magic to our children’s imaginations.

I have found, throughout law school and over the past several years as a practicing attorney, that work/life balance can be achieved through the application of one fairly basic principle: set your priorities but stay flexible.

There’s no right or wrong application of this principle—whatever your priorities are, stick to them. I put my wife and kids first, and except on truly unavoidable occasions, I don’t let

work, civic involvement, or my activities with the Bar Association take me away from family time.

I’m home for dinner almost every night, at soccer practices, and on field trips. When those unavoidable commitments do pop up, whether it’s working late the night before a trial or traveling on behalf of the Young Lawyers Section, my family knows to apply the second half of my work/ life balance principle: stay flexible! If I’m doing something that takes me away from family time, everybody in the house knows it’s important or else I wouldn’t have let it cut in on my #1 priority.

What is your priority? If it’s family, that’s great; but if it’s work, volunteerism, exercise, or something else, that’s also fine.

My purpose in writing this isn’t to tell you what your priorities should be but rather simply to encourage you to view work/ life balance not as some mythical creature you have to chase on a daily basis, but instead as a tangible, real goal which can be achieved and maintained.

Hopefully, as you’re setting your priorities and learning how to stick to them but still remain flexible, you’ll include one or more of the various involvement opportunities offered by the association and the YLS. Specifically, YLS has seven different standing committees to offer you a chance to become involved in the association: Legal Education Committee.

This committee is tasked with

educating other lawyers about various aspects of access to justice and the administration of the law. This year’s projects will include: development of a debt counselling program for 3Ls at both law schools; a series of “hot topic” CLEs; planning and presentation of a young lawyers tract of CLE at the ArkBar Annual Meeting; and updates to the ArkBar Statute of Limitations Handbook.

Citizen Education Committee. This committee serves to educate the citizens of Arkansas about the law and various legal services available to them. This year’s projects will include: translation of “18 & Life to Go” handbook to Spanish and completion, publication, and distribution of a Domestic Violence Handbook.

Pro Bono Committee. This committee will plan and carry out at least three Wills for Heroes events in different parts of the state throughout the year, in which volunteer attorneys provide free basic estate planning to members of the law enforcement and first responder communities.

Minority Outreach Committee. This committee seeks to involve and engage members of various minority groups in the activities of YLS and the larger association, as well as to reach out to minorities in our state’s law schools and undergraduate colleges and universities.

Disaster Relief Committee.

YLS is in charge of leading the

Matthew L. Fryar is the Chair of the Young Lawyers Section. He is a partner with Cypert, Crouch, Clark & Harwell, PLLC in Springdale.

association’s response to natural disasters by operating hot lines in times of disasters to provide basic legal advice and information about available resources to disaster victims.

Social/Recruitment Committee. This committee will focus on planning and holding a series of small local social events all over the state, giving members of YLS an opportunity to fellowship with one another. This committee will also assist the Executive Council in making personal contact with each new admittee to the state’s bar and will plan a meal to be served to recent grads taking bar exam prep courses.

Communications Committee. This committee is responsible for the quarterly publication of YLS’ national-award-winning In Brief newsletter.

You can join one of these committees by filling out your committee preference form on ACE or simply by emailing me at mfryar@ccchlaw.com and telling me how you want to get involved.

Wherever your interests may lie, I’m hopeful that the Arkansas Bar Association and the YLS will become priorities in your life and part of your work/life balance! 

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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2017 ArkBar Legislative Package Timetable Deadline for Submission February 1, 2016 Members, sections, and committees of the Association are encouraged to participate in the development of the Association’s Legislative Package. Proposed legislation should be submitted in bill form and address issues concerning matters of jurisprudence and procedure including reforms of the substantive law and improvement in practice and in administration of the courts.

The Association’s By-Laws charge the Jurisprudence and Law Reform Committee with reviewing these proposed bills and reporting their findings to the House of Delegates. The Association’s package for the 2017 Session of the Arkansas General Assembly will be adopted at the June 2016 House of Delegates. Once the package is adopted by the House the Association’s Legislation Committee works with the Association’s Lobbyist to usher the bills through the legislative process to enactment.

The Association’s By-Laws provide: Article X. Preparation of the Legislative Package Section l. Composition of Package The Legislative package of Bills to be presented by the Association to the Legislature shall not consist of more than 10 separate bills.

Section 2. Adoption of Bills Before a bill is allowed to become a part of the package it must receive an affirmative vote of twothirds of the members of the House of Delegates present and voting on the proposed legislation, either at a regular session of the House or a Special Session called for that purpose.

Section 3. Additional Bills If the exigency of the circumstances requires it, an affirmative vote of three fourths of the members of the House of Delegates present and voting may add not more than three additional bills to the 10-bill package.

Section 4. Position on Other Bills Legislation proposed by committees, sections or members of this Association that do not receive a two-thirds vote allowing it to be a part of the Legislative package to be sponsored by the Association but that does receive approving vote of 51% of those voting may be reported by the Lobbyist as approved by the Association and the Legislation Committee cannot reverse that approval.

Submissions should be mailed to: Arkansas Bar Association Attn: Karen Hutchins 2224 Cottondale Lane Little Rock, AR 72202 Questions? Contact Karen Hutchins at (501) 375-4606 or khutchins@arkbar.com

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Kim Evans, JD Vice President of Development and Client Services Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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Arkansas Supreme Court Chief Justice Howard Brill Article by Anna Hubbard, Court photos by Steven Veach, www.thinkdero.com

Governor Asa Hutchinson appointed Howard Brill as the Chief Justice of the Arkansas Supreme Court following the retirement of Jim Hannah, effective September 1, 2015. Brill will serve the remainder of Hannah’s term, which is set to expire at the end of 2016.

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rkansas lawyers of all ages know Chief Justice Howard Brill personally, either from having been his student in law school or through the myriad other ways he interacts with the legal community. Brill has taught law at the University of Arkansas School of Law (law school) for the past 40 years and is the author of two legal textbooks on ethics and damages. Brill has been the Vincent Foster Professor of Legal Ethics and Professional Responsibility since 1998.

Arkansas Bar Association President Eddie H. Walker, Jr., of Fort Smith, has known and worked with Brill for the past 30 years. “Chief Justice Brill is not only a legal scholar; he also recognizes and emphasizes the importance of ethics and professionalism in helping the legal profession continue to be a positive influence on society,” Walker said. “I have known him for more than three decades and I am confident that he has the demeanor, objectivity, dedication to the rule of law, and respect for individual dignity that will cause him to serve with distinction.”

Approachable The relationships that Brill forms with students last a lifetime. Many lawyers and judges consider him the go-to person for advice, especially regarding ethics issues.

Brill is not only knowledgeable, but is imminently approachable. Brill feels that he has been fortunate to work in a state like Arkansas where he has enjoyed many meaningful relationships. “To have a role in education and to work with the lawyers

after they graduate and see them become legislators, judges and public servants is very rewarding and fulfilling.”

“Chief Justice Brill is not only a legal scholar; he also recognizes and emphasizes the importance of ethics and professionalism in helping the legal profession continue to be a positive influence on society.”

—Eddie Walker, Jr. Former student Jim Julian of Little Rock recalls Brill’s early teaching days at the law school. “When I attended law school at the University of Arkansas in the 1970s, Professor Brill was recognized as an energetic young law professor who tried to keep the subject matter entertaining and engaging,” Julian said. “In studying copyright infringement cases in his Remedies course, I recall that in one class he brought in audio equipment to play the Chiffons’ ‘He’s So Fine’ to demonstrate the infringement claim they made against George Harrison and his ‘My Sweet Lord.’ His efforts to make the law school experience different from the methods used by others favorably distinguished him from his fellow faculty members.”

“Through the years, Professor Brill became recognized for his breadth of knowledge in the area of ethics and professional conduct,” Julian added. “Many of his former students

(me included) called upon him to help guide them through ethical issues that arose in their practices. He always had time for these discussions and was of great help to his former students. With his knowledge, great personality and demeanor, it is comforting to know that he will be sitting as our Chief Justice for the next couple of years.”

Brill has put his teaching at the university on hold until the end of his term as Chief Judge in 2016 and plans to be back in the classroom in January 2017. His students have shown appreciation for his dynamic and engaging teaching style by awarding him numerous teaching awards, including the Lewis E. Epley Award of Excellence in Teaching three times. After graduating from Duke University, Brill taught English language and African literature as a Peace Corps volunteer in Sokoto, Northern Nigeria. He earned his J.D. from the University of Florida Law School, where he was the editor-in-chief of the law review, and he later earned an LL.M. from the University of Illinois. During the 2005-2006 academic year, he served as the interim dean of the law school and has been the faculty adviser to the University of Arkansas Christian Legal Society since 1980.

“It is the interaction with the students that makes it so rewarding and so much fun,” Brill said. “When I first went into teaching in Nigeria, I saw experienced teachers and I saw how they interacted. I soon learned that a teacher always has to try something new.”

Brill said he is going to miss teaching the Erie Railroad case this fall; he talks about the famous case in a dark classroom wearing a railroad cap and carrying a lantern. “I tell

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the story of this case in the dark, so they can’t take notes and I just tell them,” Brill said.

“And then at the end we sing a song about the case. I enjoy doing it every year, and look forward to it.”

High Points In addition to practicing with a small firm in Rock Island, Illinois, Brill has had the opportunity to teach in other states and foreign countries, including at the Universities of Florida, Illinois, North Carolina, South Carolina, and Tennessee. In connection with the law school’s summer programs, Brill has taught in Cambridge, England, and St. Petersburg, Russia. He has taught comparative Constitutional Law at Vytautas Magnus University in Kaunas, Lithuania. This past August, Brill took seven students to Russia.

“We encourage our students to gain some international experience by going overseas,” Brill said. “It’s rewarding to see how the laws are changing in those countries, and how eager the students are to learn about developments in America and Western Europe.”

Brill has always enjoyed traveling, and he and his wife Katherine made a point to show their three children (Christian, Elizabeth and Andrew) as much of the United States as they could when they were growing up—and it was a lot. “When we were younger, we would go camping in a tent, and we went to 49 states and 10 Canadian provinces,” Brill said. “So we have camped all the way across America.

We had a goal of climbing the highest mountain in every state. We have done about 40 of those. We had a goal of going to every presidential grave, and we did all of the presidents except for those who have died recently.

Those goals gave a focus to travelling with children, trying to show them historical places and geographical features of the country.”

Brill has spent most of his professional career working with legal ethics issues and has tirelessly served the legal community in many capacities. He served on his first ethics committee at the Bar Association over 30 years ago and has served on numerous committees and task forces since then. He served on former Governor Bill Clinton’s Commission on Ethics and former Governor Jim Guy Tucker’s Ethics Task Force. Along with other court and bar association committees, he has served on the Professional Ethics & Grievances Committee of the Arkansas Bar and the Judicial Ethics Advisory Committee.

He prepares advisory ethical opinions for attorneys and judges and has served as a Special Associate Justice of the Arkansas 14

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Supreme Court on several occasions. In 2003, the Arkansas Bar Association awarded Brill with the James H. McKenzie Professionalism Award in recognition of sustained excellence through integrity, character and leadership to the profession and the community. Brill was the second recipient of this award, with the first award going to McKenzie posthumously.

Brill has seen the law change and grow in Arkansas and has used his expertise to

Above: Brill in an Arkansas Razorbacks mascot costume Below: Brill with his wife Katherine at the top of Mt. Humphrey, the highest point in Arizona author two publications that continue to be used as text books, “The Law of Damages in Arkansas” (6th edition) and “Arkansas Professional and Judicial Ethics” (8th edition). (His son, Christian Brill, an attorney in Ohio, co-authored the latest edition of the book on damages.) He is an entertaining and much sought after continuing legal education speaker on ethics and damages. His programs include: Lessons in the Law from the Life and Music of Johnny Cash; The Razorbacks, The NCAA and the Law; Lawyers in the Movies of John Grisham; The Seven Deadly Sins (lawyer’s edition); and The Godfather.

“I can remember when I was first asked to be on an ethics committee sometime around 1983,” Brill said. “It is because of all of those interactions for 30 years now that I have worked with so many bar leaders. For instance, when the bar president or others come to the law school I try to visit with them, because I can learn from them. They can tell me what’s going on in the courtroom that I don’t know by just reading books. The bar association is very valuable, and I tell young faculty colleagues to get involved and to travel and see people in the state. Sure, it is wonderful, and important to the law school, to travel to New York and San Francisco to give a speech, but faculty members also need to go to Jonesboro and Fort Smith. I happen to believe that the interaction between the faculty at the law school and the bar association is very, very important.”

From 1995 to 2010, Brill served as the University of Arkansas’ Faculty Athletics Representative to the NCAA and the Southeastern Conference. He was the liaison between the athletic side of the university and the academic side.

“This meant that I saw the best and worst of college sports. I saw some outstanding student athletes who were great people, students who were going on to post-graduate success.

But I saw the worst also. I was involved in investigations of student athletes who were accused of taking gifts, receiving money or cheating on exams. I worked with other university officials investigating those matters. I went to a lot of games, met some great people, and met a lot of wonderful student athletes.”

From Classroom to Courtroom Brill is embracing the transition from the classroom to the courtroom and looks upon it as a wonderful opportunity to grow. He encourages all lawyers to take opportunities that come along to have a more meaningful career.

“When the governor called me, I had not been a judge before, other than occasional service as a special justice,” Brill said. “This is all new to me. But I knew it was a wonderful opportunity. At other stages in my career I have had similar opportunities on a different scale. Someone would call and say ‘would you do this,’ and I have been very gratified and fulfilled when I have taken those opportunities because I have learned from them. I can also think of a couple of instances when I have said ‘no I can’t do that’ and later on I say ‘I wish I had done that.’”

“I can count on my colleagues a great deal

here because they have been judges for a long time,” he added. “They have handled many different cases. Some of them have been at the trial court level, and some of them have been at the court of appeals, so they have seen it at all different levels. I am coming in from the ivory tower. There is always a danger of someone coming in from the ivory tower into the real world. So that’s something I’ve had to learn—that we look at the law differently here than I do in the classroom. I have to learn that. But it has been very rewarding.”

Brill said that lawyers can assist the Court in improving public knowledge of and access to the judicial system by volunteering to help people who can’t afford lawyers either at a reduced fee or free. “The rules of the legal profession say that lawyers should provide services to people who can’t provide them for themselves,” Brill said. “It’s not a rule of discipline. We don’t discipline lawyers who don’t do that. We encourage them to that.

And so the courts and a number of justices, Annabelle Imber Tuck in particular, have encouraged lawyers to do our duty to help others. Some do it by helping individual clients, some do it by working with bar associations, some do it by working with non-profit organizations and some do it by working through religious organizations. There are different ways for lawyers to do it, and I think the bar association has helped to find ways to encourage lawyers to do that and has been very helpful with that.”

Balancing Act Brill is the law school’s first Vincent Foster Professor of Legal Ethics and Professional Responsibility, an endowed chair position created in honor of Vincent Foster following his untimely death in 1993. Foster gave the commencement address at his alma mater in May 1993, 22 years after he graduated first in his class. Foster’s address is treasured by many and is provided to the Arkansas Bar Foundation Vincent Foster scholarship recipient each year. Foster spoke of the opportunities and challenges that the new lawyers would face and encouraged civility, professionalism and work-life balance: The reputation you develop for intellectual and ethical integrity will be your greatest asset or your worst enemy. You will be judged by your judgment. …

Balance wisely your professional life and your family life. If you are fortunate to have your children, your parents will warn you that your children will grow up and be gone before you know it. I can testify that this is true.

God only allows us so many opportunities with our children to read a story, go fishing, play catch, say our prayers together. Try not to miss a one of them. The office can wait. It will still be there when your children are gone.

…

Take time out for yourself. Have some fun, go fishing, every once in a while take a walk in the woods by yourself. Learn to relax, watch more sunsets. Those of you who do not have your life planned out, don’t worry.

It wouldn’t turn out the way you planned it in any event.

Brill also advocates the importance of maintaining a balance between work and non-work activities. “I knew Vince Foster and I was there when he gave that speech. I was so dismayed when I realized that he had died suddenly two months after giving that speech.

It was a shock to everyone. You have to have balance in your life. There are so many days, you need to spend time with your children, go hiking, spend time with your spouse. You need to carve that out. Psychologists sometimes say there is a tremendous amount of stress that comes with the legal profession and we have to guard against it. And whether that means for someone such as Brian Ratcliff who enjoys gourmet cooking or someone else who enjoys exercise or someone else who enjoys grandchildren or someone else who enjoys reading or worshipping or whatever, you have to have that balance in your life. When my wife asks me to describe every day in Little Rock, she tells me that I need to get some more exercise. It is important for lawyers at every stage to find the balance.” 

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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Workers’ Compensation Law: How to Handle the Unfamiliar

by Melissa Wood

The number of attorneys in Arkansas who routinely handle workers’ compensation cases is small. We know each other well and, for the most part, get along with regard to discovery issues and the hearing or settlement processes. If your practice does not typically involve workers’ compensation cases, but you have an interest in trying it out or have a friend or family member seeking assistance, the Workers’ Compensation Desk Book published in 2013 by the Arkansas Bar Association covers most issues you might encounter with an unfamiliar comp claim.

The potential for attorney involvement in a workers’ comp claim in Arkansas is extensive due to the fact that most employers in the state have to provide benefits for injured workers. Thousands of claims are filed each year with the commission. The Workers’ Compensation Desk Book starts with the history of how the law has changed since its inception in 1938. There have been modifications to the act since then, and there was a major reform in 1993. The Act has also been changed through case law interpreting the same. Understanding the legislation and its interpretation by case law is important because benefits available to injured workers are starkly different than damages available for other types of injuries.

Contributors to the Workers’ Compensation Desk Book were from both the claimants’ bar and the respondents’ bar.

There is an entire chapter regarding the development of a claimant’s case from the initial client interview through the hearing process. The book also contains valuable forms for a claimant’s attorney, including a secretary’s checklist, instructions to the claimant, and a letter for a claimant’s preparation for a wage loss disability hearing. Likewise, there is a chapter dedicated to developing a respondents’ case, covering preliminary information to trying a case.

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Forms for respondents’ attorneys include a deposition checklist, authorizations to obtain records, and a sample response to prehearing questionnaire.

If you represent a claimant and reach an amicable settlement with an adjuster, you would then need to know how to prepare the settlement paperwork and have the terms approved by an administrative law judge. There is a chapter on joint petition settlements discussing everything from the general procedure to special considerations, such as whether there is a child support lien or whether a Medicare set-aside evaluation needs to be completed. You would also have the requisite forms for a judge to review and decide whether or not the settlement is in the best interest of your client.

The Desk Book is copyrighted, but your purchase of the book allows you to reproduce various parts for your own use, as well as the portions of the forms needed for each case. Forms are also available to download free on the Arkansas Workers’ Compensation website at www.awcc.state. ar.us. While the Desk Book covers most issues you might encounter with a workers’ compensation case, the facts and circum-

stances of each case vary greatly; this makes it challenging to apply the case law that has previously interpreted the Workers’ Comp Act. The Desk Book at least helps you know where to start with the challenges of the unfamiliar.

Our sincere thanks to the many contributors who made Workers’ Compensation Desk Book, 2013 edition, an excellent resource for Arkansas attorneys: Haley Heath Burks, Gary Davis, Zan Davis, Greg Giles, Betty Hardy, David Pake, Jarrod Parrish, Joe Purvis, David Schneider, Steve Sharum, Mike Stiles, Cathy Underwood, Robert Tscheimer, Guy Wade, Eddie Walker, Melissa Wood, Carol Worley, Keith Wren, Scott Zuerker

Melissa Wood is an attorney who practices with Worley, Wood & Parrish, P.A., in Little Rock.

Order Online www.arkbar.com/for-attorneys/publications/practice-handbooks

Build your library with handbooks on substantive areas of state and federal law written by expert attorneys and judges. The handbooks can serve as a practical guide and include reference materials, forms, checklists and other resources. Order online today!

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Learn the details on how to participate at www.arkbar.com/for-attorneys/membership/mgam

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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Succession Planning for Family Farms

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By Trav Baxter

Trav Baxter is a lawyer at Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. He holds an LL.M. in Taxation from the University of Florida School of Law, and devotes a portion of his practice to the provision of succession planning advice.

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istorically, relatively few family farms survive beyond the generation of their founding.1 In regard to family businesses in general, research has shown that no more than 30 percent make it beyond the first generation, no more than 15 percent beyond the second generation, and no more than four percent beyond the third generation.2 This research is significant in its application to family farms, as a study completed in 2008 stated that 70 percent of U.S. farmland is expected to change hands by 2028.3 Even taking the statistics of family farm survival into account, most farmers had, and still have, a vision of passing down the farm to their children and grandchildren. This vision may be important to them for a number of reasons. Maybe the farm was passed down to them from their parents, who received it from grandparents, and there is a deep desire to pass on that same legacy to their children and grandchildren. Maybe the farming family is first generation, and they want to ensure that their hard work and effort continue to benefit and support future generations as it has done for them. Whatever the reason may be, someone should be there to help them understand, communicate, develop and implement that vision of succession. This responsibility primarily falls upon the lawyer.

One of the main reasons cited for the failure of family farms to pass to the next generation is the lack of succession planning.4 Developing a succession plan is one of the keys to maintaining the future stability and survival of the family farm over multiple generations, and if the plan can be implemented with success, then each successive generation should be in a position to leverage their knowledge, training and other values to operate the farm for their generation and build stability and support opportunities for future generations.

So, how do you go about assisting today’s farming family with their succession plan? The starting point is to understand the basics of succession planning, and that simply transferring the family farm at death to let the next generation decide how to operate it on their own is not a succession plan.

I. Succession Planning Overview Simply stated, succession planning for a family farm is the process of transitioning the farm to the next generation.5 However, the process itself is not simple, nor is it ever really finished. It is a detailed, time consuming and continuous method to transfer knowledge, labor, management, skills, control and ownership among generations, while anticipating events that may disrupt management and ownership succession.6 These are the key elements of a succession plan,7 and the ultimate goal is to “pass a going-concern to the next generation as a viable business opportunity while providing financial security and lasting value for the current generation.”8 A common misconception is that succession planning and estate planning are the same thing. They are not. An estate plan is necessary to implement a succession plan, and will provide some of the most important tools to do so, but a succession plan involves much more.

There are three main steps in developing a succession plan, and all of them must be addressed for the plan to be comprehensive and best serve its purpose.

• The first step involves discussion, research, thought, and ulti• •

mately a determination of a client’s objectives.

The second step involves identification, explanation, and implementation of tools to achieve the client’s objectives.

The third and final step involves the periodic review of the succession plan with the client to ensure it is still relevant and does not need to be revised or updated.

Each of these steps is discussed in more detail below.

II. Succession Planning Objectives Every succession plan will be somewhat different as it should be crafted to best meet the objectives of the particular family and farming operation, but how does the lawyer help a family identify those objectives? A checklist of common succession planning issues to discuss with the family can be helpful. Having such a checklist will also help them identify roadblocks that may thwart achievement of those objectives.

The following are examples of succession planning issues to raise for discussion:

• How is the farming operation currently owned?

• Does the family own the land that is farmed or do they lease • • • • • •

• •

from a landlord, or both?

If land is owned, who currently farms the land?

Is an appraisal(s) available for review, and if not should one be obtained?

How are decisions currently being made?

What are the current and anticipated capital needs of the operation?

Is the operation subject to any indebtedness?

Which members of younger generations have expressed interest in working and/or managing the family farm? Where do these people live and are there any roadblocks to their participation?

Do certain family members not get along, and how do their personalities differ?

What are the strengths and weaknesses of active members of

Succession planning is one of the main pieces of the puzzle to having a well established and successful family farming operation. Taking a step-by-step approach to succession planning can help simplify what may otherwise seem like a daunting task. “ the younger generation?

• Has the older generation communicated interest to the next • • •

generation concerning succession and transition of the operation?

Are active members of the younger generation currently being compensated fairly for their labor and/or management?

What are the retirement needs of the older generation, and are there plans for retirement? Some farmers will most certainly say they never plan to retire.

What would happen if disruptions, such as untimely death, disability or divorce, surface during the shift of ownership and control to the next generation?

After a review and discussion of various succession planning issues, the family will hopefully be in a position to articulate objectives and their vision. The following are some general objectives that the family may wish to pursue:9

• Continuity of the farming operation.

• Keeping the farm in the family.

• Incorporating the next generation into management and

• • • • • • • • •

ownership at the appropriate time so that they have the knowledge and experience to run the operation and build connections with employees, vendors and others in the industry.

Identification of the proper management team, stressing the idea of a team approach and development of management skills.

Assuring fair compensation to those family members who are active in the operation on a day-to-day basis.

Establishing the groundwork for a financially sound business now and into the future.

Providing financial security for surviving spouses.

Assuring equitable treatment of active and inactive heirs, and the establishment of certainty of rights upon the death of parents.

Retirement of older generation owners and managers while making sure they are financially comfortable and are able to enjoy the fruits of the hard work put in over the years.

Minimizing estate taxes and probate expenses.

Continuance of charitable giving.

Timely order of transition, so that the efficiency of the operation continues and is unaffected by changes in ownership and management.

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Articulated objectives may compete with each other, but an open dialogue and discussion among family members should help identify which objectives are most important to the family and the success of the operation. An agenda should be prepared for each family meeting and certain goals to achieve at each meeting should be identified.

The plan simply cannot be as thorough or effective unless everyone is involved, in one way or another, and the plan must be communicated to all affected family members so that expectations are set in regard to the transition. Depending on the situation, it may be beneficial to communicate the plan of transition to family members in writing.10 Memorializing the discussion and understandings of the family members in writing may also prevent “selective recall” syndrome by certain family members down the road.11 III. Tools to Implement the Succession Plan Once the succession planning objectives have been determined, the proper tools must be used to achieve those objectives and ensure implementation of the plan. By now, not only should the family be in a better place to actually understand the importance of the succession plan, they should be better suited to implement a succession plan.12 Estate planning and business planning, and the tools available under each heading, are both integral parts of succession planning.

A. Estate Plan An estate plan is an arrangement by which a person provides for his or her family or loved ones after death or disability.

The goal is to allow chosen beneficiaries to receive property in a way which maximizes the benefits to them after considering both tax and nontax factors. If people do not provide their own estate plan, one will be provided for them by the state through the laws of intestacy. In the context of the family farm, this will almost always be a problem.

Division under the laws of intestacy is not advisable because it is more than likely not in line with the vision of the family as to how the farm, as well as other assets, will pass upon death, possibly resulting in division of the farm and/or destruction of the productivity and efficiency of the farm.

A last will and testament, revocable trust, general durable power of attorney, living will and durable power of attorney for health 20

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care are all necessary estate planning documents. Also, if a revocable trust is created, the trust must be funded and beneficiary designations aligned. These are all necessary components of the basic estate plan. In addition, depending on the size of the estate and the needs of family members, the family may want to consider other planning tools, such as:

• Gifting assets to the next generation before death.

• Obtaining life insurance to fund or

•

• •

establish an irrevocable trust, fund a buy-sell agreement or provide liquidity to pay estate taxes and equalize inheritances.

Ensuring qualification under certain Internal Revenue Code provisions for special use valuation13 or deferral of estate tax payment.14 Generation skipping transfer tax planning.

Utilizing available discounts (i.e. marketability and minority).

B. Business Plan Choosing the appropriate type of business entity that is best suited for the farming operation is important, and current and future plans for the farm must be considered when the decision is made. Corporations, limited liability companies, partnerships and trusts all have different tax and non-tax characteristics that must be taken into account, many of which are below.15

If you are engaged to represent an existing business, an initial review should be performed to see whether it would be a good idea to convert to another type of entity, or if you are dealing with a C corporation whether an S election would be beneficial.

However, in such instances, consideration of all tax issues is extremely important.

After dealing with the choice of entity matters, and if the business entity has or will have two or more owners, the focus should shift to the buy-sell agreement. The importance of this document cannot be overstated.

A well drafted buy-sell agreement will help ensure that only those people who should be involved in the business have ownership and control, while keeping in mind the interests of those family members who are not, or do not want to be, involved in the business. The three main decisions to be made when preparing the buy-sell agreement are (1) what are the triggering events (such as voluntary transfer, death, disability, involuntary transfer), (2) will a purchase by the remaining owners be mandatory or optional, and (3) how will the purchase price be determined.

A buy-sell agreement may also reduce disruptions to business operations if one owner leaves the business.16 Other tools, such as consulting agreements and lease agreements, between the older and younger generations may be used to ensure that the older generation is taken care of and retains an income stream throughout and after the shifting of management and ownership.

• Limitation of operating liability.

IV. Team of Advisors • Transfer of management and ownerThere are too many aspects of a com• • • • • • • • • •

ship of operating assets.

Transfer of management and ownership of land.

Flexibility on conducting business.

Business continuity.

Permissible owners.

Federal farm program payment limitations.

Federal and state taxation.

Flexibility in choosing taxable year.

Estate planning opportunities.

Self-employment income tax issues.

Method of accounting availability.

In some instances, it may be beneficial to use multiple business entities. For example, an entity to own and lease the land, and another to own and lease equipment.

prehensive succession plan for the lawyer to tackle the entire process alone. A team of professionals, including an accountant, financial advisor, and a real estate advisor specializing in farm real estate, if appropriate, should all be involved to achieve the desired succession planning results.17 V. Periodic Review of the Plan A succession plan is not a one-and-done deal. Things change over time, and the succession plan may need to change as well.

The makeup of the family may be different, and new family members may have stepped into key positions within the farm operation while others may have decided to pursue other careers. Believe it or not, tax laws change from time to time, and the

plan may need revision to take those changes into account. The overall business environment may be different so that the operation is moving in another direction to keep up.

Whatever the change or changes may be, it is important to identify and address them.

A succession plan must be fluid, and it is important for everyone involved to understand this at the outset.18 VI. Joint Representation Representation of a family farm, or any family business, will almost always result in joint representation issues. The lawyer will generally start by representing the parents, and then be asked to represent one or more of the children. In these instances, the lawyer must always keep in mind the ethical issues that arise in such situations, including representation of clients who have concurrent conflicts of interest.19 VII. Conclusion Succession planning is one of the main pieces of the puzzle to having a well-established and successful family farming operation. Taking a step-by-step approach to succession planning can help simplify what may otherwise seem like a daunting task. It can be a complex and lengthy process, but it is worthwhile and means something, especially considering the future of the family farm is at stake. If each generation can maintain the common goal of farm succession, the family can really build something special.

Endnotes: 1. Neil E.Harl, Constructing a Succession Plan, Ag Decision Maker, File C4-17, Nov. 1997, https://www.extension.iastate.edu/ agdm/wholefarm/html/c4-17.html.

2. Richard M. Segal, Family Firms vs. Their Counterparts – Best Practices for Success, Corp. Magazine, January 1, 2008, http:// www.corpmagazine.com/special-interests/ family-business/family-firms-vs-their-counterparts-best-practices-for-success/.

3. Greg Bowen, Saving Family Farms in Maryland (Dec. 18, 2014), http://smadc. com/blog/saving-family-farms-in-maryland/ (citing a 2008 report produced by the Cooperative State Research, Education and Extension Service).

4. Harl, supra note 1. Succession Planning, http://www.extension.iastate.edu/feci/ annie/bfrdp/SP12cdi.pdf.

5. Succession Planning FAQs, Farm Legacy

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6. Succession Planning, http://www.extension.iastate.edu/feci/annie/bfrdp/SP12cdi. pdf.

7. Id. See also Harl, supra note 1.

8. Succession Planning FAQs, Farm Legacy Project, supra note 5.

9. Harl, Planning for the Next Generation, http://www.econ.iastate.edu/~harl/ ABA%20conferencePlanningForTheNextGeneration.pdf.

10. Succession Planning FAQs, Farm Legacy Project, supra note 5.

11. Harl, supra note 9.

12. Roger McEowen, The Impact of the American Taxpayer Relief Act (ATRA) on Estate Planning, presented at the 2015 Iowa State University CALT Summer Seminar on Farm Income Tax, Estate and Business Planning (June 19, 2015).

13. I.R.C. § 2032A (providing certain small businesses and farms with the option to utilize a special use valuation method for their assets).

14. I.R.C. § 6166 (providing certain illiquid estates with an option to defer estate

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tax payments).

15. Roger McEowen, Practical Estate Planning for Farm and Ranch Clients, presented at the 2015 Iowa State University CALT Summer Seminar on Farm Income Tax, Estate and Business Planning (June 19, 2015).

16. Robert Andrew Brannan, Planning the Future of your Farm (2011), http://www. brananlaw.com/workbooks-and-workshops/.

17. Succession Planning FAQs, Farm Legacy Project, supra note 5.

18. Id. 19. Thomas A. Lawler, The Farm Family of the 21st Century, presented at the Annual Meeting of the American Agricultural Law Association (Sept. 25, 2009). See also Arkansas Rules of Prof’l Conduct R. 1.7. 

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

21

JLAP

Wellness and Balance Are Key to a Sustained Career

By Sarah Cearley, PhD, LCSW Have You Ever Thought…

Work consumes me.

How can I budget my time without losing my edge?

How can I stop procrastinating and work more efficiently?

Is my high blood pressure affecting my performance in court?

Can what I eat impact my ability to retain and remember?

Will I ever enjoy my work again?

Questions like these are really about your health, happiness, and sense of fulfillment, each of which may change dramatically over your career. Being a lawyer is tough. You constantly put your clients’ or boss’s needs and the demands of work ahead of your own. And there’s the rub, because what lawyers need for success, above all else, is good health.

Lawyers are problem solvers, but many don’t apply the same logic and discipline to their own lives as those of their clients.

Lawyers who don’t take responsibility for their own wellness may end up suffering from the Three Uns and become unhealthy, unhappy, and unfulfilled. The good news is that lawyers can actually make significant differences in their lives and work by making just a few small changes.

Does This Sound Familiar?

Brenda was tired physically and mentally. She would drag herself to work in the mornings. She couldn’t concentrate on her clients’ problems or what they were saying.

It seemed that she didn’t care anymore about the work that had once been her passion. Brenda had chosen this area of the law because she felt her work made a difference in peoples’ lives. But yesterday, she screamed at her colleague for no real reason.

She knew she felt frustrated, but this was over-the-top behavior. Now she was worried about keeping her job.

For years, Brenda had been working long hours, often on weekends. She had given 22

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up activities that she used to love—biking, running, gardening—because she believed she didn’t have the time. She was drinking more in the evenings just to relax. With all of her energy going to her work, family time had suffered. Stopping to think about it, she realized she hadn’t taken a real vacation in at least two years. Brenda’s life was definitely out of balance.

Good Stress/Bad Stress and Good Health Of course, we all know life is stressful.

But there is good stress, which helps us to study for that final and thoroughly prepare for court. Then there is bad stress, an entirely different animal. The fallout from bad stress can be deadly. Bad stress makes us susceptible to injury and illness, loss of muscle tissue, lowered immunity, slowed wound healing, altered inflammatory responses, clinical depression, impaired cognitive performance, and inhibited memory retrieval.

Bad stress can affect fertility, cholesterol levels, blood pressure, and susceptibility to heart attacks, stroke, and osteoporosis.

For those who use comfort food to deal with their “bad stress,” there is inevitable weight gain, and for some suppressed thyroid function, hyperglycemia / hypoglycemia, increased abdominal fat, and even Type II diabetes.

Adding to the picture are lawyers’ traits and learned skills such as perfectionism.

The drive to be perfect is a relentless taskmaster. Living with the nagging sense that nothing you do is ever good enough

Sarah Cearley, PhD, LCSW, is the Executive Director of the Arkansas Judges and Lawyers Assistance Program. confidential@arjlap.org 501-907-2529

wears you down. And then there is the role of technology effectively erasing the line between work and home. We are all in constant contact with the office so that stress never goes away.

If Brenda had been aware of the signs, she might have recognized that she was in what we can call The GAP. The GAP happens when the level of bad stress in your life exceeds the ability of your body and mind to adapt to it. The good news is that your body, mind, and spirit will send you their distress signals, telling you that you are, like Brenda, entering the GAP. Be aware. Listen to yourself. Your career and your life are on the line.

Wellness and health are not just the result of random chance and genetics. What Brenda was about to discover and what you need to know is that whether you continue to suffer from bad stress or enjoy good health may be determined by choices you make every day about exercise, what you eat, when you eat and sleep, how much you work, and how much you put into your relationships.

What Can You Do? If you are ready to make a change and want some assistance, call or email JLAP today. We are the only confidential, no cost program in Arkansas dedicated to the health and wellness of lawyers, judges, their family members, and law students. confidential@ arjlap.org or 501-907-2529. 

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Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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10 Things Every Lawyer Should Know About GMOs

By Margie Alsbrook

T

he number of genetically engineered products is increasing each year, and will only get larger. Science is getting more innovative in its ability to feed the global population and treat its health care needs, or find more profitable ways to solve age-old consumer goods problems. Simultaneously some consumers are asking more questions about the ethical use of genetically engineered technology, and governments are struggling with how to handle related product failures. So here are a few concepts every lawyer should consider when representing a client on issues related to genetically engineered organisms.

Margie Alsbrook was the first editor-in-chief of the University of Arkansas’ Journal of Food Law & Policy and her talk on GM & GE food law was part of the Arkansas Bar Association’s Best of CLE in 2013.

She fights the global nutrition insecurity crisis with the Farm Journal Foundation.

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1. “GMO” is the wrong term. While the press and even many attorneys use “GMO” and “GE” interchangeably, this is incorrect. There are scientific and legal distinctions between a genetically modified organism (GMO) and a genetically engineered (GE) organism. Scientifically, people have been genetically modifying organisms to enhance desirable traits for centuries. Genetically modified foods include everything from crossbreeding to cloning, but genetically engineered foods are created using recombinant DNA technology. It is the interchange of these two terms in the debate around genetically modified and genetically engineered organisms that is so confusing for people. As an attorney, making sure you use the correct term will ensure clarity for you, your client, and your audience.

2. “GMOs” are not one thing: “GMOs” are thousands of things. “GMOs” are often thought of as one product in the press, with headlines asking whether “GMOs” are safe or dangerous, as if this was a question to be applied to every organism equally. But in reality there are thousands of GM and GE organisms, all with very distinct origins and DNA and more are being created every day.

Their uses range from apples that do not brown (which are used to increase consumer appeal) to mice that are more susceptible to cancer (which are used to speed up medical research and results) to pigs that provide diabetics a daily dose of insulin in a more appetizing dose (this should be self-explanatory to those that like the taste of pork products).

“GMOs” are more of a pantheon of ideas than a single item. If you are working on a policy issue it may be possible for you to refer to these organisms collectively, but if you are representing clients with a stake in a product they will likely need you to articulate how their product is distinctive.

3. Consider the supply chain—where something is now, where it has been, and where it is going. Did your item begin in Brazil and travel to a port, only to be shipped via container across the United States to Arkansas? Will it then be made into another item, and shipped to another state? This is a fairly common scenario that has a wide variety of international, national, state, and local legal considerations. An attorney must thoroughly consider, compare and contrast the item/organism as it would have existed as a non-GMO organism and as a GMO organism in order to give proper advice to your client.

4. If you are researching a GE legal issue in the U.S., look first to the “Coordinated Framework.” All domestic GM and GE issues fall under a document created in the 1980s called the “Coordinated Framework for Regulation of Biotechnology,” originally published in 1986.1 The document is more of an interagency memo than a regulation, and is now over 100 pages long. It is a very powerful framework that determines which federal agency regulates which type of GM or GE product or issue. In July 2015 the Obama Administration announced a major initiative to rework the coordinated framework, the first in over 20 years. If you have a legal question regarding domestic use of GM

or GE organisms, make sure you start your research with the most recent version of the Coordinated Framework and it will save you a lot of time.

5. In the United States, genetically engineered plants are regulated by USDA’s Animal & Plant Health Inspection Service (APHIS). Genetically engineered plants have been in wide use for several decades now in the United States, and some estimates say that as much as 80% of certain crops such as soy, cotton and corn are now genetically engineered crops. There are thousands of approved genetically engineered plants already, with more coming on the market each year. Genetically engineered plants are regulated under the Plant Variety Protection Act.2 The increasing information about the large number of consumer goods containing these plants is at the center of the controversy over labeling foods that contain ingredients made from genetically engineered organisms: the food industry says that the practice is safe and so widespread as to be ubiquitous, and consumer groups are asking for the opportunity to make their own choices on this issue.

6. In the United States, genetically engineered animals are regulated by FDA’s Center for Veterinary Medicine.

The regulation of genetically engineered animals is a relatively new regulatory area in the United States and there are relatively few approved genetically engineered animals.

The genetically engineered animals that are approved are mostly for animal testing or for pets. These animals are regulated under the FDA’s Center for Veterinary Medicine under the Guidance for Industry on Regulation of Genetically Engineered Animals Containing Heritable recombinant DNA Constructs,3 which is under the Animal Drug User Fee Act, which is part of the Federal Food, Drug & Cosmetics Act.4 The most famous GE animal proposed for approval is Aquabounty’s AquaAdvantage salmon, which combines two different types of salmon and another type of sea creature to get to market weight much quicker than even farmed salmon and is engineered for human consumption.

There has been a high level of public controversy over this application; as of the submission of this article, the approval has yet to be granted after a number of years and appeals.

In the interim, several other genetically engineered animal companies have chosen to

close their doors or gone bankrupt. If your client is in the genetically engineered animal business, be prepared for a very slow and cautious approval process, and engage a public relations firm immediately.

7. If you are researching GE issues that will pass between international borders, you must also research the applicable trade agreements. A myriad of international trade agreements have applicable clauses that govern genetically engineered organisms. If you are dealing with an import/export issue and new to this area, please remember that it is not enough to simply look at the various laws and regulations of the two (or more) countries involved; you must also look at the trade agreements that apply as well.

The World Trade Organization (WTO) has several agreements that apply, including the Agreement on the Application of Sanitary and Phytosanitary Measures. There are regionally specific agreements between various countries and/or regions, and certain product specific agreements that only apply to certain items such as bananas. And there are agreements that the United States does not currently acknowledge or participate in but could, given international controversies, apply in the future such as the Cartagena Protocol on Biosafety. Given the complex nature and constantly changing landscape of trade issues, not to mention the scope of pending trade agreements, seeking an expert opinion is a wise investment especially when an attorney is new to trade practice. Or to put it another way: here be dragons.

8. Broaden your mind when considering genetically engineered organisms: GMOs are not just used for food. While food products tend to get most of the press when it comes to GMOs and GE organisms, there are far greater uses for the technology.

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The United States has six approved uses for GE animal products alone, and human consumption is just one of those uses. Consider for example xenotransplantation—a process that involves using (usually GE) biological material from a nonhuman in a human for medical purposes. The consumer objections to using genetically engineered materials for medical purposes have always been far lower, and as with food materials the demand for biological materials is projected to far exceed the supply as the years progress. In 2015 if you are reading about xenotransplantation there is a good chance you are reading about pig organ donation, as that has long been seen as one of the most promising and most potentially profitable areas of xenotransplantation. This is widely considered to be the future: especially with our aging population, and scientists’ increasing ability to be precise in their ability to target infected areas. The concept is that one day your doctor will not be talking to you about removing your entire failing organ—instead he or she will be talking to you about removing only the cells that are failing or cancerous, and replacing only those cells with specially engineered matches, from either a pig or another species. This is just one example of alternate GE uses. This

also means that the food industry, which has traditionally borne all of the consumer controversy concerns over GMO and GE use, will not be alone much longer as consumers start to ask more questions about this science.

It will not be long until other industries are being asked these questions as well, and a wise lawyer will ask his or her client how he or she is prepared to handle these issues as there are significant legal implications embedded in the way information is communicated regarding genetically engineered organisms.

9. You are not alone. If you are considering these issues in Arkansas, the University of Arkansas has great resources for food law and agricultural law research. The School of Law had one of the first masters of law degrees in the world on these topics, and the Journal of Food Law & Policy was the first student-edited journal in the United States to address these issues. As a result, the law library in Fayetteville has a great collection of food and agricultural law topics, and many of your Arkansas colleagues are more well-versed on these topics than you might think. Additionally the National Agricultural Law Center is housed at the University of Arkansas as well and has a wide variety of

online resources for attorneys researching these issues. Need an extra hand? Consider hiring a clerk or an associate: given the great education the University of Arkansas offers, a current or recent graduate who studied these issues will be up-to-date on many of the recent developments of the law of genetic engineering and could save you a lot of time.

10. Science will always move much faster than the law. GE? While it has the attention of the headlines, it is actually already old news. One of the hottest, and most unstable, topics in science over the past few years is synthetic biology: the “design of biological components that do not already exist in the natural world.” While lawyers, lawmakers, consumers and the media are debating the merits of manipulating the DNA that currently exists, scientists have advanced to creating new life.

Endnotes: 1. 51 Fed. Reg. 23,303 (June 26, 1986).

2. 7 U.S.C. § 2321 et. seq.

3. 74 Fed. Reg. 3,057 (Jan. 16, 2009).

4. Animal Drug User Fee Act, 21 U.S.C. § 379(j)-21 (2008); Federal Food, Drug & Cosmetic Act. 21 U.S.C. § 201 et. seq. 

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D DAVIS, CLARK, BUTT, CARITHERS & TAYLOR, PLC

is pleased to announce that Brian R. Lester has joined the firm, of counsel.

Brian Lester was born and raised in Texarkana, Texas, before moving to Fayetteville for school. He graduated from the University of Arkansas with a Bachelor of Arts degree in 2003. Brian attended the University of Arkansas School of Law in Fayetteville, from which he graduated in 2006. After graduation, he had his own practice for several years and joined the Davis Law Firm in 2015. Brian has handled a wide variety of legal cases that include criminal law, civil litigation, corporate law, collections, government law, trademark infringement and family law. Brian is also a Certified Mediator for Arkansas Circuit Courts, Domestic Relations Division. His main area of practice with the firm is family law.

PARTNERS: Sidney P. Davis, Jr.  Constance G. Clark  William Jackson Butt II Kelly Carithers Don A. Taylor  Casey D. Lawson Joshua D. McFadden  Colin M. Johnson  William F. Clark ASSOCIATES: K. Drew Devenport  Andrew D. Curtis OF COUNSEL: Brian R. Lester The Davis Law Firm was established in 1953 and has been providing general and specialized legal services to clients in Northwest Arkansas for over 60 years.

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Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

27

Arkansas’ New Covenant Not to Compete Statute: More than Codification of Common Law

By Anthony L. McMullen

On April 1, 2015, Governor Asa Hutchinson signed Act 921 of 2015 into law. The Act, which went into effect July 22, 2015, codified the law as it pertained to covenants not to compete signed as part of an employment contract. While most of the provisions are consistent with Arkansas case law, some subsections of the Act substantially change how Arkansas courts will interpret and enforce covenants not to compete.

Anthony L. McMullen is an Assistant Professor of Business Law at the University of Central Arkansas.

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Historically, courts have been reluctant to enforce covenants not to compete, particularly when signed as part of an employment agreement. While such agreements did not violate public policy per se, courts scrutinized such agreements because they had the potential to deprive someone of a means to make a living. Still, courts would enforce reasonable covenants in the face of a protectable business interest. This attitude against covenants not to compete, however, may change with the passage of Act 921 of 2015. The Arkansas General Assembly has codified a number of standards for enforcing covenants not to compete. While many of these standards are a reiteration of Arkansas case law, the legislature has made some substantial changes that will make covenants not to compete easier to enforce.

There had been established “black-letter” law governing covenants not to compete before the passage of Act 921. Historically, covenants not to compete were seen as an unfair restraint on trade and generally disfavored by courts.1 They were generally unenforceable unless they are part of an employment contract or a contract for the transfer of goodwill or other property.2 In those contracts where they are allowed, an enforceable covenant not to compete required three elements: a valid interest to protect, a reasonable time period, and a reasonable geographic scope.3 While an employer could ask an employee not to work for a similar business after leaving that employer, such agreements were hard to enforce because courts did not want to deprive someone of “his right to earn a living at his chosen calling.”4 Covenants not to compete were reviewed on a case-by-case basis, depending on the particular circum-

stances involved.5 The burden of proof lay with the party challenging the validity of the covenant.6 And in determining whether a covenant was reasonable, courts would consider “whether it is such only as to afford a fair protection to the interests of the party in whose favor it is given, and not so large as to interfere with the interests of the public.”7 Before going into the details of the new law, it is important to note that Act 921 is limited in scope. It only applies to covenants not to compete ancillary to the employment relationship. Common law standards still apply to covenants not to compete in contracts for the sale of a business or in franchise agreements.8 The new law also does not apply to other types of agreements associated with the employment relationship, such as agreements not to solicit, recruit, or hire employees, confidentiality agreements, and nondisclosure agreements.9 Finally, the Act explicitly excludes medical professionals.10 Portions Consistent with Arkansas Common Law As noted in the introduction, many of the provisions merely codifiy common law principles. Subsection (a) of the Act provides that a covenant not to compete that is part of an employment relationship or employment contract is enforceable if “[t]he employer has a protectable business interest” and the covenant “is limited with respect to time and scope in a manner that is not greater than necessary to defend the protectable business interest of the employer.”11 Subsection (b) lists items that are considered “protectable business interest[s]” and includes trade secrets, intellectual property, customer lists, customer goodwill, business practices, methods, profit margins, costs, and employee training.12 One could argue that providing a list of protectable business interests might operate to limit what can be protected.

However, the definition of “protectable business interest” also includes the catch-alls “[o]ther confidential business information that is confidential, proprietary, and increases in value from not being known by a competitor” and “[o]ther valuable employer data that the employer has provided to an employee that an employer would reasonably seek to protect or safeguard from a competitor in the interest of fairness.”13 When determining whether a covenant not to compete is reasonable, subsection (c)(2) instructs courts to consider:

(A) The nature of the employer’s protectable business interest; (B) The geographic scope of the employer’s business and whether or not a geographic limitation is feasible under the circumstances; (C) Whether or not the restriction placed on the employee is limited to a specific group of customers or other individuals or entities associated with the employer’s business; and (D) The nature of the employer’s business.14 Subsection (c) appears to be a radical change to Arkansas case law, but it may not be. As previously mentioned, an enforceable covenant not to compete requires a valid protectable interest, a reasonable time limit, and a reasonable geographic scope.15 Subsection (c)(1), however, allows a court to enforce a covenant that lacks a geographic restriction if it “is limited with respect to time and scope in a manner that is not greater than necessary to defend the protectable business interest of the employer.”16 Before Act 921, the failure to have a geographic restriction usually rendered a covenant fatally overbroad,17 but there were exceptions. In Girard v. Rebsamen Insurance Co.,18 the employer was an insurance company, and the covenant limited the employee from engaging in business “from any account which Producer was servicing.”19 Similarly, in Freeman v. Brown Hiller, Inc.,20 the covenant limited the employee from “solicit[ing] or attempt[ing] to solicit the business or patronage of any person, firm, corporation, or partnership of any of the customers or clients from the Employer.” The covenants in both cases lacked geographic restrictions, but they were still limited in a way that allowed a court to enforce them. If courts continue to use Girard and Freeman as guides, this provision will merely codify the common law.

Subsection (d) provides that a covenant restriction of two years after an employment’s termination is presumptively reasonable.21 This provision does not seem to be a great change to the law or existing practice. One commentator has noted that “the time period of two years has become fairly standard in contracts of this kind.”22 Further, at least in the context of covenants ancillary to the sale of a business, Arkansas courts have enforced contracts containing a five-year restriction, a 10-year restriction, a 20-year restriction, and even no time limit restriction.23 While Arkansas courts are unlikely to enforce time periods in covenants related to an employment contract to the same extent as they would when related to the sale of a business,

“While many of the new law’s provisions are merely a codification or clarification of common law, the few changes in the law are quite dramatic.” the related case law will still provide some guidance. Finally, the statute merely provides a presumption in favor of the validity of a two-year covenant. This presumption can be overcome with evidence “that clearly demonstrate[s] that two (2) years is unreasonable compared to the employer’s protectable business interest.”24 Subsection (e) of the Act authorizes a court to award appropriate injunctive relief or damages for the breach of a covenant not to compete. There may be nothing remarkable in this subsection other than the provision providing, “The immediate harm associated with the breach of a covenant not to compete agreement shall be considered irreparable to establish the appropriateness of a preliminary injunction.”25 When seeking an injunction generally, courts must consider, among other things, the irreparable harm that would result in absence of an injunction.26 Though courts likely retain discretion to grant injunctive relief generally, the use of the word “shall” in the statute mandates that courts deem any harm caused by the breach of a covenant to be irreparable when considering whether to grant or deny that relief.27 The Changes to the Law While there are only a few changes to existing law, those changes are substantial.

Subsection (f) represents the biggest change.

There are varying approaches to addressing overbroad covenants not to compete. A number of jurisdictions follow the “blue pencil” rule, whereby a court has the authority to reform an overly-broad covenant not to compete.28 Arkansas common law, however, follows the minority approach, which strikes the overbroad covenant completely from the contract.29 Jurisdictions following this approach do so because reforming the agreement would be tantamount to writing a private agreement between the parties.30 Subsection (f), however, changes things.

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Now, if a covenant not to compete is too broad in Arkansas, a court is to reform the agreement to make it reasonable and enforce it as reformed.31 This provision also contains the word “shall,” implying mandatory compliance.32 Under Arkansas common law, if the covenant is unreasonable, then the former employee could open a competing business across the street from the former employer the day immediately after his or her termination. This is a harsh penalty for those who sought to protect their business interests, so having a court reform an unreasonable agreement may be a welcome fix to the law. That being said, the law as written may encourage lazy or nefarious contract drafters to write an overly-broad covenant not to compete.

The best-case scenario would be that the employee comply with the terms and give the employer more protection that he or she is entitled to under the law. The worst case is that the employer sues for enforcement of the covenant and has the court save him or her (assuming that the employee is violating what would be a reasonable covenant not to compete).

Another significant provision of the new law is subsection (g), which explicitly makes continued employment sufficient consideration for a covenant not to compete.33 This is another area where the law varies from state to state.34 In a number of states, a covenant not to compete executed by a current employee must be supported by additional consideration (beyond continued employment) to be enforceable.35 However, with the new law, Arkansas joins a number of states where continued employment is recognized as sufficient consideration for the enforcement of a covenant not to compete.36 In other words, an employer may require an employee to sign a covenant not to compete as a condition of continued employment (and terminate employees who refuse to do so).

Questions to be Resolved Despite the detail found in the new law, there may be at least two questions that need to be resolved. First, does this statute apply to covenants not to compete executed before July 22, 2015? Statutes are presumptively given prospective effect absent evidence that the legislature intended retroactive application.37 Doubts on the matter are resolved against retroactive application.38 However, this presumption does not apply to procedural or remedial statutes.39 On the 30

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one hand, this statute provides guidance for determining the validity of covenants not to compete, which may lean toward giving the statute retroactive application. However, this could validate covenants that would be clearly unenforceable pre-Act 921. (Some employers may be able to circumvent this problem simply by having their employers execute new covenants not to compete.)40 Second, are there any boundaries to the court’s mandate to reform overbroad covenants not to compete? As the law is currently written, the only instruction in reforming offending covenants are to do so to the extent necessary to “[c]ause the limitations contained in the covenant not to compete agreement to be reasonable” and “[i]mpose a restraint that is not greater than necessary to protect the protectable business interest.”41 If taken to its extreme, an employer could require that its employees sign covenants restricting them from employment anywhere at any time after the termination of their employment.

It is hard to imagine a context where such an agreement would be reasonable. But if such an agreement were before a court, would a court have any discretion to just not enforce the covenant at all? If so, that would seem to go against the mandate in the statute. If not, however, employees would be left with no way of knowing where the boundaries are when working with an overbroad covenant not to compete.

There might be a couple of ways that this issue could be fixed. First, a number of jurisdictions require the employer to act in good faith (or at least an absence of bad faith) before reforming the agreement.42 A requirement of good faith may put a check on the lazy or nefarious contract drafter and at least require an “attempt” at fairness with writing a covenant not to compete. Second, Texas law limits the employer’s remedy to prospective injunctive relief in cases where the court reforms an overbroad agreement.43 Act 921 authorizes damages and injunctive relief for a violation of a covenant not to compete,44 but it provides no limitations on the granting of this relief. A limitation similar to that in Texas would encourage careful drafting of covenants not to compete.

Despite these questions, the statute makes it clear that covenants not to compete executed within an employment contract are clearly enforceable and that courts should not continue to view them with the skepticism that they did at common law. While

many of the new law’s provisions are merely a codification or clarification of common law, the few changes in the law are quite dramatic. Employers, employees, and those who represent them might want to review their covenants not to compete (both current and prospective) and determine whether Act 921 affects them in any substantial way.

Endnotes: 1. Optical Partners, Inc. v. Dang, 2011 Ark. 156, 381 S.W.3d 46.

2. Id. 3. Id. 4. Id. at 11, 381 S.W.3d at 54.

5. Id. 6. Id. 7. Id. at 11–12, 381 S.W.3d at 54.

8. See Ark. Code Ann. § 4-70-207(h).

9. Ark. Code Ann. § 4-70-207(i)(1).

10. See Ark. Code Ann. § 4-70-207(j)(2) (referencing Title 17, Subtitle 3 of the Arkansas Code, which regulates medical professionals).

11. Ark. Code Ann. § 4-70-207(a).

12. Ark. Code Ann. § 4-70-207(b).

13. Ark. Code Ann. § 4-70-207(b)(9), (11).

14. Ark. Code Ann. § 4-70-207(c)(2).

15. See, e.g., Optical Partners, supra.

16. Ark. Code Ann. § 4-70-207(c)(1).

17. See HRR Arkansas, Inc. v. River City Contractors, Inc., 350 Ark. 420, 87 S.W.3d 232 (2002); Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999).

18. 14 Ark. App. 154, 685 S.W.2d 526 (1985).

19. Id. at 156, 685 S.W.2d at 527.

20. 102 Ark. App. 76, 281 S.W.3d 749 (2008).

21. Ark. Code Ann. § 4-70-207(d).

22. John M. Norwood, “Non Compete Agreements: Can They Be Enforced?” 2009 Ark. L. Notes 141, 145.

23. See Hyde v. C M Vending Co., Inc., 288 Ark. 218, 703 S.W.2d 862 (1986) (citing appropriate cases).

24. Ark. Code Ann. § 4-70-207(d).

25. Ark. Code Ann. § 4-70-207(e)(2).

26. See, e.g., Manila School Dist. No. 15 v.

Wagner, 356 Ark. 149, 148 S.W.3d 244 (2004).

27. See, e.g., Waste Mgmt. and Transp. Ins. Co. v. Estridge, 363 Ark. 42, 210 S.W.3d 869 (2005) (indicating that use of the word “shall” indicates mandatory compliance

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unless compliance would result in an absurd result).

28. See, e.g., Fearnow v. Ridenour, Swenson, Cleere & Evans, P.C., 138 P.3d 723 (Ariz.

2006); National Graphics Co. v. Dilley, 681 P.2d 546 (Colo. App. 1984); Smart Corp. v. Grider, 650 N.E.2d 80 (Ind. App. 1995); Kegel v. Tillotson, 297 S.W.3d 908 (Ky. App. 2009). For a full discussion, see Ferdinand S. Tinio, Annotation, Enforceability, insofar as restrictions would be reasonable, of contract containing unreasonable restrictions on competition, 61 A.L.R.3d 397 (1975).

29. See Moore v. Midwest Distribution, Inc., 76 Ark. App. 397, 65 S.W.3d 490 (2002) (citing Bendinger, supra).

30. See Rector-Phillip-Morse, Inc. v. Vroman, 253 Ark. 750, 489 S.W.2d 1 (1973); Federated Mut. Ins. Co., v. Bennett, 36 Ark. App. 99, 818 S.W.2d 596 (1991). See also CAE Vanguard, Inc. v. Newman, 246 Neb. 334, 518 N.W.2d 652 (1994); Hartman v.

W.H. Odell & Assocs., 117 N.C. App. 307, 450 S.W.2d 912 (1994). In Georgia, unreasonable covenants can be “blue penciled” if it is ancillary to the sale of a business, but not in an employment contract. Johnstone v. Tom’s Amusement Co., Inc., 228 Ga. App. 296, 491 S.E.2d 394 (1997).

31. See Ark. Code Ann. § 4-70-207(f).

32. See, e.g., Waste Mgmt. and Transp. Ins. Co., supra.

33. Ark. Code Ann. § 4-70-207(g).

34. See generally Ferdinand S. Tinio, Annotation, Sufficiency of consideration for employee’s covenant not to compete, entered into after inception of employment, 51 A.L.R.3d 825 (1973).

35. See id. § 3[a] and cases cited therein.

36. See id. § 4[b] and cases cited therein (citing cases from Arizona, Illinois, Indiana, Maine, Michigan, Nevada, New York, Ohio, and Texas).

37. See English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566.

38. See City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999).

39. See McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).

40. The author would like to credit Brian Vandiver for this suggestion.

41. Ark. Code Ann. § 4-70-207(f)(1).

42. See Data Mgmt., Inc. v. Greene, 757 P.2d 62 (Ala. 1988); Ehlers v. Iowa Warehouse Co., 188 N.W.2d 368 (Iowa 1971).

43. Id. 44. Ark. Code Ann. § 4-70-207(e). 

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Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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Behind the Screen: Truth, Lies and the Internet

by Lee Curry and Paul Keith

Lee Curry is an associate attorney and Paul Keith is a partner at Gibson & Keith in Monticello.

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“The words of the wicked lie in wait for blood, but the speech of the upright rescues them.”1 The ubiquity of social media gives these words a more true ring—if that be possible—than when they were penned 2,700 years ago. The Internet has made publishers of us all. Active users logging in to Facebook every month have grown from less than 100 million in 2008 to 1.5 billion in 2015.2 The average person has five or more social networking accounts and uses 2.75 of them.3 Users spend almost two hours per day on social networking.4 Our words have more potential to hurt others now than ever. And, when we are hurt by the words of others, it falls to our lawyers to sort it out.

Prior to the coming of the Internet, the majority of the defamation-suit defendants were in the business of publishing, as only they had the means (a newspaper press or broadcasting station) to do serious harm or damage with their words. Today, anyone with a computer or even a smart phone can publish to the entire world. Many of these homegrown “publishers” mistakenly believe that the First Amendment to the United States Constitution guarantees to them the right to say anything about anyone. And, the speed and power of the Internet make it difficult for the truth to catch up to the lie.5

Unlike the author of a letter mailed to one person, the author of posts on social media sites such as Facebook, Twitter, Topix, The Dirty, Yik Yak, Instagram, Vine, Kik, YouTube, LinkedIn, Flickr and Tumblr (to name just a few) reaches the virtual world and once sent, the writings can never be recalled or erased. If your practice has not encountered any issues with Internet and social media speech on the part of parties to a dispute, be assured it will. This article intends to point out some strategies for dealing with Internet material published by others and particularly with defamation published on the Internet.

Social media evidence penetrates every corner of the courtroom in almost every case. In addition to defamation, which is discussed below, admissions and statements by parties and witnesses in social media are relevant to matters ranging from family law to commercial litigation. Postings on the Internet such as revenge porn6 and cyber bullying7 are punishable as criminal acts in Arkansas. The tools described in this article apply to all of these cases, whether to hammer out a sword or a shield. The first section of this article applies generally to obtaining the information. The second section focuses on application of these techniques to Internet defamation and the anonymous defamer.

Obtaining And Authenticating Internet Speech Of course, the easiest way to identify the author of an Internet posting is a simple request for admission. Those who are reluctant to admit should be reminded that a party who denies a properly drawn and served request for admission that is later proven to be true is subject to expenses and attorney’s fees incurred by the other party in proving the matter.8 Given the relative complexity of proving these matters, fees and costs can be substantial.

Unlike traditional broadcast and print media publishers, website owners are not usually liable for damages for material posted on their platform.9 Consequently, they are usually not reluctant to identify the source of the material—to the extent they know the identity of the communicant. In March 2012, Facebook reported to the Securities Exchange Commission that 83 million of its accounts were fake.10 Given the likelihood of anonymous posters or posters using false

identification, you should always go through the following two-step process to identify the communicant.

First, subpoena the information that the website operator does have. A call to identify the department and person who will be responding to your subpoena can save time.11 Your subpoena to the website or application operator (e.g. Facebook, Topix, etc.) must identify the communication at issue with as much detail as possible (best done with a screen shot and identified by date and time) and must request all identifying information, including name, address, email address, any phone numbers and the poster’s Internet Protocol (IP) address related to the communication. An IP address is essentially a “numerical fingerprint” that is unique to a certain device.12 While it cannot positively identify the person who typed the offensive speech, it does positively identify the device that was used, and the Internet Service Provider (ISP) at the time the speech was published.

Since many ISPs are outside the state of Arkansas, it is important to follow the procedures for serving subpoenas in foreign jurisdictions.13 In fact, one can usually search on the Internet for the location of the office responsible for accepting subpoenas. For example, Google accepts subpoenas issued from the Santa Clara Superior Court or the U.S. District Court for the Northern District of California.14 In the case of Google, your subpoena from the California Court will be served through the local agent for service. Google has listed those agents by jurisdiction at https://support.google.com/ faqs/answer/6151275?hl=en. Don’t forget to ask the operator to certify the documents as business records.

Now that you have the IP address from which the offending material was sent, you must identify the ISP. ISPs are the companies that actually provide Internet access to consumers and can take the form of cable companies, cellular service providers, and satellite television providers. Again, you can resort to the Internet to find the name of the ISP and the general location of the device.15 Armed with the IP address and name of the ISP, you can then serve a subpoena on the Internet Service Provider requesting the name, address, and telephone number of the customer associated with that IP address at the time of the posting. Remember that many ISPs utilize dynamic addresses for

residential customers (the address may be assigned to different customers from time to time depending upon demand) so it is important to identify the date and time of the posting as well as the IP address. Federal courts have taken the approach that Internet subscribers do not have an expectation of privacy with regard to information they provide to their ISPs.16 However, cable company ISPs are governed by the Cable Privacy Act,17 and are prohibited from providing information personal to their customers without a court order.18 You should have no problem obtaining such an order from the court in which your matter is pending.

As with any business records, you can then give notice of intent to offer them into evidence if that is done sufficiently in advance of the trial or hearing.19 Should the other party wish to dispute the authenticity of the documents, it will be up to them to subpoena the records custodian to court.

In non-defamation contexts, an online statement made by a party or attributable to him can be a crucial piece of evidence.

Courts are still working out the kinks in applying these evidentiary rules to Internet communications, but the trend seems to be that courts will admit the statements as non-hearsay admissions if authorship can be shown.20 Defamation and the Internet As one might imagine, defamation skyrockets when the number of “publishers” increases from a handful to just about anyone who can sit at a computer or hold a smartphone. But, they are not always proud of their works (“The wicked flee though no one pursues”21). Most Internet defamers hide behind pseudonyms. Nevertheless, when scandalous matters are posted in public media, many people take them to be true and the reputations of businesses and individuals are harmed, jobs lost and lives ruined.

As noted above, providers such as Facebook, Topix, and all of the others are generally immune from civil liability for defamatory content published on their platforms under the “Communications Decency Act of 1996.”22 There are exceptions to this immunity, such as when the provider actually comments on or is involved in approving the offensive speech, but that is rarely the case.23 As in any defamation matter, there are

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some ground rules to follow before agreeing to file suit. Remember that defamation requires someone to make a false statement of fact. You need to review the defamatory statements and determine whether someone has published a false statement of fact about your client, or if they have simply voiced a negative opinion. You have to be diligent in verifying the information your client provides you. President Ronald Reagan’s dictum to “trust but verify” is well taken when dealing with any client, but especially when dealing with the defamation plaintiff.

Remember, truth is the ultimate defense to defamation.

You should immediately preserve the evidence. Save screenshots of the defamatory statements to avoid losing your evidence when a defendant realizes he is being sued and deletes his posts. Images of the posts themselves will also help the owner of the website/ platform identify the IP address of the user in order to respond to your subpoena.

There are three primary differences between traditional and Internet defamation. First, while the names of authors may be withheld by request, traditional publishers do not normally accept anonymous letters or letters over pseudonyms.24 Internet operators have cast this notion aside and routinely publish over the “signatures” of anonymous authors or under “fake” accounts. Second, offensive and harmful speech on the Internet reaches a much wider audience than a handwritten letter to an individual or even a letter to the editor. Third, once posted on the Internet, material can not be withdrawn as it is often automatically saved on millions of devices.

The U.S. Supreme Court has long said that anonymous speech can be protected by the First Amendment. In Talley v. California, invalidating a Los Angeles City ordinance that prohibited distribution of pamphlets that did not identify the author, Justice Black wrote, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind....

Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.”25 But in 1960 the Court was not confronted with the destructive power of the Internet.

One district court has more recently noted that anonymous speech is more problem36

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atic on the Internet, “[y]et where speakers remain anonymous there is also a great potential for irresponsible, malicious, and harmful communication, and the lack of accountability that anonymity affords is anything but an unqualified good. This is particularly true where the speed and power of Internet technology makes it difficult for the truth to ‘catch up’ to the lie.”26 For a thoughtful examination of the problems of anonymity on the Internet, see In re: Baxter27 from the Western District of Louisiana.

Catching up to the anonymous poster can be accomplished by the following steps.

First, file your lawsuit naming John Doe defendants under Ark. Code Ann. § 16-56125 to stop the running of the statute of limitations and to invoke the Court’s subpoena power (and if necessary power to issue a court order to a cable company). Limitations for defamation actions are short, one year for slander28 and three years for libel.29 Given the two-step process you will go through to identify the John Doe defendants (described above), you should keep in mind the 120day limit for service under Ark. R. Civ. P. 4 and move to extend the time for service before expiration of the 120 days if the defamer has not been identified. With the court’s subpoena power, you can go through the steps in the preceding section to discover the identity of the real party in interest.

With the identity of the tortfeasor in hand, you may proceed as with any other lawsuit. First, educate yourself. The following elements must be proven to support a claim of defamation of a private person: (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages.30 At trial, educate the jury. To most laypersons, whether defendants or jurors, the First Amendment means people can say whatever they like. Many people fail to understand that a private person enjoys more protection from defamation than does a public figure.

Educate your jury on the difference and why society makes the distinction. The Arkansas Constitution is especially instructive in this regard, where it states, “The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse

of such right.”31 The doctrine of presumed damages in defamation per se cases was abolished by the Arkansas Supreme Court in 1998;32 now, plaintiffs must prove reputational injury in order to recover damages on their defamation claims. Although the plaintiff must prove actual harm to reputation, the showing required is slight—only that the defamatory statement detrimentally affected the plaintiff’s relations with others. The law does not require proof of actual out-of-pocket losses.33 Arkansas Model Jury Instructions 407–412 are an especially useful reference for an attorney undertaking to prosecute or defend defamation claims.

Near-universal access makes the internet a magnificent forum for the free exchange of ideas. It can also be a playground for fools. “Do not answer a fool according to his folly, or you yourself will be just like him.”34 Armed with the right tools and persistence, Arkansas lawyers can vindicate those who are attacked on the internet (or who are accused of attacking another) without resort to the fool’s playground.

Endnotes 1. Proverbs 12:6 NIV. 2. http://www.statista.com/statistics/264810/number-of-monthly-activefacebook-users-worldwide/.

3. http://Insight.globalweIndex.net/socialq1-2015.

4. Ibid.

5. Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205, 1214 (D. Nev. 2008).

6. Ark. Code Ann. § 5-26-314. .

7. Ark. Code Ann. § 5-71-217.

8. Ark. R. Civ. P. 37(c).

9. See 47 U.S.C. § 230(c).

10. http://usatoday30.usatoday.com/tech/ news/story/2012-08-03/cnbc-facebook-fakeaccounts/56759964/1.

11. A Primer On Internet Defamation, Russell Stookey, Arkansas Bar Association Annual Meeting, 2015.

12. The authors would note that there are some methods by which someone with technical knowledge might attempt to conceal an IP address, such as the use of proxy servers. This article should serve as a general overview of process and procedure, and the discovery issues created by persons who take affirmative steps to create anonymity are beyond the scope of this discussion.

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remembering

John William “Jack” Fink 1955 - 2015 I first met Jack Fink in 1982.

He turned out to be one of my best friends. We had both finished our third year of Law School, were studying for the Bar, and working for the same law firm. We took the Bar together, both learned there was a historically low 61% pass rate two hours before we got the results, and waited in the alley outside the Arkansas Gazette (not Democrat-Gazette) for the results to be posted on the back door. By some miracle we both passed the Bar and obtained our attorney’s licenses on identical dates on October 24, 1982, and were sworn in by the late Chief Justice John Fogleman.

Jack and I both practiced law together for our first three years as young lawyers and relied on each other’s insight on how best to deal with firm politics – something in retrospect we both recognized we lacked. We went our separate ways in the practice of law in 1985 but still continued a close friendship.

Jack developed a strong commercial practice and was a true Southern gentleman. He was respected and liked by co-counsel and adversaries. Jack always had a quick, cutting wit with such lines as: when he was waiting to get picked up for lunch, “A dollar waiting on a nickel.”

I was, of course, the nickel and he was the dollar.

When I first met Jack he was not a particularly religious man, but no doubt with the steady influence of his wife Jane and the birth of his two daughters Mary Ryan (who was born on the same day as my daughter) and Ann, decided to join the Catholic Church and became a devout member. Jack always took the true and steady course and, at the same time, was an avid poker player and a fan of any kind of beer (which may be why he was drawn to the Catholic Church). Jack’s life was consumed with time spent with his wife Jane, his daughters, his grandsons and, inexplicably, his vicious weiner dogs. Jack was one of the early members of our Memphis in May barbeque team “Here for the Beer” and helped us earn our name, resulting in many stories which are best only told at Vino’s over Black & Tans.

Jack and I were fortunate enough to rejoin each other in the practice of law in 2009. A few years later Jack started exhibiting physical problems and was eventually diagnosed with Parkinson’s disease. Jack fought hard but in February succumbed to complications from Parkinson’s. I also remember the Jack Fink I knew before his illness. Jack was a vibrant person who was an excellent attorney, a loving father and husband, and a good friend. He left an indelible mark on those he met. He left us too early and is sorely missed.

–Memorial by Patrick James

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13. Most states have corollaries to Ark. R. Civ. P. 45(f), which governs the service of subpoenas for out-of-state proceedings.

14. https://support.google.com/faqs/ answer/6151275?hl=en.

15. For example, IP Location is available at https://www.iplocation.net/.

16. See, e.g., West Bay One, Inc. v. Doe, 270 F.R.D. 13, 15-16 (D.D.C. 2010).

17. 47 U.S.C. § 551.

18. Subpoena Guide for Identifying Anonymous Internet Posters: How to Navigate the Subpoena Process in Response to Online Attacks, Whitney Gibson http:// www.defamationremovalattorneysblog.com/ wp-content/uploads/sites/297/2014/07/ Subpoena-Guide-for-IdentifyingAnonymous-Internet-Posters.pdf (Vorys, Sater, Seymour and Pease LLP 2014).

19. See Ark. Code Ann. § 16-46-108.

20. For an excellent discussion of the application of the Federal Rules of Evidence in the Internet era, see Dylan Charles Edwards, Comment: Admissions Online: Statements of a Party Opponent in the Internet Age, 65 Okla. L. Rev. 533 (2013).

21. Proverbs 28:1 NIV. 22. See 47 U.S.C. § 230(c).

23. See, Stewart v. Dirty World Entertainment Recordings, LLC, d/b/a THEDIRTY.COM, U.S. District Court, Eastern District of Arkansas, Docket No. 4:13CV00579 JLH. 24. See, e.g.: http://www.arkansasonline. com/contact/voicesform/ (“The DemocratGazette welcomes your letters to the editor. . . . No anonymous letters or pseudonyms will be accepted.”).

25. Talley v. California, 362 U.S. 60, 64–65 (1960).

26. Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205, 1214 (D. Nev. 2008).

27. 2001 U.S. Dist. LEXIS 26001, 2001 WL 34806203.

28. Ark. Code Ann. § 16-56-104(3).

29. Ark. Code Ann. § 16-56-105(5).

30. Boeller v. Clinical Study Ctrs., LLC, 2011 Ark. 83 at 17, 378 S.W.3d 745, 757.

31. Ark. Const. art. 2 § 6 (emphasis supplied).

32. United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 745 (1998).

33. See Northport Health Services, Inc. v.

Owens, 356 Ark. 630, 158 S.W.3d 164 (2004); Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999).

34. Proverbs 26:4 NIV. 

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Cloud Computing

By Dr. Gavin W. Manes,

CEO of Avansic: E-Discovery & Digital Forensics

M

ore information may be stored on the cloud in a “bring your own device” environment. Using the cloud for law firm or corporate data has a number of benefits, but legal professionals in particular should take into account their unique confidentiality and privilege requirements when entrusting the cloud with their client’s data.

Corporations should be careful because devices can store data in the cloud without the user’s knowledge; a checkbox selected when setting up a cell phone or tablet may send data to a cloud destination for backup.

Below is a brief primer on the specific benefits and drawbacks of cloud computing and a list of questions to ask about cloud providers that pertain to e-discovery.

What is the Cloud?

The “cloud” is generally defined as a bank of computers at a remote location where users can store data or use certain applications. You may not know at any given time where the data is being kept since that decision is made by those administering the cloud company’s network.

Potential uses of the cloud include file sharing (Dropbox, YouSendIt, Apple accounts) and webmail (such as Yahoo, gmail or Hotmail), both of which require only an Internet browser to interface. The cloud can also be used for data storage; companies such as Google, Amazon, Carbonite, Barracuda, and many of the above-mentioned file-sharing sites offer longand short-term solutions for both individuals and companies.

Benefits and Drawbacks Benefits of the cloud include massive processing power and no the need for extensive IT department overhead. Drawbacks include privacy and security concerns, data disposal, and jurisdiction. Privacy and security are paramount for attorneys and most corporations, and it can be difficult to ensure that confidential information remains that way; the computers with that information are at an unknown location being administered by unknown personnel. When data is stored on cloud computers, it may be difficult to definitively state that specific information has been purged. The cloud simply doesn’t allow for controlling data all the time, but attorneys have professional obligations to do so and corporations have a desire to keep their information under tight control. Jurisdiction can become a major issue since many cloud computing facilities may not be located geographically nearby the users of the data. In fact, computers with key data may not be inside the borders of the United States and are therefore not subject to the same privacy and privilege rules.

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Considerations for Cloud Use Below is a list of some important considerations when choosing a cloud vendor. Legal professionals should research the following and determine how closely a vendor aligns with their most pressing needs: • Data retention and archiving—How long is data kept? In what format? How quickly can it be retrieved? How often it is backed up?

• Discoverability—Is data discoverable by a third party? With or without consent?

• Testimony—Can the company’s staff sign an affidavit? Has anyone had experience with e-discovery or litigation?

• Policies—What are the privacy and security policies? Is a background check required for employees?

• Experience—Have they ever enacted a litigation hold? Do they have familiarity with selective holds? If not, how do they plan to address that issue?

• Retrieval—How quickly can customers access their data?

Can a third party be engaged to preserve evidence if necessary? Can a forensic collection vendor come to their facility and collect data? Do they have experience with production requests?

• Deletion/Destruction—Can they certify data destruction? (typically required in protective orders) • Logging information—Do they keep logs of user and administrator access? How long are these logs kept? How easy are they to access?

• Transfer—How quickly can data be transferred? Are there different rates for upload and download? (This is especially important for document review repositories.)

Conclusion The amount of information in the modern digital world combined with the processing and storage requirements of businesses demands that information moves to the cloud. The legal industry has special considerations when using the cloud, especially when a litigation risk may outweigh an IT gain. However, the added convenience of cloud services is a major factor when choosing to outsource some electronic functions to the cloud. The move towards cloud computing in some instances is inevitable, but using cloud resources means extra planning on the part of companies and attorneys when handling electronic information for litigation. 

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arkansas supreme court historical society

Williamson Simpson Oldham Arkansas Justice and Texas Confederate Senator Old State House Courtesy of Old State House Museum Artist Ken Oberste

By Judge J. W. Looney Williamson Simpson Oldham was born June 19, 1813, in Franklin County, Tennessee. His parents were Jesse Oldham and Elizabeth Simpson. He had little formal education but started his own school in 1831. He then worked in the district clerk’s office, studied law and was admitted to the Tennessee bar in 1836. However, he moved to Arkansas that year and settled in Fayetteville. In 1837 he married Mary Vance McKissick, the daughter of Col. James McKissick, and they had five children.

McKissick was the cashier of the Fayetteville branch of the state bank; Oldham became bank attorney.1 Oldham was elected twice to the legislature in 1838 and 1842 and was the speaker of the house in his second term of service.

He was a Democrat but was not aligned with the Conway-Sevier-Johnson “Dynasty.”

During the debate over control of the Real Estate Bank, he was identified as “anti-bank,” a position which may have contributed to his selection for the Supreme Court. When Townsend Dickinson was not re-elected to the court in 1842, due to some of his bank-related opinions, his place was taken

by George W. Paschal whose service was brief. Paschal’s term commenced in January 1843, but he resigned in August and left the state. William K. Sebastian accepted the appointment to fill the slot but served only through 1844. Oldham then was elected (over William Conway B) and served until July 1848.

Oldham had political aspirations. In 1846 he sought to be elected as the state’s Congressman, but that position went to Robert W. Johnson, a member of the controlling faction. In 1848 he resigned from the court and sought election by the legislature to the U.S. Senate seat held by appointment

by William K. Sebastian, who wished to be elected to a full term. Oldham, a “Borland” Democrat (Solon Borland was elected to the other senate seat instead of Ambrose Sevier, 42

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who wished to reclaim it), received the most votes on the first ballot, but Sebastian eventually won with the support of the Whigs who had withheld their votes initially. (This apparent deal resulted in the election of Whig David Walker to the Supreme Court).2 After his defeat Oldham moved to Austin, Texas, perhaps in part due to the embarrassment of the political loss. His wife died on the way to Texas. (He was to remarry twice.) In Austin he practiced law, edited the Austin State Gazette and was involved in the Austin Railroad Association. He made three unsuccessful attempts at Texas elective office. In 1853 he ran for state representative and lost; in 1857 he was nominated for the United States Senate but lost; and in 1859 he lost a race for Congress. Following the last defeat he moved to Brenham and from there was a delegate to the Texas Secession Convention. He was a member of the Confederate Provisional Congress, 1861-62, and was then elected as a Texas Confederate Senator and served throughout the war years. Early in the conflict, Jefferson Davis asked Oldham to travel to Arkansas as a special commissioner to meet with the Arkansas Secession Convention to convey an invitation to join the Confederacy. He later wrote his memoir, “Rise and Fall of the Confederacy: The Memoir of Senator Williamson S. Oldham,” which detailed his experiences in the Confederate Senate and his travels from Texas to Richmond. When the war ended he lived in both Mexico and Canada before returning to the United States in 1866. He refused to accept a pardon but apparently did swear an oath of allegiance so that he could again practice law. Oldham practiced law until his death from typhoid on May 8, 1868. He is buried in Eagle Lake Masonic Cemetery, Colorado County, Texas. Oldham County, Texas, was named in his honor.3 Oldham’s service on the Arkansas Supreme Court was marked by a remarkably produc-

tive time. He was on the court during the Chief Justiceship of Thomas Johnson, and he and Johnson bore most of the workload.

The other position was occupied by, first, Thomas Lacy who resigned shortly after the 1845 term commenced, then by Edward Cross and then William Conway B, neither of whom was particularly interested in the work of the court during this period, nor made a significant contribution. The period is characterized by an emphasis on procedure and the “extreme fussiness” of the court toward procedural regularity. Except for debt and contract, the largest number of cases dealt with procedural issues. One of the most important opinions authored by Oldham (and one of the longest) dealt with the exercise of equity jurisdiction by circuit courts.

The constitution had given the legislature the authority to create chancery courts, but this had not occurred. The legislature did attempt to direct the circuit courts in their exercise of equity jurisdiction. Oldham indicated that the legislature had gone too far and set out a sprightly defense of equity jurisdiction.4 Endnotes: 1. John Hallum, Biographical and Pictorial History of Arkansas (Weed Parsons: Albany, New York, 1887).

2. Brian G. Walton, “The Second Party System in Arkansas, 1836-1848,” 28 Arkansas Historical Quarterly 152 (1969).

3. Ben R. Guttery, Representing Texas, (2008).

4. Hempstead v. Watkins, 6 Ark. 317 (1845).

J. W. Looney is Polk County District Judge; Circuit Judge (Retired) for the 18W Judicial Circuit; and Distinguished Professor, Emeritus, University of Arkansas School of Law. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society, contact Rod Miller, rod.miller@ arkansas.gov; Phone: 501 682 6879. 

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Report from the

2015 National Conference of Commissioners on Uniform State Laws

By Lynn Foster

The Uniform Law Commission (“ULC”) held its 124th annual National Conference in Williamsburg, Virginia, from July 10 through July 16, 2015.

Representing Arkansas were Lynn Foster, Elisa White, Carolyn Witherspoon and Vince Henderson, who serves as an associate commissioner. Arkansas continues to be the first and only state with all-female voting commissioners.

The conference approved seven new acts, including a new revision to the Uniform Athlete Agents Act as well as a Revised Uniform Fiduciary Access to Digital Assets Act.

Lynn Foster is the Arkansas Bar Foundation Professor of Law at the UALR Bowen School of Law, and has served as one of Arkansas’ Uniform Law Commissioners since 2009.

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The Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA) was approved, following on the heels of ULC’s approval of the original act last year. The revision was deemed necessary following the introduction and defeat of the UFADAA as proposed legislation in 27 states during 2014-2015, after social media providers and privacy advocates opposed it. It continues to give legal effect to an account holder’s instructions for the disposition of digital assets, but whereas the original UFADAA provided fiduciaries with default access to all digital information, under the revised act, if an account holder has not given specific instructions regarding digital assets in a will, trust or power of attorney, the terms of service agreement with the provider will be enforced. UFADAA was introduced in the 2015 Arkansas legislative

session1 and defeated, after pressure from Facebook and like industries. However, Facebook supports the revised UFADAA. While not perfect, the revised act is still much better than the current law (or lack thereof) and hopefully it will be introduced in 2017.

The Revised Uniform Residential Landlord and Tenant Act is an updated version of the Uniform Residential Landlord and Tenant Act, which was adopted in 1972 and enacted by about half of the states. The revised act includes new articles covering the disposition of tenants’ personal property, the death of a tenant, lease termination in case of domestic violence or sexual assault, and security deposits. The revised act also includes an appendix for states that only want to enact the updated provisions.

The Uniform Athlete Agents Act was adopted in 2000, and has been enacted in 42 states, including Arkansas.2 The Revised Uniform Athlete Agents Act makes numerous changes to the act, including expanding the definition of “athlete agent” and “student athlete”; providing for reciprocal registration between states; adding new requirements to the signing of an agency contract; encouraging a central licensing process; and expanding requirements for notification to educational institutions; and revising available remedies.

The Uniform Recognition and Enforcement of Canadian Protection Orders on Domestic Violence Act provides for the enforcement of domestic violence protection orders issued by Canadian courts.

Currently the ability of citizens to move freely between Canada and the United States can, in certain limited circumstances, work against victims of domestic violence. Canada has granted recognition to protection orders of the United States and other countries in the Uniform Enforcement of Canadian Judgments and Decrees Act. Enacting states will accord similar recognition to protection orders from Canada.

The Uniform Trust Code, enacted by Arkansas,3 expanded the circumstances in which judicial modification of irrevocable trusts is available. Flexibility also exists by means of powers of appointment. However, there is still a need for mechanisms to modify the terms of irrevocable trusts to address changes in beneficiary circumstances, changes in trust law or tax law, and other changes that can arise, such as the identity of an appropriate trustee. “Decanting” is the term used to describe the distribution of assets from one trust into a second trust, like wine is decanted from the bottle to another vessel. The Uniform Trust Decanting Act provides a method of reforming an irrevocable trust and also limits decanting when it would defeat a charitable or tax-related purpose of the settlor.

The Uniform Home Foreclosure Procedures Act provides a balanced set of

rules and procedures to standardize and streamline the foreclosure process. The act protects homeowners by requiring adequate notice and documentation before a foreclosure action can proceed; protects lenders by precluding contrary municipal ordinances and expediting foreclosure of abandoned properties; and includes rules for pre-foreclosure resolutions and negotiated transfers to encourage non-judicial solutions. It is an “overlay” to existing state foreclosure laws (including both judicial and nonjudicial foreclosures) and is not intended to displace those laws.

Receivership is an equitable remedy allowing a court to oversee the orderly management and disposition of property subject to a lawsuit. Although the remedy is not new, there is no standard set of receivership rules and the courts of different states have applied widely varying standards.

The Uniform Commercial Real Estate Receivership Act applies to receiverships involving commercial real estate, and provides a standard set of rules for courts to apply. It will result in greater predictability for litigants, lenders, and other parties doing business with a company subject to receivership.

Other drafts which were debated at the ULC annual meeting but not scheduled for final approval are the Uniform Family Law Arbitration Act, Uniform Wage Garnishment Act, Uniform Series of Unincorporated Business Entities Act, Revised Uniform Unclaimed Property

Act, and Uniform Social Media Privacy Act. If you are interested in following any of the acts still in committee, you can sign up for all committee submissions and reports at www.uniformlaws.org. The Arkansas uniform law commissioners are happy to assist with any questions you may have about uniform laws.

One of the responsibilities of commissioners is to work for the enactment of uniform acts they deem to be good laws for their particular states. During the 2015 session of the Arkansas General Assembly, the following uniform laws were enacted: the Uniform Partition of Heirs Property Act4 and the Uniform Deployed Parents Custody Act.5 The commissioners are grateful to the legislators who sponsored and voted for these laws.

Endnotes: 1. House Bill 1362, available at http://www.arkleg.state.ar.us/ assembly/2015/2015R/Pages/ BillInformation.aspx?measureno=HB1362.

2. Ark. Code Ann. §§ 17-16-101 et seq.

3. Ark. Code Ann. §§ 28-73-101 et seq.

4. Ark. Code Ann. §§ 18-60-1001 et seq.

The bill sponsors were Representatives Matthew Shepherd and Warwick Sabin, and Senators Jeremy Hutchinson, David Burnett, Joyce Elliott, Stephanie Flowers and David Johnson.

5. Ark. Code Ann. §§ 9-21-101 et seq. The bill sponsor was Senator Jim Hendren. 

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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ArkBar u p c o m i n g

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DISCIPLINARY ACTIONS Attorney Disciplinary Actions Final actions from July 1 - September 30, 2015, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC).

Full text documents are available online either at http://courts.arkansas. gov by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.”

[The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

SURRENDER: DAVIS, ANDREA L. “ANDI”, Bar No. 2008056, of Hot Springs, Arkansas, offered and the Supreme Court accepted her surrender of law license on October 1, 2015, in Case No. D-15-757, on the basis of her felony conviction on a plea in Garland County Circuit Court in Case No. 26cr14-189 on May 27, 2015, to the offense of unlawful use of a communication device.

A manslaughter charge was nol-prossed as part of her plea. Ms. Davis received a term of probation and other sanctions in the plea. Ms. Davis, who has been on interim suspension since February 5, 2014, had ten other matters pending before the Committee, which will all be closed as a result of her surrender.

DISBARMENT TO BE INITIATED, WITH INTERIM SUSPENSION: KEARNEY, JEFFREY H., Bar No. 91249, of Pine Bluff, Arkansas, in Committee Case No. CPC 2015-083, by Findings and Order filed August 26, 2015, based on violations of AR Rules 1.1, 8.4(c), and 8.4(d), was placed on interim suspension from the practice of law effective August 26 and directed that disbarment proceedings be initiated against Kearney for his conduct in the representation of Duane Gonder on a federal habeas petition in the matter of Duane J. Gonder vs. Ray Hobbs, 5:12-cv186. On July 23, 2010, Gonder pled guilty

and was convicted of first degree murder and other charges, and was sentenced to 552 months in the Arkansas Department of Corrections. Gonder filed a motion to have his sentence reduced and a Rule 37 Petition. Both motions were denied, Gonder appealed both, and the Arkansas Supreme Court affirmed on June 2, 2011.

In May 2011, Gonder hired Kearney to file a federal habeas petition on his behalf, signing a fee agreement for $3,500.00. April 1, 2012, was the one-year deadline for any federal habeas to be filed for Gonder. On May 24, 2012, Kearney filed a Petition for Writ of Habeas Corpus with the U.S. District Court. The State filed a response in the habeas case alleging that Gonder’s habeas petition was untimely filed.

On September 11, 2012, the court issued its Order granting Gonder up to and including October 12, 2012, to submit a pleading to explain why the habeas petition should not be dismissed as untimely or procedurally defaulted. After obtaining an extension, on October 19, 2012, Kearney filed his pleading with the court explaining why the habeas petition should not be dismissed or procedurally defaulted, disagreeing with the State’s statute of limitations calculations.

Kearney admitted he filed the habeas petition 23 days late instead of 53 days late as calculated by the State. On November 30, 2012, the Magistrate Judge issued his proposed Findings and Recommendations, recommending dismissal of the petition for writ of habeas corpus as time barred.

In the alternative, he also recommended it be dismissed as procedurally barred, and dismissed on the merits. On December 28, 2012, the District Judge agreed with the Magistrate’s findings and dismissed the petition with prejudice. On January 10, 2013, Kearney filed Petitioner’s Motion for Relief from Judgment Pursuant to Rule 60, Federal Rules of Civil Procedure. On January 25, 2013, Kearney filed a Motion to be Relieved as Counsel. The court granted the Rule 60 motion for reconsideration and again denied the petition for habeas relief. No certificate of appealability issued.

On July 10, 2012, Panel B of the Supreme Court Committee on Professional Conduct entered its Findings and Order suspending Kearney from the practice of law for a period of two months. On July 22, 2013, Kearney submitted his Petition for Reinstatement to

the Committee on Professional Conduct, stating that he had not been engaged in the practice of law in any jurisdiction during his suspension. That statement was untrue as Kearney had been practicing before the U.S. District Court, Eastern District of Arkansas, representing Gonder on his habeas petition during Kearney’s period of state license suspension.

SUSPENSION: BURRIS, BELINDA BETH, Bar No. 2007047, of Alicia, Arkansas, by Findings & Order filed August 3, 2015, in Committee Case No. CPC 2015-034, had her Arkansas law license suspended for 36 months for violations of AR Rule 8.4(b) (criminal conduct). Shortly after admission in 2007, Burris was charged with possession of drugs and drug paraphernalia. In 2010, Burris was charged with three drug-related offenses. Burris entered a plea of guilty to one count of possession of a controlled substance and was placed on probation for a period of 36 months. In 2011, Burris was charged with two drug-related charges, a

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DISCIPLINARY ACTIONS DWI charge, and other traffic offenses.

Burris entered a plea of guilty of possession of a controlled substance and the DWI charge. She was sentenced to a term of 24 months in a regional punishment facility with an additional suspended imposition of sentence for a period of 60 months. At no point in time did any prosecuting attorney or court report the matter to the Office of Professional Conduct. Burris’ license to practice law was also suspended for failure to maintain CLE and for failure to pay her annual license fee. The criminal convictions were discovered by OPC in 2015.

KEARNEY, JEFFREY H., Bar No. 91249, of Pine Bluff, Arkansas, in Committee Case No. CPC 2015-066, by Findings and Order filed August 3, 2015, was suspended from the practice of appellate law before the Arkansas Appellate Courts for a period of 36 months for violations of AR Rules 1.3 and 8.4(d) in his representation of Wendie Cox in the matter of Wendie Cox vs. State of Arkansas, CR 14-965. Cox was convicted in Colombia County on charges of theft for stealing five horses from Southern Arkansas

University. She was sentenced to a total of 60 years in ADC, and her conviction was affirmed on appeal. She then filed a pro se Rule 37 Petition, which was denied on September 22, 2014. On October 14, 2014, Mr. Kearney filed a Notice of Appeal from the denial of the Rule 37 Petition. The record was lodged with the Supreme Court Clerk on November 12, 2014, making Cox’s brief due on December 22, 2014. No brief was filed on December 22, 2014, and no extensions were requested. On January 13, 2015, Mr. Kearney filed Appellant’s Motion to File Belated Brief, stating that he failed to file the brief in time because he had lost staff and had no staff over the holiday. On February 5, 2015, the Arkansas Supreme Court granted the Motion with a final extension date of February 9, 2015, and referred Mr. Kearney to the Office of Professional Conduct. Kearney filed his client’s brief on February 9, 2015.

No. CPC 2015-015, by Findings & Order filed August 3, 2015, was reprimanded and assessed costs for violations of AR Rules 1.1, 1.2(a), 1.3, 1.4(a)(3), 3.2, 6.1, and 8.4(d) on a complaint involving his representation of Michael Mercouri on a criminal case and on appeal, in Case No. CR-14-636, until relieved by the Court and referred to the Committee on February 5, 2015. Mercouri was found guilty of aggravated robbery at a jury trial on January 9, 2014, and sentenced by the jury to 120 months in ADC. On February 5, 2014, Mercouri filed his pro se notice of appeal. On February 6, 2014, the trial court filed an Order directing Mercouri not to file pleadings as he was still represented by Littlejohn in the case.

On February 26, 2014, Littlejohn filed his motion to withdraw as counsel for Mercouri, but no order was ever entered.

On March 18, 2014, from jail Mercouri wrote Judge Wright informing him of certain matters in the case, including his efforts to get Littlejohn to take certain actions, including that Littlejohn refused to file Mercouri’s notice of appeal or protect his appellate rights unless Littlejohn was

REPRIMAND: LITTLEJOHN, DAVID M., Bar No. 2008038, of Little Rock, in Committee case

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He became certified as a civil mediator by the Arkansas Dispute Resolution Commission in 2014.

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DISCIPLINARY ACTIONS paid more money. On April 1, 2014, the court reporter filed an affidavit reciting efforts by Mercouri’s wife to obtain the trial transcript for use in his appeal. On May 2, 2014, Littlejohn tendered the Mercouri record to the appellate clerk, but apparently with the record missing some pleadings and the reporter’s transcript. On July 22, 2014, Littlejohn filed a motion to complete the record. On August 4, 2014, Littlejohn filed his motion to withdraw, stating that Mercouri had not hired Littlejohn to represent him on any appeal. On September 4, 2014, the Supreme Court denied without prejudice both the motions to complete record and to withdraw.

On December 10, 2014, Mercouri filed his motion to appoint new representation reciting his indigency status, his difficulty in communicating with Littlejohn, and his conclusion that Littlejohn had abandoned Mercouri on his appeal. On February 5, 2015, the Supreme Court issued its per curiam order reciting the factual history of Mercouri’s case and appeal effort, relieving Littlejohn as counsel, appointing new appellate counsel, and referring Littlejohn to the Committee. There is no indication in the record or the per curiam that Littlejohn ever attempted to have Mercouri declared indigent by a court for appeal purposes, thus entitling the client to the services of an appointed lawyer on his appeal.

POWELL, BRYAN L., Bar No. 2003151, of Bentonville, in Committee case No. CPC 2015-014, by Findings & Order filed September 18, 2015, was reprimanded and assessed costs for violations of AR Rules 1.1, 1.2(a), 1.3, 1.4(b), 3.4(c), and 8.4(d) on a complaint involving his paid representation of Rene Garcia on a criminal appeal, in Case No. CR-14-129, of a conviction for two counts of rape and a 600 month prison sentence. Powell timely lodged the record, but failed to file a brief after obtaining an extension. The state’s motion to dismiss the appeal was denied and Powell was given a “final” extension to July 30, 2014, when Powell filed a motion for belated brief, which was granted and he was given a new briefing extension to September 18, 2014, when Powell filed another motion for belated brief, which was granted to November 7, 2014, when Powell filed another motion for belated brief, which was granted to a “final” briefing

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extension to January 5, 2015, with five of the 12 Court of Appeals judges being noted as voting to deny the motion. On January 28, 2015, Stark Ligon emailed Powell a copy of a letter regarding Garcia’s appeal from the Court’s Criminal Justice Coordinator and asked for a response. Powell received at least four extensions of brief time, to January 5, 2015, since his original brief deadline of

March 17, 2014, and filed no brief. [Note: The Committee Complaint was served on Powell on February 20, 2015. The Court of Appeals removed Powell from the case on March 11, 2015, new appellate counsel was appointed, and a “no-merit” brief was filed on May 18, 2015.]

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STANLEY, JAMES W., Bar No. 75124, of Little Rock, Arkansas, by Findings and Order filed August 3, 2015, in Committee Case No. CPC 2015-021, was reprimanded for violations of AR Rule 3.4(c) on a complaint filed by James Lamb, who applied for benefits from the U.S. Department of Veterans Affairs (“VA”). After denial, Lamb met with Stanley in 2011.

Stanley charged Lamb a consultation fee and provided a form to appeal the VA’s decision. The appeal resulted in the VA changing its decision and awarding partial benefits but denying benefits for 50

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other service-related injuries. In June 2012, Stanley wrote Lamb and provided a form to appeal the VA’s decision. Stanley stated that his fee was 20% of any past-due benefits.

Lamb wrote Stanley a check for $2,704.65 for Stanley’s fee to that point. A hearing was held in May 2012 on Lamb’s appeal.

Stanley advised that he would be out of town on the day of the hearing and did not appear. Lamb appeared at the hearing and learned that Stanley was not approved by the VA to represent individuals before any VA board. Lamb terminated Stanley’s representation. In July 2014, Stanley wrote

Lamb and inquired whether Lamb had received any additional benefits following the 2012 appeal and, if so, that Lamb needed to pay Stanley his 20% fee. On October 10, 2001, Stanley was notified by the VA Office of General Counsel (OGC) that his accreditation to represent claimants before the VA had been canceled as a result of matters brought to the OGC’s attention. Stanley appealed the decision of the OGC for over 14 years through various appellate courts. In January 2014, the Board of Veterans Affairs issued a decision that termination of Stanley’s accreditation was the most appropriate sanction for his conduct. Stanley has not been accredited by the VA to represent claimants before any part of the VA since 2001.

TRIMBLE, DON, Bar No. 91078, of Little Rock, Arkansas, by Findings and Order filed September 30, 2015, in Committee Case CPC 2015-022, was reprimanded and fined $500 for violations of AR Rules 1.3 and 8.4(d) on a complaint by David and Michelle Moore. Trimble filed suit on behalf of the Moores in a matter related to the construction of their home. Trimble obtained a nonsuit, and then refiled the case in April 2011. He did not serve each of the individual defendants within the 120 days allowed by the Rules of Civil Procedure, and then was granted an additional 120 days to serve the defendants. Service was again not obtained and Trimble was granted an additional 120 days for service.

The defendants filed a motion to dismiss as they had not been served within the initial 120 days following the issuance of the summonses or within the first additional 120 days granted by the court. Trimble notified the Moores that the court would likely dismiss the lawsuit for his failure to serve the defendants. Trimble withdrew from the case and the Moores employed other counsel to represent them. The trial court dismissed the lawsuit for failure to perfect service and the Moores were procedurally barred from having their case heard.

CAUTION: STRATFORD, JOHN C., Bar No. 88169, of Little Rock, in Committee case No. CPC 2015-063, by Consent Findings & Order

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filed September 18, 2015, was cautioned for violations of AR Rules 1.1, 1.2(a), 1.3, 1.4(a)(2), 1.5(a), and 8.4(d) on a complaint involving his representation of Miguel Williams on a criminal post-conviction relief matter, after Williams received a sentence of 300 months in prison in March 2012. Trial counsel was relieved and timely provided Williams documents necessary to initiate his direct appeal pro se. On March 9, 2012, Williams’ mother employed and made a partial payment of $1,500.00 to Stratford to represent Williams, but the scope of the 52

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employment is unclear. At the time Stratford was employed, several weeks still remained for a notice of appeal to be timely filed. As described by the Memorandum and Order entered January 16, 2015, in the federal habeas case, Williams v. Hobbs, No. 13-cv384, Stratford inexplicably never filed an appeal and time ran out on Williams’ direct appeal right. This document characterized Stratford’s conduct in the Williams matter as “shameful,” and that Stratford mishandled the case.

Attorney Lambert prepared a pro se

motion for belated appeal which Williams filed in January 2013. The filing included an affidavit executed by Williams on January 11, 2013, in which he states he never waived his right to an appeal. On June 6, 2013, the Arkansas Supreme Court denied Williams’ permission to file a belated direct appeal. In Williams’ United States District Court Case No. 13-cv-384, on December 20, 2013, Stratford filed a petition for writ of habeas corpus that was ghost-written by attorney Lambert. On April 15, 2014, Lambert entered his appearance in the federal case, and on June 16, 2014, he filed a reply, to the State’s response, in an effort to salvage Williams’ effort at obtaining relief. Lambert was relieved and John Hall was appointed as counsel for Williams on August 15, 2014. An evidentiary hearing was conducted on November 12, 2014. Ms. Williams’ handwritten list of payments to Stratford, totaling $3,900, was introduced and discussed. A letter dated November 18, 2013, that Stratford delivered to Miguel Williams in the ADC was introduced and discussed. At the hearing Ms. Williams testified, in part, that at the initial meeting Stratford led the conversation and Lambert said a little; she paid Stratford $1,500 on what she recalled was a fee of $5,000; and that she later employed Lambert to take over the federal habeas case.

At the hearing testifying under the “rule sequestering witnesses” and before Lambert testified, Stratford testified, in part, that Ms. Williams paid him $1,500 at the initial meeting; no direct appeal was undertaken for Miguel because his mother could not afford the estimated $2,500 cost for the necessary trial transcript; Stratford had never done a direct appeal or a Rule 37 proceeding or a federal habeas proceeding on his own, always referring such matters to other attorneys; Miguel was going to get a Rule 37, to be done by Lambert, and Stratford was going to give Lambert half of whatever Ms. Williams paid Stratford; he did not know why a notice of (direct) appeal was not filed; he did not know why no Rule 37 proceeding was filed; and he had no record of Ms. Williams’ payment to him.

Stratford also testified that his practice is limited to trial-level representation, and he does not handle appeals or post-conviction

DISCIPLINARY ACTIONS matters himself, but refers such matters to other counsel.

At the hearing Lambert testified after Stratford, in part, that his practice is primarily appellate and post-conviction criminal work; he checked on the estimated cost of the trial transcript needed for a direct appeal or Rule 37 effort and was quoted about $2,000; he attended one meeting with Ms. Williams and Stratford; he saw Ms. Williams pay Stratford $1,500 on or about March 19, 2012; at that meeting Lambert went over the time limits involved for Williams’ direct appeal, Rule 37, motion for belated appeal, and a federal habeas proceeding; Lambert had no knowledge of any agreement with Stratford for him to give Lambert half of whatever Ms. Williams paid Stratford; his notes made in advance of attending the March 2012 meeting were introduced at the hearing; Lambert ghost-wrote the federal habeas petition for Stratford to file; Lambert ghost-wrote the state motion for belated appeal for Stratford to file; Lambert was confused about the actual scope of the representation of Williams; he was never in an attorney-client representation with either Williams until much later when Ms. Williams employed him in April 2014 for a $2,500 fee to take over the pending federal habeas case; that Stratford then paid Lambert $1,000 from Ms. Williams’ funds Stratford held; Stratford was “in way over his head” in the Williams matter; Lambert never saw the November 18, 2013, letter from Stratford to Miguel Williams until the November 2014 hearing, the letter was not accurate, and, if Lambert had seen the letter before Stratford took it to Miguel Williams, Lambert would have told Stratford the letter was not accurate.

The Memorandum and Order, and Judgment, were entered January 16, 2015, denying Williams relief, and making highly unfavorable comments and findings about Stratford’s conduct on Williams’ behalf.

The Judgment also denied Williams a certificate of appealability to the federal court of appeals. Hall filed Williams’ notice of appeal. 

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Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.375.4606

Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period July 21, 2015 through September 30, 2015.

In Memory of Bill Brazil Jennifer and Randy Coleman Sally and Jim McLarty Judge Cathi Compton and Judge Bill Wilson In Memory of Judge Lee Fergus Irene and Judge Richard L. Proctor Womack, Phelps & McNeill In Memory of Jeanette McKenzie McCormack Designated to the Horace and James McKenzie Scholarship Fund Betty and Buddy Formby Miki and Jeff Morrow Kris and Mike Raub In Memory of James R. Pate Charles Coleman In Memory of Susan Turner Purvis Hayden and Gordon Rather In Memory of William H. “Buddy” Sutton Judge Robert Fussell Justice Bradley D. Jesson Mary and O.H. Storey III Honoraria Scholarship Contributions and Gifts To Honor Chief Justice Jim Hannah on His Retirement Judge Richard L. Proctor To Honor Ann Dixon Pyle in celebration of her 20 years of service to the Arkansas Bar Foundation Roscopf & Roscopf, P.A. Friday, Eldredge & Clark/Herschel Friday Scholarship Friday, Eldredge & Clark Wright, Lindsey & Jennings LLP Scholarship Wright, Lindsey & Jennings LLP 54

The Arkansas Lawyer

www.arkbar.com

Memorial Medallion A new medallion has been placed on the Arkansas Bar Center Memorial Wall in memory of William H. “Buddy” Sutton.

The medallion is given by: Donald H. Bacon William M. Griffin III Jim Simpson Laura Hensley Smith Fred Ursery Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession.

Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work.

2016 Mid-Year Scholarship Dinner Save the Date Foundation Mid-Year Scholarship Dinner Friday, January 29, 2016 Online Payments Now Available Please note that the Arkansas Bar Foundation now accepts online payments. Please visit www.arkansasbarfoundation.com for more information.

IN MEMORIAM William Clay “Bill” Brazil of Conway died August 10, 2015, at the age of 72. Bill graduated from the University of Arkansas in 1964. After obtaining his business degree he attended law school at the University of Arkansas at Fayetteville. In addition to private practice, he served as Conway City Attorney, and Prosecuting Attorney in the 20th Judicial District. He taught commercial law at the University of Arkansas and the University of Central Arkansas. He was a member of the Arkansas Bar Association, where he served on the House of Delegates and as a member of the Executive Council.

James (Jim) Raymond Daugherty of Little Rock died August 3, 2015, at the age of 66. Jim graduated in 1974 with a J.D. of Law from the University of Arkansas at Fayetteville. He was an attorney with the Corps of Engineers, Office of Counsel, retiring after 34 years. He was also an Adjunct Professor at Arkansas Tech University for 17 years. He was a member of the Arkansas Bar Association.

Jerry B. Dossey of Bella Vista died September 6, 2015, at the age of 67.

Jerry graduated from the University of Arkansas with a B.A. degree in Business Administration in May 1970 and graduated from the University of Arkansas law school in May 1974. He served as a Special Associate Justice on the Arkansas Supreme Court in 1983. He was a member of the Arkansas Bar Association. He served as Bentonville City Attorney from 1978 to 1979. He practiced law in Bentonville, for 41 years.

Honorable William Lee Fergus of Jonesboro, died July 21, 2015, at the age of 66. Lee received his Juris Doctor from the University of Arkansas at Fayetteville and has been a sitting Circuit Court Judge since 2001.

Previously he was a Municipal Judge and the creator of the Juvenile Drug Court. He had practiced law in the Osceola area for many years. He served as a medic in the United States Army Reserve. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation.

Paul D. Gant, of Van Buren, died on September 8, 2015, at the age of 69.

Gant obtained a BSBA Degree in 1968 from the University of Arkansas and a Juris Doctorate from the University Of Arkansas School Of Law in 1972. He was a 2nd Lt. in the U.S. Army Reserves, 95th Division Infantry Training Battalion. Gant opened his private law practice in Van Buren in 1973 and was joined by his father in 1976. He served six years as Deputy Prosecuting Attorney for Crawford County and 10 years as its Juvenile Referee.

For over 37 years he served as City Judge of Alma, Arkansas. He was a Fellow of the Arkansas Bar Foundation and a member of the Arkansas Bar Association where he served on the Professional Ethics Committee and the YLS Executive Council.

Charles R. “Bud” Garner, Jr., of Fort Smith died September 25, 2015, at the age of 71. A graduate of the University of Arkansas in Fayetteville and the University of Arkansas Law School, he was a practicing attorney for over 35 years until his retirement in 2007. He was a member of the Arkansas Bar Association.

Spence A. Leamons of Van Buren died September 11, 2015, at the age of 88. Spence was a Corporate Attorney for Stephens Production for 26 years. He was a graduate of Henderson State University and received his law degree from the University of Arkansas Law School. Spence was a veteran of the U.S. Navy. He was a member of the Arkansas Bar Association where he served on the YLS Executive Council, the In-House Corporate Counsel and the Lawyers Assisting Military

Personnel Committees. The Association awarded him the Natural Resources Institute Award in 1997.

Melvin Emory Mayfield, of Little Rock, died September 5, 2015, at the age of 95. He was a veteran of World War II, with overseas service in Okinawa. Afterwards he attended Baylor University and received degrees in business and in law. He began practicing law in El Dorado in August of 1950.

In the years following, he was a two-term representative in Arkansas’ General Assembly and a deputy prosecuting attorney for Union County. He served 18 years as Circuit Judge of the Thirteenth Judicial Circuit before being elected to the Arkansas Court of Appeals in 1980. He was chief judge for the first three and a half years and continued to serve on that court until his retirement in 1996.

Sandra Lou Sanders of Little Rock died October 9, 2015, at the age of 69.

Sandra graduated Cum Laude from UAMS with a degree in Advanced Nurse Practitioner. She later earned a law degree from U.A.L.R. William H. Bowen School of Law. Sandra worked for McMath Law Firm for 21 years.

Judge L. T. Simes II, of Helena-West Helena, died October 10, 2015, at the age of 65. He was first elected to the position of circuit judge for the 1st Judicial District in 1996. He served from January 1, 1997, to November 9, 2009, and again from January 1, 2011, until his death. He received his undergraduate degree in business administration from Ouachita Baptist University and his J.D. from the University of Arkansas in Fayetteville.

Before his election to the Circuit Court in 1996, he practiced law for 21 years. During that time, he also served as municipal judge in Lake View for 10 years. He was a member of the Arkansas Bar Association.

The information contained herein is provided by the members’ obituaries.

Vol. 50 No. 4/Fall 2015 The Arkansas Lawyer

55

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