The Arkansas Lawyer Spring 2023

I love LawPay! I’m not sure why I waited so long to get it set up. – Law Firm in Ohio

EDITOR

Anna K. Hubbard

EXECUTIVE DIRECTOR

Karen K. Hutchins

PROOFREADER

Cathy Underwood

EDITORIAL BOARD

Luke K. Burton

Haley M. Heath

Ashley Welch Hudson

Anton Leo Janik, Jr.

Jim L. Julian

Kimberly D. Logue

Drake Mann

Gordon S. Rather, Jr.

William A. Waddell, Jr., Chair

Brett D. Watson

David H. Williams

Nicole M. Winters

OFFICERS

President

Joe F. Kolb

President-Elect

Margaret Dobson

President-Elect Designee

Kristin L. Pawlik

Immediate Past President

Bob Estes

Secretary

Glen Hoggard Treasurer

Brant Perkins

Parliamentarian

Brent Eubanks YLS Chair

William J. Ogles

Director

Karen K. Hutchins Executive Administrative Assistant

Michele Glasgow

Director of Government Relations

Jay K. Robbins

Director of Operations

Kristen Frye

Finance Administrator/CPA

Staci Clark Membership Administrator Janet K. Marshall

& Data Administrator Cynthia Barnes Publications Director

Anna Hubbard

to nonmembers 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 2023, Arkansas Bar Association. All rights reserved.

Gimme Shelter: How the Rolling Stones Used a Dutch Tax Loophole to Pay Only 1.6% Tax on $450 Million in Worldwide Income

By Anton L. Janik, Jr.

William A. Waddell, Jr.

By William A. Waddell, Jr.

District A1: Geoff Hamby, Jason B. Hendren, Timothy R. Scott

District A2-A3: Matthew Benson, Evelyn E. Brooks, Jason M. Hatfield, Michelle Rene' Jaskolski, Sarah C. Jewell, Kristin L. Pawlik, George M. Rozzell, Russell B. Winburn

District A4: Kelsey K. Bardwell, Craig L. Cook, Brinkley B. Cook-Campbell, Dusti Standridge

District B : Michael S. Bingham, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Steven P. Harrelson, Michael M. Harrison, Anton L. Janik, Jr., Jamie H. Jones, Victoria Leigh, B. Chase Mangiapane, William C. Mann III, Skye Martin, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, Molly M. McNulty, David S. Mitchell, Jr., Meredith S. Moore, John Ogles, Casey Rockwell, Emily M. Runyon, Carter C. Stein, Jessica Virden Mallett, Danyelle J. Walker, Patrick D. Wilson, George R. Wise

District C5: Joe A. Denton, John Tyler Henderson, Todd C. Watson, William Z. White

District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, Ryan M. Wilson

District C7: Kandice A. Bell, Laurie Bridewell, Sterling T. Chaney, Taylor A. King

Delegate District C8: Carol C. Dalby, Amy Freedman, Connie L. Grace, Wm. Blake Montgomery

At Large Members: Joseph F. Kolb, Margaret Dobson, Bob Estes, Glen Hoggard, Brant Perkins, William J. Ogles

Ex-officio Members: Brent Eubanks, Judge Mackie Pierce, Judge Chaney W. Taylor, Edward T. Oglesby, Dean Cynthia Nance, Dean Theresa Beiner, Denise Reid Hoggard, Eddie H. Walker, Jr., Christopher Hussein, Karen K. Hutchins, Jay K. Robbins

Board of Trustees

Now is the time.

The ABA Retirement Funds Program (“Program”) is an employer-sponsored retirement plan designed specifically to address the retirement needs of the legal community. The Program is structured to provide affordable pricing whether you are a sole practitioner or a large corporate firm.

We have leveraged our size to bring together some of the most respected financial services providers in the retirement industry. Through the unique culture created between the ABA Retirement Funds Program and our Program partners we aspire to help every law firm, lawyer, and legal professional secure their financial future.

and not responsible for one another’s products and services.

CN2668101_0125

2023 Arkansas High School Mock Trial Competition

Thank you to all of the volunteers who made the competition a success.

On Saturday, March 4, 2023, Conway High School defeated Springdale Har-Ber High School in the Championship Round of the Arkansas High School Mock Trial Competition. Arkansas Supreme Court Chief Justice Dan Kemp presided over the final round. Pictured above from left to right: Scoring judges Edward Oglesby, Joe Kolb, Chief Justice Dan Kemp, Danyelle Walker, Jamie Huffman Jones and Margaret Dobson.

Conway High will represent Arkansas at the 2023 National High School Mock Trial Championship, to be held in Little Rock May 18-20. Springdale Har-Ber High may also be asked to attend if an additional team is needed. We appreciate the members of the Mock Trial Committee as well as all of the volunteers who served as judges at regional and state competition. Volunteers are still needed to judge the National Championship. For more information, visit littlerock2023.nhsmtc.org and click on the Volunteer link.

Mock Trial Committee

Anthony L. McMullen (Chair)

Beverly I. Brister

Robert S. Coleman, Jr.

Margaret King Davis

Amy Freedman

Sarah E. Greenwood

Adrienne Morris Griffis

Michael B. Heister

Johnathan D. Horton

Lori D. Howard

Christopher M. Hussein

Adam Donner Jackson

Melanie Ann Maddox

Gabriel D. Mallard

William C. Mann, III

Richard Bryant Marshall

Judge Mary Spencer McGowan

Barrett S. Moore

Ashley Elizabeth Norman

Constance Brown Phillips

Natalie Elizabeth Ramm

Casey Nicole Richmond

Jordan Brown Tinsley

Timothy F. Watson, Jr.

Matthew D. Wells

Nicole Marie Winters

Volunteer Judges

Elizabeth Armstrong

Kate Atkinson

Judge Stephanie Barrett

Kandice Bell

Tyler Benson

Stephen Christian Bilheimer

Nathan Bogart

Caitlyn Brainerd

Beverly Brister

Kelsey Broaddrick

Evelyn Brooks

Karie A. Bryan

Katie Butler

Stephanie Chamberlin

Brian Clary

Robert Coleman

Alec Comerford

Cory Crawford

Jeannie Denniston

Margaret Dobson

Whitney Doolittle

Camille Edmison

Shannon L. Fant

Katie Freeman

Brooke Gasaway

Tammy Gattis

Sarah Greenwood

Ginny Greer

Alex Harper

Denise Reid Hoggard

Glen Hoggard

Marianne Hudson

Michelle Jaskolski

Judge Shawn J. Johnson

Michael Johnson

Tony Jones

Michael Kaiser

Amanda Kennedy

Mircha King

Joy Momin

Kirby Mouser

Rosalind Mouser

Lisa Parks

David M. Powell

Marshall Prettyman

Dixie M. Quinn Nelson

Mason Reynolds

Ezra Smith

Katie Sparrow

Maurice Taggart

Judge Joanna Taylor

Andrew Thornton

Jeremy Wann

Judge Diane Warren

Timothy F. Watson, Jr.

Peyton Watts

Judge Karen Whatley

Stacy Williams

On March 29, 2023, the schools of Hempstead County sent their Fifth Graders to participate in the Hope Lions Club “Liberty Day” Event hosted by the University of Arkansas at Hope-Texarkana. Throughout the day the students learned about the Constitution and the underlying values of freedom upon which our government is based. The students heard from former Supreme Court Justice Jim Gunter, local Hope attorney Blake Montgomery, professors at UAHT, and teachers. The day started with a viewing of “The Grand Experiment—Democracy in Motion” produced by the Arkansas Bar Association which outlined our state’s government and judiciary.

You Can Help with Civics Education

The Arkansas Bar Association released the “The Grand Experiment— Democracy in Motion,” on Constitution Day in 2021 to help educate Arkansas students and the public about the importance of the Constitution and the rule of law in the United States in honor of Constitution Day. Please consider showing the video at your local clubs or schools. The video is available at: https://youtu.be/ qSdr-bueyJs.

Conway High

ACCOLADES

The UA Little Rock William H. Bowen School of Law honored five faculty members as the winners of the 2023 Faculty Excellence Award: andré cummings, Nick Kahn-Fogel, Suzanne Penn, Kelly Terry, and Aaron Schwabach Bryan Hosto, a Little Rock Attorney with Hosto & Buchan, PLLC and Real Estate Broker with The Haybar Group, has been named a member of Fifty for the Future.

APPOINTMENTS AND ELECTIONS

The University of Arkansas at Little Rock has named Colin Crawford as the next dean of the William H. Bowen School of Law, effective July 1, 2023.

WORD ABOUT TOWN

Cross, Gunter, Witherspoon & Galchus, P.C. announced that attorneys Brett W. Taylor and Mary E. Buckley have been promoted from associates to directors of the firm. Wright Lindsey Jennings announced the launch of a new mediation practice, WLJ Resolution, led by partners Scott Irby in Northwest Arkansas and Rodney Moore in Little Rock. Rose Law Firm announced the hiring of Chris McNulty and Austin Reed. Ledly Jennings announced the opening of L. Jennings Law PLLC in Little Rock and Magnolia. McGlinchey Stafford announced that Gary L. Pate has joined the firm’s Enterprise Litigation and Investigations section as a member (partner) in the Houston office.

ArkBar President-Elect Margaret Dobson and ArkBar President-Elect Designee Kristin Pawlik continued their leadership journeys at the American Bar Association’s (ABA) Bar Leadership Institute held in Chicago March 15-17, 2023. Pictured from left, back row: ArkBar Executive Director Karen K. Hutchins, Kristin Pawlik, Margaret Dobson; front row: ABA President-Elect Mary Smith and ABA President Deborah EnixRoss.

Board of Trustees Elections

Ballots for the 2023 ArkBar elections were counted on March 20, 2023, in the contested race for positions on the Association’s Board of Trustees in District B9-B15. The successful candidates are listed below. We also want to welcome the new Trustees who were elected without the need of a ballot. Those members are listed below as well.

Congratulations to the following candidates elected without the need of a ballot:

District A1: William Marshall Prettyman and Lindsey Charles Vechick; District A2, A3: Christopher M. Hussein; District C7: Robert G. Bridewell

The successful candidates from District B9-B15 are as follows: Randall L. Bynum, Thomas M. Carpenter, Bob Edwards, John Andrew Ellis, Michael Kenneth Goswami, Jim Jackson, Jamie Huffman Jones, Victoria Leigh, Molly McNulty, Meredith Strong Moore and John Ogles.

Thank you to all the candidates for their willingness to serve and lead our Association.

125th Anniversary Celebration

This year, the Association will celebrate its 125th anniversary at the association’s Annual Meeting, June 14-16, 2023, in Hot Springs. Our theme, “Building for the Future: A World of Opportunities,” speaks to our vision of a better future— not only for the association, but more importantly, for the clients our members serve. We will kick off this year’s meeting with a special 125th Anniversary Celebration to honor our past. The event will be held Wednesday June 14th at the Oaklawn Casino Resort. Enjoy cocktails with colleagues, a silent auction, dinner, the Arkansas Bar Association and Arkansas Bar Foundation Joint Awards ceremony, special guests, and dancing. Tickets are available for anyone regardless of whether you are attending the Annual Meeting and must be purchased by May 23rd.

Staying Focused

Spring is the busiest time of the bar year. In all we do, however, our focus remains on four key areas: creating membership value, improving two-way communication between the association and the lawyers it serves, encouraging engagement at all levels, and making efficient use of limited resources.

Here’s just a sampling:

In March, we concluded our annual election. Our members spoke, and we listened. I am pleased Kristin Pawlik has been elected President-Elect Designee. Kristen is a passionate leader with many years of experience serving the association. She is a great addition to the leadership track.

I am also pleased our members voted overwhelmingly to adopt the constitutional amendments recommended by the Board of Trustees. The amendments will provide for more transparency in elections and legislative advocacy, continuity in operations, and efficiency and effectiveness in governance and management.

On March 30-31, the Board of Trustees met for its spring meeting in Jonesboro. Continuing efforts to engage members across the state, the board hosted its third Local Social. Special guests included members of the Craighead and Greene County bars. After the reception, members were treated to a special behind-the-scenes tour of the ASU athletic facilities.

The following morning, the Finance Committee presented and the Board adopted a budget for the 2023-2024 bar year. After many months of frank discussions and hard choices, the committee chose a combination of cost-cutting measures and dues increases to achieve a balanced budget. The committee did not recommend more drastic cuts at this time in deference to the ongoing efforts of the Member Value Task Force and the Program Review Task Force. Those efforts will provide hard data to help the Board make

future decisions about what programs and services our members want and need most and which should be discontinued. I want to thank the Finance Committee and its chair Brant Perkins for its extraordinary efforts this past year.

I am pleased to also report that at the board meeting the board adopted the policy of program review recommended by the Program Review Task Force. The policy requires a periodic evaluation of all the association’s programming – both existing and newly proposed. The purpose is to make sure that the association is using its limited resources in the most effective and efficient ways over time to provide the greatest value to members within the means of the association.

On April 7, 2023, the state legislature adjourned sine die. I am pleased to report the legislature passed three bills in the Association’s legislative package: HB1408 – An Act to Create the Uniform Easement Relocation Act, HB1409 – An Act to Adopt the Uniform Community Property Disposition at Death Act, and HB1666 –An Act Concerning the Prepared Schedule of Property Ordered when a Judgment Calls for Property Subject to Execution.

Thanks to Jay Robbins, the association’s Director of Government Relations, and the Jurisprudence and Law Reform Committee chaired by David Bingham for all their efforts to assemble the association’s legislative package and shepherd it through the legislature.

Also during the 12-week session, the Legislation Committee reviewed a total of 1,472 bills and proposed constitutional amendments. It referred 582 bills to Section members for information and comment and performed its other duties with expertise and professionalism. Thanks to the committee chaired by George Rozzell for their work to fulfill the mission of the association to advance the practice of law,

advocate for the legal profession, and protect the rule of law.

At the beginning of May, we kicked off our annual Membership Renewal Campaign and also launched our muchanticipated membership survey. The survey was developed under the leadership of Jamie Jones and the Member Value Task Force. The survey is your opportunity to be heard and the association’s opportunity to listen. Your input will help determine what programs and services the association will offer in the future. The task force will present a report and set of initial recommendations based on the survey results to the board in August.

June 14-16 the association will host its 125th Annual Meeting. It will again be a joint meeting with the Arkansas Judicial Council. Meeting chairs Molly McNulty and Chris McNulty have done an outstanding job. The theme, “Building for the Future: A World of Opportunities,” speaks to our vision of a better future – not only for the association, but more importantly, for the clients our members serve.

The meeting will kick off on Wednesday night with a 125th Anniversary Celebration event at Oaklawn Casino Resort. It will feature cocktails, a silent auction, dinner, the Joint Awards, and dancing. Seating is limited, so make your reservations today!

The meeting will culminate with the swearing in of President-Elect Margaret Dobson as the association’s 126th President. Margaret is a leader with heart, an unrelenting drive to serve our members, and a passion for justice.

It is a busy time, for sure. But by staying focused on member engagement, identifying and providing greater value, and ensuring our programming is relevant and an effective use of resources, we can be certain that we are building a better, stronger, more sustainable association. ■

Joe F. Kolb is the President of the Arkansas Bar Association. Kolb is the principal member of the law firm j. k o l b in Little Rock.

Recap and More to Come

As we approach the end of the Bar year and my reign as the Chair of the Young Lawyers Section comes to a close, I wanted to reflect on some of the accomplishments that YLS achieved this year.

The Bar year started some 650 miles Northeast of the Arkansas Bar Center, in Chicago, Illinois, at the American Bar Association Annual Meeting. There, the Arkansas delegation learned from other association’s good ideas, and this helped our Section to formulate a strategic plan for the year.

In the fall, YLS hosted a free legal answers clinic with the help of Arkansas Access to Justice, impacting indigent Arkansans. This event was so successful that we are currently scheduling two more next year.

18 & Life to Go

I am especially thankful to each of the YLS executive committee members, who worked tirelessly to update and complete the “18 & Life to Go: A Legal Handbook for Young Arkansans.” This guidebook will be printed this summer and ready for distribution to area high schools in the fall.

Wills for Heroes

Probably in what has become our signature spring event, Wills for Heroes, was extra special this year. It was scheduled to take place on April 1, 2023, just one day after parts of our state were decimated by an EF-3 tornado. This event went forward with the dedication and resolve of our volunteer attorneys and we provided estate planning documents for over 70 first responders and their families. After quick deliberation we decided to extend this event for those first responders who were unable to attend due to the historic damage suffered from the tornadoes. This event would not have been as successful without our Bar partners, SimpleWill.

William J. Ogles is the Chair of the Young Lawyers Section. He is an attorney at Wright, Lindsey & Jennings LLP

Volunteers Needed to Provide Free Disaster Legal Assistance for Those Impacted by the March 31st Storms and Tornadoes

We are in need volunteers to assist in free disaster legal assistance for those impacted by the aforementioned tornadoes. In partnership with the Arkansas Bar Association, Center for Arkansas Legal Services, and Legal Aid of Arkansas, we are calling on all YLS members to provide free disaster legal assistance to individuals who were affected by the recent storms in the counties of Cross, Lonoke, and Pulaski. The Federal Emergency Management Agency announced that federal disaster assistance has been made available to the state of Arkansas. For those willing to provide free disaster legal assistance please visit https://fs2.formsite.com/ arkbar/2023DisasterAsstance/index and fill out the form.

125th Annual Meeting

The Arkansas Bar Association’s 125th annual meeting will be held in Hot Springs from June 14-16. The YLS Section meeting and election of officers will be held at 10:30 AM on Thursday, June 15. If you are interested in running for a position, please reach out to me for more information.

The YLS Social event, sponsored in part by Wright Lindsey & Jennings, will be held at Pop’s Lounge in the Oaklawn Casino. Come see us from 8:00 pm- TBD, on Thursday.

YLS is sponsoring a blood drive with the Arkansas Blood Institute on Thursday, June 16 from 9:00 am - 2:00 pm in Rooms 203-204 of the Hot Springs Convention Center. The online booking link will be available soon at https://www.arkbar.com/ annualmeeting/schedule/yls-blood-drive.

At the awards luncheon on Friday, June 16, YLS will be presenting awards

to three very deserving individuals for their contributions to our section and the Association:

•Ledly Jennings, District Representative, will receive a YLS Award of Excellence for his contributions to 18 & Life to Go, and for his work at the YLS social event in District C.

•Frank Jenner, Treasurer, will receive a YLS Award of Excellence for his contributions to the YLS Mid-Year event in Little Rock.

•Caroline Kelley, Chair Elect, will receive the Judith Ryan Gray Outstanding Young lawyer award for her support and contributions throughout the entire year. Caroline was instrumental in making sure every event YLS put its name on ran flawlessly. Caroline will also receive a YLS Award of Excellence for her work preparing for, and adapting under pressure at, the Wills for Heroes event.

It has been an absolute privilege to serve as your YLS chair, which afforded me opportunities to travel around our state and meet so many individuals who care deeply about our organization. I am proud of what we accomplished and I know that this organization is going to continue to succeed under the new chair elect, Caroline Kelley.

You can reach Will Ogles at Wogles@wlj. com and 501-371-0808. ■

Benefactors

2022-2023

John D. Alford

Mark H. Allison

Thomas M. Carpenter

Joshua T. Carson

Judge Susan Webber Wright

Carter

Earl Buddy Chadick

Suzanne G. Clark

Randy Coleman

Bryce Cook

Steven A. Cosse

Tim J. Cullen

Steven B. Davis

Sherry D. DeJanes

Jack W. Dickerson

Bob Edwards

Bob Estes

Brent J. Eubanks

Buck C. Gibson

Patrons

2022-2023

Elizabeth Ann Andreoli

Ben F. Arnold

Kenneth B. Baim

Barry D. Barber

Melody Peacock Barnett

David L. Beatty

Paul B. Benham, III

Stephen Bennett

Michael Stephen Bingham

Judge Samuel N. Bird

Daniel C. Blaney

Will Bond

Robert Bruce Branch, Sr.

Judge Laurie Bridewell

Fred E. Briner

Bill W. Bristow

Sustaining Contributors 2022-2023

Benefactors are members who make a sustaining contribution of $250/year in addition to membership dues to support Association programs.

Judge Donald Goodner

Judge Rita W. Gruber

Judge David F. Guthrie

Judge Lance L. Hanshaw

R. Victor Harper

Jason M. Hatfield

Joseph Hickey

Philip Hicky, II

Denise Reid Hoggard

Glen Hoggard

Paul W. Keith

Eugene T. Kelley

William H. Kennedy, III

Judson C. Kidd

Andrew F. Kirkendall

Joseph F. Kolb

Howard Baker Kurrus

Michael F. Lax

Charles Knox Lincoln, II

Harvey “Jay” C. Martin, Jr.

Dustin B. McDaniel

Gary D. McDonald

J. Cliff McKinney, II

Brandon K. Moffitt

Margaret Woodward Molleston

Rosalind M. Mouser

Timothy J. Myers

Alan J. Nussbaum

Debby Thetford Nye

William L. Owen

William Lance Owens

Richard Martin Pence

John V. Phelps

Joseph H. Purvis

Brian M. Rosenthal

Judge John R. Scott

Timothy Ryan Scott

Ted C. Skokos

Rodney E. Slater

James W. Smith

James D. Sprott

Greg A. Thurman

Richard Edwin Ulmer

Matthew Vandiver

A. Glenn Vasser

William A. Waddell, Jr.

Danyelle J. Walker

Eddie H. Walker, Jr.

Todd Cooper Watson

Daniel A. Webb

Judge Gordon Webb

Kandy Gregg Webb

Judge David J. Whitaker

Rufus E. Wolff

Tom D. Womack

Patrons are members who make a sustaining contribution of $100/year in addition to membership dues to support Association programs.

Erin S. Brogdon

Mickey Joe Buchanan

Larry W. Burks

J. Paul Byrd

Worth Camp, Jr.

Mitch Cash

Erin E. Cassinelli

Christopher Chad Causey

Robert M. Cearley, Jr.

Lori Chumbler

Judge Charles E. Clawson, Jr.

Janet K. Colaneri

Roger U. Colbert

Charles T. Coleman

Barry E. Coplin

Robert R. Cortinez, II

Edward Ralph Cotham, IV

Judge James O. Cox

Merrida (Buddy) P. Coxwell

John Atkins Crain

Junius Bracy Cross, Jr.

James E. Crouch

Tim J. Cullen

F. Thomas “ Tom” Curry

Thomas A. Daily

Judge Elizabeth Danielson

Charles D. Davidson, Sr.

Judge Robert T. Dawson

Judge Beth M. Deere

Brad G. Dowler

Terry Dugger

Don A. Eilbott

Judge Harold S. Erwin

Judge Audrey Riemer Evans

Tiffini C. Evans

Frances S. Fendler

Laura K. Ferner

Judge David Folsom

Lyle D. Foster

Amy Freedman

Larry R. Froelich

Matthew L. Fryar

Dr. William Andrew

Fulkerson, III

Price C. Gardner

Terry J. Garrett

Charles C. Gibson, III

Pamela B. Gibson

Thank You for Your Support

Patrons (cont.)

Sam E. Gibson

Greg R. Giles

John P. Gill

Dent Gitchel

Morton Gitelman

Judge Don E. Glover

Dorsey D. Glover

Michael R. Gott

Ronald L. Griggs

Judge James H. Gunter, Jr.

Barbara B. Halsey

David Michael Hargis

Raymond Harrill

Rita Reed Harris

Charles L. Harwell

Richard F. Hatfield

Patrick Henry Hays

Paul F. Henson

Mauricio Adonay Herrera

Patrick “Collins” Hickman

Anthony A. Hilliard

Brian C. Hogue

Cyril Hollingsworth

Don Hollingsworth

Justice Clifton H. Hoofman

Robert Howard Hopkins, Sr.

Andrew Hudgens

Karen K. Hutchins

James W. Hyden

Judge Michael E. Irwin

Lawrence W. Jackson

Randolph C. Jackson

Judge Amy Dunn Johnson

Judith M. Johnson

Glenn W. Jones, Jr.

Michael F. Jones

Jim Julian

Philip E. Kaplan

Sean T. Keith

Donald H. Kidd

Peter G. Kumpe

Judge David N. Laser

John Charles Lessel

Stark Ligon

Judge John R. Lineberger

Steven M. Lowry

Gabriel D. Mallard

Angela Michelle Mann

William C. Mann, III

David R. Matthews

Richard Hartley Mays

Judge Jerry Mazzanti

Michael S. McCrary

Bobby McDaniel

Becky A. McHughes

Josh E. McHughes

James “Jim” A. McLarty, III

James E. McMenis

Anthony L. McMullen

Kelly M. McQueen

Judge Michael J. Medlock

Philip Miron

Judge Chalk S. Mitchell

Michael W. Mitchell

Mark A. Moll

T. Ark Monroe, III

Harry Truman Moore

Jeffrey H. Moore

Wm. Kirby Mouser

Stephen B. Niswanger

Brianna Spinks Nony

Edward T. Oglesby

Judge James E. O’Hern, III

Chad R. Oldham

Chris Oswalt

Neal R. Pendergraft

Brant Perkins

Ellis Lamar Pettus

Constance Brown Phillips

Judge Chris C. Piazza

Melody H. Piazza

Judge John M. Pittman

David J. Potter

Judge Richard Lee Proctor

David H. Pryor

Donald C. Pullen

Judge Joseph Ramos

Brian H. Ratcliff

Herbert L. Ray

Robert Jeffrey Reynerson

Judge Curtis E. Rickard

Lewis E. Ritchey

John Boyd Robbins

William S. Robinson

Richard L. Roper

Charles D. Roscopf, Jr.

Thomas N. Rose

John L. Rush

Angela Galvis Schnuerle

Steven E. Schulte

John S. Selig

Justice Ronald L. Sheffield

Harry E. Skinner

D. David Slaton

Don Allen Smith

Raymond C. Smith

Robert D. Smith, III

T. Benton Smith, Jr.

Michael W. Spades, Jr.

Aaron L. Squyres

James W. Stanley

Judith C. Strother

James H. Swindle

David S. Taylor

Floyd J. Taylor, Jr.

Charles R. Teal

Justice Annabelle Imber Tuck

Fred S. Ursery

James R. Van Dover

Judge Rice VanAusdall

Wyman R. Wade, Jr.

Judge Bill H. Walmsley

Chris Walthall

Judge John C. Ward

Judge Diane Bartsch Warren

Lt. Col. Stan L. Warrick

John Dewey Watson

J. Adam Wells

Judge David J. Whitaker

David W. Whitehurst

Edd N. Williams, Jr.

Judge Billy Roy Wilson

George R. Wise

Carolyn B. Witherspoon

Judge Wm. Randal Wright

Judge W. Kelvin Wyrick

Cary E. Young

Steven S. Zega

Dennis M. Zolper

Gimme Shelter: How the Rolling Stones Used a Dutch Tax Loophole to Pay Only

1.6% Tax on $450 Million

in Worldwide Income

By Anton L. Janik, Jr.

In the Beatles’ 1966 song Taxman, George Harrison wrote the following lyrics in protest of Great Britain’s crushingly inequitable tax law:

There’s one for you, nineteen for me… Should five percent appear too small be thankful I don’t take it all…. You’re working for no one but me.1

Anton Janik is an attorney with Mitchell Williams in Little Rock. He leads the Tax Controversy and Litigation practice area and co-leads the Information Security & Privacy practice area. Anton previously served as a Trial Attorney with the United States Department of Justice in Washington, D.C.

As Harrison wrote in his 1980 book I Me Mine, “Taxman was when I first realized that even though we had started earning money, we were actually giving most of it away in taxes. . . . It was and is still typical.”2 The Beatles weren’t the only ones pinched by Messrs. Wilson and Heath,3 but perhaps no British band was more successful in avoiding the heavy hand of the Exchequer than were the Rolling Stones.

Formed in 1962, the rock band the Rolling Stones has remained active for over six decades, releasing studio and live albums and touring worldwide. The band has earned a massive amount of money over this time from concert touring, merchandising, video and music recordings and films, and licensing of its music rights. To provide some perspective into just how lucrative the band is, Billboard reports that in just 2005 and 2006 alone, the Stones earned at least $558 million in touring revenue (that’s $729 million in 2023 inflation adjusted dollars).4

By the mid 1960s, Allen Klein, American business manager and founder of ABKCO Music & Records Incorporated, took over as the Rolling Stones’ manager. By all accounts Klein was a tough negotiator with Decca Records, the Stones’ record label, and was a tough contract drafter when it concerned his publishing rights to the Stones’ catalog. Klein inserted himself as an intermediary owner between the band and the record label, owning the publishing rights to the music, manufacturing the records, selling them to Decca, and paying royalties and cash advances to the band. Years later, this arrangement led to a series of lawsuits over at least 17 years as the Stones sought to wrest control of their early and quite successful works (including the band’s first number one record in America, I Can’t Get No Satisfaction, and songs Jumpin’ Jack Flash, Street Fighting Man, and Sympathy for the Devil) back from ABKCO.5 Allegations were made that Klein had withheld royalty payments worth approximately $100 million. To this day, ABKCO still owns the publishing rights to the Stones’ catalog up through five songs on 1971’s Exile On Main Street 6 (Notably, the Rolling Stones do own full rights to the iconic lips and lapping tongue logo which was introduced in 1971 and is reported to be a core driver of the band’s merchandising earnings.7)

One result of this business relationship was that Klein failed to pay the band’s taxes for seven years, resulting in liabilities of each band member of approximately $1,000,000 in today’s value. Although a one-time student at the London School of Economics (dropping out to pursue his music career), Jagger stated “I just didn’t think about taxes, and no manager I ever had thought about it, even though they said they were going to make sure my taxes were paid. So after working for seven years I discovered nothing had been paid and I owed a fortune.”8 As noted by George Harrison, Great Britain’s tax rates were very high at this time. In the late 1960s, the British government taxed earned income (that from employment, trade, professions) at up to 83%, and unearned income (interest, dividends, royalties) at up to 98%. (For perspective, today the top U.S. individual tax rate is 37%. Arkansas’ top tax rate is 4.9%. Thus, the highest income earner here in Arkansas would pay less than half of the tax rate imposed upon the Stones back then.)

“Rupie the (Financial) Groupie” Was a Real Prince

Prince Rupert Loewenstein,9 also known as Rupie the Groupie,10 was an Oxfordeducated merchant banker and Director of Leopold Joseph & Sons (London).11

Rupie was a business advisor and financial manager with a passion for classical music and offshore financial arrangements. He was decidedly not a Rolling Stones music fan.

Certainly so far as the Stones’ music was concerned I was not in tune with them, far from it. Rock and pop music was not something in which I was interested or listened to. … I had heard some of The Beatles’ music. Their music was sufficiently harmonic to be acceptable to people like me who only liked classical music. I only really took against rock ‘n’ roll when I heard the Stones.12

Rupie met Mick Jagger at a party in Jagger’s home in 1968. The lore is that Jagger’s beautiful home was bereft of furniture, and being curious Rupie inquired about that oddity, learning that Mick Jagger had very high tax debts and very little cash despite very large paper earnings.13 “I realized that, looked at sensibly and without being distracted by the showy trappings of the music business, the problems that Mick and his fellow Stones were experiencing were not unusual. They were straightforward, in fact. I was intrigued.”14 Shortly thereafter,

Rupie became the band’s business manager and the eventual architect behind the Stones’ escape from England into selfimposed tax exile in the South of France, and the creation of the offshore structure protecting nearly the entirety of the band’s assets from any meaningful taxation whatsoever.

Rupie recognized that the United Kingdom has a territorial system of income taxation, which means that a U.K. citizen is subject to income tax to the extent that he or she is deemed a U.K. resident under the tax laws, which focuses upon physical presence in the U.K. This is an important distinction because under the U.K.’s Foreign Earning Deduction, income earned by a U.K. citizen outside the U.K. is generally not subject to U.K. taxation so long as the citizen is abroad for a sufficient amount of time, approximately 305 days a year.15 Rupie was also aware that the French tax regime allowed a noncitizen with physical presence in France to pay no French taxes on their earnings so long as they resided in France for at least a year and spent at least $500,000 a year in the country.16 And so a plan was born.

In April 1971, just before the U.K. tax year began, the Stones exited the U.K. for France. Keith Richards rented Villa Nellcôte, a mansion on France’s Cote D’Azur, for $2,500 a month. (Perhaps he

"So, despite what your mother told you at age 14, it really does pay to be a rock ’n roll star. Especially if you are a taxpayer not subject to worldwide taxation, and the licenses to your intellectual property are held by a Dutch License Royalty Conduit company. In that case, it appears that the Taxman … (Can’t Get No) Satisfaction."

should have bought that property. Reports indicate that a Russian oligarch purchased it in 2005 for $128 million.17) Charlie Watts purchased an apartment in Thorais, France, that he held through at least 2013.18 Mick Jagger spent most of his time at a rental in Biot, France, with his new wife Bianca.19 The band continued to write music, and during this period of tax exile the album Exile on Main Street was written and recorded in the basement of Villa Nellcôte.20 On May 12, 1972, Exile was released and the band began a world tour, rebuilding their finances. The Stones remained residents of France until late 1973, when Keith Richards was given a two-year ban from the country for a narcotics violation.21 (In February 1973, the Stones were also banned from the United States as a result of large concertgoer riots and band scuffles that took place during their 1972 U.S. tour. Arkansas criminal attorney Bill Carter was instrumental in working through the U.S. Government’s objections, which allowed the Stones to enter the United States for their 1975 tour. Carter represented the Stones with regard to their U.S. tour “issues” through 1990, including Keith Richard’s July 5, 1975, arrest in Fordyce, Arkansas, for carrying an illegal weapon, a hunting knife.22 )

Dutch Processed: Johannes Favie and the Dutch License Royalty Conduit Shelter

Beating the U.K.’s physical presence test was not the only present Rupie offered. His greater gift to the Stones was in establishing the Dutch License Royalty Conduit shelter to limit taxation of the Stones’ earnings.

Rupie set up a management company in the Netherlands called Promogroup and brought in reclusive Dutch accountant Johannes Favie to manage Promogroup’s holdings. (Jan Favie still manages it today.) Promogroup has four subsidiary Dutch companies called Promotour (for concert touring revenues), Promopub (merchandising), Promotone (video and music recordings and films), and Musidor (music rights). Each subsidiary holds a worldwide license to that given intellectual property, which is important because that license means each subsidiary receives the royalties from use of that licensed intellectual property from any place it is

used in the world. Thus, Promogroup is called a Dutch License “Royalty Conduit” company, because it is a conduit for those royalties: all of the royalties earned upon the worldwide use of its subsidiaries’ licenses flow up through the subsidiaries to it.23

This is the important part. The worldwide income is pushed from the country in which it was earned to the Netherlands. What makes that so valuable is that the Netherlands has income tax treaties with most foreign countries that have preferential rates which fall between 0% and 5%, so income earned in those jurisdictions are subject to no or low tax before they are transferred to the Netherlands, and once received in the Netherlands, the Netherlands charges no tax upon those royalties, dividends or interest. Further, the royalties, dividends and interest payments that flow out of the Royalty Conduit are also exempt from Dutch taxes. (Starting January 1, 2021, the Netherlands instituted a conditional withholding tax of 25% on royalty payments and 15% on dividend payments made to entities in low-tax jurisdictions or jurisdictions listed by the EU as “noncooperative,” unless the entity meets an eight-point economic substance test. That does not affect transfers made to the Netherlands.24)

Here’s how the Royalty Conduit works. The income coming from a foreign country where, say, an album was sold, enters the Netherlands never having been taxed or only having been minimally taxed pursuant to a treaty. Because the Netherlands charges no tax on royalties, dividends or interest, there is no tax charged upon that income while it sits earning interest in the Netherlands. When the income leaves the Netherlands to be paid to the individual artist, the Netherlands charges no tax on that so long as after January 1, 2021, that artist is not in a low-tax or noncooperative country. Certainly, the greatest taxreduction impact would be realized if that artist finally receiving the royalties from that album sale lived in a jurisdiction that imposes no income tax, or if that jurisdiction was prevented from imposing an income tax on income earned outside that home country by action of a treaty or, say, a physical presence test. Because the U.K. does employ a physical presence test,

so long as the Stones are not physically present in the U.K. longer than that allowed by the U.K.’s Foreign Earning Deduction, by using the Royalty Conduit to shelter their worldwide royalty income from tax, the Rolling Stones’ royalty, dividend and interest income can effectively be sheltered to somewhere between 0% and 5% tax. By using the Royalty Conduit shelter, between 1986 and 2006, the Rolling Stones paid $7.2 million on earnings of $450 million, which equates to a tax rate of about 1.6%.25

Could this play work for those of us that are U.S. taxpayers? The United States Supreme Court stated in Gregory v. Helvering that “[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.”26 And Second Circuit Court of Appeals Judge Learned Hand has famously stated, “a transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Anyone may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.”27 However, both Arkansas and the United States require individuals to report and be taxed upon their worldwide income (although our federal tax law does allow a credit for foreign tax paid, and there are exclusions for foreign earned income; in 2023 that exclusion is capped at $120,000). The United States taxes royalties at the same rate as ordinary income. So, given those two factors, this tax play would not work for U.S. taxpayers.

What about that old adage about death and taxes? Can the Rolling Stones tell the Taxman to Get Off Of [Their] Cloud? At least two can. Jan Favie has set up two private Dutch foundations, so that when Mick Jagger and Keith Richards die their assets will pass to their heirs tax-free.28 As Keith Richards has said, “[t]he whole business thing is predicated a lot on the tax laws. It’s why we rehearse in Canada and not in the U.S.29 A lot of our astute moves have been basically keeping up with tax laws: where we go, where not to put it, whether to sit on it or not. We left England

because we’d be paying ninety-eight cents on the dollar. We left, and they lost out. No taxes at all.”30 So, despite what your mother told you at age 14, it really does pay to be a rock ’n roll star. Especially if you are a taxpayer not subject to worldwide taxation, and the licenses to your intellectual property are held by a Dutch License Royalty Conduit company. In that case, it appears that the Taxman (Can’t Get No) Satisfaction

Endnotes:

1. Harrison, G., Taxman (1966).

2. Frank Mastropolo, How the Stones, Rod Stewart and David Bowie Ran From the Taxman, Ultimate Classic Rock, (Apr. 15, 2015), available at https:// ultimateclassicrock.com/rock-bandstaxes/?utm_source=tsmclip&utm_ medium=referral (last visited Jan. 6, 2023).

3. Harrison poked at British Prime Minister Harold Wilson and opposition leader Edward Heath in Taxman, with the lyrics “Don’t ask me what I want if for (ha-ha, Mr. Wilson), if you don’t want to pay some more (ha-ha, Mr. Heath).”

4. Ray Waddell, Rolling Stones Tour Grosses More Than Half A Billion, Billboard (Oct.

3. 2007), available at https://www.billboard. com/articles/news/1048656/rolling-stonestour-grosses-more-than-half-a-billion (last accessed Jan. 28, 2023). The 2023 inflation adjusted figures are from Wikipedia and use Waddell’s numbers, available at https:// en.wikipedia.org/wiki/List_of_highestgrossing_concert_tours (last visited Jan. 28, 2023).

5. John McMillan, Beatles vs. Stones (Simon & Schuster, Inc., 2013), excerpted in You Never Give Me Your Money: How Allen Klein Played The Beatles and The Stones, Newsweek (Dec. 17, 2013), available at https://www.newsweek.com/sympathydevil-how-alan-klein-played-beatles-andstones-224703 (last visited Feb. 3, 2023).

6. The liner notes to Exile On Main Street reflect that ABKCO owns the publishing rights to Sweet Virginia, Loving Cup, All Down The Line, Stop Breaking Down, and Shine A Light Exile On Main Street, Album Liner Notes, available at http:// albumlinernotes.com/Exile_On_Main_ Street.html (last visited Jan. 29, 2023). See also BMG To Represent Rolling Stones’ Mick Jagger and Keith Richards’ Post-1983

Publishing, Billboard (June 26, 2013), available at https://www.billboard.com/ music/music-news/bmg-to-representrolling-stones-mick-jagger-and-keithrichards-post-1568163 (last visited Jan. 29, 2023), noting that “ABKCO, however, still owns the 1963-1971 Stones’ catalog” and Andy Serwer, Inside the Rolling Stones Inc., Fortune (Sept. 30, 2022), available at https://money.cnn.com/magazines/fortune/ fortune_archive/2002/09/30/329302/ (last visited Jan. 29, 2023) (discussing “Klein (whose company, ABKCO, still owns rights to the Stones’ songs from the earliest days through 1971)”).

7. British trademark registrations: Intellectual Property Office, owner: Musidor B.V., UK00001051130, UK00001051131, UK00001051132 (Aug. 20, 1975), UK00001176150 (June 3, 1982), UK00001184204, UK00001184205 (Oct. 27, 1982), UK00001576067 (June 21, 1994), UK00001576068, UK00001576069, UK00001576070 (June 21, 1994), available at https://trademarks.ipo.gov.uk/ipotmowner/page/search?id=260795&doma in=1&page=1 (last visited Jan. 29, 2023); United States trademark registrations, U.S. Patent & Trademark Office, owner: Musidor B.V., numerous hits, but see, e.g., 1071347 (June 7, 1976), 2825378 (June 14, 1999), 4874833 (Dec. 22, 2015), available at https://tmsearch.uspto.gov (last visited Jan. 29, 2023). For U.S. results not requiring use of the United States’ Trademark Electronic Search System, see https://www.gerbenlaw. com/trademarks/musicians/the-rolling-stones (last visited Jan. 29, 2023).

8. Barry Nicolson, Rolling Stones: The Grisly Death-And-Drugs Filled Story of ‘Sticky Fingers’, NME (Apr. 23, 2015), available at https://www.nme.com/features/rollingstones-the-grisly-death-and-drugs-filledstory-of-sticky-fingers-757406 (last visited Jan. 6, 2023).

9. Rupert Louis Ferdinand Frederick Constantine Lofredo Leopold Herbert Maximilian Hubert John Henry zu Löwenstein-Wertheim-Freudenberg, Count of Loewenstein-Scharffeneck.

10. Jerry Hall gave him this name. See Christopher Wilson, How late pop-hating Bavarian prince became ‘Rupie the Groupie’ and made penniless Rolling Stones billions in tax exile (while also keeping them out of jail

for drugs), Daily Mail (May 22, 2014), available at https://www.dailymail.co.uk/ news/article-2636853/How-Rupie-Groupiesent-Stones-tax-exile-kept-jail-drugs-PrinceRupert-Loewenstein-penniless-rock-starsbillions-falling-Jagger.html (last visited Jan. 28, 2023).

11. Rupie managed the band until 2008 and died in 2014. See Adam Sweeting, Prince Rupert Loewenstein Obituary, The Guardian (May 22, 2014), available at https://www. theguardian.com/music/2014/may/22/ prince-rupert-loewenstein (last visited Jan. 28, 2023).

12. Prince Rupert Loewenstein, A Prince Among Stones: That Business with the Rolling Stones and Other Adventures 69 (Bloomsbury USA, 2013).

13. A 2002 Fortune interview of Mick Jagger notes that “By the mid-’60s the Stones had reportedly sold ten million singles, including ‘Satisfaction,’ and five million albums, but the band was still living hand to mouth.”

Andy Serwer, Inside the Rolling Stones Inc., Fortune (Sept. 30, 2022), available at https://money.cnn.com/magazines/fortune/ fortune_archive/2002/09/30/329302/ (last visited Jan. 29, 2023).

14. Loewenstein, supra note 12, at 69.

15. Current British law indicates that an individual will be treated as a non-UK resident for income tax purposes by applying one of three tests, including if they have not been a UK resident in any of the three previous tax years and will spend fewer than 46 days in the UK in the relevant tax year. See KPMG, Taxation of international executives: United Kingdom, January 2023, available at https://assets.kpmg.com/ content/dam/kpmg/xx/pdf/2023/01/TIESUnitedKingdom.pdf (last visited Mar. 16, 2023).

16. Kathy Copeland Padden, Exile in Villefranche, available at https:// kathycopelandpadden.medium.com/exilein-villefranche-4b1a63e83775 (last visited Feb. 3, 2023). It’s been difficult to determine whether the Rolling Stones met this spending qualification that first year, where they were not touring and were instead focused on partying and recording Exile on Main Street It is likely that they didn’t have much income that year, or at least much income to worry about, and the greater import was that they exported themselves out of the U.K. for

the requisite period so as to exclude any worldwide earnings they did have from the usurious clutches of the Exchequer. Prince Rupert’s biography indicates that there was a negotiation made with the French tax authorities prior to the Stones entering the country. He doesn’t provide details, simply stating “[a] deal was struck with the AplesMaritimes authorities where the Stones were allowed to reside and only had to pay a negotiated income tax….” which may mean that negotiated tax was less than $500,000. See Loewenstein, supra note 12, at 100.

17. Peter Howell, Stones fans not welcome at French ‘Exile’ mansion, Toronto Star (May 21, 2010), available at https://www.thestar. com/entertainment/movies/2010/05/21/ howell_stones_fans_not_welcome_at_ french_exile_mansion.html (last visited Jan. 6, 2023).

18. Loewenstein, supra note 12, at 100; Richard Havers, Exile in Paradise: The Rolling Stones’ French Villa of Excess, Udiscovermusic (Apr. 5, 2022), https:// www.udiscovermusic.com/stories/le-rollingstones-aller-en-france/ (last visited Feb. 3, 2023); Danica Baker, Rolling Stones’ Charlie Watts eight figure fortune is leaked in his will, Tone Deaf (May 18, 2022), available at https://tonedeaf.thebrag.com/rolling-stonescharlie-watts-will/ (last visited Feb. 3, 2023).

19. Loewenstein, supra note 12, at 146.

20. That title is, apparently, intended. “That new album in due course became Exile On Main Street, which may be one of the few top-selling albums, if not the only one, to contain a reference to tax planning in the title.” Loewenstein, supra note 12, at 101.

21. On October 15, 1973, Keith Richards was found guilty of trafficking marijuana by a Court in Nice, and of possession of marijuana, heroin and cocaine at Villa Nellcôte and on his yacht Mandrax in 1972. Richards was given a one-year suspended sentence, a 5,000 franc fine and was banned from entering France during two years. See, e.g., https://www.needsomefun.net/october15-1973-keith-richards-and-anita-pallenburgwere-both-found-guilty-of-traffickingcannabis (last visited Jan. 29, 2022).

22. Bill Carter, Get Carter 126–27, 129, 149 (Fine’s Creek Publishing, 2006).

23. Although we see that the subsidiary Promotour appears to gather funds for concert touring, the earnings from the

Stones’ own concert performances are not royalties, dividends or interest, so they would not appear to fall within the shelter provided by the Royalty Conduit. (Under U.S. tax law, such fees would be treated as payments for services and be taxed at ordinary income rates.) Given the disparity between the $450 million in income known to have been sheltered by the Royalty Conduit between 1986 and 2006 and the known touring revenue in 2005 and 2006 of $558 million, it may be that the Stones are not sheltering much if any of their concert touring revenues.

24. See https://www.orbitax.com/taxhub/ withholdingtaxrates/NL/BM/Netherlands/ Bermuda (last visited Feb. 3, 2023).

25. Simon Wilson, It’s only tax planning, but I like it, MoneyWeek (Feb. 28, 2007), available at https://moneyweek.com/32638/ its-only-tax-planning-but-i-like-it (last visited Jan. 28, 2023).

26. Supreme Court Associate Justice George Sutherland in Gregory v. Helvering, 293 U.S. 465, 469 (1935).

27. Helvering v. Gregory, 69 F.2d 809, 810 (2d Cir. 1934).

28. Wilson, supra note 25.

29. Under the Internal Revenue Service’s substantial presence test, a foreigner will be treated as a United States resident for tax purposes if that person is physically present in the United States 31 days during the current year and 183 days during the three-year period that includes the current year and the two years immediately before that, counting all the days present in the current year, 1/3 of the days present in the first prior year and 1/6 of the days present in the second prior year. See Internal Revenue Service, Substantial Presence Test, available at https://www.irs.gov/individuals/ international-taxpayers/substantial-presencetest (last visited Jan. 29, 2023).

30. David Remnick, Groovin’ High, The life and lures of Keith Richards, The New Yorker (Oct. 25, 2010), available at https://www. newyorker.com/magazine/2010/11/01/ groovin-high (last visited Jan. 28, 2023) (emphasis added). ■

By William A. Waddell, Jr.

Five Bagatelles at Law

I. Introduction

In music, a bagatelle is a short piece of music, frequently instrumental only. One of the more well-known musical bagatelles is William Walton’s Five Bagatelles for Guitar 1 Divided into five parts, or bagatelles, all of the pieces can be played together in about 14 minutes.

Walton’s Five Bagatelles are organized as Allegro, Lento, Alla Cubano, Sempre Espressimo, and Con Slancio. The description of each bagatelle and their order correspond well to five bagatelles at law that are sometimes lost in daily law practice but which are important to our roles in the interpersonal symphony of the law as profession: Independence, the Rule of Law, Authenticity & Truth, Originalism, and Courage.

In law, we often think we need to use many words to make a point. The bagatelle model—short but impactful thoughts—is sometimes more effective, particularly in terms of these five qualities and priorities that we can keep in mind as we live within the law. Personally, I think of these as my Baedeker, or guidebook, for practicing law.

II. Bagatelle I—Allegro (Quick & Lively)—Independence

A lawyer’s independence is essential to a system of loyal advocacy on behalf of a client.2 Without independence, loyalty is divided, and divided loyalty does not meaningfully achieve the objective of zealous advocacy. Lack of independence has its genesis in a number of other interests: self-interests, such as like or dislike for the client or the client’s cause; lawyer peer pressures; law firm interests; the influence of outside interest groups; or sadly, simple biases and prejudices. All of that makes a lawyer’s independence a highly important consideration for a client. If a client were to know about a lawyer’s interests that compete with the client’s interest, how would the client react? Some interests may be shared; others may not be. However, the discerning client should realize that the influence of any other interest can create a situation of division of loyalty. And what about the effect of other interests of a lawyer on the court deciding the client’s case? The court should be entitled to assume that the client’s interests are paramount and are not adulterated by other considerations, including the lawyer’s concern for how the lawyer is evaluated or received by the court in relation to the client’s need for a lawyer who remains winsome and credible while occasionally, as necessary, pushing the court beyond the court’s own positions and thinking. To work as intended, the system needs an independent lawyer. This independence must be constant and immediate and not subject to either undue deliberation while weighing competing interests or laden with stress and anxiety that slow down advocacy of the client’s interests. Finesse and deliberate strategies of thought

William A. Waddell, Jr., is a partner at Friday, Eldredge & Clark LLP in Little Rock. He is a member of the firm’s litigation practice group.

are important tools for the lawyer, but they should not be used for the purpose of balancing other interests with those of the client in an effort to serve all masters of the lawyer.

“An attorney has an ethical obligation to his or her client that does not admit of competing allegiances.”3 The Eleventh Circuit Court of Appeals made the foregoing statement and went on to quote the familiar Bible verse of Matthew 6:24 about not being able to serve two masters before concluding that “an attorney’s duty of loyalty to his client is very nearly sacred.”4

The picture above shows a place in the Gothic Quarter of Barcelona, Spain, where lawyers’ briefs were once submitted. It is marked by a turtle and also by swallows that are free to fly without restriction. The musicality of soaring swallows is unmistakable, and that musicality is marked clearly by their independence. Our independence should be measured by the restrictions placed on our work from within us and by outside pressures. Like a caged swallow, a tethered lawyer looks different to the client, the court, and, ultimately, the public whose confidence in the rule of law is critical.

III. Bagatelle II—Lento (Slowly)—The Rule of Law

The rule of law is the primary mechanism in our legal system that leads to justice. Without it, attorneys have little to argue about, because our main activity (and perhaps purpose) is to develop and argue facts within the structure of the law. The judge’s decision is then accepted and usually

obeyed because of our society’s commitment to the rule of law. Thus, we all depend upon the rule of law not just to do our work but to order society when there are disputes or even temptations to break the law.

As the turtle on the face of the Barcelona brief depository reveals, lawyers, the courts and, ultimately, justice are not just called to be independent and free of other influences. We all are also called to the careful and deliberate development of the law that engenders and maintains support for the rule of law. Hence, the turtle is a symbol of how disputes and questions are decided and how those disputes ultimately fit within the overall rule of law. The court system in Barcelona recognized that value long ago as did the architect of the United States Supreme Court building, who placed turtles at the base of the lampposts outside the building. This is a reminder to all not to rush to judgment, not to circumvent deliberate legal process, and not to avoid the hard work that is required of lawyers and judges to do justice.

A few years ago, the Arkansas Supreme Court gave this emphasis to the rule of law: “Regardless of how we feel about Paschal's conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts.”5 As lawyers, we have that same duty, in every case, in every way, in every moment, so long as we continue to call ourselves lawyers.

In today’s world, there is a perception that justice begins with having a judge of a particular worldview who acts to uphold the rule of law from the perspective of that worldview. However, starting from the

point of a worldview may subvert the whole process. While no person, including judges, can totally be independent, their success in upholding the rule of law depends on their detachment:

Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.6

Thus, like our independence as lawyers, detachment of judges, without regard to any constituency and unmindful of the pace of society, is a key to upholding the rule of law. And like Walton’s Bagatelle II, slowly listening to the musical score of the law, interpreted by a skillful professional, will lead to the synchrony and discipline demanded by the rule of law.

IV. Bagatelle III—Alla Cubano (Cuban Style)—Originalism in the Context of the Law Based on the Constitution

While the law, and its rule in our society, moves deliberately, it cannot be separated from its origins. Like the Cuban snail, polymita, taken from its original habitat,

Barcelona Brief Depository Polymita Snail

it dies. Its beauty is in its original created state and in its native habitat. The polymita is now endangered, because its habitat is disappearing, and because it has been commercialized.7

Like the polymita, our original DNA in the law, cannot, and should not, be changed. We must continue to dwell in the native habitat where the law was created in order to keep the rule of law off the endangered list.

There is a tendency to move the law from its original cradle—which in the United States is our Constitution—where those in society are strong enough to take it. These words attributed to Thomas Jefferson in 1798 make the point, albeit in a different context: “[I]n questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”8 Closer to home and in the not so distant past, the Supreme Court made this same point in Little Rock’s desegration case, Cooper v. Aaron, 9 particularly Justice Felix Frankfurter in his concurrence: “[T]he Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.”10

Whether the strong are legislators, lawyers, judges, or parties to a case, losing sight of our foundational DNA leads to error and uncertainty instead of bedrock principled decisions:

But fetishes are elusive things; they throw off the garment of one age to take on the vestments of the new. Herbert Spencer in his day admired the formalism of law, with its indifference to human justice, clothed in the pseudo-philosophic robes of “laissez faire.”11

Lochner v. New York12 has come to symbolize the type of wrongful use of judicial power under the guise of economic due process—a rewriting of the Constitution, in a way, that altered the original meaning of that foundational document.13 In a moment of clarity that presaged a later correction in jurisprudence, Justice Oliver Wendell Holmes famously stated in dissent in Lochner that the due process clause of the Fourteenth

Amendment “does not enact Mr. Herbert Spencer’s Social Statics.”14 A later decision by the United States Supreme Court took the originalist view even further:

Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.15

Thus, it is original meaning, and neither the prevailing view of the strongest nor the most acceptable mores of the day, that should be the guiding principle of all that we do in the law.16 May we never forget our beginning and its importance to our future, and may our style of law be as clear, unforgettable and stunningly beautiful as the Cuban style of the polymita

V. Bagatelle IV—Sempre Espressimo Expressively—Authenticity and Truth

In each of our lives as lawyers, we have had times when we tried to emulate someone we admired. Sometimes it worked out for a short while, but most of us learned that we were not effective imitating someone else. I was privileged to accompany various lawyers to trial in my first years as a lawyer, and I learned a lot from them and from their opposing lawyers. Some of what I learned I still use today. But just as no one would mistake a plastic toy store guitar for a Gibson, no one would ever mistake me for Buddy Sutton. It’s not just a matter of physical stature and voice; his credibility was the complete package of who he was. I could never even aspire to be him or any number of other master trial lawyers. Most importantly, however, neither could they be me. Authenticity, in its purest sense, is unique to each of us. It stems from genuinely reflecting all of our life and experience up to the point that we open our mouths to speak or lift our hand to write.

Expression by a lawyer in whatever form is most effective when it is genuine and

resonates the truth. This is more than just accuracy and our best degree of honesty and candor. It is relational—reflecting who we truly are to clients, opposing parties, other lawyers, the court, and the public at large. And as Mark Nepo writes in Finding Inner Courage, 17 “we return to the breath of authenticity in the practice of relationship.”

Rule 102 of the Arkansas Rules of Evidence states that the rules are to “be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.”18 Other rules of evidence have been amplified by case law that describes how truth can reliably be ascertained. For example, while Rule 901(a) and (b)(1) and (4)19 provide basic rules regarding authentication, those rules are contextual in application. In Brown v. State, 20 the Arkansas Court of Appeals addressed the authentication of Instagram messages:

Although L.B.’s testimony was sufficient to authenticate that the photographs of the Instagram messages accurately reflected the images on her phone, she admitted that she did not have any actual knowledge that appellant was the one sending those messages. … Additionally, even L.B. admitted that anyone could create another account with a similar username, same digital profile picture, and same profile quote. Further, there was nothing in the content of the messages that was known only to appellant.21

The court concluded, “Because credibility was critical to the jury’s resolution of the conflicting stories, we reverse and remand for a new trial.”22

The present-day parallel of the lack of authenticity of Instagram messages and our being as lawyers is poignant. Our experience tells us that many people on Instagram project a false image, so much so that we scoff when we really know them and are skeptical of those we don’t know. Therein lies the heart of this bagatelle. Our

expression as lawyers should be authentic and clearly ring truth. Because authenticity is the totality of who we have been and who we are, it must reflect the lows and the highs. It is not authentic or genuine to represent that we have never lost a case or made an error or needed the unconditional grace extended by another lawyer. Neither is faking good for purposes of advocacy or feigning independence or fairness. Sometimes authenticity of expression is best made by simply stepping aside for the sake of avoiding an unforgettable negative appearance.23

VI. Bagatelle V—Con Slancio An Impetuous Manner—Courage (Overcoming

Fear)

Courage is not the absence of fear. It is the determination to move forward in the face of fear. Courage acts impetuously and without the baggage of self-doubt or self-interest.

Homer echoed this thought in The Iliad of Homer: “But come now, and let us be mindful of impetuous valour.”24 Mark Twain did as well in his satirical work The Tragedy of Pudd’nhead Wilson: “Courage is resistance to fear, mastery of fear—not absence of fear. Except a creature be part coward, it is not a compliment to say it is brave; it is merely a loose misapplication of the word.”25

Mark Nepo notes the importance of acting with courage: “Each time courage finds its face in the middle of fear, the world grows.”26 We might add: “Each time we act with courage, the truth is more likely to be established.”

Fear is not vanquished; it is overcome impetuously—impetuously in the sense of acting vehemently and with passion as others of our vocation have done since the beginning. Fear cannot linger or paralyze when the client depends upon us for advocacy. Thus, courage acts without the crippling baggage of self-doubt or self-interest. And this must be one of our defining traits—one that makes others think we are never without it. Just as the guitar virtuoso Julien Bream is usually unrecognizable without his guitar and his character is best known in his music, we should be recognized principally as a courageous advocate for others, particularly those who have no one else to act for them.

VII. Conclusion

In Italo Calvino’s Invisible Cities27 is this passage:

“I speak and speak,” Marco says, “but the listener retains only the words he is expecting. … It is not the voice that commands the story: it is the ear.”

Just as the ear is important to music, it is essential for us to listen carefully to those who have gone before and have upheld the aspects of a quality life in the law. These Five Bagatelles at Law are such.

Endnotes:

1. Oxford University Press, 1974. For details about the Five Bagatelles, see generally https://waltontrust.org/en/composizionitooltip/89-five-bagatelles-for-guitar-1970-1 (accessed Jan. 14, 2022). For performances of the Five Bagatelles, see https://www. thisisclassicalguitar.com/five-bagatelles-forguitar-william-walton/ (accessed March 8, 2022).

2. Ark. R. Prof’l Conduct 1.7, cmt. 1; 1.9, cmt. 10. See also Preamble, § 9 (“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.”).

3. Chapman v. Klemick, 3 F.3d 1508, 1511 (11th Cir. 1993), cert. denied, 510 U.S. 1165 (1994) (cited and quoted with approval in Southern Council of Indus. Workers v. Ford, 83 F.3d 966, 968 (8th Cir. 1996)).

4. Id. at 1512.

5. Paschal v. State, 2012 Ark. 127, at 15, 388 S.W.3d 429, 438.

6. Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurther, J., concurring).

7. See ‘World’s Most Beautiful Snails’ Threatened by Illegal Trade, National Geographic (July 15, 2020), available at https://www.nationalgeographic.com/ animals/article/cuba-polymita-snails-mostbeautiful-shells-endangered (accessed Jan. 14, 2022).

8. The Papers of Thomas Jefferson, Volume 30: 1 January 1798 to 31 January 1799, 536–43 (Princeton University Press,

2003), available at https://jeffersonpapers. princeton.edu/selected-documents/ jefferson%E2%80%99s-draft.

9. 358 U.S. 1 (1958).

10. Id. at 23.

11. Schwegler Bros., Inc. v. Johnson, 161 Misc. 451, 191 N.Y.S. 321 (1936).

12. 198 U.S. 45 (1905).

13. See Harper v. Va. Bd. Of Elections, 383 U.S. 663, 675 (1966).

14. Lochner, 198 U.S. at 75.

15. Harper, 383 U.S. at 669.

16. A recent extensive discussion of this issue is found in Randy E. Barnett & Ervin D. Bernick, On the Original Meaning of the 14th Amendment: Its Letter and Spirit (Harvard Press 2021).

17. Mark Nepo, Finding Inner Courage, 75 (Red Wheel 2020).

18. Ark. R. Evid. 102 (2021) (emphasis added).

19. Ark. R. Evid. 901(a), (b)(1) & (4) (2021).

20. 2019 Ark. App. 154, 573 S.W.3d 536.

21. Id. at 12, 573 S.W.3d at 542–543.

22. Id. at 13, 573 S.W.3d at 543.

23. See, e.g., Farley v. Jester, 257 Ark. 686, 692, 520 S.W.2d 200, 203–204 (1975) (“[W]e consider this chancellor a capable jurist and a man of integrity, reputation that he bears over the state. … However, court proceedings must not only be fair and impartial – they must also appear to be fair and impartial.”).

24. The Iliad of Homer, Book IV, p. 75 (Trans. Theodore Alois Buckley, Geo. Bell & Sons, London, 1893), available at https:// books.google.com/books?id=9n8XAAAAYA AJ&pg=PA75&lpg=PA75&dq=But+come+ now,+and+let+us+be+mindful+of+impetuo us+valour&source=bl&ots=LpuQe0zMm3 &sig=ACfU3U2JEuNarpzKUuTNKc8rztfq lukEQ&hl=en&sa=X&ved=2ahUKEwjVhf eGm9D2AhXFoFsKHR8NChQQ6AF6BA geEAM#v=onepage&q=But%20come%20 now%2C%20and%20let%20us%20 be%20mindful%20of%20impetuous%20 valour&f=false (accessed March 18, 2022).

25. Mark Twain, The Tragedy of Pudd'nhead Wilson, 155 (Amer. Pub. Co., Hartford, Conn. 1894) [https://www. gutenberg.org/files/102/102-h/102-h.htm] (accessed March 18, 2022).

26. Nepo, supra note 17, at 86.

27. Italo Calvino, Invisible Cities, 135

Music Boxes

Musical Notes from Arkansas Cases

LITTLE RED WAGON

“The musicians were seated in a wagon.”

Humphrey v. State, 74 Ark. 554, 86 S.W. 431 (1905).

Judicial Harmony

IMAGINE ME WORKIN' FOR YOU

“With regard to failure to get a haircut this colloquy occurred:

COURT: And when you were brought before the court earlier in the day it was an order of this court that you have a haircut. It is my understanding that you refused, is that correct?

MORROW: Yes, sir. May I state the grounds, or would there be objections?

COURT: I care not. Go ahead.

MORROW: Your honor, I am employed as a musician, and I find it more or less a requirement to have my hair like I wear it.”

Morrow v. Roberts, 250 Ark. 822, 825, 467 S.W.2d 393, 395 (1971).

IT’S ONLY MAKE BELIEVE

“Mrs. Wilson testified that her home was in Hot Springs, and that she earned her living as a musician and was employed as pianist in an orchestra and as organist at the Jewish Temple, and that appellant met her while she was so employed and courted her with such ardor that she became convinced of the genuineness of his affection.”

Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742 (1924).

WELL, I WONDER

GOLDFINGER

“It might appear logical to apportion the musician's disability in the loss of a finger to his body as a whole when it would appear ridiculous to follow the same procedure in the case of a common laborer or an attorney.”

Moyers Bros. v. Poe, 249 Ark. 984, 991, 462 S.W.2d 862, 866 (1971).

MAYBERRY POP

“The deceased was a member of a traveling show, a musician in the band. Defendant is the stepson of Mr. Barham, who owned a filling station on the Lewisville-Texarkana road, near Spirit Lake, and assisted about the operation of it.”

Cornelius v. State, 172 Ark. 1176, 290 S.W. 54 (1927).

“I am a musician. I play the piano or keyboard. I played the piano at church services. I had to play right after I was beaten. I had difficulties.”

Seago v. Arkansas Dept. of Human Services, 2009 Ark. App. 767, at *8, 360 S.W.3d 733, 737

Courthouse singers have been a tradition in the Eastern District of Arkansas. Since the late nineties, various individuals with the U.S. District Clerk’s office have used their musical talents to sing at programs held in the federal courthouse. It wasn’t until 2018 that the current singers were asked by then-Clerk James W. McCormack to come up with a name. The group agreed on Judicial Harmony, bought a pitch pipe, and “went on the road.” Judicial Harmony has performed the National Anthem at many events including the Eighth Circuit Judicial Conference in Hot Springs, Federal Public Defender Lisa Peters’ Investiture, and multiple Naturalization ceremonies across the Eastern District of Arkansas. In December 2018, Judicial Harmony performed a medley of Christmas carols in the atrium of the Richard Sheppard Arnold U.S. Courthouse. Members include Girtrude Simmons, Judicial Assistant to Chief Judge Smith, U.S. Court of Appeals, Eighth Circuit; Joyce Pigee, Intake Clerk; Melanie Beard, Courtroom Deputy to Judges Wilson and Ervin; Crystal Newton, Operations Supervisor; and Laura Bichlmeier, Courtroom Deputy to Judges Wright and Miller.

“Working from home while these cuties are home isn’t easy. We love to have scheduled music breaks to reset our focus and extend our concentration.”

“Music is one way that I keep my heart from getting clogged up with suffering. A lot of my asylum-seeking clients are, like me, members of the LGBTQIA2S+ community and so sometimes it helps to turn the suffering into song."

"Often our career becomes our life, especially in the practice of law. Dance is great as a stress-reliever and is a surprisingly rigorous physical activity, which every lawyer can benefit from. But, for me, dance goes beyond just that. I am often looking for ways to break the tension with colleagues that my career path inevitably brings.”

Leslie Copeland truly believes she wouldn’t get any work done without her high quality noise cancelling headphones!

Pictured outside of the Village Vanguard, NYC (“The World’s Greatest Jazz Club”)

“I started taking piano lessons when I was in elementary school and continued through high school. I am out of practice but working on relearning because piano was really important to my grandmother.”

Jenifer Tucker and Alison Lee are board members and active volunteers for the Committee of 100 for the Ozark Folk Center. The COOH supports the Music Roots Program that provides free musical instruction to children in the Stone County school district. Pictured are Jenifer and Alison hosting a game show to educate members about the organization.

“Jazz and criminal defense, particularly cross-examination, are the exact same thing to me. Both are disciplined. They require a structure, a logical progression, and a theme. With that foundation, you can then improvise. Listening, thinking on your feet; a bit like creating order out of chaos. To me, jazz and litigation mirror each other. I couldn’t have become a criminal defense lawyer without first having been a jazz musician.”

Donna Branch with Lela and Brooklyn

Skye Martin

Jenifer Tucker and Alison Lee

Stephen Coger

Christina Baker

Leslie Copeland

Blake Hendrix

Charles Roscopf

"I’ve spent some part of the last 20 years studying the blues. I’ve done quite a bit of research on the early bluesmen/ women and listening to their music. I’ve also visited around 30 gravesites of blues greats, in four states: Arkansas, Mississippi, Tennessee, and most recently Texas.” Pictured at Robert Johnson’s gravesite.

Greg Jones

"Its 2010. I duck into a blues joint on Las Ramblas in Barcelona, hoping to jam with the locals. Asked 'De donde es?' No one recognizes 'Arkansas.' So I say, 'Cerca de Mississippi.' The harmonica player grins, pulls me onstage and yells 'Es de MeeCheeCheePee.' The place erupts: for 20 seconds, the crowd chants 'Elveees, Elveees, Elveees.' Instantly, I have street cred."

Joe Purvis

"Little Joe and the BK’s has performed for 40+ years in Arkansas, Texas, Louisiana, Mississippi and Florida. We’ve opened for famous Riverfest acts for 17 years and played for several annual meetings of the Bar Association." Pictured with the LLC Band.

Kara Butler

Pictured with Ben Harris

"I remember in Civil Procedure class Prof. Brill discussed that law is both horizontal and vertical when looking at Federal and State law. This immediately made me think of the horizontal aspects of a melody that combine with the vertical harmonies to coincide together to make music."

Kathryn Pryor

Pictured in the role of Mama Rose in Gypsy at The Studio Theatre in 2022."Music and the performing arts are part of my DNA. My artistic side has made me a happier lawyer amidst the stress of the practice of law. And it has made me a better lawyer in the craft of relating to and communicating with witnesses and juries and in developing themes and strategies to which jurors can relate when preparing a case for trial."

"I am convinced that early education in music helped me to become an attorney. When I graduated from law school the River City Band asked me to join them as a keyboard player/ vocalist as they were going on tour of the Southwest Conference and recording in Memphis at Stax and Ardent studios. On our tour we opened shows for various A-list touring bands such as Styx, The Guess Who, and others. I have to believe that my experience on stage as a musician is the catalyst that helped me with public speaking on the law to get me where I am today."

Pictured at his home studio.

To view more about the members' stories visit https://qrco.de/bdwJIg or scan the code. If you would like to add your story, contact the editor.

Pictured at Las Ramblas.

Steve Giles

Up Around the Bend and Between the Lines

By Charles D. Harrison

Editor’s Note: The use of song lyrics and musical references to emphasize a legal point is infrequent but not unheard of.1 Two prominent Arkansas decisions using musical references are Chief Justice Howard Brill’s dissent in Trujillo v. State2 and Judge Mike Murphy’s concurrence in Griffith v. Juarez 3 Other examples are more subtle like Charles Harrison’s previously unpublished backstory to a published opinion.4

While most lawsuits are serious business, some are more so than others. Matters in federal court have long been viewed in that light. Jimmy Durante, a comedian and radio personality best known from the 1940s and 1950s, is credited with coining the phrase “don’t make a federal case out of it.” It’s fair to say that cases pursued in federal court typically involve disputes that are of considerable import, especially to the parties and often to the public at large. But that does not mean that the federal courts must have a funereal atmosphere or that the work product of those courts should always be staid and formal.

I had the pleasure and privilege to serve as law clerk to United States District Judge Elsijane Trimble Roy for 14 years. I can truly say that I’m no fortunate son, but I’ve had my fair share of advantages in my life. Although she never came out and said as much, I had a strong suspicion that I got the job with Judge Roy thanks in no small measure to a recommendation from her fellow District Judge Henry Woods (father-in law to my late brother Paul). I appreciated the gravity and significance of the work we did in federal court, but at times I could not help finding humor and amusement in some of the cases. Accordingly, on occasion the other law clerk and I tried to inject a bit of jocularity into certain opinions and orders. The following is one such example.

In late 1994 Judge Roy presided over a seven-day jury trial in the case of Consolidated Sawmill Machinery International, Inc. v. Hi-Tech Engineering, Inc., which resulted in a defense verdict. The major issues in the case involved claims of copyright infringement. A form judgment stating, among other things, that “each party shall bear its own costs” was entered the day following the verdict. Thereafter, Hi-Tech Engineering filed motions to amend the judgment and for attorney’s fees and costs under 17 U.S.C. § 505. My research revealed a very new and on-point opinion from the Supreme Court of the United States, Fogerty v. Fantasy, Inc.5 The Supreme Court opinion authored by Chief Justice William Rehnquist set out this background information:

Petitioner John Fogerty is a successful musician, who, in the late 1960’s, was the lead singer and songwriter of a popular music group known as “Creedence Clearwater Revival.” In 1970, he wrote a song entitled Run Through the Jungle and sold the exclusive publishing rights to predecessors-in-interest of respondent Fantasy, Inc., who later obtained the copyright by assignment. The music group disbanded in 1972 and Fogerty subsequently published under another recording label. In 1985, he published

Charles Harrison is a partner at McMath Woods P.A. and has been employed by that firm since leaving his federal court position in 1999.

and registered a copyright to a song entitled The Old Man Down the Road, which was released on an album distributed by Warner Brothers Records, Inc. Respondent Fantasy, Inc., sued Fogerty, Warner Brothers, and affiliated companies in District Court, alleging that The Old Man Down the Road was merely Run Through the Jungle with new words. The copyright infringement claim went to trial and a jury returned a verdict in favor of Fogerty.

After his successful defense of the action, Fogerty moved for reasonable attorney’s fees pursuant to 17 U.S.C. § 505. The District Court denied the motion, finding that Fantasy’s infringement suit was not brought frivolously or in bad faith as required by circuit precedent for an award of attorney’s fees to a successful defendant in a copyright infringement case. The Court of Appeals affirmed, 984 F.2d 1524 (CA9 1993), and declined to abandon the existing Ninth Circuit standard for awarding attorney’s fees which treats successful plaintiffs and successful defendants in such cases differently. Under that standard, commonly termed the “dual” standard, prevailing plaintiffs are generally awarded attorney’s fees as a matter of course, while prevailing defendants must show that the original suit was frivolous or brought in bad faith. In contrast, some courts of appeals follow the so-called “evenhanded” approach in which no distinction is made between prevailing plaintiffs and prevailing defendants. The Court of Appeals for the Third Circuit, for example, has ruled that “we do not require bad faith, nor do we mandate an allowance of fees as a concomitant of prevailing in every case, but we do favor an evenhanded approach.” Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (CA3 1986).6

Based on Fogerty, Judge Roy and I decided that in our case Hi-Tech Engineering was entitled to an award of fees and costs and that the judgment should be amended. While drafting the order granting Hi-Tech’s motions I was moved, perhaps subconsciously compelled, to include something of an Easter Egg tribute to a legendary rock and roll band in the document. I should add that I did this without the knowledge of Judge Roy, whose musical tastes at that time in her life were more along the lines of what one might hear on The Lawrence Welk Show, which featured “family fare” made up of old standards, show tunes and polkas. So, working on my own and confident that Judge Roy would not catch on to what I was doing, here’s how I worded what I considered the best part of the order granting the motions:

The decision of the Supreme Court to give credence to Fogerty’s argument and to clear the water on this issue represents a significant revival of the interests of a prevailing defendant in recovering costs and fees under federal feeshifting statutes.

After reading it over and over again, I finally concluded that I had incorporated the entire name of Creedence Clearwater Revival into one sentence in a way that both seemed acceptable from a legal writing perspective and was subtle enough to qualify as a bona fide Easter Egg. As I anticipated, Judge Roy approved and signed the order without noting my attempt at scrivening humor.

The order and an amended judgment were soon entered awarding substantial attorney’s fees and costs. I was expecting to get a telephone call about the order from someone on the legal team of the prevailing party, but no such call was received. When 10 days or so had passed since the entry of the order and I had heard nothing from anyone, I called the attorney on the defense team that I had known for more than 20 years. As soon as he answered I asked if he had anything to say about the order. He replied that they appreciated the Court’s prompt ruling on the motion

and were pleased with the result. When I asked if that was all he had to say about the language of the order, he advised that he had skipped most of it and simply jumped to the end to see the Court’s decision. Upon hearing that I asked him to get a copy of the order in his hands and to read the contents of the second page. After nearly a minute of silence he finally let out a “Hey, I see what you did there. That’s pretty good.” I thanked him for his belated acknowledgement of my treasured sentence and hung up while muttering, mostly in jest, that I would think twice in the future before casting pearls before swine.

Endnotes:

1. See generally Mark W. Klingensmith, Lyrics in the Law: Music's Influence on America's Courts (Lexington Books 2019).

2. Trujillo v. State, 2016 Ark. 49, at 8–9, 483 S.W.3d 801, 806–807 (Chief Justice Howard Brill, dissenting, quoting Johnny Cash, Starkville City Jail (Lyrics © BMB Rights Management, Sony/ATV Music Publishing LLC)).

3. Griffith v. Juarez, 2022 Ark. App. 206, at 9, 645 S.W.3d 339, 344 (Judge Mike Murphy, concurring, citing AC/DC, Dirty Deeds Done Dirt Cheap (International Edition 1976)).

4. The article’s title is a reference to John Fogerty’s Up Around The Bend (Fantasy Records 1970), which contains the line “There’s an ear for what you say.”

5. 510 U.S. 517 (1994).

6. Id. at 519–521. ■

"The decision of the Supreme Court to give credence to Fogerty’s argument and to clear the water on this issue represents a significant revival of the interests of a prevailing defendant in recovering costs and fees under federal fee-shifting statutes."

A Musical Interlude at Law: The Divorce of Florence Smith Price

By William Waddell, Jr.

The effects of break-ups and divorce are far-reaching and long-lasting. They are matters of the heart that, in the case of a divorce, pass through the seine of the law— allowing some things to flow through but holding others, such as the connections for the best interests of children, intact.

Music captures the essence of all of these conflicting emotions, particularly when written from the heart of a woman.1 A song entitled “D-I-V-O-R-C-E”2 can hit #1 as well as another song sending perhaps a contrary message performed by the same artist, “Stand By Your Man.”3 The heartaches of lament, regret and child visitations4—even what to hold onto and what keepsakes mean5—all combine into a rush of emotions.

Florence Price undoubtedly had many of these emotions when she paused her musical life for an interlude in the law. Although she did not write a song about her breakup and divorce, as far as we know, we do have a rare glimpse into this time from her divorce file. However, before opening that file and hearing her words, a brief view of her promising past gives perspective on how a divorce freed her for a prominent and celebrated career in music.

Price was born in Little Rock on April 9, 1887.6 Her father was a dentist,7 and her mother worked in various positions, including owning the Flora Cafe on Main Street, and also engaged in buying and selling real estate.8 Price’s mother was also her first music teacher, preparing Price to give her first piano recital at age four.9

Graduating from a segregated high school as valedictorian at age 14,10 she stayed in

Little Rock a year before attending the New England Conservatory of Music in Boston.11

After completing her course of study in Boston, she taught music at the Cotton Plant-Arkadelphia Academy in Cotton Plant, Arkansas, and then became the head of the music department at Shorter College.12 In 1910, she became the head of the music department at Clark University in Atlanta at age 23.13

Price had met Thomas J. Price in Little Rock, where he came in 1908 from Washington, D.C., to join Scipio A. Jones’ law firm.14 The couple married in 1912 and established their home in Little Rock.15 They soon had a son, Thomas, Jr., who died as an infant, and then two daughters followed in 1917 and 1921.16

Thomas’ law practice was primarily focused on the same Black businesses and fraternal organizations that Scipio A. Jones represented.17 However, he and Jones apparently were on opposite sides in his first published case.18 And he appeared in some cases without Jones listed as his co-counsel.19

When Price and Thomas married, she essentially suspended her professional teaching career and stayed home to raise their children.20 However, she taught music locally and wrote her own teaching pieces for students.21 She also composed smaller pieces through the 1920s.22

Around 1926, Thomas’ law practice was not going well, and race relations in Little Rock were becoming worse.23 And Price’s request to be a member of the Arkansas Music Teacher’s Association was denied because she was Black.24 The Prices moved to Chicago in the timeframe of 1927-1928,

where Price taught piano in her home and published both compositions for children and teaching pieces.25

Thomas’ law practice did not improve in Chicago, and their marriage deteriorated further, resulting in physical and verbal abuse.26 In 1930, Price filed a complaint for divorce in the chancery division of the Superior Court of Cook County, Illinois, alleging the ground of cruelty.27 Thus began her brief interlude in the law.

The complaint was heard on December 17, 1930, with Price and her corroborating witness, Effie Oglesby, testifying:28

Florence B. Price

Complainant, being first duly sworn, was examined and testified in her own behalf as follows:

Q. What is your name?

A. Florence B. Price

Q. Where do you live?

A. 3835 Calumet Avenue

Q. How long have you lived in Chicago, Cook County, Illinois, continuously, immediately prior to the filing of this bill for divorce?

A. Four years.

Q. Are you the wife of Thomas J. Price, the defendant to this suit?

A. I am.

Q. When and where were you married?

A. April 4th, 1913.

Q. Where?

A. Little Rock, Arkansas.

Q. Are you living together now?

A. No.

Q. When did you separate?

A. March 10, 1930.

Q. Did he leave you or did you leave him?

A. He left me.

Q. What was the cause for his leaving you?

A. We could not get along, he was cruel to me and did not support me, and when I finally told him he had to get a job he left.

Q. Calling your attention to the 15th day of December, 1929, what, if anything, occurred between you?

A. He slapped me and choked me and bruised me up.

Q. He was generally cruel to you?

A. Yes.

Q. Calling your attention to on or about the 17th day of December, 1929, what occurred on that day?

A. He repeated the same thing. He knocked me around.

Q. On the 29th day of February, 1930, what, if anything occurred?

A. He threatened to kill me.

Q. What with?

A. He started after his gun and I had to leave home.

Q. Did he strike you on that occasion?

A. Yes.

Q. Were any children born of this marriage?

A. Yes, Edith, aged nine years, and Florence, aged fourteen.

Q. What does your husband do?

A. He is a lawyer.

Q. A regular practicing attorney in Chicago?

A. Yes.

Q. In the event the court sees fit to grant you a decree for divorce, do you wish the care, custody and control of these children?

A. Yes, I do.

Q. How much do you think ought to be allowed per week for your maintenance and support, what do you think your husband can reasonably pay?

A. I think, well I know he well can afford to pay twenty-five dollars per week.

Q. Are you satisfied with that amount?

A. Yes, I would be satisfied with $25.00 per week.

Q. Are you also asking for the

household goods?

A. Yes.

Q. You wish to retain the household furniture?

A. Yes, I bought them myself.

Q. You bought them yourself?

A. Yes.

Q. How did you treat your husband during the time you and he lifed [sic: lived] together?

A. The best I could.

Q. You gave him no reason for abusing you?

A. No.

Q. You are also asking $100 solicitor’s fees?

A. Yes.

THE COURT: Next witness.

Effie Oglesby a witness, called in behalf of the complainant, being first duly sworn, was examined and testified as follows:

Q. What is your name?

A. Effie Oglesby.

Q. Where do you live?

A. 6606 Champlain Ave.

Q. You are a married woman?

A. Yes.

Q. Are you acquainted with the price family?

A. Yes.

Q. Did you visit them during the time they lived together?

A. Yes, quite often.

Q. Are they living together now?

A. No.

"Although perhaps nostalgic in inspiration, reflecting on the slave stories she may have heard growing up, her time teaching in Cotton Plant, or the unusual breadth of her life experiences as a Black woman of her day, this music from the end of her life is uplifting and freeing. Whether her brief interlude at law was a catalyst or a release of her bound creativity, her musical brilliance followed."

Q. How long since they lived together?

A. March 10, 1930.

Q. Do you know how they got along?

A. Not very well.

Q. Do you know what happened between them on the 17th day of December, 1929?

A. Well, I saw him strike her and choke her.

Q. On the 15th of November, 1929, what happened?

A. Yes, I saw him slap her and threaten to kill her.

Q. Do you know what happened between them on the 29th of February, 1930?

A. He struck her and ran her out of the house in fear for her life.

Q. Did you see her?

A. Yes.

Q. Were there any bruises on her face?

A. Yes, her face was red.

Q. Did she tell you he did it?

A. Yes.

Q. How did she treat him during the time they lived together?

A. Very good.

THE COURT: All right, write it up.

As commonplace as divorce is today, the abuse she suffered is still shocking. The Decree for Divorce was filed of record on January 19, 1931.29

Approximately one month after the decree was entered, Price married Pusey Arnett, a

man who was 13 years older than her. He gave her the financial security she had not had with Thomas.30

Free from an abusive marriage and secure in a new relationship, Price blossomed as a composer. She wrote her Symphony in E Minor in 1932 and became the first Black woman to have a symphony of that length performed by a major U.S. symphony orchestra when it was debuted by the Chicago Symphony in 1933.31

Was her divorce a catalyst for propelling her latent brilliance or perhaps a release of chains binding her creativity? Other women in music, such as Clara Schumann, who was brilliant in her own right before and during her marriage to Robert Schumann, had to take a backseat to the careers of the men in their lives.32 Robert had to sue Clara’s father to be able to marry her before her 21st birthday, since her father would not consent to the marriage. 33 Following her own interlude with the law, she flourished within a loving marriage, albeit one that kept Robert as the primary one in the public eye until his death when she had a need to support their family.34 Yet, as accomplished and publicly known as Clara Schumann became, her legal victory to marry arguably did not equal Price’s success following her legal victory from her difficult marriage.

Price’s musical story and legacy have become legendary, and in 2023 she continues to be a celebrated and revered composer around the world. No less than the Philadelphia Symphony Orchestra performed and recorded her symphonies in 2021,35 and on March 25, 2023, held a special concert event to introduce a new generation to Price, who was described as “the pioneering Black woman composer whose work was tragically overlooked during her lifetime.”36 Arkansas’ own symphony orchestra released a recording of Price’s 1934 orchestration of her Piano Concerto in One Movement in 2022.37 And on February 5, 2023, the New York Youth Symphony, playing a Florence piece, among other works, became the first youth symphony to win a Grammy for best orchestral performance.38

In the year she died following a stroke, Price composed the popular “Dances in the Canebrakes,” a three-movement piece: “Nimble Feet”; “Tropical Noon”; and “Silk Hat and Walking Cane.” Although perhaps

nostalgic in inspiration, reflecting on the slave stories she may have heard growing up, her time teaching in Cotton Plant, or the unusual breadth of her life experiences as a Black woman of her day, this music from the end of her life is uplifting and freeing. Whether her brief interlude at law was a catalyst or a release of her bound creativity, her musical brilliance followed.

Endnotes:

1. Background information about Price used in this article is principally derived from Rae Linda Brown, The Heart of a Woman: The Life and Music of Florence B. Price (© University of Illinois Press 2020) (hereinafter “Heart”).

2. “D-I-V-O-R-C-E,” recorded by Tammy Wynette on the Epic label in 1968.

3. “Stand by Your Man,” also recorded by Tammy Wynette on the Epic label in 1968.

4. “Every Other Weekend,” recorded by Reba McEntire with Kenny Chesney in 2007.

5. “What to Keep and What to Throw Away,” recorded by Mary Chapin Carpenter in 2012.

6. Heart, p. 19. They originally lived at 416 Sixth Street and then moved to 707 Broadway, which was an interracial neighborhood. Heart, pp. 19, 25–26.

7. Heart, pp. 19, 25–26, 32.

8. Heart, pp. 32–33.

9. Heart, p. 34.

10. Heart, p. 39.

11. Heart, p. 40. Price enrolled in a doubledegree program in Boston: soloist program in organ and teacher’s program in piano. Heart, pp. 47–48. See also pp. 49–50 as to the courses in the program.

12. Heart, pp. 60–61.

13. Heart, pp. 64–67.

14. Heart, p. 68.

15. Heart, p. 69.

16 Heart, pp. 71–72.

17. Heart, p. 70. See also Mosaic Templars of America v. Austin, 126 Ark. 327, 190 S.W. 571 (1916); Mosaic Templars of America v. Bean, 147 Ark. 24, 226 S.W. 525 (1921).

18. Knights of Pythias of North America v. Bond, 109 Ark. 543, 160 S.W. 862 (1913). He and Jones were apparently on opposite sides of another case in 1918. Baker v. Mosaic Templars of America, 135 Ark. 65, 204 S.W. 612 (1918).

19. Great Southern Mut. Life Ins. Co. v. Harrell, 170 Ark. 1193, 282 S.W. 999 (1926); Knights

of Pythias of North America v. Sanders, 174 Ark. 279, 295 S.W. 25 (1927).

20. Heart, p. 72.

21. Heart, pp. 72–73.

22. Heart, p. 74.

23. Heart, pp. 75–76.

24. Heart, p. 76.

25. Heart, pp. 89–90.

26. Heart, pp. 99–100.

27. Complaint for Divorce, Price v. Price, Superior Court of Cook County, Illinois, Case No. 522805 (hereinafter Price). The author thanks Julius Machnikowski, Archives Staff, Clerk of the Circuit Court of Cook County, who searched the court’s archives and located the divorce file.

28. Certificate of Evidence & Transcript, Price 29. Price, S151 107.

30. Heart, p. 101.

31. Heart, pp. 1, 8, 105, 113–114.

32. http://www.pianosociety.com/pages/ schumannclara/ (accessed Feb. 19, 2023).

Clara is said to have asked this question of Schumann before they married and before Schumann prevailed in the lawsuit against her father: “Must I bury my art now? Love is all very beautiful, but, but---.” Id.

33. https://interlude.hk/composers-in-thecourt-room-robert-schumann-versus-friedrichwieck/ (accessed Feb. 19, 2023).

34. http://www.pianosociety.com/pages/ schumannclara/.

35. For the recording of Price’s First and Third Symphonies, the orchestra received a 2022 Grammy Award for Best Orchestral Performance and gave an encore performance of the symphonies in 2022. See https:// philorch.org/Florence-price-encore (accessed Jan. 30, 2023).

36. See https://www.philorch.org/ performances/our-season/events-andtickets/2022-23-season/family-concerts/whois-florence-price/ (accessed Jan. 30, 2023).

37. https://arktimes.com/rockcandy/2022/03/30/arkansas-symphonyorchestra-releases-recording-of-florence-pricespiano-concerto (accessed Jan. 30, 2023).

38. https://www.cbsnews.com/newyork/ news/new-york-youth-symphony-grammynomination-best-orchestral-performance/ (accessed Feb. 19, 2023).■

Justice W. H. "Dub" Arnold of Hot Springs died February 1, 2023, at the age of 87. Arnold's career began with Southern Farm Bureau in Hazen while he commuted to Little Rock at night to attend law school. Upon graduation he returned to Arkadelphia where he practiced law and began a successful career in politics including: Prosecuting Attorney for the 8th Judicial District; Chairman of the Arkansas Workers’ Compensation Commission; Clark County Municipal Judge; Prosecuting Attorney of the 9th Judicial District Eastt; and Circuit Chancery Judge of the 9th Judicial District East. Arnold ended his career as Chief Justice of the Arkansas Supreme Court beginning in 1996 and retired from the position in 2003.

Ralph Marvin Cloar, Jr., of Little Rock died April 5, 2023, at the age of 85. Following a successful career as an accountant, he graduated from the University of Arkansas Law School, Little Rock Division in 1974. He served as the President of the Arkansas Trial Lawyers Association in 1986-87. The Arkansas Bar Association recognized Ralph with the Outstanding Lawyer Award in 2018. He attended both the University of Arkansas and Ouachita Baptist University, as well as served in the U.S. Army.

Justice Robert H. Dudley died on April 1, 2023, at the age of 89. He was a thirdgeneration lawyer born and raised in Jonesboro. He joined a private practice in Pocahontas which became Bledsoe and Dudley, served as deputy Prosecuting Attorney ,and was then elected Prosecuting Attorney for three terms. He was elected to Circuit Judge (Chancellor) and served in that capacity for 10 years. He tried several high-profile cases while on the circuit bench. He was then elected to the Supreme Court of Arkansas where he served for 16 years.

John Curtis Echols of Little Rock died February 27, 2023, at the age of 88. He attended the University of Arkansas where he earned a Bachelor of Science in Business Administration and a Juris Doctorate. He served in the Navy before accepting a position with what is now known as Friday Eldredge & Clark. John practiced for more than 40 years primarily in the area of public finance.

Ernest Haven Harper Jr. of Little Rock died February 3, 2023, at the age of 71. He earned his Bachelor's degree from Hendrix College and his Juris Doctorate from Southern Methodist University. Ernie began practicing law in 1977 with Wallace, Hilburn, Clayton, Wilson & Hankins, Ltd. and became a partner with the firm in 1983. For many years he also served as a managing partner with the law firm, most recently rebranded as Hilburn Harper, Ltd.

Justice Jack Wilson Holt Jr. of Little Rock died March 5, 2023, at the age of 93. He served his state as chief justice of the Arkansas Supreme Court for 10 years, retiring in 1995. He received a law degree at the University of Arkansas School of Law at Fayetteville in 1952. Jack joined the Air Force during the Korean War and concluded his career as an Air Force reservist with the rank of colonel. He returned from active duty just as his uncle J. Frank Holt was elected prosecuting attorney for the Sixth Judicial District. Jack later joined the Little Rock firm of trial lawyers Gene Bailey, Walls Trimble and others.

Judge Jack Lee

Lessenberry of Little Rock died March 15, 2023, at the age of 92. He earned his bachelor’s degree at the University of Arkansas at Fayetteville. After college, he attended the University of Mississippi School of Law and passed both the Mississippi and Arkansas bar examinations. He honorably served his country in the U.S. Army. After 28 years in private practice, he successfully ran for circuit judge in Pulaski and Perry Counties, where he served for 10 years.

Herbert Charles Rule III of Little Rock died April 3, 2023, at the age of 85. He graduated from Yale University in 1959. He attended Yale with the support of a Naval ROTC scholarship and that led to his commission as a Lieutenant in the Marine Corps with active duty service from 1959-1961 followed by service in the Arkansas Reserves until 1968. He graduated from the University of Arkansas School of Law in 1961 and earned his LLB in 1964. He began his professional career as an attorney with the Rose Law Firm where he ultimately became a partner. He served two terms in the Arkansas House of Representatives.

Samuel Brent Wakefield of Little Rock died January 8, 2023, at the age of 51. After graduating from Arkansas Tech University with a Bachelor's of Arts in History and Political Science, he pursued a Juris Doctorate degree from the University of Arkansas at Little Rock School of Law. Brent served in the U.S. Air Force JAG Corps before working at the Barber Law Firm, rounding out his professional career.

The information contained herein is provided from the members' obituaries.

Arkansas Bar Foundation

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 February 1, 2023, through April 15, 2023.

In MeMory of eMIly Ayscue Judge Bill Wilson and Judge Cathi Compton

In MeMory of JustIce W. H. (Dub) ArnolD

Nancy and Judge John N. Fogleman

Judy and Glenn Vasser Judge Charles A. Yeargan

In MeMory of JAMes “JIMMy” Grover bArton Judge Robert T. Dawson

In MeMory of rAlpH cloAr

Nancy and Judge John N. Fogleman

Sharon and Fred Ursery

In MeMory of oscAr DAvIs, Jr.

Mr. and Mrs. Byron M. Eiseman, Jr.

In MeMory of JustIce robert “bob” DuDley

Nancy and Judge John N. Fogleman

In MeMory of JoHn ecHols

Mr. and Mrs. Byron M. Eiseman, Jr.

Sharon and Fred Ursery

In MeMory of JuDGe vIctor HIll

Nancy and Judge John N. Fogleman

In MeMory of JustIce J. frAnk Holt

DesIGnAteD to tHe JustIces frAnk AnD

JAck Holt scHolArsHIp funD

Stephen Holt Hanna

In MeMory of JustIce JAck Holt, Jr.

DesIGnAteD to tHe JustIces frAnk AnD

JAck Holt scHolArsHIp funD

Virginia and Hunter Breshears

Janet Lovett Brink

Jean and Dan Carter

Frances Cranford

Karen and John Flake

Nancy and Judge John N. Fogleman

Stephen Holt Hanna

Helen and Fred Harrison

Margaret Hatchett

Carol and Cathy Hodges; Anne Hodges Kashata

Dr. Jerry and Trudy Jacobson

Ruthe and Phil Kaplan

Betsy and Cyril Hollingsworth

Pattye and Jack Lassiter

Patricia Lile

Jeffrey and Lester McKinley

Judge Randy Morley and Steve Morley

Sheffield Nelson

Justice David and Carolyn Newbern

Jeffery Pence

Linda and Gene Pfeifer

Bobby L. Roberts

Billie and Skip Rutherford

Sharon and Rick Sellars

Janice C. Thames

Michael G. Thompson

Mary Youmans Udouj

Sharon and Fred Ursery

In MeMory of Alston JennInGs, Jr.

Steve Quattlebaum

In MeMory of DAnIel p. kennett

Jill and Steve Bauman

B. Jeffery Pence

Jan and Jim Sprott

In MeMory of JuDGe JAck lessenberry

Judge Robin L. Mays

Barbara and B. Jeffery Pence

Sharon and Fred Ursery

In MeMory of senAtor roy c. “bIll” leWellen

Sharon and Fred Ursery

In MeMory of clIfforD euGene Mccloy, Jr.

B. Jeffery Pence

In MeMory of Herb rule

Nancy and Judge John N. Fogleman

Brian Rosenthal

In MeMory of JAMes M. sIMpson, Jr.

Jean and Dan Carter

Mr. and Mrs. Byron M. Eiseman, Jr.

Lyn and Chip Pruitt

Steve Quattlebaum

Judy and Glenn Vasser

In MeMory of J.D. sIMpson

Jeffrey and Lester McKinley

ArkAnsAs bAr founDAtIon MeMorIAl MeDAllIon

In MeMory of JAMes M. sIMpson, Jr.

Honored by: Donald H. Bacon

William M. Griffin III

Laura Hensley Smith

Fred Ursery

Friday, Eldredge & Clark

Upcoming Events

Notice to all Arkansas Bar Foundation Members

Arkansas Bar Foundation

Annual Membership Meeting

Wednesday

June 14, 2023 at 12:30 pm

Hot Springs Convention Center Rooms 203-204

Arkansas Bar Foundation

Annual Board of Directors meeting

Immediately follows (at 1:00 pm)

Please visit the Arkansas Bar Foundation at Booth 5 in the Exhibit Hall on Wednesday and Thursday!

Attorney Disciplinary Actions

Final actions from January 1, 2023 – March 31, 2023, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http://www. arcourts.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page.

SUSPENSION:

HURST, JUSTIN BYRUM, of Hot Springs, ABN: 2005021, in Committee Case No. CPC-2022-017, on a complaint by Darren Magness, by Findings & Order filed January 11, 2023, was SUSPENDED for two months, ordered to pay $5,000.00 restitution to Darren Magness, assessed costs of $150.00 for violations of AR Rules 1.3, 1.4(a)(3), 1.4(a) (4), and 3.2. Hurst received an additional REPRIMAND for his failure to respond to the formal complaint. Hurst failed to provide diligent and prompt representation to his client when he failed to take action in his client’s case for approximately four years.

BOYD, MOSEMARIE DORA, of Fort Smith, ABN: 2008078, in Committee Case No. CPC-2021-038, on a complaint by Judge Greg Magness, by Findings & Order filed January 30, 2023, was SUSPENDED for six months, and assessed costs of $1,164.50 for violations of AR Rules 3.1 and 8.4(d). In Sebastian County Circuit Court, Boyd filed a more than 200-page petition for guardianship [and amended petition] with scurrilous allegations involving minor children, not based in law and fact, and failed to protect the confidential information of minor children. Boyd further distributed a copy of the unredacted petition to the minor children’s school principal. Boyd’s conduct was prejudicial to the administration of justice.

VALLEY, JAMES F., of Helena-West Helena, ABN: 96052, in Committee Case No. CPC2022-009, on a complaint by Judge Joseph Volpe, by Findings & Order filed February 17, 2023, was SUSPENDED for two months, and assessed costs of $450.00 for violations of AR Rules 1.3, 3.4(d), and 8.4(d). Valley disregarded multiple deadlines required under the Federal Rules of Civil Procedure, which resulted in an adverse ruling for his client.

Valley’s disciplinary history was a significant aggravating factor in the sanction given in this matter.

VALLEY, JAMES F., of Helena-West Helena, ABN: 96052, in Committee Case No. CPC2022-020, on a complaint by Cassandra Hillery, by Findings & Order filed March 17, 2023, was SUSPENDED for six months, and assessed costs of $150.00 for violations of AR Rules 1.3, 1.4(a)(3), 8.1(b), and 8.4(d). Valley failed to provide competent representation to a client, which resulted in the permanent dismissal of his client’s bankruptcy. Further, Valley failed to respond to OPC’s investigative requests. Valley’s disciplinary history was a significant aggravating factor in the sanction given in this matter.

VALLEY, JAMES F., of Helena-West Helena, ABN: 96052, in Committee Case No. CPC2022-024, on a complaint by Henderson Baker, II, by Findings & Order filed March 17, 2023, was SUSPENDED for three months, consecutive to the suspension in CPC-2022-020, and assessed costs of $150.00 for violations of AR Rules 1.3, 1.4(a)(3), 1.4(a)(4), and 8.1(b). Valley failed to provide the representation for which he was paid. Valley’s disciplinary history was a significant aggravating factor in the sanction given in this matter.

INTERIM SUSPENSION:

CARRUTH, THOMAS DAVID, of Clarendon, ABN: 87027, in Committee Case No. CPC-2023-002, on a petition before the Committee, by Order of Interim Suspension issued January 9, 2023, was placed on Interim Suspension for allegations of false statements, bribery, and obstruction of justice, detailed in a federal court indictment, and posed a substantial threat of serious harm to the public and to his clients.

HUTCHINSON, WILLIAM ASA, III, of Bentonville, ABN: 2001115, in Committee Case No. CPC-2023-003, on a petition before the Committee, by Order of Interim Suspension issued January 20, 2023 (and amended March 30, 2023), was placed on Interim Suspension for allegations of criminal conduct, detailed in a felony information in Benton County Circuit Court, and posed a substantial threat of serious harm to the public and to his clients. ■

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