Lawyer The Arkansas
A publication of the
Arkansas Bar Association
Vol. 48, No. 3, Summer 2013 online at www.arkbar.com
2013-2014 Arkansas Bar Association President Jim Simpson
PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Judge Wiley A. Branton, Jr. Clark J. Brown Keith L. Chrestman Brandon J. Harrison Anton Leo Janik, Jr. Philip E. Kaplan Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Jim Simpson Board of Governors Chair Marie-Bernarde Miller President-Elect Brian H. Ratcliff Immediate Past President Charles L. Harwell Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Cliff McKinney II BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chadick, Jr. Suzanne G. Clark Frances S. Fendler Amy Freedman Buck C. Gibson Amy L. Grimes Denise Reid Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Brant Perkins Troy A. Price John C. Riedel Brian M. Rosenthal Jerry L. “Jay” Shue, Jr. Shaneen K. Sloan Brian A. Vandiver Danyelle J. Walker
LIAISON MEMBERS Judge Robert Edwards Harry Truman Moore Karen K. Hutchins Judge Mark A. Pate Paul W. Keith Richard L. Ramsay Jack A. McNulty Laura H. Smith
The Arkansas
Lawyer Vol. 48, No. 3
features
10 2013-2014 Arkansas Bar Association President Jim Simpson Anna Hubbard 16 Report on the Regular Session of the 89th General Assembly Bob Estes and Jack A. McNulty 26 Representing Farmers in Crop Insurance Disputes: When Your Client is Denied the Farm Safety Net Grant Ballard 30 Responding to a Patent Troll’s Threats Joel B. Carter 34 Supreme Court Justice William M. Harrison L. Scott Stafford
Contents Continued on Page 2
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A publication of the
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2013, Arkansas Bar Association. All rights reserved.
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For information on submitting articles for publication, go to http://tinyurl.com/thearkansaslawyermag
or email ahubbard@arkbar.com Inside: ArkBar Judges & Lawyer Legislators Trial by Jury Generations of Attorneys
Lawyer The Arkansas
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Vol. 48, No. 3
Association News
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In Memoriam
50
Arkansas Bar Foundation President
8
Arkansas Bar Foundation Memorials and Honorarium
51
Young Lawyers Section Report
9
Classified Advertising
52
Member Spotlight–Attorneys & Their Foreign Travels
14
CLE Calendar
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Arkansas Bar Association Annual Meeting
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House of Delegates Report
40
Arkansas JLAP
41
Judicial Ethics Advisory Committee & Judicial Discplinary Actions
44
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HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. Vasser Delegate District A-2: Chad L. Atwell, Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Bob Estes, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Curtis L. Nebben Delegate District A-3: Aubrey L. Barr, C. Michael Daily, Lisa-Marie France Norris, Colby T. Roe, Samuel M. Terry Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade A. Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Jason W. Earley, Edie Ervin, Kenya J. Gordon, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson, Jamie Huffman Jones, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney, Chad W. Pekron, Gwendolyn Rucker, Shaneen K. Sloan, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Shana R. Woodard, Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, Jason Milne Delegate District C-4: Jobi J. Teague Delegate District C-5: Matthew Coe, Albert J. Thomas III, William “Zac” White Delegate District C-6: Michael L. Murphy, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, Jackie Bernard Harris, Jessica S. Yarbrough Delegate District C-9: John R. Byrd, Jr., Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: J. Joshua Drake, Michelle M. Strause Delegate District C-13: Cecilia L. Ashcraft, Brian M. Clary Law Student Representatives: Chris Brown, University of Arkansas School of Law; Dominique King, UALR William H. Bowen School of Law
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Association News Applications for the Next Leadership Academy due August 31, 2013 Take Leadership to the Next Level. The Leadership Academy is an exciting program designed to enhance the knowledge and skills of participating attorneys and produce higher level leaders with skills that can transform the community and revolutionize the legal profession. Congratulations to the 2012-2013 graduating class: Margaret Alsbrook, Bart W. Calhoun, Chris P. Corbitt, Tracey Dennis, Edie Ervin, Kenya J. Gordon, Amy Dunn Johnson, Jamie Huffman Jones, Victoria Leigh, Akira S. Marine, J. Cliff McKinney, K. Brooke Moore, Chad William Pekron, John D. Pettie, Justin Bradford Smith, Theodis N. Thompson, Jr., Shana R. Woodard, Megan Elizabeth Wooster Go to www.arkbar.com/pages/LeadershipAcademy.aspx for more information.
The Judicial Discipline and Disability Commission Announced Judge Joyce Elise Williams Warren as the 2013-2014 Chairperson On July 1, 2013, the Judicial Discipline and Disability Commission announced the election of a new Chairperson. Judge Joyce Elise Williams Warren is the 2013-2014 Chairperson of the Commission. Judge Warren is the first female Judge to be elected by the Commission to serve as chairperson. Additionally, Judge Warren was the first black female judge in the Pulaski County court system and the first in the state of Arkansas. Being first is nothing unusual for Judge Warren. She was the first black female graduate of what is now the University of Arkansas at Little Rock William H. Bowen School of Law in 1976. In 2010, Judge Warren became the first black female president of the Arkansas Judicial Council. In 2006, the Arkansas Supreme Court appointed Warren to a six-year term as an alternate member of the Judicial Discipline and Disability Commission. Before her term as an alternate member expired, the Arkansas Supreme Court appointed Warren as a regular member of the Commission. Announcement courtesy of the Judicial Discipline and Disability Commission
UALR William H. Bowen School of Law Names Michael Hunter Schwartz New Dean Michael Hunter Schwartz of Lawrence, Kansas, began serving as the new dean of law at the William H. Bowen School of Law on July 1, 2013. Schwartz, who comes to UALR with more than 20 years of experience in legal education, most recently served as associate dean for Faculty and Academic Development at Washburn University School of Law in Topeka, Kansas. He was also co-director of the Institute for Law Teaching and Learning and professor of law at Washburn. Prior to joining Washburn in 2006, Schwartz was a professor of law at the Charleston School of Law in South Carolina and at Western State University College of Law in Fullerton, CA. Dean Schwartz is generally regarded as one of the leading experts on law teaching, learning, assessment and curriculum design in the United States. He has a passion for preparing new law students to be effective law students and for preparing all law students to be skilled, happy, balanced, professional, service-oriented, problem-solving lawyers. Paula Casey served the law school as interim dean from July 2012 through July 2013. Announcement courtesy of UALR William H. Bowen School of Law. 4
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2013-3014 Arkansas Bar Association Committee Chairs Annual Meeting: David M. Fuqua Arkansas Bar Commission on Diversity: Harold J. Evans & Shana R. Woodard Arkansas Bar PAC: Floyd M. Thomas, Jr. Audit: Anthony A. Hilliard Continuing Legal Education: Paul W. Keith Editorial Advisory Board The Arkansas Lawyer: Jim Julian Editorial Board for Handbooks: Brian M. Rosenthal & Matthew L. Fryar Finance: Shaneen K. Sloan Governance: Don Hollingsworth Investment: Jackson Farrow, Jr. Judiciary Committee: Harry Truman Moore & John F. Stroud, Jr. Jurisprudence & Law Reform: Tom Curry Law Related Education: Chad L. Cumming Law School: Eddie H. Walker, Jr. Lawyers Assisting Military Personnel: Steven S. Zega Lawyers Helping Lawyers: Joel M. DiPippa Leadership Academy: Mark W. Hodge Legal Forms: James E. Crouch & Carrie E. Bumgardner Legislation: Aaron L. Squyres Long Range Planning: Gwendolyn Rucker Member Benefits: Brandon K. Moffitt Mock Trial: Jordan Brown Tinsley Paralegal: Amy Dunn Johnson Past Presidents: Tom D. Womack Personnel: Denise Reid Hoggard Professional Ethics: Brad L. Hendricks Public Information/Findalawyer: Laura E. Partlow Uniform Laws: Elisa M. White & Brant Perkins Website/Technology: David M. Fuqua Women in the Profession: Denise Reid Hoggard
Association News Filing Petitions Due October 31, 2013 For 2015-2016 President of the Arkansas Bar Association
Oyez! Oyez! Accolades Arkansas Business selected the following members for inclusion in the 2013 “Forty Under 40” class: Amber Wilson Bagley, Cross Gunter Witherspoon & Galchus; J.R. Carroll, Kutak Rock LLP; Matt House, James House & Downing PA; David L. Jones, Wright Lindsey & Jennings LLP; Leonardo Monterrey, Monterrey & Tellez PLLC; Andrew Parker, Arkansas State Chamber of Commerce/Associated Industries of Arkansas; Robert Smith, Friday Eldredge & Clark. Nicole Chapman of Smith Hurst, PLC has been selected to the NWA Business Journal’s Fast 15 Class of 2013.
Appointments and Elections Marshall Wright, House of Representatives, District 49 and attorney at Sharpe, Beavers, Cline & Wright in Forrest City and Rosalind M. Mouser of Ramsay, Bridgforth, Robinson and Raley in Pine Bluff have been appointed to the Board of Directors of the American Red Cross of Greater Arkansas. Pamela B. Gibson of Gibson and Gibson in Benton has been elected as District 6170 Governor of Rotary International. Carolyn B. Witherspoon of Cross, Gunter, Witherspoon & Galchus, P.C., has been appointed to the Commission on Uniform State Laws by Governor Mike Beebe. Timothy W. Grooms, a Managing Member of Quattlebaum, Grooms, Tull & Burrow PLLC, has been invited to serve on the Dean’s Advisory Council for the University of Arkansas at Little Rock William H. Bowen School of Law. Chad W. Pekron of Quattlebaum, Grooms, Tull & Burrow PLLC has been appointed to the State Board of Election Commissioners for a two-year term. The University of Arkansas at Little Rock has named Paula Casey as its interim vice provost for research and dean of the graduate school, effective July 1, 2013. Judge John Cole was reappointed to another 3-year term on the Judicial Ethics Advisory Commission. Judge Kirk Johnson of Texarkana was elected as Vice Chairperson by the Judicial Discipline & Disability Commission.
Word About Town Paul L. Giuffre has joined the Fort Smith firm of Jones, Jackson & Moll, PLC. Conner & Winters, LLP is proud to announce that Amy M. Wilbourn has joined the firm’s Northwest Arkansas office as a partner. The Barber Law Firm in Little Rock announced the following new attorneys: J. Cotten Cunningham, Frank B. Newell, Adam D. Reid, A. Cale Block, and Larry O. Watkins. We encourage you to submit information for publication in Oyez! Oyez! Please send to ahubbard@arkbar.com.
The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position is rotated each year among the three state Bar Districts. The next President-Elect will come from Bar District A. Nomination petitions must be filed with the Secretary at the Association’s office no later than October 31, 2013. The petitions must be signed by at least 75 Association members, with at least 25 signatures residing in each of the three state Bar districts of the Association. The member elected this fall will assume the office of President-Elect at the June 2014 Annual Meeting in Hot Springs and will become the Association President in June of 2015.
Members Celebrating 50 Years of Practice
50
Congratulations to members of the Arkansas Bar Association celebrating their 50th year of practice. The members were honored with a luncheon and reception at the Association’s Annual Meeting on June 13, 2013. • • • • • • • • • • • • • • • • • • • • • •
Judge W.H. “Dub” Arnold Edwin R. Bethune, Jr. Winston Bryant Worth Camp, Jr. Odell C. Carter E. C. Gilbreath Richard E. Griffin Judge Eugene B. Hale, Jr. Don F. Hamilton Leon Helms Paul F. Henson R. H. “Buddy” Hixson Glenn W. Jones, Jr. Charles R. Ledbetter Robert O. Levi Donald E. Prevallet John L. Rush John S. Selig Kenneth R. Smith Judge A. Jan Thomas, Jr. Judge Rice VanAusdall W. Kelvin Wyrick
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New Friday Schedule: House of Delegates Meeting 3:00 - 5:30 p.m. Dinner at Rendezvous
2014 Mid-Year Meeting January 23-24, 2014 Peabody Hotel, Memphis, TN
Followed by Reception at the Peabody Skyroom honoring Current & Tenured House of Delegates
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Association News
Meet the 2013-2014 Arkansas Bar Association Officers
Jim Simpson President Friday, Eldredge & Clark LLP, Little Rock
Marie-Bernarde Miller Board of Governors Chair Williams & Anderson, PLC, Little Rock
Brian H. Ratcliff President-Elect Shackleford, Phillips & Ratcliff, P.A., El Dorado
Shaneen K. Sloan Treasurer Hyden, Miron & Foster, PLLC, Little Rock
F. Thomas Curry Secretary McMillan, McCorkle, Curry & Bennington, LLP, Arkadelphia
J. Cliff McKinney Young Lawyers Section Chair Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock
Leon Jones, Jr. Parliamentarian Morton & Jones PLC, Fayetteville
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Laura Hensley Smith Elected Arkansas Bar Foundation President Laura Hensley Smith, of Little Rock, began her term as President of the Arkansas Bar Foundation Board of Directors on July 1, 2013. Laura is a partner with the law firm of Friday, Eldredge & Clark, LLP where she also serves as head of the Medical Malpractice Work Group and a member of the Management Committee and Compensation Committee. After receiving her Bachelor of Science Degree from Southern Methodist University in Dallas, Laura earned her Juris Doctorate Degree with honors from the University of Arkansas School of Law. She has been a Fellow of the Arkansas Bar Foundation since 1990, is a Sustaining Fellow and has served the Foundation as a member on the Board of Directors and as Secretary-Treasurer and Vice President. Laura has been an active member of the Pulaski County Bar Associa-
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The Arkansas Lawyer
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tion and American Inns of Court, serving both organizations as its President. She is involved with the American Board of Trial Advocates, Arkansas Association of Defense Counsel receiving Outstanding Defense Attorney in 2008, Defense Research Institute serving as State Chair, and selected as “Lawyer of the Year’ in 2011 for Medical Malpractice Defense. She also has served her community as President of Our Way, Inc., VOCALS and Central Arkansas Legal Services and various leadership roles in her church. Laura and her husband Grover have two adult children, Sarah and Noland. The Arkansas Bar Foundation was established in 1958 to support efforts at improving the administration of justice. The Arkansas Bar Foundation, which is classified as a tax exempt organization under Section 501(c)(3) of the Internal Revenue Code, is a charitable organization with a mission to promote educational, literary, scientific and charitable purposes. In addition to efforts at improving the administration of justice, the Foundation also supports continuing legal education for lawyers, efforts to diffuse knowledge of the law, and publishing reports and other literary works on legal subjects. Other objectives are acquiring, preserving, and exhibiting rare books, documents and objects of art that have legal significance.
Young Lawyers Section Report
It is said, “When someone has been given much, much will be required in return; and when someone has been entrusted with much, even more will be required.” (Luke 12:48 NLT). All lawyers have been given much. By definition, all lawyers have received extensive education. All lawyers are admitted to a position of privilege. All lawyers have the opportunity to have respect in the community, to have a meaningful and important career and to have an opportunity to earn more than the average American. As lawyers, we are entrusted with much. We are entrusted with the needs and hopes of our clients. We are entrusted with the assets of our clients. We are entrusted with the future of our clients. As we have been given much and as we have been entrusted with much, we must do more in return for those around us who need our help. For many years, the Young Lawyers Section (YLS) has been the service arm of the Arkansas Bar Association. YLS represents one of the most meaningful ways for lawyers to meet the requirement to do more and give more. This year will offer many such opportunities for service to our profession and our community. The new bar year is just starting, and there is still time for anyone—young or old—to get involved with the many ways that YLS intends to give even more than we have been given. YLS has seven standing committees, each of which is dedicated to serving our profession or our community: 1. Disaster Relief Committee YLS is in charge of leading the Association’s response to disasters. Lawyers operate hotlines in times of disasters to assist victims in dealing with needs caused by the disaster. However, many lawyers shy from this obligation
by J. Cliff McKinney
because they may not know the answer to common disaster-related questions. For instance, how many lawyers know how to deal with FEMA, replace a lost birth certificate, properly file an insurance claim for destroyed property or address the host of other issues that may arise in a disaster? This year, YLS will work to develop a handbook to help lawyers who are providing assistance to disaster victims. 2. Legal Education Committee Mentoring Videos Initiative: YLS is building a library of videos of highly-experienced attorneys and judges providing instructions for younger attorneys on specific tasks, such as preparing for a deposition. This initiative will continue the process of building the video library to create a premier tool for young lawyers in Arkansas. In addition to the young lawyers we will need to help build this library, we will also need many seasoned lawyers to share their expertise. Handbook Update: YLS manages several handbooks for the Association, including the Consumer Law Handbook and 18 and Life to Go. The last bar year saw major updates and improvements to these handbooks. This initiative will continue and volunteers are encouraged to help complete the review and updating of the various handbooks. 3. Citizenship Education Committee Legislation Initiative: This committee will examine the possibility of laws that might improve the lives of young adults. Civics Education Initiative: There is a profound lack of civics knowledge, often leading to distrust and misunderstanding of the role of the judiciary. This initiative will look for ways to meet the challenge to provide better civics education to the community.
4. Minority Outreach Committee Diversity Initiative: YLS is a leader in promoting diversity initiatives in Arkansas. This initiative will continue to look for ways to encourage persons of diverse backgrounds to enter the legal profession and feel welcome and included in the Association. 5. Communications Committee InBrief Newsletter: InBrief, the newsletter of the section, is the primary method of communicating with members of the section. This committee will find ways to continue reaching more young lawyers as well as members of the entire Association. 6. Pro Bono Committee YLS will look for ways to continue expanding service to the under-served populations of Arkansas through pro bono efforts. The committee will look for ways to serve the needs of Arkansans who need access to justice. 7. Recruitment & Social Committee This initiative will look at ways to increase networking and contacts between young lawyers. This initiative will also seek to make personal contact with every new admittee in Arkansas to encourage participation in YLS. If you would like to help YLS with any of these initiatives, please reach out to the Association to express your interest. As chair of YLS, it is my honor to help meet the charge to give more and do more in consideration for the many privileges we have been given as lawyers in this great state. I hope everyone reading this message will find a way to join with YLS as we work this year toward the goal of giving back for all that we have been given. ■
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Meet the President
Jim Simpson 2013-2014 Arkansas Bar Association President
Jim Simpson of Little Rock was sworn in as the president of the Arkansas
Bar
Association
on
June 14, 2013. Jim is a partner with Friday Eldredge & Clark in Little Rock, where he heads the firm’s General Litigation Practice Group.
Photo by Jason Masters
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Jim and Karen Simpson
Photo by ThinkDero, Inc.
By Anna Hubbard
L
awyers be warned, “If you’re not a part of the Arkansas Bar Association, you’re going to be missing something.” So says Jim Simpson, who recently took the helm as president of the Association. Jim spoke to a room full of over 1,000 attorneys, judges, law students and guests during his swearing-in ceremony on June 14, 2013, at the Hot Springs Convention Center. Chief Justice Jim Hannah performed the ceremony during the Association’s annual meeting. He proudly joins the long list of 115 presidents who have served before him, including two from his firm of Friday, Eldredge & Clark in Little Rock. Herschel Friday was president in 19761977 and Fred Ursery was president in 2004-2005. “The Bar Association is a way to build your practice and build your reputation,” Jim said. “This organization and this profession fit every type of personality. The Association is made up of jurists, rising legal stars, legislators and experts in their field. As a member, you have the opportunity to interact with all of those people.” Jim quoted Will Rogers who once said, “Man only learns in two ways, one by reading, and the other by association with smarter people.” “That can happen here and has happened to many of us, including me,” Jim said. Jim began attending the Association’s annual meeting as a new,
young lawyer and has marveled at how the meeting has grown each year. His firm has sponsored the traditional Friday Firm reception held on the Thursday afternoon of the meeting as long as anyone can recall. What started out in a crowded hotel suite has evolved into the most popular social event of the meeting with elbow-toelbow crowds overflowing outside the hotel lobby and onto the veranda. Jim commented on how seeing people on a personal level can make working with them on a professional level easier. “When you come to a bar meeting and are outside the tangles of representation everything seems to relax. Then the next time you face off as adversaries in court, you are more gentle, more kind.” Jim noted how other states are envious of the attendance of the Association’s annual meeting, especially for a voluntary bar association. He said that other states are also impressed at how approachable everyone is at these meetings. “You can sit down and talk to a Supreme Court justice, Court of Appeals justice, state and federal judges. We have a great interaction between the bar and the bench and you should not take that for granted.” Jim is head of the Friday Firm’s General Litigation Practice Group. Jim started as a trial lawyer when he joined the firm out of law school and has tried more than 135 jury trials to verdict. His practice focuses on business litigation, pharmaceutical litigation
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left photo: Jim and Karen Simpson, Caitlin Simpson West and Andrew West; above photo: Jim and Karen Simpson, Chief Justice Jim Hannah
and personal injury matters, including business torts, products li- views, economic backgrounds, and diverse religious and cultural ability, toxic torts and class actions for Fortune 1000 companies in a traditions. And in this ‘magic,’ more often than not, the right result broad array of industries, representing clients in courts throughout is reached by a jury.” Jim and his wife of 35 years, Karen, have a daughter, Caitlin, 28. the country. He successfully argued the constitutionality of ArkanA close-knit family, they operate as a team who brings the best out sas’s electronic gaming law before the Arkansas Supreme Court. He and his law partner Laura Smith, who is serving as the presi- in each other. Caitlin said that growing up, her parents took her everywhere dent of the Arkansas Bar Foundation this year, recently tried a large with them and always treated her like an adult which is why they pharmaceutical case that is now on appeal. are still so close today. Jim said his favorite part about being a trial “He cares about the “We always had fun together and still do,” she lawyer is the competition. “The better your competition is, the better you are. It is more profession and wants said. “My parents have a youthful energy that fun to have a big case against a good lawyer lawyers to get what they contributes to their happiness. They are both than otherwise. It’s fun every once in awhile to need outside of the firm very kind and genuine people.” Caitlin said that she and her dad share a lot think ‘Whoa, I didn’t see that coming,’ but it and the courtroom. He of personality traits, partially because of genetics also makes you stay up a little later to think of knows that the Association and also because of her admiration for him. something they didn’t see coming.” “I have always looked up to him and watched He uses the same creative energy to develop can make you a better new and fresh opening statements for juries that person and a better lawyer.” what he is doing with a close eye,” she said. “He is always positive and encouraging, and people he does for teaching a Bible class at his church. enjoy being around him. He genuinely cares “If I go back and look at something that I did five or 10 years ago and think that these people have never heard about everyone he works with, and he loves what he does. He works this and I could use again, it’s not near as much fun. It’s like it’s hard but doesn’t take himself too seriously.” Caitlin said that his love for his profession will make him a great stale. It is the same thing for an opening statement. There are certain things that you need to say in an opening statement but most bar president. “He cares about the profession and wants lawyers of it is customized to that case. So, if I’ve said it before it’s not as to get what they need outside of the firm and the courtroom. He knows that the Association can make you a better person and a much fun.” Jim expressed his concern to the business community over the better lawyer.” Caitlin works for the Arkansas Affiliate of the Susan G. Komen importance of a jury trial in an article published in Arkansas BusiFoundation. She recently married Dr. Andrew West, and they will ness on June 10, 2013. He states: “Most trial lawyers can tell you that while jurors be- be moving to Nashville, Tennessee, next summer for Andrew’s felgin the trial process with apparent reluctance, most if not all jurors lowship in radiology. Jim was born in Little Rock and moved soon thereafter to south(even while looking bored through much of the trial) take delicate care and time to reach the right result after retiring to the jury ern California where he and his family spent 11 years before movroom. ... [T]here is something magical about the blending–some- ing back to Little Rock via a short stop in Beebe. Jim’s parents and times through intense debate–of different and competing political one sister live in Little Rock and his other sister lives in Texas.
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Meet the President What is something about you that would surprise people to know? At one point in life I taught both guitar and accordion. You won’t catch me without: Workout stuff Favorite book: “The Winner” by David Baldacci Favorite movie: “Ferris Bueller’s Day Off” Favorite food: Mexican My favorite vacation spot: San Diego area Favorite tv show: “CBS Sunday Morning” A phrase to sum me up: Happily busy Photo by ThinkDero, Inc. Jim enjoys spending time with his family and long-time friends. business leaving early when all of these giants in the profession are He plays golf and meets up with friends for workouts and cama- still there with their sleeves rolled up working hard. So it was just kind of a natural thing. You worked hard and you didn’t really think raderie. Friends and colleagues expressed their confidence in the Associa- about working hard.” Jim advises new lawyers starting out to get mentors. “I think tion’s new president. “Jim is very competitive, and has been ever since we were in law about how so many times if I would have had to come up with school together,” Little Rock attorney Jim Dowden said. “Whether an answer on my own, I either wouldn’t have come up with it or I it is in the courtroom or on the golf course, he wants to win. He is would have gotten it wrong. Get advice from people who are expevery adept at looking at situations and evaluating them from every rienced. Be willing to ask questions.” Jim is on the faculty of the Arkansas Proangle. He always wants to do his best—for his “The reputation of our bar fessional Practicum, a mandatory continuing family, his friends, his clients.” Another long-time friend, Bob Denman, Vice association is tremendous. legal education course for attorneys newly admitted to the bar. “When planning for the Chancellor for Alumni Development at UALR, spoke to the value of his friendship to Jim. “We ... If you are not on board practicum, I try to think of things that they have been friends for over 45 years. I distinctly with the Association, you don’t know that they don’t know.” He also advises young lawyers to start volremember the two of us running in my neighborunteering for Bar Association activities a piece hood at night to get in shape for track season. are missing out.” at a time to begin to meet people and build a We could not have been 14 or 15 years old but I thought what a great friendship this is. I knew then as I do now that practice. “The Association is diverse in what it allows you to volunhe would do anything for me. A 45-year friendship is rare today teer for and we need everyone involved.” Jim has been involved in the Bar Association since earning his and this is one I deeply value.” Jim is a 1974 cum laude graduate of the University of Arkansas license. He has been a leader on numerous committees and task at Little Rock. He earned his JD from the University of Arkansas forces. He served as chair of the Annual Meeting committee and School of Law in 1977 where he served as associate editor of the as chair of the Unauthorized Practice of Law committee. He served on the Board of Governors for six years and is a tenured member of Arkansas Law Review. Jim describes the start of his legal career as “intimidating.” He began the House of Delegates after serving for 11 years. He is a Fellow of his career working under the tutelage of legal giants in the firm includ- the Arkansas Bar Foundation and a Fellow of the American College of Trial Lawyers. He previously served as president of the Arkansas ing Bill Eldredge, Herschel Friday, Boyce Love and Buddy Sutton. “They were in a different league. It was like a wake-up call to chapter of the American Board of Trial Advocates. As president of the Association this year, Jim wants to focus on begin to understand everything that was involved in being a lawyer and then to watch how smoothly they were doing it. And how hard letting attorneys know what the Association has to offer so they can participate and utilize the many member benefits. they worked. I didn’t have any feel for that,” Jim said. “The reputation of our bar association is tremendous,” Jim said. “We worked hard because they worked hard. And because we had the work to do, which was a blessing. We just never thought “It is a unique professional development tool. If you are not on about not working hard. As a young associate, I would have no board with the Association, you are missing out.”
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Member Spotlight— Attorneys and Their Foreign Travels Mary White Schneider in front of a fountain in Rome, Italy.
Scott Brisendine at the Hagia Sophia, Istanbul, Turkey. Scott Brisendine at the gates of Persepolis, Shiraz, Iran. (l to r) Amanda Jarvis and Kristi Hunter prepare to board a ferry in Fazana, Croatia, headed to the Croatian “Heaven on Earth,” the historic Brijuni National Park. Gordon Rather standing in front of St. Basil’s Cathedral in Red Square in Moscow. Keith N. Wood in Kandahar Province, Afghanistan, in a meeting with village elders. Keith spent the past two years on assignment with the Department of State (USAID) as a Senior Rule of Law Advisor, working with the formal and informal justice systems. Drake Mann standing at the edge of Darvaza Gas Crater, Karakum Desert, central Turkmenistan. Photo by Hannah Barraclough. Drake visited North Korea in April 2007. At the time, this was only the fourth time since 1953 that American tourists had been allowed in. Photo is of the former presidential palace of Kim il-Sung. The palace is now a mausoleum for Kim il-Sung and Kim Jong-il. Drake’s group was the first group of Americans to view Kim il-Sung lying in state. North Korean children performing at the Arirang Mass Games. The image in the background is made up of thousands of school children holding cards. Scott Lauck at Mt. Everest Base Camp in Tibet. Scott took a year-long trip around the world in 2008-2009. He traveled to 26 countries spread over four continents—Europe, Africa, Asia and Australia. Scott at the Taj Mahal in Agra, India. Scott at the Tropic of Capricorn in Namibia. More photos can be found on his travel blog at scottlauck.net.
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Report on the Regular Session of the 89th General Assembly
By Bob Estes and Jack McNulty The regular session of the 89th General Assembly convened on January 14, 2013. As a result of the November 2012 elections the Republican party, which had been in the minority since the end of the reconstruction era,1 gained firm control of the Senate2 and slim control of the House of Representatives.3 Both the Senate and the House immediately elected new leaders. The chairs of all Senate standing committees were by rule Republican. The newly elected Republican Speaker of the House appointed the chairs of all standing committees of the House of Representatives. Despite the gigantic shift in control of the Legislature from the Democratic party to the Republican Party, the political process ran without an inordinate number of problems, and most issues were eventually decided on a bipartisan basis. The legislature met in active session through April 19, and recessed until May 17, at which time they adjourned sine die. During the session, 3,492 bills were introduced and 1,520 of them (43.5%) were eventually enacted.4 Your Association’s Legislative Committee5
and lobbyist reviewed all of the bills and resolutions that were introduced during the session. Many of the bills were referred to Association sections for comment or for information; many bills of interest were cited in the Association’s e-bulletin. As provided by the Association’s governing documents, the Legislation Committee took a position on behalf of the Association on several bills and resolutions. All bills that the Association supported passed. All bills that the Association opposed failed or were sufficiently modified to satisfy the Legislation Committee’s concerns. The Bar Association’s Legislative Package As in previous years, the bills proposed through the Association’s Legislative Package fared well during the session thanks, in large part, to the leadership and support of lawyer legislators. All of the Association’s proposed legislation was enacted: Uniform Commercial Code, Article 4A–Act 111 (SB 207): Article 4A of the Uniform Commercial Code addresses electronic funds transfers. Because of the enactment of recent federal legislation, certain remittance transfers that had been regulated
Bob Estes of Fayetteville served as the chair of the Arkansas Bar Association’s 2012-2013 Legislation Committee. Jack A. McNulty is the lobbyist for the Arkansas Bar Association. Estes 16
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would become unregulated unless action was taken. Senate Bill 207, which became Act 111, resolved this problem by amending Article 4A of the Uniform Commercial Code as adopted in Arkansas to regulate those remittance transfers under Arkansas law if they would be unregulated under the federal Electronic Funds Transfers Act. Senate Bill 207 was sponsored by Senator Bruce Maloch and cosponsored by Senator Robert Thompson and Representative Darrin Williams. The Act became effective February 19, 2013.6 Uniform Commercial Code, Article 9–Act 138 (SB 219): Article 9 of the Uniform Commercial Code governs secured transactions. Act 138 amends various provisions of Article 9 to clarify filing issues and other matters which have arisen in practice following over a decade of experience with the current Article 9. Senate Bill 219, which was enacted as Act 138, was sponsored by Senator Robert Thompson and cosponsored by Senator David Johnson and Representative John Vines, Representative Mary Broadway, Representative David Kizzia and Representative David Whitaker. The Act became effective July 1, 2013. Attorney’s Fees and Costs in Condemnation Cases–Act 502 (HB 1282): Landowners whose property is taken by the Arkansas State Highway and Transportation Commission will now be entitled to a judgment which includes costs, expenses and reasonable attorney’s fees incurred in preparing and conducting the final hearing and adjudication, including without limitation the cost of appraisals and fees for experts if the ultimate amount awarded exceeds the amount deposited into
the registry of the court by the Highway Commission by 10% or more. The effective date is August 16, 2013. House Bill 1282 was sponsored by Representative John Charles Edwards and cosponsored by Representative Nate Steel, Representative Marshall Wright and Senator Jeremy Hutchinson. Some New Laws of Interest As previously mentioned, 1,520 bills were enacted during the last session. We cannot comment on all of those here, but you can review the summary of each substantive bill and the bill itself on the legislative website: http://www.arkleg.state.ar.us.7 Some Acts which may be of particular interest (in ascending numerical order) include: Arkansas Paddlesport Activities Act (Act 221): Generally, paddlesport activities are activities in or on a watercraft—such as canoeing, rafting, kayaking or tubing. Among other things, this Act limits the ability of an outfitter8 to exclude liability resulting from the inherent risk of a paddlesport activity. Garnishment Proceedings (Act 229): The time to respond to a Writ of Garnishment was extended from 20 to 30 days. Small Estates (Act 230): In place of a description of the information which is to be included in an Affidavit for the Collection of a Small Estate, this Act furnishes a form to be used. Court Funding (Act 282): This Act affects the collection of court fees, adds additional fees, and addresses other issues relating to funding the court system. Return of Executions (Act 319): The time to return an execution was extended from 60 to 90 days. And an officer’s failure to deliver a timely return must be willful before the officer may be liable and bound to pay the entire amount of money specified. Distributions from the State Administration of Justice Fund (Act 504): Court Reporters, Trial Court Administrative Assistants, and the Arkansas District Judges Council must first be fully funded before making distributions to the other entities which receive funding from the Administration of Justice Fund if the balance and estimated revenue of the Administration of Justice Fund is inadequate to fully fund all authorized monthly allocations. Mental Evaluation of a Criminal Defendant (Act 506): Act 506 clarifies the procedures to which a criminal defendant is
The Supreme Court of Arkansas per curiam delivered August 2, 2013 In Re the Appointment of a Special Task Force on Practice and Procedure in Civil Cases The extended debate in the recent session of the Arkansas General Assembly over both the substance of court rules and changes to this court’s constitutional power and authority to promulgate those rules, coupled with the debate surrounding recent cases involving issues of damages and liability in civil litigation, has revealed the need for review and/or revision of some sections of the Arkansas Rules of Civil Procedure. Some four decades ago, this court adopted a structure and process which allows any member of the bench, bar, or general public to suggest changes to, or provide input on, our rules of civil procedure. The court regularly reviews any proposals received. This review is initially commenced by our Committee on Civil Practice, which includes outstanding members of both the plaintiff and defense bar. We note that there have been no recent recommendations submitted to the court or the committee concerning “damages and/or liability in civil litigation.” In light of the failure of those interested in these issues to submit concerns (or recommendations) to the court, and in an effort to insure a thorough examination of the concerns that have raised these debates, we hereby create a Special Task Force on Practice and Procedure in Civil Cases, and appoint the following officers of the court to serve as members of the task force: Representative Mary Broadaway of Paragould, Brian Brooks, Esq., of Greenbrier, Paul Byrd, Esq., of Little Rock, Kevin Crass, Esq., of Little Rock, Jim Julian, Esq., of Little Rock, Senator David Johnson of Little Rock, Troy Price, Esq., of Little Rock, Mike Rainwater, Esq., of Little Rock, and Representative Matthew Shepherd of El Dorado. We appoint John Watkins, Esq., of Fayetteville chairman, who will be a non-voting member. The Task Force should begin its work as soon as possible and receive input on any perceived problems with and recommended changes to the Arkansas Rules of Civil Procedure involving parties, liability, and damages in civil litigation involving negligence, medical malpractice, and related cases. Periodic reports and recommendations are encouraged, to the extent that there are changes about which consensus may be reached. The court will consider any recommendations as soon as they are submitted. The Task Force should conclude its work and submit its final report on or before December 31, 2013. The bench and bar in Arkansas have a long and proud history demonstrating a willingness to work together to develop and produce policies and procedures, which ensure all of our citizens a court system that is fair, equitable, and efficient in its treatment of all parties and issues. We are confident that this history can and will be replicated as the Task Force engages in this important work. We invite and encourage all members of the bench and bar and others with an interest in the practices and procedures of civil cases to engage in the work of the Task Force. Vol. 48 No. 3/Summer 2013 The Arkansas Lawyer
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required to comply to get a mental-health evaluation for the purposes of his or her defense. It also addresses what an examiner must do and addresses the written opinion itself. The Act applies to both fitness-to-proceed and criminal-responsibility evaluations. Title to a Mobile Home or Manufactured Home (Act 592): Act 592 provides a procedure to obtain or cancel the title when a mobile home or manufactured home has been severed from real property described in the original legal description or is to be affixed to new real property, Presumption of the Cause of a Fire (Act 982): Act 982 abolishes the common law presumption that a fire was caused by an accident or natural causes. Attorney’s Fees in Actions Arising from Civil Service Employment (Act 994): A Circuit Court may award attorney’s fees to the prevailing party for the proceedings in Circuit Court when the proceedings related to an appeal in a civil service commission
matter related to the suspension, discharge, reduction in rank, or compensation of a civil service employee. Acknowledgements (Act 999): The form of acknowledgements and defects in acknowledgements of recorded instruments are addressed by this Act. Fees involving secured transactions (Act 1042): Beginning April 10, 2013, the Secretary of State may accept a prepaid account as a method of payment for secured transactions. Access Easements (Act 1083): Act 1083 revised the law concerning the process for a county judge to establish access easements for landlocked owners of real property. Corporate Franchise Tax (Act 1093): The deadline for taxpayers to meet the filing and remittance requirements for the corporate franchise tax is reduced from June 1 to May 1. Sharing Information (Act 1115): Proceedings, records, and transcripts of
any investigations, or inquiries concerning complaints to the Arkansas Ethics Commission must be kept confidential in most circumstances. Act 1115 permits the Ethics Commission to disclose such confidential information to the Supreme Court Committee on Professional Conduct or the Judicial Discipline and Disability Commission if an investigation or inquiry concerns an attorney or judge. Likewise, the Judicial Discipline and Disability Commission may release information to the Ethics Commission if it reasonably believes that there may have been a violation of law or rule falling under the jurisdiction of the Arkansas Ethics Commission. Contribution Among Joint Tortfeasors (Act 1116): Act 1116 states that it is remedial and purports to apply to all causes of action accruing on and after March 25, 2003. Under the Act, if upheld, the rights afforded to joint tortfeasors will apply with equal force after the modification of joint and several liability as provided in Ark. Code Ann. § 16-55-201, and none of the rights granted to joint tortfeasors by the act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, is to be denied to joint tortfeasors. Subsumed Causes of Action for Health Care Injuries (Act 1196): Residents in long-term care facilities who have suffered medical injuries have often filed causes of action under Ark. Code Ann. § 16-114-201 et seq. and Ark. Code Ann. § 20-10-1209 (concerning civil enforcement for the protection of long-term care facility residents). Act 1196 provides that the cause of action
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Legislation Timetable for the 2015 Session of the Arkansas General Assembly Members of the Arkansas Bar Association are encouraged to submit proposals in bill form concerning all matters of jurisprudence and procedure, including reforms of the substantive law and improvement in practice and in administration of the courts. Deadlines have been established by the Association to facilitate getting proposed bills made a part of its Legislative Package and thereby sponsored by the Association. For more information or to submit proposals, contact Karen Hutchins at the Association’s office at (501) 501-375-4606. January 30, 2014 Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. April 2014 Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates. June 2014 House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. June - September 2014 Jurisprudence & Law Reform Committee and Legislation Committee modify package in accordance with directions from House of Delegates.
can be only under Ark. Code Ann. § 16-114201 and that deprivation or infringement of rights under the Patient’s Bill of Rights may be used as evidence of negligence. Calculation of Interest (Act 1223): The rate of interest under a contract that does not specifiy a rate is six percent per annum.
Advance Directives (Act 1264): The Arkansas Health Care Decisions Act contains numerous provisions relating to endof-life decisions. Among other things, it contains forms, not to be codified, which are to be adopted by the State Board of Health, but may be revised by rule so long as the
revisions are consistent with the intent of the Act. Automatic Renewals in Certain Lease Agreements (Act 1320): This Act applies to written leases of personal property for one year or more when the lease contains a provision that it is automatically renewed
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Neal L. Hart Attorney at Law
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Court Costs (Act 1357): An additional court cost of $25.00 is imposed on anyone convicted of a criminal offense involving domestic violence. The proceeds will fund domestic-crisis centers. Residential Real Estate Repair Practices and Contracts (Act 1360): Act 1360 regulates residential real estate repair practices and contracts that are typical in an emergency situation. The Act includes a procedure for cancellation if the anticipated proceeds of an insurance policy do not cover the amount of damage caused in the emergency situation.
Arkansas Benefit Corporation (Act 1388): The Arkansas Benefit Corporation Act creates a new form of entity which must organize under the Arkansas Business Corporation Act. The new Act requires a benefit corporation to have a business purpose of creating a general public benefit. Although an existing corporation may elect to become a benefit corporation, doing so is totally optional. Wrongful Death Lawsuits (Act 1426): Ark. Code Ann. § 16-62-102(c)(1) requires that a wrongful death lawsuit be commenced within three years after the death of the person alleged to have been wrongfully killed. Act 1426 makes an exception: a wrongful death action may be commenced against a person in the time period permitted to bring a murder charge under § 5-1-109—if the person was convicted of capital murder, murder in the first degree, or murder in the second degree.9 Act 1426 also provides that a person who has been convicted of or pled guilty or nolo contendere to any crime who contracts to benefit economically regarding the crime shall pay to the circuit court any money or thing of value contracted to be paid to the defendant or his or her spouse, heirs, assigns and transferees.
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Vol. 48 No. 3/Summer 2013 The Arkansas Lawyer
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Comprehensive Criminal Record Sealing Act (Act 1460): This lengthy Act amends, consolidates, clarifies, and simplifies the process for sealing a person’s criminal record. It addresses who is eligible to have a record sealed, which criminal offenses are able to be sealed, and the court procedures required to have the record sealed. The Act is prospective and takes effect January 1, 2014. Proposed Constitutional Amendments The Arkansas Constitution permits each
legislative regular session to refer for a vote of the people up to three amendments to the Constitution. Proposals for amendments to be considered by the Legislature for referral are introduced in the Senate as Senate Joint Resolutions (SJR) and in the House of Representatives as House Joint Resolutions (HJR). During this last session, there were 19 SJRs and 19 HJRs introduced. A great deal of effort was expended by your Legislation Committee and lobbyist this session discussing, negotiating and opposing proposed amendments to the Constitution
which would have had the effect of transferring the rule-making power relating to judicial matters from the Supreme Court to the Legislature. Senate Joint Resolution 6 (SJR 6): SJR 6 proposed that the General Assembly would prescribe the rules of pleading, practice and procedure for all courts; that the General Assembly could delegate that authority to the Supreme Court to the extent, and upon such terms, as provided by law; that the Supreme Court had no authority to adopt rules of pleading, practice, and procedure for courts except as the General Assembly delegates; and that the right of appeal to an appellate court from the Circuit Courts and other rights of appeal would be as provided by the General Assembly, rather than by Supreme Court rule. The Legislation Committee voted to take all steps necessary to oppose SJR 610 and requested that a special Task Force be appointed to oppose it.11 SJR 6 did not advance. Senate Joint Resolution 5 (SJR 5): While SJR 6 did not move forward, SJR 5 (a “shell bill”12) was amended to fill in substantive provisions in order to become the active
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bill to transfer the rulemaking power.13 It included provisions proposing that the Supreme Court would have no authority to prescribe rules of pleading, practice, procedure or rules of evidence for courts, except as expressly delegated by the General Assembly; that the General Assembly would be authorized to enact laws that adopt, amend, affect, or supersede rules of pleading, practice, procedure and rules of evidence for courts, notwithstanding the delegation of rulemaking authority to the Supreme Court; that the General Assembly would be authorized to set rights of appeal; and that the General Assembly would be authorized to regulate the award of compensation or damages that may be awarded by courts and administrative agencies, including without limitation noneconomic damages and punitive damages. The Legislation Committee and the Task Force continued their efforts on behalf of the Association in opposition to SJR 5. There were numerous discussions to attempt to arrive at an understanding and compromise. In the meantime, at its meeting on April 6, 2013, the position taken by the Legislation Committee on behalf of the Bar Association
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was affirmed by more than 70% of the Board of Governors of the Association. The bedrock position of the Bar Association throughout was that it remained opposed to any proposal which effectively transferred rulemaking power for courts from the Supreme Court to the Legislature. The Bar Association did not take a position for or against any specific “tort reform” proposals. As a result of several factors—the Bar Association’s opposition being a significant one—SJR 5 did not get sufficient votes in Committee in order to be one of the three proposals to be referred by this session.14 The final result of the debates on proposed amendments to the Arkansas Constitution was that the following three proposed constitutional amendments were referred by the legislature for a vote of the people at the time of the November 2014 general election: Review and Approval of Administrative Rules by a Legislative Committee (SJR 7): If adopted at the November 2014 general election, the General Assembly would be able to provide by law for the review by a
Vol. 48 No. 3/Summer 2013 The Arkansas12/14/12 Lawyer9:24 AM 23
Refer to Law Offices of Gary Green, P.A. We Share the Work We Pay the Costs We Pay 1/3 Associate Counsel Fees In Compliance With Rule 1.5(e) of the Arkansas Model Rules of Professional Conduct
Personal Injury Product Liability Medical Negligence Nursing Home Cases 1001 La Harpe Blvd., Little Rock, AR 72201 501-224-7400 1-888-4GARY GREEN (442-7947) www.gGreen.com ggreen@gGreen.com legislative committee of administrative rules promulgated by a state agency before the administrative rules become effective and may provide that administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules. Amendment Concerning Initiative and Referendum (SJR 16): If adopted, this proposed amendment would amend Article 5, Section 1 of the Constitution, concerning
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initiative and referendum, to provide that correction or amendment of an insufficient state-wide petition shall be permitted only if the petition contains valid signatures of legal voters equal to at least 75% of the number of state-wide signatures of legal voters required and at least 75% of the required number of signatures of legal voters from each of at least 15 counties of the state. The Arkansas Elected Officials Ethics, Transparency, and Financial Reform Amendment of 2013 (HJR 1009): This
proposed amendment to the Constitution contains various provisions concerning elected state officials, including a prohibition on certain contributions, such as contributions by corporations, to candidates for public office; a requirement that a former member of the General Assembly shall not be eligible to register as a lobbyist until two years after the expiration of his or her term of office; a prohibition on members of the General Assembly and elected constitutional officers of the Executive Department accepting gifts from lobbyists; the creation of an independent citizens commission to set salaries for members of the General Assembly, elected constitutional officers of the Executive Department, justices, and judges; a provision that members of the commission shall not accept gifts from lobbyists; and a provision that a member of the General Assembly shall serve no more than 16 years whether consecutive or nonconsecutive. Looking Forward Your Association is monitoring the 168 Interim Study Proposals currently being studied by the Legislature. The Legislature will meet in fiscal session beginning in February 2014 and, although it is supposed to deal with only budgetary matters, the Association will be monitoring all bills for proposed substantive changes. Although the next regular session is not until January 2015, the deadline for submitting proposed legislation to the Jurisprudence and Law Reform Committee to be considered for being included in the Association’s
Legislative Package for the 2015 session is January 30, 2014—about six months from now. This submission is the first step in the Association’s legislative program to facilitate members being able to have an impact on making or changing public policy involving the administration of justice or the practice of law. Establishing the Association’s Legislative Package and representing the interests of the profession are important functions of your Bar Association. Some of the multiple ways in which members may be involved in this important function include suggesting legislation, participating on the Jurisprudence and Law Reform Committee, participating on the House of Delegates, participating on a Section’s Legislative Review Subcommittee, and making a financial contribution to the Political Action Committee (PAC). Communicating your comments to the Association on pending legislation is extremely helpful. We are all impacted, professionally and personally, by enacted laws. Endnotes: Note: The authors wish to thank the Bureau of Legislative Research, which prepared the Summary of General Legislation from which portions of this article derived language. 1. And, by coincidence, the adoption of the Arkansas Constitution of 1874. 2. Twenty-one Republicans; 1 Democrat. 3. Fifty Republicans; 49 Democrats; 1 Green Party. 4. In comparison to the 1,520 new laws enacted in the most recent regular session, in the 2011 regular session, 1,242 new laws
were enacted; 1,501 new laws were enacted in the 2009 regular session. 5. The legislation committee consisted of Bob Estes (Chair), Kristin Pawlik (Representative from District A), Aaron Squyres (Representative from District B), Jobi Teague (Representative from District C), Charlie Harwell (President), Jim Simpson (President Elect), Brian Ratcliff (President Elect Designee), Jim Julian (Immediate Past President), Charles Schlumberger (At Large), and Dennis Zolper (Chair of Jurisprudence and Law Reform Committee). 6. Acts that do not contain an emergency clause or a specified effective date become effective on the 91st day following the date that the General Assembly adjourns sine die. According to the method of calculation stated in Ark. Atty. Gen. Op. 2013-049 (May 24, 2013), the effective date for Acts of the 89th General Assembly that do not contain an emergency clause or a specified effective date is August 16, 2013. 7. On the internet, go to the home page of the legislative website - http://www.arkleg. state.ar.us. Then, in the right margin, select “Summary of General Legislation - 2013”— which is the second subcategory under “Documents – 2013 Regular Session.” That will display the Summary. To review individual Acts, on the homepage of the legislative website (http://www.arkleg.state.ar.us), select “Search Acts” in the left margin; it is the first subcategory under the category “Acts.” Type the number of the Act you wish to review in the first box on the menu that asks for the “Act Number” and select “Search.”
8. An outfitter is defined as “an individual, group, club, partnership, corporation, or business entity, whether or not operating for profit, or an employee or authorized agent, which sponsors, organizes, rents, or provides to the public the use of a watercraft by a participant in a free-flowing stream or river in this state.” 9. A prosecution for murder may be commenced at any time. 10. In accordance with the Association’s governing documents seventy percent (70%) of the membership of the Legislation committee voted to oppose SJR 6. 11. The Task Force consisted of Jim Julian (Chair), Niki Cung, Bob Estes, Don Hollingsworth, Charlie Harwell, Jack McNulty, H.T. Moore, Charlie Schlumberger, John Stroud and David Williams. 12. A “shell bill” is a bill or resolution with a number and title, but no substantive provisions except to generally indicate the subject matter. 13. SJR 5 was amended four times. 14. SJR 2 was filed on January 16 and proposed to add various specific tort reform proposals to the Constitution. The Legislation Committee opposed SJR 2 in its original form because it proposed to put unnecessarily-detailed law in the Constitution. SJR 2 was eventually amended to take out the offending language. The Senate adopted Senate Resolution 30, which encourages the Supreme Court to adopt tort reforms. On August 2, 2013, the Arkansas Supreme Court issued the per curiam opinion reprinted on page 17 of this article to address these issues. ■
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Representing Farmers in Crop Insurance Disputes: When Your Client is Denied the Farm Safety Net
By Grant Ballard Crop insurance is a federally subsidized, and widely used, form of risk protection for today’s farmer. In short, crop insurance protects farm businesses from natural losses to insured crops and fluctuations in crop revenue.1 Crop insurance also appears to be emerging as the future mainstay of the farm “safety net.” As a result, attorneys practicing agricultural law are more likely than ever to get questions from farmers on crop insurance coverage issues. This article provides a brief overview of the unique complexities of crop insurance and points out some recurring issues that arise in the representation of farmers whose crop insurance claims have been improperly denied. Crop Insurance is Not a Typical Insurance Arrangement When a lawyer first receives a call from a farmer who feels that a crop insurance claim has been improperly denied, it is all too easy to approach the case as a traditional property coverage matter. However, crop insurance cases must follow a different track to resolution, and the proper course depends not only on the facts of the case but also on the manner in which the claim was denied. Regardless of how compelling the coverage-related facts may be, to effectively represent a farmer in a crop insurance dispute you must first appreciate that a crop insurance agreement is not a standard twoparty insurance arrangement. Crop insurance is provided through the Federal Crop Insurance Program, which was created by statute and is governed by the Federal
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Crop Insurance Act.2 The Federal Crop Insurance Corporation, through the United States Department of Agriculture’s Risk Management Agency, licenses private companies to sell and service individual crop insurance policies.3 While private companies sell and service crop insurance policies, the Risk Management Agency is involved in the handling of claims and, often times, the resolution of disputes between private crop insurance providers and policy holders. Traditional tenets of insurance law may not be applicable to a crop insurance dispute as the basic provisions of crop insurance policies are codified as federal law,4 and the United States Supreme Court has stated that crop insurance policies have the force of federal law and must be strictly construed.5 Mandatory Arbitration and Federal Preemption The standard crop insurance policy contains an arbitration clause6 that controls most disputes between the insured and the private insurance provider.7 When a disagreement arises between an insured and the insurer, “the disagreement is to be resolved through arbitration in accordance with the rules of the American Arbitration Association,”8 unless an administrative review is required as briefly discussed below. It is important to note that the Code of Federal Regulations requires that an arbitration proceeding be initiated within one year of the denial of a crop insurance claim.9 Attorneys considering the arbitration of a
crop insurance case must also be aware that the crop insurance policy basic provisions and the Code of Federal Regulations limit the arbitrator’s award of damages to the amount of liability provided pursuant to the policy.10 Prospective clients should be made aware that attorney’s fees may not be awarded by the arbitrator. The question of whether the Federal Crop Insurance Act preempts tort-based claims against private crop insurance providers has received significant attention by federal and state courts. Multiple federal courts have held that the Federal Crop Insurance Act does not preempt state-law tort actions against private crop insurance providers.11 However, the arbitration requirement can significantly limit the ability to pursue statelaw tort claims. The trend in federal courts has been to consider arbitration a condition precedent to the prosecution of a tort claim
Grant Ballard is an attorney with the Banks Law Firm in Little Rock, Arkansas. A significant portion of his practice is dedicated to the nationwide representation of farmers in crop insurance disputes.
in state court.12 So, the filing of a tort lawsuit in state court before an arbitration proceeding has been conducted will likely result in a court order compelling arbitration and staying the tort litigation.13 Attorneys Must Know When to Get the USDA Risk Management Agency Involved In a crop insurance arbitration, the arbitrator’s power is limited by federal law.14 The arbitration process that is outlined in the typical crop insurance policy reserves certain issues for the USDA’s Risk Management Agency. Specifically, issues concerning policy interpretation and application fall within the jurisdiction of the Risk Management Agency, while questions of fact are to be decided by the arbitrator.15 The Code of Federal Regulations states that when a dispute involves “a policy or procedure interpretation,”16 the arbitrating parties must obtain an interpretation of the disputed policy provision or procedure from the Risk Management Agency.17 The Agency’s interpretation is controlling during any subsequent arbitration.18 The “[f]ailure to obtain any required interpretation from FCIC will result in the nullification of any agreement or award.”19 When Risk Management Agency Gets Involved on Its Own Initiative The crop insurance policy and federal regulations also require an administrative review, or an administrative appeal, of a claim denial whenever the Risk Management Agency “elects to participate” in the claims-
adjustment process or “modifies, revises, or corrects” a claim before payment.20 The Agency will often get involved with the adjustment of large crop insurance claims,21 and it—“as a federal regulator of the crop insurance program”—may act to ensure that the Federal Crop Insurance Program is administered properly.22 Put simply, when the Risk Management Agency chooses to get involved with your client’s crop insurance claim, arbitration is generally no longer an option. Agency involvement, instead, requires that an attorney consider the administrative review and appeal process that the Risk Management Agency and the United States Department of Agriculture have established. In certain circumstances under the Federal Equal Access to Justice Act, limited attorney’s fees and expenses may be awarded to farmers who prevail at an administrative proceeding.23 Good Farming Practices If an insurance company or the Risk Management Agency finds that your client has failed to use “good farming practices,” then otherwise insurable crop losses may be uninsured.24 “Good farming practices” disputes require special attention and have been given a unique administrative review process.25 A farmer may not use the arbitration process to argue a good farming practices determination. To challenge a finding that your client failed to use good farming practices,26 an attorney must generally seek the opinion of the Risk Management Agency as to what practices constitute a “good farm-
ing practice.” If the Agency determination is against the insured producer, then the insured has the right to request a reconsideration27 and can, in the alternative, sue the Federal Crop Insurance Corporation in federal court.28 Concluding Thoughts for Attorneys Considering Crop Insurance Cases The law that governs crop insurance disputes is a confusing array of federal statutes, regulations, and case law. The fact that crop insurance covers so many different types of crops across the country, under different plans of insurance, makes this insurance program a difficult topic to summarize. Furthermore, the dispute resolution process prescribed by the crop insurance policy and federal regulations is somewhat unique. At the same time, the possibilities for disputes between an insured farmer and insurance provider are seemingly endless. Disagreement may arise as to the propriety of production practices, the cause of yield loss, or the interpretation of the actual crop insurance policy and federal regulations that control the provision of insurance. As such, an attorney who chooses to take on a crop insurance case must take the time to review, not only the facts of the case and basic policy provisions, but also the crop specific provisions, guiding federal regulations, and farm production practices. In the event that an expert witness is needed for the arbitration of a case either involving a factual dispute as to the cause of loss to a crop or the acceptability of production
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practices, do not overlook state and local Cooperative Extension Service specialists. If they cannot assist you in your case, they can likely direct you towards an expert in your area of interest. Finally, a prospective crop insurance client should be made aware that the chance of being “made whole” is slim in a crop insurance case. The policy and regulatory limitations on a crop insurance arbitrator’s award,29 and the narrow chance of being awarded attorney’s fees after an administrative hearing,30 lead to the general conclusion that attorney’s fees will come out of the pocket of the client, in most instances. Out-of-pocket expenses can also be burdensome. An experienced arbitrator will easily cost $300 an hour and, if arbitration is initiated through the American Arbitration Association, significant filing fees are strictly required.31 In conclusion, coverage disagreements will arise between insured farmers, private insurance providers, and the federal regulators of crop insurance. Attorneys who practice agricultural law must therefore know the law controlling the Federal Crop Insurance Program and the complexities presented in
the prosecution of disputed crop insurance claims. I hope this brief article has helped to clarify some of the procedural issues that must be addressed when these inevitable disputes arise. For more detailed information, see my article A Practitioner’s Guide to the Litigation of Federally Reinsured Crop Insurance Claims previously published in the Drake Journal of Agricultural Law.32 Endnotes: 1. 7 U.S.C. § 1508(a)(1). 2. 7 U.S.C. § 1501 et seq. 3. Nobles v. Rural Community Ins. Servs., 122 F. Supp. 2d 1290, 1292 (M.D. Ala. 2000). 4. The Basic Provisions/Common Crop Insurance Policy are available at 7 C.F.R. § 457.8 (2005). 5. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947) (crop insurance regulations bind all who sought to come within the Federal Crop Insurance Act, regardless of actual knowledge of what the regulations require) and (regulations express “the duty of all courts to observe the conditions defined by Congress”). 6. The statutory authority for the arbitra-
tion clause found in the FCIC regulations is based upon the Federal Crop Insurance Act which provides the FCIC the authority to promulgate regulations to carry out the purposes of the Act. Scott Fancher, Scope of the Federal Crop Insurance Arbitration Clause, 2002, National AgLaw Center, http://www. nationalaglawcenter.org/assets/articles/fancher_arbitration.pdf. 7. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(a) (2011). 8. Id. 9. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(b)(1) (2011). 10. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(h) (2011). 11. See Williams Farms of Homestead, Inc. v. Rain & Hail Ins. Services, Inc., 121 F.3d 630, 635 (11th Cir. 1997); Meyer v. Conlon, 162 F.3d 1264, 1268–1269 (10th Cir. 1998); Agre v. Rain & Hail LLC, 169 F. Supp. 2d 906, 911–912 (D. Minn. 2002); Farmers Crop Ins. Alliance v. Laux, 442 F. Supp. 2d 488, 498–499 (S.D. Ohio 2006).
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12. See E.g., Ledford Farms v. Fireman’s Insurance Co., 184 F. Supp. 2d 1242, 1245 (S.D. Fla. 2001). 13. Ledford Farms v. Fireman’s Insurance Co., 184 F. Supp. 2d 1242 (S.D. Fla. 2001); Wardlaw v. Rural Community Services, 2010 WL 4259792 (W.D. Ark. Sept 27, 2010); Hays v. Rural Comty. Ins. Services, 2010 WL 4269413 (W.D. Ark. Oct. 7, 2010). 14. 7 C.F.R. § 457.8 Section 20(a)(1) & (a) (1)(ii). 15. See 7 C.F.R. § 457.8 Section 20(a)(1). 16. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(a)(1). 17. Id. 18. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(a)(1)(i) (2011). 19. Common Crop Insurance Policy. 7 CFR § 457.8 [For Reinsured Policies], Section 20(a)(1); Garnett v. NAU Country Insurance Co., No. 5:09-CV-00144-R, 2009 WL 3644762 (W.D. Ky. 2009); Davis v. Producers Agric. Ins. Co., Civil Action No. 5:12 CV-92 (MTT) (M.D. Ga. Jan. 8, 2013). 20. Common Insurance Policy. 1 7 Corkern Crop Lawyer Ad 2013 CEFEX.pdf
C.F.R. § 457.8 [For Reinsured Policies], Section 20(j) (2011). 21. Risk Management Agency, Large Claims Handbook, 2010, http://www.rma.usda.gov/ handbooks/14000/2010/14040.pdf. 22. Id. 23. EAJA. 5 U.S.C. § 504 (provides that a federal agency that conducts an adversarial adjudication shall award fees and expenses to a prevailing party if, among other criteria, the Agency’s position was not “substantially justified” and the party requesting fees meets a net worth test). See also Lane v. USDA, 120 F.3d 106 (8th Cir. 1997) (holding that the Equal Access to Justice Act applies to administrative proceedings of the United States Department of Agriculture’s National Appeals Division). 24. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(d)(1) (2011). 25. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(d) (2011). 26. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(d)(1)(i) (2011). 27. Common Crop Insurance Policy. 7 7/16/13 9:29 AM
C.F.R. § 457.8 [For Reinsured Policies], Section 20(d)(2) (2011). 28. Common Crop Insurance Policy. 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(d)(2)(ii) (2011). 29. 29. Common Crop Insurance Policy, 7 C.F.R. § 457.8 [For Reinsured Policies], Section 20(h) (2011). 30. EAJA. 5 U.S.C. § 504 (provides that a federal agency that conducts an adversarial adjudication shall award fees and expenses to a prevailing party if, among other criteria, the Agency’s position was not “substantially justified” and the party requesting fees meets a net worth test). See also Lane v. USDA, 120 F.3d 106 (8th Cir. 1997) (holding that the Equal Access to Justice Act applies to administrative proceedings of the United States Department of Agriculture’s National Appeals Division). 31. The Commercial Arbitration Rules of the American Arbitration Association along with the schedule of filing fees can be found online at http://www.adr.org/commercial. 32. J. Grant Ballard, A Practitioner’s Guide to the Litigation of Federally Reinsured Crop Insurance Claims, 17 Drake J. Agric. L. 531 (2012). ■
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Vol. 48 No. 3/Summer 2013 The Arkansas Lawyer
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Responding to a Patent Troll’s Threats
By Joel B. Carter The term “patent troll” is used to denote any entity that asserts patent rights based on a patent it owns but does not practice. In other words, if you own a patent but do not produce a product covered by the patent, then you become a patent troll when you assert your patent rights against an alleged infringer. Patent trolls make money by alleging infringement and offering to license their patents to the alleged infringer in exchange for a royalty that is much less than the alleged infringer would pay defending a claim of patent infringement. Patent trolls have been subject to ridicule in the press, but they can enhance the ability of inventors to police their patents. In fact, many celebrated inventors have used patent trolls to enforce their patents. Thomas Edison’s licensing firm was an extremely aggressive patent troll. Patent trolls may help inventors enforce their patent rights, but patent trolls who bring frivolous claims are rarely punished and their numbers are on the rise. According to recent studies, patent assertions by patent trolls in the United States, including settlements and licensing fees, carry an annual price tag of at least $30 billion. This amount has increased fourfold in the past decade, and the figure appears to be increasing rapidly. Alleged patent infringers with annual revenues of $10 million and less bear 40% of patent troll costs. Patent trolls have asserted their patents against many Arkansas businesses, especially those in the patent troll wheelhouse—big enough to pay a substantial licensing fee or royalty but too small and inexperienced to effectively counter a patent troll attack alone. This article discusses three types of patent trolls and addresses what to do should one of them threaten to gobble up a client. Patent trolls come in all shapes and sizes, but they can usually be classified as one of
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three types: inside patent trolls, heat seeking patent trolls and trolling patent trolls. Knowing a few things about the patent troll will often determine your initial response. One type of patent troll is affiliated with an entity that produces or uses the inventions subject to its patents. The producing entity has decided to monetize its patent portfolio by using an “inside” patent troll to assert its patents, especially against those that compete directly with the producing entity. Inside patent trolls usually have substantial numbers of in-house lawyers who may have been responsible for drawing up the patents in the patent portfolio. Inside patent trolls regularly engage in patent infringement litigation. If you are reading this article on a smartphone, tablet or computer, there is a good chance the manufacturer asserts its patents through an inside patent troll. Another type of patent troll is not affiliated with a producing entity. It owns a patent portfolio it has acquired through any means available, including bankruptcy sales, corporate asset purchases or from individual inventors solely for the purpose of asserting them. These “heat seeking” patent trolls actively seek out potential infringers and may hire outside lawyers to do the same. Heat seeking patent trolls often hire lawyers on a contingency basis and usually have an argument that their targets are infringing their patents but also bring bogus infringement claims from time to time. Heat seeking patent trolls regularly engage in patent infringement litigation. One example of a heat seeking patent troll is Lennon Image Technologies, which regularly asserts a patent entitled “Customer Image Capture and Use Thereof in a Retailing System” against online clothing and apparel retailers who allow customers to “try on” items using pictures of themselves they upload to the
retailer’s website. Yet another type of patent troll shares the same basic characteristics as the heat seeking patent troll, but upon examination, its patents are extremely weak or the target’s activities have nothing to do with them. These “trolling” patent trolls fish for any and all potential targets by dragging their patents, often accompanied with draft complaints, in front of schools of targets, hoping a few will agree to a license. Their lawyers will usually tell targets to seek the advice of a patent lawyer to make sure they know how much defending a patent infringement suit can cost. Trolling patent trolls and their lawyers know the patents they assert would probably be invalidated if they risked litigation and that they would have a hard time proving infringement and are therefore unlikely to file a complaint. If your client is threatened with a patent infringement suit due to the manner in which it has connected office equipment to the internet, a trolling patent troll is probably the culprit. Many sources can help you gather clues to determine a patent troll’s species. Here are a few: general internet searching; PACER; ask a patent attorney; Edgar searching to determine if the troll is public or affiliated with a public company; obtain a patentJoel B. Carter is an associate with Quattlebaum, Grooms Tull & Burrow, PLLC with a practice focusing in intellectual property and corporate law.
ability opinion or infringement analysis from a patent search firm or a patent attorney. Information on inside and heat seeking patent trolls will usually be readily available and identifying these types of trolls is fairly easy. Trolling patent trolls, on the other hand, often try to hide their true identities by using shell companies to assert their patents. If you have difficulty finding evidence of a patent troll’s existence and if the patent troll has never sued anyone, then you probably have a trolling patent troll. If you do find evidence that a trolling patent troll exists, it is usually the target ranting about the ridiculousness of the troll’s patent infringement claims. When you have identified the type of patent troll, you can make an informed decision concerning the proper response. If you are dealing with a trolling patent troll, the best course of action will likely be to wait him out. He may troll for weeks or months, but he is likely to move on eventually without filing suit. You should explain to the client that being proactive with a trolling patent troll will encourage further trolling and could attract more trolls. Obtaining a patentability opinion or an infringement analysis can shield the client from a claim of willful
infringement and reduce potential damage awards without letting the troll know he has your client’s attention. You can also monitor the troll in case he starts filing lawsuits, but keep in mind that such suits are likely to come against targets that took the troll’s bait initially. If you have determined that the patent will probably be declared invalid or that your client does not infringe, it is still unlikely that the trolling patent troll will sue your client. If you determine that the patent troll is an inside patent troll or a heat seeking patent troll, your next step should be to obtain a patent validity opinion and an infringement analysis. If your client is likely infringing a valid patent, obtaining a license is the best option. If the results of the patent analysis show a high likelihood that the asserted patent can be invalidated or that the target has not infringed, you should communicate these finding to the troll and consider seeking a declaratory judgment. If the infringement analysis is inconclusive but the asserted patent appears valid, it is probably time to consult with a patent attorney about the options going forward which include challenging the patent at the United States Patent and
Trademark Office, pursuing litigation and negotiating a license or settlement. The next step should be influenced by the relative strength of the asserted patent and the type of troll. Inside patent trolls tend to have a much longer time horizon than heat seeking patent trolls due to their relatively fixed legal costs and that some inside patent trolls compete with the target. On the other hand, with heat seeking patent trolls, delaying settlement or litigation is more likely to whittle away at settlement amounts and potential damages while lowering the odds of repeat attacks. With both inside and heat seeking patent trolls, the client should consider joining or forming a joint defense group if multiple parties are targeted by the same patent troll regarding the same or similar patents. Collectively pooling the resources of many similarly situated targets allows for the cost-effective preparation of prior art searching and analysis that can lead to strong invalidity defenses at an economy of scale. Moreover, noninfringement defenses may largely overlap among targets. Hopefully this article will provide you with a head start if you face off with a patent troll. ■
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Arkansas Supreme Court Historical Society
Supreme Court Justice William M. Harrison by L. Scott Stafford William M. Harrison was one of the few justices to be nominated, albeit at different times, by both the Republican and Democratic parties for a seat on the Arkansas Supreme Court. His service on the high court occurred during Reconstruction and the “Redemption” that ended Reconstruction. Harrison was born in Church Creek, Maryland, in 1818 and educated in the schools of that town. In 1836 he was apprenticed to a local merchant, and the following year he went with his employer to Vicksburg, Mississippi, and remained there until the spring of 1840. He then moved to Columbia in Chicot County, where he taught school for 12 months before returning to Maryland, where he taught school for the next three years. He went back to Chicot County and school teaching in 1844. During the five-year period that he taught school in Arkansas and Maryland he also studied law, and in May 1845 he was admitted to the bar of Arkansas. He opened a practice in Columbia, but when Drew County was created in 1847 he moved to the Drew County seat of Monticello. From 1852 to 1856 he represented Ashley, Drew, and Chicot Counties in the Arkansas Senate. He was elected to represent Drew County in the 1860 Arkansas House of Representatives. That session of the General Assembly, which met in late 1860, was consumed by the question of secession triggered by the presidential election of Abraham Lincoln. During the session, which ultimately chose to refer the question of secession to a speciallyelected convention of delegates, Harrison consistently voted with those legislators who favored remaining in the federal Union. Harrison’s pro-Union sentiments apparently continued after secession and the outbreak of the Civil War, and if so, his views would not have been popular with his Drew County neighbors. In any event, in 1864 he was forced to flee with his family to the protection of Union troops then occupying Pine Bluff. In 1867 Congress passed the Reconstruction Acts, which required 34
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Arkansas and nine other former states of the Confederacy to adopt new constitutions as part of the process of readmission to the Union. Arkansas voters elected delegates to a constitutional convention that met in January 1868 and drafted a new constitution. Voters approved the new constitution in March 1868 and also elected persons to fill the offices created by the new charter. Because the Democratic Party opposed the new constitution, the party declined to nominate candidates in the election. Consequently, only candidates nominated by the Republican Party were on the ballot. The new constitution established a Supreme Court consisting of four elected justices and a chief justice appointed by the governor. Two lawyers who had resided in the state before the Civil War—William M. Harrison and Fayetteville attorney Lafayette Gregg—were elected to the newly-formed court. The other two elected justices were Union Army officers who had come to the state during the Civil War. Newly elected Governor Powell Clayton appointed a third Union Army veteran as chief justice of the court. Over the next four years Harrison and Gregg frequently dissented in cases with political overtones.1 By 1872 Harrison had broken ranks with the regular wing of the Republican Party. He was nominated for reelection to the Supreme Court on the Reform Republican ticket headed by gubernatorial candidate Joseph Brooks. The regular Republicans nominated Circuit Judge Marshall Stephenson for Harrison’s position on a ticket headed by gubernatorial candidate Elisha Baxter. The Baxter ticket emerged as victors in an election fraught with fraud. Legal skirmishing between the supporters of Baxter and Brooks continued for the next two years before breaking into the spring 1874 armed conflict known as the BrooksBaxter War. In the aftermath of that conflict, voters adopted a new constitution that swept Republican office holders from power. The new constitution reduced the number of supreme court justices to three, all elected
State House, Little Rock Occupied by Court: 1836-1863; postwar-1911 Courtesy of the Arkansas History Commission & the Encyclopedia of Arkansas
by the voters. In the same 1874 election that adopted the new constitution, William M. Harrison was elected again to the Supreme Court, this time as a Democrat. He served as justice from 1874 to 1882. After leaving the court, Harrison practiced law in Pine Bluff until 1888. He died on February 15, 1900. His obituary recites his long service as a Supreme Court justice but does not mention that four years of that service were during the Reconstruction period. Endnotes: 1. See, for example, Jones v. City of Little Rock, 25 Ark. 284 (1869); Price & Barton v. Page, 25 Ark. 527 (1869); and Howard v. McDiarmid, 26 Ark. 100 (1870). Additional reading: 1. “Claimed by Death, Ex-Associate Justice W. M. Harrison Dies at Pine Bluff,” Arkansas Gazette, February 16, 1900; 2:3. 2. John Hallum, Pictorial History of Arkansas, vol. I, pp. 339-42 (Albany 1887). This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@ arkansas.gov; Phone: 501-682-6879.
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HOT SPRINGS CONVENTION CENTER
The Annual
The Arkansas Bar Association held its 115th Annual Meeting and Joint Meeting with the Arkansas Judicial Council at the Hot Springs Convention Center June 1215, 2013. Over 1,200 attorneys, judges and guests attended the four-day meeting that was complete with CLE seminars, receptions and award ceremonies. See the complete photo gallery online at www.arkbar.com/pages/AnnualMeeting. aspx
2012-2013 Association President Charles Harwell and Annual Meeting Chair Brian Clary
The Presidents’ Reception: Arkansas Judicial Council President Judge Vann Smith and his wife Cathy; Arkansas Bar Foundation President Tom Daily and his wife Debbie; Arkansas Bar Association President Charles Harwell and his wife Linda
ABOTA Masters in Cross Examination: Travis Berry, Kathryn Pryor, David R. Mattthews, William H. Edwards, Mariam Hopkins, Steven Springer, and Steve Quattlebuam
Jose Baez and 2013-2014 Association President Jim Simpson 36
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ArkBar
JUNE 12-15th
Charles Harwell and Governor Mike Beebe
The Presidents’ Reception in the Grand Lobby of the Hot Springs Convention Center
Diversity Panel: Major General Clyde Tate, Cyndi Nance, Charles Harwell, Niki Cung, Dr. Walter Sutton, and Milton DeJesus
Luncheon honoring the 50-Year Members at the Arlington Hotel
www.arkbar.com
2013
The Leadership Academy at the Serving our Seniors Pro Bono service at the Hot Springs Mercy Center
The Annual
The Friday Firm reception in the lobby of the Arlington Hotel
ArkBar
Charles Harwell and J. Shepherd Russell
UALR School of Law Dean Paula Casey, ATLA CEO Matthew J. Haas, University of Arkansas School of Law Dean Stacey Leeds
Sara and Price Gardner
2013-2014 ATLA President Don Elliott, Jr., Pat O’Brien, David H. Williams and Cindy Estes
Amy Freedman and 20122013 YLS Chair Vicki Vasser
Arkansas Bar Foundation and Arkansas Bar Association 2012-2013 Annual Joint Award Recipients
Outstanding LawyerCitizen Award
Outstanding Lawyer Award
Robert (Skip) Henry of The Barber Law Firm, received the award in recognition of excellence in the practice of law and outstanding contributions to the profession.
James H. McKenzie Professionalism Award
Jack T. Lassiter of Lassiter & Cassinelli, received the award in recognition of sustained excellence through integrity, character and leadership to the profession and the community.
Joe Benson
of Benson & Wood, P.L.C., received the award in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct.
Equal Justice Distinguished Service Award William A. Waddell, Jr. of Friday, Eldredge & Clark LLP, received the award in recognition of his commitment to and participation in equal justice programs, including pro bono efforts through legal services programs.
C.E. Ransick Award of Excellence
Sean T. Keith of Keith, Miller, Butler, Schneider & Pawlik, PLLC, received the award in recognition of outstanding contributions to the profession.
Outstanding Jurist Award
Judge Kim M. Smith
Circuit Judge, Fourth Judicial Circuit, Second Division, received the award in recognition of his exceptional competency, efficiency and integrity on the Bench and has performed exemplary service to the administration of justice.
Vol. 48 No. 3/Summer 2013 The Arkansas Lawyer
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The Annual
ArkBar
2012-2013 Award Recipients
Golden Gavel Awards
Martin
Clary
Crouch
Estes
Horton
Light
Matthews
Moffitt
Rucker
Trafford
Zolper
2013 Annual Sponsors Administrative Law Section Arkansas Bar Foundation Arkansas Bar Patron & Benefactor Members Arkansas Trial Lawyers Association AY Magazine Baim, Gunti, Mouser & Worsham, PLC Business Law Section Chisenhall, Nestrud & Julian, P.A. Civil Litigation Section Clio Criminal Law Section Cross, Gunter, Witherspoon & Galchus, P.C. Cypert, Crouch, Clark & Harwell, PLLC Debtor/Creditor Law Section Delta Trust and Bank Dover Dixon & Horne PLLC Family Law Section Friday, Eldredge & Clark LLP Friends of Glenn Jones Frost, PLLC Government Practice Section Hamilton, Colbert & Scurlock, LLP Hamlin Dispute Resolution, LLC Hilburn, Calhoon, Harper, Pruniski & Calhoun, LTD Hot Springs Convention Center International & Immigration Law Section
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Kirby & Rosalind Mouser Ledbetter, Cogbill, Arnold & Harrison, LLP Legal Directories Publishing Co. LexisNexis Mainstream Technologies, Inc. Matthews, Campbell, Rhoads, McClure, & Thompson, P.A. McMath Woods, P.A. Patton, Tidwell & Schroeder, L.L.P. Quattlebaum, Grooms, Tull & Burrow PLLC Ramsay, Bridgforth, Robinson and Raley LLP Real Estate Law Section Regions Insurance Group, Inc. Regions Private Wealth Management Rose Law Firm Simmons First National Bank TCPrint Solutions Tort Law Section U.S. Trust, Bank of America Private Wealth Management UALR William H. Bowen School of Law University of Arkansas School of Law William A. Martin Williams & Anderson, PLC Womack, Phelps & McNeill, P.A. Workers’ Compensation Section Young Lawyers Section
The Annual
ArkBar
2012-2013 Award Recipients 2012-2013 Association President Charles L. Harwell selected the following members as Golden Gavel Award recipients: •Brian M. Clary, Saline County Deputy Prosecuting Attorney, for his work as Chair of the Annual Meeting •James E. Crouch, Cypert, Crouch, Clark and Harwell, for his work as Co-Chair of the Legal Forms Committee •Bob Estes, Law Office of Bob Estes, for his work as Chair of Legislation Committee •Johnathan D. Horton, Wright, Lindsey & Jennings LLP, for his work as Chair of Mock Trial Committee •Harry A. Light, Friday, Eldredge & Clark, LLP, for his work as CoChair of the Legal Forms Committee •William A. (Bill) Martin, Attorney at Law, for his work as Association Treasurer and Chair of the Finance Committee •Mary Beth Matthews, Sidney Parker Davis Jr. Professor of Business and Commercial Law, University of Arkansas School of Law, for her work as chair of the Editorial Advisory Board •Brandon K. Moffitt, Moffitt & Phillips, for his work as Chair of Member Benefits Committee •Gwendolyn Rucker, Law Clerk to United States Magistrate Judge Jerome Kearney, for her work as Chair of the Leadership Academy •Win Trafford, Trafford Law Firm, for his work as Chair of the Members Insurance Committee (2007-2011), and Member Benefits Committee (2011-2012) •Dennis Zolper, Dover & Zolper, for his work as chair of Arkansas Bar PAC & Jurisprudence & Law Reform Committee Charles L. Harwell also presented the following awards: •Lynn Foster, Arkansas Bar Foundation Professor of Law, UALR Bowen School of Law, received a Presidential Award of Excellence for her work as chair of Editorial Board for Handbooks and contributions to the Legal Forms Committee. •Bilenda Harris-Ritter, Ritter Law, received the CLE Award for her planning efforts and success for CLE. •Jim Julian, Chisenhall, Nestrud & Julian, P.A., received a Presidential Award of Excellence for his service on the Legislation Committee. •Drake Mann, Gill Ragon Owen, P.A., received the Maurice Cathey Award for his valued contributions to The Arkansas Lawyer magazine. •Brian Rosenthal, Rose Law Firm, received a Presidential Award of Excellence for his work as chair of Editorial Board for Handbooks. •Charles L. Schlumberger, Quattlebaum, Grooms, Tull & Burrow PLLC, received a Presidential Award of Excellence for his service on the Legislation Committee. •Tasha Taylor, Taylor & Taylor Law Firm, received the Judith Ryan Gray Outstanding Young Lawyer award for her long-time service on the YLS newsletter. •Vicki S. Vasser, Matthews, Campbell, Rhoads, McClure & Thompson, P.A., received the Frank Elcan II award for her outstanding contributions to the Young Lawyers Section. •Steven S. Zega, Parker and Zega, received the Charles L. Carpenter Award for his exemplary service to the Arkansas Bar Association. The Arkansas Bar Foundation awarded the following awards: •J. Cliff McKinney, General Writing Award for “Goings v. Mills” in the Spring 2012 issue of The Arkansas Lawyer magazine. •Judge J. W. Looney and Rodney P. Moore, Legal Writing Award “Googling…blogging…texting…tweeting…posting..OMG..” in the Summer 2012 issue of The Arkansas Lawyer magazine Outstanding Local Bar Associations: Craighead County, Pulaski County and Sebastian County
Awards of Excellence
Foster
Harris-Ritter
Julian
Rosenthal
Schlumberger
Taylor
Vasser
Zega
Exhibit Hall The Exhibit Hall featured over 30 exhibitors and was the place for registration; swearing-in and awards ceremonies; breakfast, lunch and breaks; and lounge areas.
Vol. 48 No. 3/Summer 2013 The Arkansas Lawyer
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Arkansas Bar Association’s House of Delegates Wrap up Annual Meeting By Karen K. Hutchins The Association’s House of Delegates met June 15, 2013, in Hot Springs with 2012-2013 President Charles L. Harwell presiding. This was the final event of the 2013 Annual Meeting which had a great attendance exceeding 1300 attorneys, judges, and guests. President Harwell thanked Brian Clary for his outstanding work as Chair of the Annual Meeting and Rosalind Mouser as Chair of the Underwriting Committee. One highlight of the meeting was the overview of the Association’s new mobile app, ArkBar Community Exchange, or ACE, provided by David Fuqua, Chair of the Website/ Technology Committee. The ACE app will let you search, find, and connect with other members as well as receive the latest news and events, all from your smartphone or mobile device. It is prepopulated with each member’s contact information allowing you to search the directory by first name or last name. You can click a member’s phone number to direct dial; click the email address to instantly send an email; or click the street address to map the location. You can even save your contacts directly to your mobile address book for quick access. Follow weekly case summaries via ArkBar tweets and check on committee or section activities directly from your mobile device! All of your ArkBar Committees, Sections, and Governing Entities are available via the mobile app. After you initially log in to the ACE app, you can post new messages, reply to another member’s messages or simply follow the discussions. See the sidebar on how to stay “in the know” wherever you go. Other presentations to the House included a report from Mr. Harry Shipley, Assistant Executive Director of the Iowa Bar Association, on progress of the HotDocs project. The Association is developing another new service for our members that will assist in the production of legal documents. The Legal Forms Committee continues its work to update forms from the Association’s Formbook to be introduced through the HotDocs program. We appreciate their service and look forward to rolling out this benefit in the next year. The Delegates elected Tom Curry of Arkadelphia as the Association’s Secretary 40
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and Ms. Shaneen Sloan of Little Rock as the Treasurer for 2013-2014. Leon Jones, Jr., of Fayetteville will assume the office of Parliamentarian. The following members were elected by their House district to serve on the ArkBar Political Action Committee: Bob Estes, Jamie Huffman Jones, and Christopher “Leif” Hamman. Kristen Pawlik, Chad Pekron, and William Z. White were elected to serve on the House Advisory Committee to the President. President Harwell recognized the service of outgoing Arkansas Bar Foundation President Tom Daily, outgoing Young Lawyers Section Chair Vicki S. Vasser, and outgoing Law School Representatives John Benjamin Crabtree and Matthew Pedicini. The following departing delegates were recognized for their service to the House of Delegates: Stan B. Baker, James Paul Beachboard, Paul T. Bennett, M. Stephen Bingham, Phillip M. Brick, Jr., Charles Edward Clawson, III, Khayyam Eddings, Shannon Foster, Sam E. Gibson, Stephen R. Giles, Christian Harris, Michael E. Kelly, Timothy R. Leonard, Whitney F. Moore, Wade T. Naramore, Brant Perkins, W. Marshall Prettyman, Jr., Aaron L. Squyres, A. Jan Thomas, Jr., William J. Trentham, and Dan C. Young. Richard Downing, Brock Showalter, and Dennis Zolper completed their terms on the Board of Governors. President Harwell thanked them for their service over the last bar year. President Harwell presented 2013-2014 President Jim Simpson with the President’s pin and gavel and said the Association will be in good hands under the leadership of
Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
President Simpson. Mr. Simpson introduced Marie-Bernarde Miller as Chair of the Board of Governors and Brian Ratcliff as PresidentElect. The next meeting of the House of Delegates will be held during the Association’s Mid Year Meeting at the Peabody Hotel in Memphis, Tennessee, held January 23-24, 2014. n
The Arkansas Judges and Lawyers Assistance Program Committee and Foundation Proudly Announce the Following 2013 Awards to be presented at the .
Arkansas JLAP Advocates Dinner Friday, October 25, 2013 Pleasant Valley Country Club
Justice Robert L. Brown Community Support Award given in recognition and appreciation to the Honorable Annabelle Imber-Tuck for her support of JLAP in building and sustaining a program to improve lives and protect communities through supporting the health and well-being of judges, lawyers, their families, and law students.
The inaugural Arkansas JLAP Humanitarian Award given in recognition and appreciation to Wright, Lindsey & Jennings LLP for exceptional dedication to Arkansas’s legal community through the firm’s ongoing financial and service commitment to helping JLAP meet the needs of judges, lawyers, their families, and law students who are seeking assistance.
Call or email for your reservations. $100 a ticket helps your colleagues.
Volunteers are an integral component of JLAP’s mission Volunteers are an integral component of JLAP’s mission to extend services throughout the state of Arkansas. Our volunteers provide peer mentoring— sharing their experience, strength, and hope with others. JLAP volunteers also serve as speakers who help educate the legal profession about addiction and mental health problems. The Arkansas Judges and Lawyers Assistance Program Committee and Foundation are grateful to our volunteers.
If you need someone to talk to, call or email us today (501) 907-2529 confidential@arjlap.org http://www.arjlap.org
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Judicial Ethics Advisory Committee, Judicial Discipline & Disability Commission and Attorney Disciplinary Actions Judicial Ethics Advisory Committee Actions On May 2, 2013, the Arkansas Judicial Ethics Advisory Committee issued Advisory Opinion 2013-02 to Judge Ralph Ohm of Hot Springs, Arkansas. The opinion can be found online at: http://www.state.ar.us/ jddc/press_releases.html.
Judicial Discipline & Disability Commission Actions On May 17, 2013, the Arkansas Judicial Disability Commission announced that an agreed Letter of Reprimand and an agreed Letter of Censure have been issued to 19th Judicial District East Circuit Court Judge Gerald Kent Crow of Carroll County in Commission cases #12-156 and #12-160. The Arkansas Judicial Disability Commission also announced that an agreed Letter of Reprimand has been issued to Jacksonville District Court Judge Robert Batton in Commission case #12-303. The opinion can be found online at: http:// www.state.ar.us/jddc/press_releases.html.
From the ordinary to the most complex, no appeal is too small or large Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court
Attorney Disciplinary Actions Final actions from April 1, 2013, through July 1, 2013, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line at http://courts. arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] DISBARRED: NEWTON DONALD JENKINS, JR., Bar No. 94231, of Van Buren, AR, was disbarred on May 30, 2013, by per curiam opinion, at 2013 Ark. 239, and a judgment for costs and expenses of $3,130.35 was issued. Jenkins
was found by the special judge on the case to have engaged in “serious” misconduct involving dishonesty, deceit, fraud, or misrepresentation in at least eight violations in the disbarment case, along with having a prior disciplinary history of numerous other similar violations, and that ten aggravating and no mitigating factors existed. Jenkins filed a general denial to the disbarment charges and then failed to defend and attend any hearings, the trial, or to file any brief, as appellant, before the court. Jenkins had three prior state license suspensions before this final action. DISBARMENT FILED: LISA D. DAVIS, Bar No. 2001-072, of Piggott, AR, at the direction of a Committee panel, on May 20, 2013, had a petition for disbarment filed against her, as No. D-13428, on the basis of complaints from Jerry Bracken (No. CPC 2012–77, about an adoption) and Connie Brown and Josh Crenshaw (No. CPC 2012-083, about their civil matters). An order of interim suspension
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Attorney Disciplinary Actions has been issued and remains in effect. On June 21, 2013, a panel reviewed three more complaints against Davis, from a circuit judge and Ronald Lack (No. CPC 2013016, about an estate), from Linda Franks (No. CPC 2013-024, default judgment allowed for failure to file any response in a civil suit), and from Kacey Johnson (No. CPC 2013-022, failure to appear and defend in a divorce temporary custody hearing), to which complaints Davis did not file any responses. The panel directed that the new three matters be added to the disbarment case by amended petition which is in the process of being done. SURRENDER:
2013, and barred him from the practice of law, in lieu of probable disbarment proceedings. See per curiam at 2013 Ark. 293. Stutte was charged with conversion of over $100,000 of funds belonging to two clients over a period of time from late 2010 through mid-2012. Stutte repaid the clients before he petitioned to surrender.
CHARLES L. STUTTE, Bar No. 83174, of Fayetteville, AR, after being served with a formal Complaint by the Office of Professional Conduct following an audit of his client trust account, petitioned to surrender his law license, in No. CV-13-505. The Court accepted his petition on June 27, SUSPENSION: 1310793 ADR AR Lawyer Summer 2013 Ad:ADR Ad 6/14/13 12:23 PM Page 1
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DONALD W. COLSON, Bar No. 2005166, of Benton, AR, in No. CPC 2012-085, had his law license suspended for 12 months and was ordered to pay $1,000 restitution by Committee Findings & Order filed June 3, 2013, on a complaint filed by Debbie Andrews, for violations of AR Rules 1.4(a)(4) (responding to client requests for information) and 1.16(d) (failure to provide
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Attorney Disciplinary Actions
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Litigators - Need an experienced mediator or arbitrator? Over 800 top-rated attorneys & former judges in 45 states. View profiles and calendars online at www.NADN.org/directory the client the file). Andrews employed Colson and paid him $1,000 in February 2011 to defend her in a paternity/custody/ visitation case. Andrews’ previous attorney provided Colson his file of about 200 pages, including many original documents. A judgment of paternity was entered. The father’s visitation was suspended when he was incarcerated. He was released and sought to reinstate his visitation, and Colson filed a response. Andrews then became unable to contact Colson and hired new counsel, who sought the client’s file from Colson. Colson failed to respond to either and did not provide the file. For his failure to file a response to the Complaint, Colson was also separately reprimanded and fined $500. TERRY F. WYNNE, Bar No. 77148, of Pine Bluff, AR, in No. CPC 2012-050, on
a self-report, had his Arkansas law license suspended for one year from July 1, 2013, by Findings and Order filed July 1, 2013, after he withdrew his request for a public hearing. Wynne self-reported that he personally retained from firm clients fees that belonged to his law firm, had repaid certain amounts to the firm, and had violated AR Rule 8.4(c). Wynne left the firm in February 2012. After audits, the sum of such fees was determined to possibly be about $29,520, a number Wynne disputed, with Wynne having repaid $5,820. The amount of funds retained by Wynne was also elsewhere calculated at about $20,950 and involved payments by 12 clients. Wynne explained his conduct as being related to his gambling problem, need for funds, and his emotional state during the terminal illness and death of his wife in 2011. REPRIMAND:
ANDREW L. CLARK, Bar No. 73018, of Little Rock, AR, in CPC No. 2013-002, was reprimanded and ordered to pay $50 costs by Committee Consent Findings & Order filed April 24, 2013, on a referral by the Supreme Court in a criminal appeal involving William Sellers, for violating AR Rules 1.3 (diligence), 1.4(a)(1) (failure to communicate with client), and 8.4(d) (conduct prejudicial to the administration of justice). Clark failed to communicate with his client Sellers about the client’s desire to take an appeal, and failed to timely file the notice of appeal. The court granted his motion for belated appeal and referred the matter to the Committee. DONALD W. COLSON, Bar No. 2005166, of Benton, AR, in No. CPC 2012-079, was reprimanded by Committee Findings & Order filed June 3, 2013, on a complaint filed by Lorene Williams, for violations of AR Rules 1.16(d) and 8.1(b). Williams contacted Colson about his pursuing a civil matter for her and took him her medical records which she had paid to acquire. Colson quoted her a nonrefundable fee which she decided she could not afford. She requested the return of her medical records, heard nothing for a time, then got a letter from Colson in June 2011 that he had relocated his office and would try to locate her records in his file storage. OPC got involved and contacted Colson, who finally turned her records over to Williams after
BART F. VIRDEN NOW REPRESENTING LAWYERS 14 years on the Arkansas Supreme Court Committee on Professional Conduct
105 So. Moose Street Morrilton, Arkansas 72110 501.354.0125 bfvirden@gcvlaw.com 46
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Attorney Disciplinary Actions October 2011. Colson was also separately reprimanded and fined $500 for failure to file a response to the Complaint. SUSAN G. GUNTER, Bar No. 81-78, of Little Rock, AR, in No. CPC 2012026 was reprimanded by Committee Consent Findings & Order filed May 17, 2013, on a complaint by client Darlene Carvin, for violating Model Rules 1.8(a) (entering into business arrangement with client) and 1.16(d) (return of client files). Carvin had employed another attorney for representation in the late 1990s. In 1997, that attorney borrowed $142,000 from her client Carvin, and failed to repay the loan. By 2000, Carvin had employed Gunter for legal services on a variety of matters, including collection of the $142,000. Gunter negotiated a settlement in early 2002 with the former attorney, and in 2007 filed suit for Carvin when the former attorney failed to pay and fulfill the terms of the 2002 settlement agreement. In January 2004, Gunter borrowed $100,000 from Carvin for use by Gunter in a residential real estate purchase in North Little Rock, with Gunter preparing the Note. In January 2007, Gunter purportedly executed a Replacement Promissory Note of $100,000 for the original 2004 Note. Relations grew strained between Carvin and Gunter, and by October 2008, Carvin was writing Gunter requesting the return of Carvin’s files from Gunter and repayment of the $100,000 loan. Carvin employed an attorney who wrote Gunter in March and April 2009 about the $100,000 loan and the files Carvin needed to take possession of from Gunter. Gunter did not respond, these issues were not resolved, and on July 1, 2009, lawsuits were filed in Pulaski County Circuit Court for Carvin against Gunter on the $100,000 loan in 2004 and for the return of the client files. Over the next two plus years efforts by Carvin’s attorney and the OPC resulted in the return of most of Carvin’s files. Carvin’s suit against Gunter on the $100,000 loan was settled on June 1, 2011, with Gunter giving Carvin a new Note for $100,000 due in full on June 1, 2012, and a mortgage on a suitably valued property as security. When Gunter failed to pay, a foreclosure suit was
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filed for Carvin in December 2012. After a ballot vote, Gunter requested a hearing, which was set for May 17, 2013. In late April 2013, Gunter settled in full with Carvin on the 2011 note, and entered into a consent by discipline disposition.
HENRY DAVIS LOFTIN, Bar No. 79196, of West Memphis, AR, in CPC No. 2013005, was reprimanded, assessed a $1,000 fine, $50 costs, and $300 restitution by Committee Consent Findings & Order filed
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Attorney Disciplinary Actions
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Missing and Unknown Heirs Located No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road Suite 121, Schaumburg, IL 60173 Telephone: 800-844-6778 Fax: 800-946-6990 www.landexresearch.com June 21, 2013, on a complaint by Jonathan and Sarah Demuth, for violating AR Rules 1.1 (competence), 1.3 (diligence), 1.4(a) (4) (communication), and 8.4(d) (conduct prejudicial to the administration of justice). The Demuths employed Loftin in 2008 to represent them in a Chapter 13 bankruptcy. In August 2012, Loftin filed a plan modification for the Demuths. The Trustee
filed an Objection to the Modification. An Order was entered granting Loftin 21 days to file a compliant Modification. Loftin failed to timely file a Modification and the Trustee filed a Motion to Dismiss. During the 21-day time frame, Loftin failed to return telephone messages left by Mr. Demuth and, consequently, Mr. Demuth was unable to obtain information concerning
the bankruptcy proceeding. The Demuths terminated Loftin’s representation after the Motion to Dismiss was filed by the Trustee. Subsequently, Loftin filed a Modification and a Motion to Withdraw. Loftin failed to comply with bankruptcy procedure when he filed his Motion to Withdraw because he did not submit a corresponding Order to the Judge. Over a month after filing his Motion to Withdraw, the presiding Judge entered an Order directing Loftin submit such an Order. PAT MARSHALL, Bar No. 2001012, of Little Rock, AR, in CPC No. 2013-001, was reprimanded and ordered to pay $1,000 restitution by Committee Findings & Order filed June 4, 2013, on a complaint by Linda Stokes, for violating AR Rules 1.3 (diligence), 1.4(a)(1) (failure to inform client), 1.4(a)(3) (failure to keep client informed), 1.4(a)(4) (replying to client requests for information), 3.2 (expediting litigation), 3.4(c) disobeying a court obligation), and 8.4(d) (conduct prejudicial to the administration of justice). Ms. Marshall represented Stokes in a divorce. Marshall failed to respond to a proposed settlement agreement offer in the case, which was set for final hearing October 19, until late in the afternoon before the hearing, sought a continuance, and failed to notify her client of the final hearing. Marshall and her client failed to appear at the October 19 final hearing and a divorce was granted. Opposing counsel submitted a
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Attorney Disciplinary Actions proposed decree to the court; Marshall tried to get it modified and failed. The decree entered changed custody from Marshall’s client to joint/split custody with the father. The client obtained new counsel, moved to modify, and the court changed custody back to the way it had been originally. CAUTION: B. MICHAEL EASLEY, Bar No. 74041, of Forrest City, AR, after a hearing in No. CPC 2012-027 was cautioned by Committee Findings & Order filed April 9, 2013, for violating Model Rule 1.8(e) when he provided prohibited financial assistance to clients Smith (guaranteeing a $20,000+ bank loan) and Gahr (guaranteeing a $10,000 bank loan) several years before their fen-phen claims settled and paid out in September 2005. The loans were discovered during an OPC inquiry into unrelated matters. ROBERT D. KLOCK, Bar No. 76066, of Bentonville, AR, in CPC No. 2012029, by agreement shortly before a hearing was cautioned and ordered to pay $5,000 restitution by Committee Agreed Findings & Order filed June 21, 2013, on a complaint by Cesar Perez and attorney Nathan Bogart, for violating AR Rule 1.16(d) (failure to turn over the client file). During 2009 Klock represented Perez in an immigration matter, and Perez paid Klock a total of either $8,200 (per Klock) or $9,110 (per Perez) for several matters, including a cancellation of removal. Problems arose and Perez sought new counsel. Perez and his new counsel requested from Klock a copy of the Perez file but did not receive it. There were communications about Perez’s alleged unpaid account at Klock’s office. OPC got involved after the filing of the complaint, and Klock sent Bogart a copy of the Perez file. ■
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In Memoriam D. Derrell Davis D. Derrell Davis of Bryant passed away on July 28, 2013, at the age of 72. He graduated from Arkansas Tech University in 1962. He received his JD Degree from University of Arkansas School of Law in 1971 where he was a member of the Arkansas Law Review, top student in Taxation, and ranked second in his class. He started his career as a special agent, Criminal Investigation Division of the Internal Revenue Service from 1962-1968. After law school, he was an associate in the firm of Pearce, Robinson and McCord in Ft. Smith, AR. After that, he was a tax court trial attorney, Office of Regional Counsel for the Internal Revenue Service in Dallas, TX. He and his family moved back to Arkansas in 1974 where he started his private practice in Little Rock and Bryant, working until his death. Derrell was the first Municipal Judge in Bryant, Arkansas, serving from 1975 to 1993 when he retired from that position. He also served as part-time City Attorney, Bryant, and then became the Saline County Attorney until he retired from that position in 2007. He is survived by his wife of 49 years, Rachel, and two children.
lated enemy communications and conducted interrogations. After his service, he returned to Indiana University to graduate in Slavic Studies. He earned his Juris Doctor degree from the University of Arkansas in Fayetteville where he served on the Law Review. After law school he moved to Mountain Home to set up a law practice. He was appointed city attorney and was elected municipal judge, serving 16 years in that capacity. While serving as judge, he joined the Army Reserves. When he retired from the law practice, he returned to active duty with the Army serving as Chief of the Language Division. He is survived by four children.
William “Bill” Groves Dinning, Jr. William “Bill” Groves Dinning, Jr., of Heber Springs died June 13, 2013, at the age of 99. Bill went to Webb Preparatory School in Bell Buckle, Tennessee, and received his undergraduate degree from Vanderbilt University. He earned his law degree from the University of Arkansas. He established a law practice with his father in Helena and quickly achieved a reliable reputation, eventually becoming city attorney without soliciting a single vote. He was a longtime member of the Arkansas Bar Association. He served as president of the Phillips County Bar Association. His specialty was tax law. He filed an Amicus Curiae Brief with the Supreme Court of the United States. He is survived by four children.
Garland “Gary” Jerome Garrett Garland Jerome Garrett of Little Rock died July 27, 2013, at the age of 58. Gary was a 1977 graduate of Millsaps College where he graduated cum laude after playing four years there on a football scholarship. He earned his Juris Doctor degree from Southern Methodist University in 1980, joining Rose Law Firm as an associate that same year. He served as the practice manager of the firm’s Business Section at the time of his death. Gary also served a term as managing partner for Rose Law Firm. He was a member of the Arkansas Bar Association and he was a Sustaining Fellow of the Arkansas Bar Foundation. Gary is survived by his wife, Cindy, and two children.
Gordon Frederick Engeler, Jr. Gordon F. Engeler, Jr. of Mountain Home died June 26, 2013, at the age of 81. He attended Indiana University. He left studies at the beginning of the Korean War, joining the Air Force. He was accepted into linguistics and intelligence programs at Syracuse University, where his focus was on Russian language. He was stationed in England from 1951-1953, where he intercepted and trans50
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Toni Whitt Toni Whitt of Fort Smith died June 24, 2013, at the age of 57. She practiced law with the Collins and Moates Law Firm in Fort Smith. She graduated from the University of Arkansas at the age of 19 and earned her Juris Doctor degree from the University of Arkansas in Fayetteville three years later. She started her legal career working for Legal Services doing pro bono work. She continued her career doing contract law for companies like Hiram Walker
and oil and gas work for large petroleum companies. She is survived by three children.
Samuel Hubert “Hubie” Mayes, Jr. Samuel Hubert “Hubie” Mayes, Jr., of Little Rock died May 7, 2013, at the age of 81. He graduated from the University of Arkansas in Fayetteville earning his Juris Doctor degree in 1954. Upon graduating from law school, he served as Assistant Attorney for the Arkansas State Revenue Department 1954-1955. In 1954, he was admitted to practice in Arkansas; United States District Court Federal District; U.S. Court of Appeals, 8th Circuit; and Supreme Court of the United States. Hubie entered the service and was a jet fighter pilot in the USAF from 1955-57. Following his service, he was Deputy Prosecuting Attorney for the Sixth Judicial District, 1957-1958, and Special Assistant Attorney General for the Arkansas Attorney General’s Office in 1963. Hubie practiced law in Little Rock for over 50 years. He was a member of the Arkansas Bar Association where he served on the House Committee in 1989-1990. He was a Sustaining Fellow of the Arkansas Bar Foundation. He was a member of the American and Pulaski County Bar Associations and a Fellow of the American College of Trial Lawyers. He was a partner with Fulk, Lovett and Mayes from 1959–1980; partner with Laser, Sharp and Mayes from 1982–1993; and Counsel at Mitchell, Williams, Selig, Gates and Woodyard from 1993–2005. He was a Certified Civil and Appellate Court Mediator for Arkansas. He was in private practice from 2005 to present. He is survived by his wife of 41 years, Susan Harrell Mayes, three daughters, and two stepchildren. The information provided in “In Memoriam” is provided by the members’ obituaries.
Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period May 1, 2013, through June 30, 2013: In Memory of James A. Buttry James Ross, Jr. and Family Judy and A. Glenn Vasser Cathi Compton and Judge Bill Wilson In Memory of Phillip Carroll Suzanne and H. David Blair Judges Rita and Wayne Gruber Mary Ann and Don Schnipper Judy and A. Glenn Vasser Cathi Compton and Judge Bill Wilson In Memory of Jack Deacon Judy and A. Glenn Vasser In Memory of Dr. James Guthrie Hayden and Gordon Rather In Memory of James E. Harris A. Wyckliff Nisbet, Jr. In Memory of S. Hubert “Hubie” Mayes, Jr. John A. Davis Judge Robert T. Dawson Mary Lynn and Justice Robert Dudley Justice Bradley D. Jesson B. Jeffery Pence Hayden and Gordon Rather Mary Ann and Don Schnipper Jane and Dennis Shackleford Rex M. Terry Mike Wilson Cathi Compton and Judge Bill Wilson In Memory of Judge Rudy Moore, Jr. Judge Robert T. Dawson In Memory of Bobby Newman Cathi Compton and Judge Bill Wilson In Memory of R. Chris Parks Rex M. Terry In Memory of Ben E. Rice Mary Lynn and Justice Robert Dudley Judges Rita and Wayne Gruber Cathi Compton and Judge Bill Wilson
In Memory of Robert L. Roddey Judges Rita and Wayne Gruber In Memory of Judge E. Dail Stiles Judge Gene Mazzanti In Memory of: Judge William Elbert Anderson Lloyd C. Burrow Judge William Enfield Candy Kilburg Stephen S. Sawyer Jay Tolley Designated to the Ernest G. Lawrence Scholarship Fund Given by Judge James G. Mixon Honorariums and Scholarship Contributions In Honor of David Solomon Designated to the David Solomon Scholarship Fund Helena Bridge Terminal, Inc. Helena Marine Service, Inc. William A. Waddell, Jr. Arkansas Association of Women Lawyers Scholarship Fund Arkansas Association of Women Lawyers Vincent Foster, Jr. Scholarship Fund John K. Baker W. Jane Knight Scholarship Fund Wanda Adams Knight In Honor of Judge Rhonda Wood Jefferson County Bar Association
Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work. Contributions may be sent directly to: Arkansas Bar Foundation 2224 Cottondale Lane Little Rock, Arkansas 72202
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Index to Advertisers
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