VOL.28_NO.4_FALL 1994 by Arkansas Bar Association

YOUR BEST SOURCE FOR CD·ROM IN SAS IS WEST CD.ROM LIBRARIESTM! Only West CD-RO~1 Libraries offer you a complete Arkansas law library-and a premier federailibrary---{)n versatile CD-RO~I!

ArktlllSlIS Cases alld Wests Arkallsas Code'" on CD-ROM includes

reponed decisions from 1944 to date; Arkansas Attorney General opi nions from 1977 to date; and the complete text of Arkansas laws and state constitution. For complete federal coverage. choose federal case law, USCA and Wright and ~Iiller's Federa{ Pmclice alld Procedllre on II'est CD-RO~1 Libraries.

EXCLUSIVE WEST EDnORIAL ENHANCEMENTS GIVE YOU BETTER RESULTSI Only West CD-ROM Libraries give you West's exclusive editorial enhancements for focused results. more hits, and faster research.

• Headllotes summarize the poin!:> of

law in each case so you can search by legal issue, not just fact situation. • Case ;)'IIO{ises help you determine

relevancy fast. • .\)'II01l)'1I10IlS {eRa{terll1s added to

headnotes and case synopses give you more teons to search. SEE WHY ARKANSAS LAWYERS PRAISE "JUMPABILnY." Jump instantly from a citation to the full-text document and back again to complete research faster! For example, jump from a code cite in an opinion to the full text of ~le law in Wests ArkallSllS Code. Or jump from a code cite in an Attomey General opinion to the Code-a West CD-ROM Libraries exclusive!

CONVENIENl' CONNECTION TO WESTLAW·. As part of your West CD-ROM subscription, you can access WESllAW to update your research, authority-check citations and retrieve secondary materials to round out your research. Pay only for what you use. CALL TODAY FOR MORE INFORMA1"ION

1-800-255-2549

• Key NlIlI1bers let you search a point

of law, eliminate irrelevant cases, and find o~ler cases under the sallie point of law.

Arkansas Cases™ and Wests Arkansas Coder"

EXt 231

Spousal Abuse: What to Do? We received 24 responses to our FAX POLL from the Spring 1993 issue. With the readership this is obviously not an accurate "survey" of the readership and is not intended to represent such. The FAX POLL exists to provide a format for readers to voice their opinions and to open discussion on issues which may be explored further in articles or essays in the magazine. If any reader would like to comment on the issues discussed here in the form of an essay or article, please send to Editor, Arkansas Lawyer Magazine, 400 W. Markham, Lilt/e Rock, AR 72201. Below are the results, figured by percentage. Some percentages will not add to 100% as more than one answer or no answer was given.

I currentfy numbering approximately 4,200,

1. Have you handled spousal abuse cases? 86% Yes 14% No 2. Were any of these male clients who were being physically abused by their female spouse? 14% Yes 86% No 3. If you have represented an abused spouse, how long has the abuse gone on? (If you have represented more than one, check all that apply) 36% Only abused once 50% Abused up to 6 mos. 64% Abused 6 mos.-' year

71% Abused 1-5 years

71 % Abused 5-10 years

50% Abused over 10 years

Earn $200 - $500 weekly mailing 1994 Travel brochures. For more information send a self-addressed stamped envelope to:

Travel Inc. P.O. Box 612530 Miami, Florida 33161

4. What action, rf any, do you take when you know your client is being abused but refuses to prosecute? Answer required written comments. See below. 5. Do you think the police are properly trained to deal with domestic abuse? 43% Yes 57% No 6. Do you think the prosecutors office usually fails to adequately prosecute alleged spousal abuse charges? 50% Yes 50% No 7. Do you think the courts have tied the hands of the pollee and prosecutors to the point where there are no adequate remedies? 14% Yes 86% No 8. Do you think negotiating a reduction or dismissal of abuse charges to get your client a better divorce settlement is an acceptable practice? 29% Yes 64% No 9. Have you used the Domestic Abuse Act? 93% Yes 14% No

VALUATIONS/FAIRNESS OPINIONS C1osdy-hdd Businesses, Banks, Professional Practices. For ESOPs, gifts,

estate planning. charitable contributions, minority shareholder disputes, divorces. Economic loss studies (personaUbusiness).

Experience with hundreds of cases and many industries. Court Testimony by credentialed experts.

, o. Do you think the Domestic Abuse Act is a good tool? 64% Yes 43% No 11. Are you in tavor o!the proposed federal legislation, Violence Against Women Act, which would: 1) Create a nationally advertised 800 number with Information for battered spouses; 2) Make orders of protection issued in one state valid in all others; 3) Create federal penalties for persons who travel across state lines with intent to injure aspouse; and 4) Require judicial education programs on domestic abuse? 57% Yes 43% No 12. The New York Slate legislature, as of June 23,1994, adopted legislation which includes mandatory arrest of violators who commit afelony assault or violate orders of protectJon, and requires police and prosecutors be trained to deal with domestic abuse. Should Arkansas adopt similar legislation? 64% Yes 36% No 13. Do you thInk the way our justice system treats domestic abuse should be changed? 64% Yes 36% No In what way(s)? Most of the comments sent in with the poll in reference to #4 said things like "Advise to go to a safe shelter," "Advise re: order of protection," and "Try to convince them to seek counseling." In regards to #13, comments included "Create 'family courts'," "mandatory arrest for violating orders of protection," "It should be treated as acriminal act· our courts dIscount intrafamily violence'"

MERCER CAPITAL 5860 Ridgeway Center Parkw.ly Suitc 410, Mcmphis, Tcnnessee 38120

(901) 685-2120

FImE CATALOG

[j Sland·Up!Jeskl· R,,~,ing _ . Sladuible Bookcases Solid Hardwood Fwmurt at FIC&Ory Prices

CALL TOLL FREE 1·800-838·9494 TAl., 11m In, Silw>t;l AI., 36m

a.kansasCaseBase doesn't just save time and ...one~

It saves soles. CaseBase" dell_rs the cases and statutes you need. In seconds. On CD-ROM. These days, winning a case often involves some fancy footwork. Especially if you have to run to the library every time you need to do research. That's why we developed Arkansas CaseBase. It puts the information you need at your fingertips. Which saves time. And because it costs far less than online services, it saves money, too. For a low fixed cost, you can do as much research as you want-and never have to worry about the meter running. Arkansas CaseBase contains AR Supreme Court Reports from 1925 to present, AR Court of Appeals Reports from 1979 to present, AR Code and Acts, AR Court Rules, AR Judicial Ethics Opinions, AR Constitution and U.S. Constitution. All on CD-ROM. All updated quarterly. And all ready for instant access on your desktop PC. So, if you're getting tired of the same old runaround, get Arkansas CaseBase. And get the results you've been looking for. For more information, on CaseBase or any of our CD-ROM products, including ALA" LawDes~ USCS"'LawDesk and CFR LawDesk, call 1'800-828-&573.

lilt

Lawyers Cooperative Publishing More Pooler for }lJuT AI>mas !'ludiCl1. e-e-. ALA .nd l-ont are .llQlttered Iradtmerkl IlIld uses Ie I lTademMll of L..-vert CoopefMIye Publishing. Wlndow$ III â&#x20AC;˘ trJdema<k of Mlero.oft Coq)orMIon.

VOLUME 28, NUMBER 4

Arkansas Lawyer

PUBLISHER

Arkansas Bar Association EDITOR & ART DIRECTOR

Sara Landis

In This Issue: Letters to the Editor EDITORIAL ADVISORY BOARD Mary L. Broadaway Thomas M. Carpenter WendeU L. Griffen Matthew Horan Brian H. Ratcliff Robert D. Trammell Ruth Ann Wisener OFFICERS President Robert L. Jones III President-Elect Carolyn B. Witherspoon Immediate Past President E. Lamar Pettus Secretary -Treasurer Frank B. Sewall Executive Council Chair Robert M. Cearley, Jr. Young Lawyers路 Section Chair Steven W. QuatUebaum Executive Director William A. Martin Associate Executive Director Judith Gray

The Developing Law: Title Exam Standards

By W Christopher Barrier

President's Message

By Robert L. Jones 11/

Disciplinary Actions/ Advisory Opinions General Practitioners' Primer The Impact of the $150,000 Limit On Qualified Retirement Plans

By Clementine Infante

The New Stalking Law

Humor in the Law

By David M. Graf

Contributions By Robert C. Compton & Nicholas H. Patton

The Case Against O.J.: Was it an Illegal Search?

EXECUTIVE COUNCIL

By Judge David B. Bogard & John Wesley Hall, Jr.

Joe Benson Mark Cambiano Charles L. Carpenter, Jr. Michael H. Crawford Robert R. Estes WendeU L. Griffen David K. Harp Dave W. Harrod Charles L. Harwell Don Hollingsworth Henry C. Kinslow Harry Truman Moore Donald P. Raney A. Glenn Vasser Teresa M. Wineland

Executive Director's Report Three Point Attack on Cancer An Interview with Steven Quattlebaum Young Lawyers' Section Column Private Placement Adoptions Update for Members

1M Ark"aIlSlil' I.Awytr (USPS 546-040) is published

quarterly by the Arkansas Bar Association Second class postage paid at Little Rock. Arl<ar<ias. POSTMASTER. >end add.... c:!>ans" to The Ark.",.s ta1Vyltr, 400 West Markham. Little Rock. Arkansas 72201. Subsaiptioo price to non路members of the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is thai of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas uwyer, Contributions to The Arkansas Lawyn are welcome and should be sent in two copies to EDITOR. The Arksn,s, Lswyer. 400 West Markham. Utile Rock, Arkansas 72201. AU inquiries regarding advertising should be sent to ne A,bnSAS LAwyn at the above address.

By William A. Martin

Part II: Catlett & Yancey, Moscow Office: The Establishment of a Small American Law Firm in Russia

6 6

Law Office Technology Column

By Steven W Quattlebaum By Kaye McLeod By David U. Strawn

By Gregory E. Padgham By Stanley D. Rauls

In Memoriam 5 ARKANSAS LAWYER

FALL 1994

Big Expense Or B'~ S~vmgs · . d h LItJgatJon reqwres slgmncant expenses an t e

ALong Delay Or A One-Day Settlement

·c

With an ever-growing number of cases before the courts, the litigation process is not getting any quicker. 75-80% of cases mediated are settled on the day of mediation. Mediations usually occur within 30 days of referral.

commitment of financial reserves. As there's no trial preparation, a mediated settlement is obtained for a much smaller cost.

Mediation Works About 90% of cases are settled at mediation or soon thereafter to the satisfaction of all parties. Ifyou have a dispute to be settled, why settle for less than what mediation has to offer-an early. quick, inexpensive, hassle-free settlement. Call for a risk-free referral. If a case scheduled for mediation is canceUed, no fee will be charged. Contact Frank S. Hamlin, Legal Director, Attorney-Mediator.

Endless Hassles Or A Hassle- Free End Litigation often results in an endless series of meetings, procedural disputes, counter-offers, and depositions-all capped offby the remaining tedium of a trial. Mediation doesn't. In many cases, up to five hours out of one day is all it takes Lo reach a settlement.

•

PROFESSIONAL MEDIATION-ARBITRATION SERVICE THE DECISION IS YOURS. Frank S. Hamlin - Legal Director, Attorney-Mediator 19 Years Tort and Commercial Litigation Experience. Graduate, The Attorney-Mediators Institute. Union National Plaza • 124 W, Capitol Ave" Suite 1450 • Little Rock, AR 72201 (501) 375-5151 • Fax (501) 376-8433

LETTERS Rf!: On Ws (sic) Anniversary, A Look Back at

Brown v. Board of Education

I am troubled by much of the content of the above referenced article which appeared in your Summer 1994 edition. I also question the propriety of the author's decision to include in the article references to, and speculation about, pending litigation over which his spouse is currently presiding. Of greatest concern to me, however, is the failure of Professor Robert R Wright to convey ...liable racts regardmg busing in Little Rock.

Although Professor Wright implies the contrary. the ract is: OT ONE WHITE CHILD IN THE LfITLE ROCK PUBLiC SCHOOLS IS I VOLU TARILY BUSED FOR SCHOOL DESEGREGA110 PURPOSES; nor is there a requirement of "racial balance" in the LRSD.

Those in Little Rock who choose to send their children to private and parochial schools in order to avoid busing for desegregation are acting in reliance upon misinformation. It is unfortunate Professor Wright chooses to foster race conscious antibusing feelings by conveying inaccurate information. Further, I question Professor Wright's understanding of the feelings of "a substantial part of the black community" about busing. He does not inform us how he acquired his ability to make unequivocal statements about the preferences of blacks or how he arrived at a conclusion that "crime" is a by-product of the "disintegration of the black community." Is there no other crime; no other cause of crime, anywhere? For reasons other than those he cited, I do agree with Professor Wright that the desegregation plans submitted by the parties in the case involving Little Rock, orth Little Rock, and Pulaski County have no chance of succeeding. I made my reasons clear in my report to Judge Henry Woexls in 1990. Those reasons were based upon an examination of the facts as applied to the law, not on philosophical speculation or unsupported assumptions. Judge Woods found the plan of the parties unacceptable. The Eighth Circuit reversed. I withdrew and Judge Woods recused himself. For an accurate recounting of events, I invite your readers to read carefully the excellent article "Reflections on the Little Rock School Case". Woods ÂŤ< Dee.... 44 Arkansas Law Reuino 4 (1991) pp 971-1106. It is clear that Professor Wright's article does not reflect accurately what the District Court must do in Little Rock: nor is his article Ita look back at Brown v. Board of Education." I suspect Professor Wright would have failed any student who wrote as he did about either subject. My closeness to the school desegregation events in Little Rock and my reading of the latest United States Supreme Court school

THE

EDITOR

desegregation cases (i.e., Freeman v. Pitts; Oklahoma City v Dowell) allow me to definitively state, contrary to Professor Wright, that the role of the District Court has much to do about what desegregation is intended to accomplish. The United States Supreme Court continues to expect the District Court to retain jurisdiction until all vestiges of prior segregatory acts have been eliminated. My active involvement in school desegregation cases across the United States provides me first hand knowledge that high quality educational services in desegregated school settings is still the promise of Brown. "Busing" is not and has never been the appropriate focus of concern. -Aubrey V. McCutcheon, Jr. Former Special Master to Judge Henry Woods. LRSD v PCSSD. 740 FSupp 632 (E.D.Ark. 1990)

Responsf! to Mr. McCutcheon

Mr. McCutcheon questions the "propriety" of my commenting on the school desegregation case which seems to pend forever in this county. The First Amendment to the U.S. Constitution does not contain a clause excluding me from its freedom of speech provision. Therefore, I believe that I have every right to make use of it. The fact that my spouse is the Judge in the case does not serve to alter that fact. What was printed in The Arkansas Lawyer was written for a Presidential Showcase program on Brown v. Board of Education at the midyear meeting of the American Bar Association in Kansas City. I was on a panel composed largely of prominent black lawyers. This program, with a somewhat different foonat, was repeated at the annual meeting of the ABA in ew Orleans. The evaluations of my presentation from a racially mixed audience were quite favorable. What I sought to do is what academics often do, and that is to consider the law as it exists, the ramifications of it, and then to project how things ought to be to achieve a desired goal. It should be obvious to anyone connected with this case that much of what I wrote or said cannot be done by my wife or any other Judge sitting on this case because before she was ever assigned the case, the ground rules were established by the order of the Eighth Circuit panel which approved the settlement. The Court has only a limited amount of discretion and is otherwise subject to complying with the goals and guidelines established by the Eighth Circuit in that order and in subsequent orders. Now some of what Mr. McCutcheon said is falacious. He states, in apparently emotional capital letters, that white children are not involuntarily bused for school desegregation purposes. In fact, recent testimony in this case

focused on the enormous amount of money expended on transportation. Testimony was given to the effect that except for desegregation, there would be no busing of elementary school children in North Little Rock. In Little Rock, children are assigned to schools as close to home as possible, in most cases, and they may choose other options, such as the magnet schools, which may be some distance away If these schools are a substantial distance away, the child must be bused. If the school first assigned to the child is more than a certain distance away, the child must be bused. This does not just apply to white children; it also applies to black children, and in fact, there are more black children bused than white children. Mr. McCutcheon does not understand the basis for my statement that a substantial part of the black community does not like busing. That fact periodically crops up in the newspapers and on television. The Eighth Circuit periodically sends out clippings from newspapers in the circuit pertaining to local federal cases. One of those clippings from about a year ago indicated that black school leaders in SI. Louis were critical of busing and preferred neighborhood schools. This is nothing new and is nothing that was invented byrne. As a matter of fact, a law review article by Professor Lino Graglia of the University of Texas Law School indicated that prior to Green v. County School Board of ew Kent County, decided in 1968, the position of the NAACP was in favor of freedom of choice in the public schools. Their position changed with that case, and after that, came the Swann case and Milliken U. Those cases laid the basis for the problem that exists today. It is pleasing that Mr. McCutcheon maintains an interest in this case and is one of the readers of The Arkansas Lawyer. It is a difficult case and is one in which I largely agreed with Judge Henry Woods. In fact, I believe that the reversal of Judge WCKXIs' order, which led to his recusal, set the case back severely. However, if you look at it from the standpoint of the Eighth Circuit panel, the Little Rock School District and the other districts were telling them that the approval of these plans were essential to desegregation. The intervenors agreed. So the appeUate judges gave them what they asked for. Now, the District Court must seek, and is seeking, to carry out what these school districts begged the Eighth Circuit to give them. That fact that r speak or write about what I think will ultimately transpire does not alter anything with respect to the duty of the Court. Apparently, Mr McCutcheon does not understand that either. - Robert R. Wright Donaghey Distinguished Professor of Law

7 ARKANSAS LAWYER

FALL 1994

(ALL RIGHT, CLASS ..IN THE LAST ... issue of the Lawyer, you were presented with a dozen questions

designed to measure your knowledge in the area of title examination standards. You were promised the answers in this issue, taken from the standards proposed by jim O'Hem's working group. Those answers are as follows (the questions also being included, in case you forgot them somehow, but none of them have a thing to do with Whitewater, O.j. Simpson or Forrest Gump, despite OUf best efforts):

execution by the spouse probably was necessary. And when there is a reference to the trust instrument (or to a guardianship, receivership, or probate administration), the examiner will need proof of the signatory's authority to execute, usually an authenticated copy of the instrument. 4. MR. Jo ES IS A DEVELOPER, WHO OW S ALL OF HAPPY VALLEY SUBDIVISION, INCLUDING BLOCK HIS DEED TO "LOT

30, WHICH HAS 40 LOTS.

WHICH HAS A MORTGAGE ON THEM. WHEN

13, BLOCK 30" IN FAVOR

fRANK'S BANK RE路SELLS THEM, MUST IT

OF GEORGE SMITH IS RECORDED, ALTHOUGH 1. HUS8A 0 AND WIFE SIGN A DEED TO A

LOT 31WAS INTE

OED. HE SIGN~ AND

VACANT LOT, BUT THE DRAFTER FORGETS TO

RECORDS A NEW CORRECTION DEED. DOES

INCLUDE RELINQUISHMENT OF DOWER AND

THAT TAKE CARE OF THINGS?

CURTESY. Is CURATIVE WORK REQUlRED?

Yes and no. (Standard 4.9) George Smith now owns two lots, so he's OK. But that is because that correction deed did not divest him of his first, accidental tiUe. To clean it up from john Jones' point of view, he needs a deed back from George or for George to join in the correction deed and to explicitly relinqwsh his interest in Lot 13 by appropriate language of record.

No. (Standard 4.4) If both spouses execute the conveyance and the signatures are acknowledged, they are presumed to

be conveying their entire interests in the property. 2. A BC

CORPORATION

CONVEYS

ITS

HEADQUARTERS TO XYZ PARTNERSHIP, BUT

ABC's

EXECUTIVE VICE PRESIDENT

SIGNS, WITH NO AlTESTATION.

ANY SPEOAL

REQUIREME TS OR PROOF OF AUTHORITY EEOEO?

JONES, WHO IS MARRIED TO

MARILYN Jo

ES, RECEIVES TITLE TO A

PARCEL AS "JOHN JONES, TRUSTEE," WITH NO OTHER REFERENCES OR EXPLANATION. SlX

TO DEAL WITH

FRANK'S BANK, WHICH HAS A MORTGAGE 0

o. (Standard 4.6) Typically, the corporate acknowledgment itself will recite due authorization. And since a corporation's directors certainly can authorize a single person to sign on the company's behalf, the examiner can presume that they did. 3. JOH

5. ACTUALLY, HE ALSO NEEDS

ORIGINAL

THE E TIRE DEVELOPME T,

FOLLOWED BY SIX ANNUAL "RE

EWAL"

MR. SMITII INSIST ON RELEASES OF THE

FIR T FIVE?

o. (Standard 5.2-4) Common sense prevails. The release deed will typically recite satisfaction of the secured debt-in which case, there is nothing for the unreleased mortgages to secure, besides which, their intentions are clear and unambiguous.

AWAY nlE PROI'ERTY WITH NO REFERENCES

6. WI路IILE MR. SMITH IS PONDERING, MR.

OR EXPLANATIONS. ANy PROBLEMS?

JONES FALLS ON HARD TIMES AND DEEDS ALL

ARKANSAS LAWYER

FALL 1994

o. (Standard 5.1) The law of merger is alive and well and applicable to this transaction, although obviously merger can be avoided by specific drafting in the deed reciting non-merger. 7. ACTUALLY, FRANK'S BANK'S ORIGINAL MORTGAGE WAS RECORDED A WEEK BEFORE MR. JONES ACfUALLY CLOSED HIS PURCHASE OF THE TRACT. WAS THE MORTGAGE INSURABLE?

Yes. (Standard 5.4) However, rights of third parties may intervene to qualify this--for example, a judgment lien attaching as to Mr. Jones' grantor between execution and recordation of the mortgage and the recorded conveyance to Mr. Jones.

MORTGAGES, NONE OF WHICH HAVE BEE RELEASED EXCEPT THE LAST ONE. SHO LD

MONTHS LATER, HE AND MARILYN CONVEY

No. (Standard 4.7) However, the

RELEASE ITS MORTGAGE?

HIS UNSOLD LOTS BACK TO FRANK'S BANK,

8. FURTH ER, TH E CONVEY NCE WAS TO "J 0 Jo ES A D MARALYN

JONES, HIS WIFE,

"WHO LATER CONVEYED USING THE CORRECT SPELLINGS. ANy PR08LB1? (HINT: AsK IDA.)

o problem, according to Ida. (Standard 6.1) Under the Rule of Idem Sonans, common sense again prevailsafter all, how likely is it that "jon and Maralynn Jones" ar~ different people (rom "john and Marilyn jones," and that the latter couple just happened to sign a deed to property owoed by the former? Not very.

9. SOME OF THE LOTS WERE CONVEYED BY SAM

SHAMM, PURSUANT TO A POWER OF

ATTORNEY EXECUTED BY EACH OF THE JONESES

AND

RECORDED,

BUT

THE

CONVEYANCE FAILED TO MENTION RELEASE OF DOWER OR CURTESY. DID IT NEED TO?

No. (Standard 7.5-3) The presumption here is the same as in Standard 4.4, mentioned in question 1 above. 10. SAM PASSES AWAY WITH CONSIDERABLE REAL ESTATE ASSETS OF HJS OWN, WHICH HE LEAVES TO JOHN AND MARILYN, NAMING MR. SMITH AS HIS EXECUTOR. MR. SMITH OBTAINS AN ORDER RECITING THAT NONE OF THE REAL ESTATE IS REQUIRED FOR THE ESTATE'S DEBTS OR EXPENSES AND ORDERING ITS

DISTRIBUTION

THE

JONESES.

HOWEVER, HE FORGETS TO ACI1JALLY DEED IT TO THEM BEFORE CLOSING THE ESTATE. WHAT RESULT?

No deed is needed. (Standards 9.6, 12.1-3,12.2-2) Since the real estate actually passed, as a matler of law, to the Joneses at Sam's death, subject only to the possible use in paying the estate's debts, etc., a judicial determination that the real estate is not so needed simply leaves it with the Joneses without the need for a deed. 11. WHEN (AND WHERE) CAN THE QUEST FOR

ABSOLUTE CERTAINTY CONVERT A TITLE EXAMINER INTO A SOLITARY IGNORAMUS?

Proposed Standard 6.3 (dealing with common abbreviations of names) references Nebraska's Title Standard No.1 and the comment thereto as a general rule of reason for Arkansas title examiners as well: "Absolute certainty with reference to the identity of parties appearing in a chain of title is impossible to attain. A signature may be forged. Different persons may have the same names. Reasonable certainty of identity is all that

a title examiner should require. When all of the rest of the world knows that Ceo. means George, and Chas. means Charles and nothing else, the title examiner should not relegate himself to a solitary ignoramus." 12. WHEN DOES SEVEN YEARS ACTUALLY MEAN 30 YEARS? AND WHY?

We all know the standard seven-year statute of limitations applicable to failures to release dower or curtesy, adverse possession, etc. But, we tend to forget the savings language applicable to minors and incompetents, as to adverse possession. Hence, Standard 11.4 suggests using 30 years as a rule of thumb in affidavits of occupancy and use, on the reasonable assumption that 30 years will certainJy alJow unbarred minors to grow up and probably exceed the life expectancy as of most incompetents. (See also Standards 4.2-4 and 4.3).

•Again, lawyers (and others) who want to review the current draft for possible comments should do so promptly. Send $15.00 to Jim O'Hern, P. O. Drawer 1903, Fort Smith, Arkansas 72902. (You can send Jim your comments for free.) "The current plan for the Real Estate Committee is to convert it back to a Section, with two or more permanent

Marsh, 2711 Foxcroft. Little Rock. Arkansas 72207. The seminar wilJ include an "ethics hour." ·And suggestions for real-estate-related legislation for the 1997 session (or as to any other topic the Committee needs to address) should be sent to Chris Barrier, 320 West Capitol Avenue, #1000, Little Rock, Arkansas 72201. Class dismissed _..

CHRIS BARRIER is chair of the Association's Real Estate Committee for the 1994-95 bar year. He has also chaired the Banking Law Committee and the Financial Institutions Law Section, and chaired ~minars for both. He has sen'cd as Association SL'CretaryTreasurer, in the Iiouse of Delegates, and on the Executl\'e Council. He practices real estate, banking and bond law with Mitchell, Williams, Selig, Gates & Woodyard in Little Rock; writes and speaks regularly in those same areas; and has been included in the real estate section of each issue of The Best L.lwyers in America.

subcommittees, starting with a title standards group which will very likely meet regularly to update the standards on an ongoing basis, and a legislative review and reform team. ·Lawyers with topics or other suggestions for a Real Estate Committee seminar next March 31-April 1 (Friday and Saturday, half-days at Lake Hamilton Resort) should send them to Charlene

~he Developing Law:

Title Exam Standards by WChristopher Barrier 9 ARKANSAS LAWYER

FALL 1994

1st Annual CLE Cruise Norwegian Cruise Line's

Windward March 5 .. 12, 1995 Sponsored ~

The Arkansas State Bar

sociation

in conjunction wit

The Institute of Continu'ng Legal Education in Georgia

~-~

Jom yQill fel~o~ Members on board 0 wegian. Cruise Lines Newest Ship, e Windward, on March - th 1995:to .-.night cruise from San Juan. ailing to Aruba,-Curaca 19- 0 a, t.John, and St. Thomas.

For a free brochure or additional information, Call Adventures at Sea Travel at 800-852-2009. Don't miss the Boat. You won't find a more enjoyable way to earn your CLE credits. Space is Limited. Call Now! CAll 800-SS2.1009 FOR ADDmONAL INFORMATION

PRESIDENT'S

MESSAGE

Nothin' But Net By Robert L. Jones III

The Bar Leaders' Seminar at the Bar Center on July 22, 1994, was a big score. Arkansas Bar section and committee chairs joined hands with the presidents of local and specialty bars to share ideas about problems facing the profession. Represented were the Arkansas Association of Defense Counsel, the Harold Flowers Society, and the Arkansas Society of Women Lawyers. The presidents of many local bar associations participated. ATLA was invited but did not send a representative. Topics included the image of the profession, advertising, grievance procedures, working with the media, and the legislative process. As a result of this meeting, ongoing bar projects are being fine tuned and new ones developed. One of the reasons cited for the poor image of our profession is because of inappropriate advertising, including television and direct mail solicitation. Stricter advertising rules are needed, but those rules must be balanced against the right of every attorney to inform the public of their availability to offer legal services. The First Amendment must be preserved. In February of 1993 this association petitioned the Arkansas Supreme Court regarding changes to the Model Rules of Professional

Conduct in the area of lawyer advertising. This petition remains pending. This petition would place new limits on both media advertising and written solicitations but would not attempt to prohibit such conduct. Many states are grappling with the same problem. Florida, Texas and Iowa seem to be leaders. However, recently the Eleventh Circuit Court of Appeals struck down Florida's attempt to regulate direct mail solicitation. Everyone in attendance at the Bar Leaders' Conference believed this association should further study lawyer advertising. In view of recent developments, I thought a special committee on advertising should be appointed to study the problem and perhaps update our petition and be available to assist the Arkansas Supreme Court's Committee on Professional Conduct. Accordingly, I have appointed a committee consisting of the following persons: Henry Hodges, Little Rock, chair; Donis Hamilton, Paragould; Bobby McDaniel, Jonesboro; Eugene Hunt, Pine Bluff; Bradley D. Jesson, Fort Smith; Katherine C. Gay, Fayetteville; Mariam Hopkins, Little Rock; David Williams, Little Rock; Gary Eubanks, Little Rock; Albert G. Vasser, Arkadelphia. The Nothin' But Net

seminar also highlighted the need for voluntary arbitration in attorney /client fee disputes. Accordingly, I have asked our Professional Ethics and Grievance Committee, chaired by Professor Howard Brill of Fayetteville, to establish a voluntary mechanism to resolve fee disputes between client and attorney. I have also asked this committee to study recommending to the Supreme Court a procedure where consumer type complaints against lawyers could be addressed. Most of the complaints against lawyers are in the nature of he/she will not return my phone call. This does not rise to the level of a formal grievance, bu t there shou Id be a procedure where clients' complaints can be addressed. I have also requested this committee to determine whether or not there is any merit to the suggestion that many ethical complaints against lawyers are not being pursued because the Supreme Court Committee on Professional Cond uct does not have sufficient staff to investigate complaints. Attendance at our Mid-Winter Meeting in recent years has been poor. Last year there were only 70 registrants. We are not alone as this appears to be a national problem. In 11

ARKANSAS LAWYER

FALL 1994

any event, in an effort to improve attendance, this year's Mid-Winter Meeting has been moved to The Peabody Hotel in Memphis on January 12 - 14, 1995. The House of Delegates will meet. Carolyn Witherspoon, Lucinda McDaniel and Troy Price are planning an excellent CLE program entitled "Real Live Law." Such topics as defending major criminal litigation, products liability, compliance with the Model Rules of Professional Conduct and a demonstration of cross examination of a medical expert will be featured. The Memphis Bar Association is cosponsoring the CLE programs. At the American Bar Association's annual meeting in ew Orleans, Arkansas led the charge against federal mandatory alternate dispute resolution. Delegate Professor Bob Wright placed the resolution on the floor of the House of Delegates. Senior Judge G. Thomas Eisele and Delegate Bill Allen spoke in favor of our resolution. South Dakota and eorgia formally joined with us in sponsoring the motion. We had help from Texas, Louisiana and Mississippi. There was strong opposition led by a past president of the ABA from California. However, our resolution passed in what appeared to be a two-to-one Vote. While in ew Orleans I attended the "Red Mass." The St. Louis Cathedral (the oldest Catholic church in the United States) hosted an ecumenical service to bless th~ courts and lawyers. It is normally held the first Sunday each year following the opening of the courts. However, a special service was held for the ABA. It was a moving experience, and I have appointed a commill"" with Gary Udouj of Fort Smith as chair to explore a Red Mass for ArkanS<1s. The service will be open to all religions. We continue to press forward to advance the interests of the profession and the public. -Robert L. Jones III 12 ARKANSAS LAWYER

fALL 1994

CHAP'l.13 introduces

New PLAN13 The Chapter 13 Software that adapts to different courts. Makes complete plans in 13 minutes.

Call800路8EST路7路13 Demo disk. References. Money back guarantee.

Specialty Software 1111 SWoodward, Royal Oak, MI48067 MEMPHIS LABOR AND EMPLOYME TLAWFIRM

MEMPHIS LABOR AND EMPLOYME T LAW FIRM seeks associate with 2-5 years of experience. Litigation background strongly prd~rred. Top 20% of graduating class, excellent communication and organizational skills required. Send resume to: Arkansas Bar Association, ATTN: Memphis Firm, 400 W. Markham, Little Rock, AR 72201.

seeks part-time staff attorney with at least 3-5 years of experience. Litigation background helpful. Top 20% of graduating class, excellent communication and organizational skills required. Send resume to: Arkansas Ba r Association, ATT : Memphis Firm, 400 W. Markham, Little Rock, AR 72201.

LAWYER'S

MART

LOUISIANA, ATTORNEY/CPA: UALR Law Grad. admitted in Ark. and LA. I am available to attend hearings, conduct depusitions, act as local counsel and accept referrals for general civil litigation in NWLA. Contact Lane Pittard at (318) 865-1490. FOR SALE: Complete Up-Date set of mint condition C.}.S., including 1994 supplements. Best Offer. Call Ronnie A. Phillips at (501) 352-7105.

E'pc.'ne:nn:· lhe..' luxury onl\ The C:Jpiwl HOlel C.1n offer. Sp~{'I()U" r{Xlm.., 2t--hour room servin:- ...nu daily tumtkl\\TI "'l'I'ice..' are: Iu~t ;1 (,f the (.:J.plt.lr... unique: Jd\-ant... ~(.~ t'nwind at the Capil.ll 13ar. or enjoy a dehciou.. meal at A..hley·s re~t.lur,Jnl - and the Capital' ... ~llnday Ch"llnpJgne Brunch is unsurpa ....-.e<1 With me.."'Cting Lll:ilities for a:, Illany a... 80 peork', 11lt: Capital Ilott:'! i..... ;Ibn the perfect dlOill: for your nexi hu... in~'\ Illeetin~ ft:\\

THE CAPITAL HOTEL

The Arkansas Bar Association A Privileged Membership C" " LI G L[GU EOlcmo The Arkansas Bar Association Continuing Legal Education Department makes getting required hours easy and comparati\'ely inexpensi"e. Member.; get quality programs at a dt,rount and you get a chance to interact with peers throughout the state.

I , RA Cl Through the Association group plan, se"eral types of insurance are a\'ailable at reduced rates for members including: Lawyers' Professional Liability, 'Aajor Medical, Disability Income, Accident Insurance and Group Tenn Lile.

H, OBoe_S' 0 S" [\1' These are specialized Arkansas practice books with fonns, checklists, text and references. They include: the brand new Arkansas Bankruptcy Law Handbook, The Arkansas Form Book, The Arkansas Domestic Relations System, The Debtor-Creditor Handbook, Arkansas Probate System, Crimma] Law Handbook and the Law Office Manual. Selected books are also available on computer disk. PLBIICATIO"

of your member.;hip. L n,R R[ 'RRAl 51 R\ 1([ As a member of the Association, you can join the Lawyer Referral

Sen·ice which allows the public to call and be referred to you by county. The service averages 3,000 referrals a year and is an excellent way to increase income and sen'e the public. SP, IU OISCOl " " Ttl ~IRBO< I [ SS Save up to 44% by qualifying as an Association member for discounted express delivery rates normally res.erved for high·\·olume shippers. You'll also enjoy the firsl·rate sen·ice Airborne offers on Q\·emight delivery sen'ice. L I \ISA The Association offers its members an Arkansas-based credit card with the most favorable interest rate anywhere. Get your Gold Visa Card or a Classic Visa Card at the current rate of 8.5% annually. E HIC' Ao\ I'OR) 0"1 10 , This new sen'ice enables members to get advisory ethics opinions for a nominal fee.

With membership in the Association come the award-winning quarterly magazine, Tile Arkansas Lawyer. In addition, members receive a bi-monthly NEWSBULLETIN, the Legisl,'lV' Silmmary published bi· For 11l1Jlmp1llet girJng more i"fonnatiun Ilbllllt t1le'it' mt'lllba ~tn'i(('s, or weekly during the legislative sessions and The Arkansas lAw Review and to r('rfi~'t' all or/It" form for Halldbooks fltIIl ~YStt'I1I~, lall ll~ tit li5-~60!) the UALR LAw Journal. All of these publications are included in the price or SOIH82-Q40b. 13 ARKANSAS LAWYER

FALL 1994

DISCIPLINARY ALBERT GRAVES, JR. Albert Graves, Jr., Hope, was issued a letter of reprimand for a violation of Model Rules 1.1, 1.3 and 1.4(a) as a result of a complaint filed by Orelious Watson. In his affidavit of complaint, Mr. Watson stated that on February 1, 1989, he hired Mr. Graves to represent him on a workers' compensation claim. He began receiving temporary benefits in September 1989. Mr. Watson's disability rating was 15% and he received a settlement offer, but was advised by Mr. Graves not to accept it. Later, the offer doubled and Mr. Graves again advised that it was insufficient. Mr. Watson rejected that offer. Mr. Watson stated that Mr. Graves said that he would request a hearing to determine the benefits to which he was entitled. Then Mr. Watson began having difficulties contacting Mr. Graves. When he did speak with Mr. Graves through 1991 and 1992, Mr. Graves indicated that he was working on a settlement. In January of 1993 Mr. Graves told Mr. Watson that he would schedule a meeting with the insurance carrier. Three weeks later, having heard nothing, Mr. Watson terminated Mr. Graves' services and contacted another attorney to represent him. Through his new attorney Mr. Watson learned that the statute of limitations had run on his claim. In Mr. Graves' response, he stated that it was his recollection that Mr. Watson was primarily concerned with social security disability because those benefits had been denied. He successfully represented Mr. Watson at his 5.5.1. appeal. He stated, regarding workers' compensation, that he did not believe Mr. Watson was covered since he was an owner operator. Additionally, a doctor at the V.A. indicated that he had no injury and that all his trouble was pre-existing. The 15% disability rating was a result of a consultation with another physician. Following the settlement offers, Mr. Watson told him that he wanted not less than $50,000. Mr. Graves stated thai he did not recall avoiding Mr. Watson, being hard to schedule an appointment with, nor discussing a hearing. Then in late 1992, Mr. 14 ARKANSAS lAWYER

FALL 1994

ACTIONS

ADVISORY

Watson called and explained that he was hiring an "expert" in workers' compensation law to take over, and in March 1993, requested Mr. Grave) to turn the file over to his new attorney. The new attorney reported to you that it looked as though Mr. Watson had received all the benefits to which he was entitled.

JAMES DUNCAN PEDIGO James Duncan Pedigo, Hope, was issued a letter of caution for a violation of Model Rules 1.2{a) and 1.4(a) as a result of a complaint filed by Lesia Beth Jez Couch. In her affidavit of complaint, Ms. Couch stated that she hired Mr. Pedigo to represent her in a petition to modify visitation which had been filed by her exhusband, William Fred Jez. In an attempt to negotiate a settlement, Ms. Couch alerted Mr. Pedigo to her concerns regarding the conduct of her ex-husband and the necessary conditions required in order to settle. Mr. Pedigo told her that it was aU done. On the next scheduled visit, Ms. Couch refused to let her ex-husband have the children. A contempt petition was then filed against her. Sometime, thereafter, when she received a copy of the final order, Ms. Couch called Mr. Ped igo beca use the order was not the settlement that she authorized. Mr. Ped igo responded to Ms. Couch by stating that he would "take care of it" as well as the contempt petition. After not hearing from Mr. Pedigo, Ms. Couch hired another attorney. Upon receipt of her file she discovered letters of which she had no prior knowledge. Ms. Couch believes the contempt could have been avoided, had the contents of the letters been discussed with her. For his response, Mr. Pedigo stated that he was representing a Charlotte A. Couch in her l<lwsuit to divorce Kevin Couch. Kevin Couch was then living with the complainant, Lesia Beth Jez Couch. Mr. Couch requested that Mr. Pedigo represent his wife-ta-be (complainant) in a visitation matter. Mr. Pedigo filed an answer in the visitation matter based on inform~tion and documents supplied by

OPINIONS

Mr. Couch. On the hearing day, Mr. Pedigo discussed Lesia Couch's concerns regarding her ex-husband, William Fred ]ez, with opposing counsel. Lesia Couch was advised of when visitation was to start and she inquired as to what she should do if Mr. Jez arrived intoxicated. Mr. Pedigo advised Lesia Couch that the court order was the rule, but she should use her own judgment if she believed the children to be in danger. Subsequently, Mr. Pedigo received a call from Lesia Couch indicating her disapproval of the court's order in the visitation matter. Before a petition to amend could be filed, Lesia Couch was served with a contempt citation. Mr. Pedigo told Lesia Couch that he would answer the petition, but she refused to supply him with her unlisted telephone number. Messages left at Kevin Couch's employment and at a message number went unanswered. Concurrently, Mrs. Charlotte Couch, Kevin Couch's ex-wife, requested Mr. Pedigo to file a contempt citation against Kevin Couch. Perceiving a conflict of interest, Mr. Pedigo included the existence of a conflict in the Limited Response he prepared to the contempt citation filed against Lesia Jez Couch. Regarding the allegations made by Lesia Couch, Mr. Pedigo denied any Model Rule viok,tions, but added that, with hindsight, the agreement should have been read into the record and the parties given an opportunity to express whether it reflected their understanding.

DAVID M. CLARK David M. Clark, Batesville, was suspended from the practice of law for a period of six months for violation of Model Rules 1.1, 1.3 and 8.4{d) a a result of a complaint filed by Frances M. Paradiso. Mr. Clark received the suspension following a public hearing held on July 16, 1994. In her affidavit of complaint and testimony from Ms. Paradiso and her husband, it was learned that they entered into a home building contract. The general contractor employed a carpenter who, <lmong other things, constructed the front

DISCIPLINARY porch and rail. While at the construction site. Ms. Paradiso leaned against the front porch rail which collapsed causing a broken arm and wrist as well as injuries to her shoulder and a shock to her nervous system. Approximately two years later Mr. Clark was hired and a complaint was filed. Subsequently, defendant's motion to dismiss was granted because the lawsuit was filed in the wrong county. The Paradisos maintained that they were never advised of the dismissal nor was the lawsuit re-filed in the proper county. The statute of limitations on their cause of action has expired. They felt as though they were mislead by Mr. Clark about the status of the case following its dismissal. Through cross-examination of the Paradiso's, testimony of Mr. Clark's office employee and his own testimony, it was established that the Paradisos had another legal matter regarding the real estate for which they consulted another attorney. At some point Mr. Clark suggested they use that attomey for the personal injury action, too. Mr. Clark testified that once the complaint was filed he hired a private investigator who was not helpful. He later learned that Ms. Paradiso had been warned of the condition of the porch by the subcontractors. A Motion To Dismiss was filed on the basis of lack of jurisdiction. Apparently, most of Hardy, Arkansas is in Sharp County; however, the Paradiso's are part of a small residential area located in Fulton County. Upon receipt of the Motion To Dismiss, Mr. Clark contacted the Paradiso's, verified the accuracy of that information and determined the need to refile. He testified that he continued to encourage the Paradiso's to seek other counsel. and he felt their best interests would be served by his withdrawal, but he never sent them a letter to that effect. Neither did he respond to the Motion To Dismiss believing he could request a nonsuit and refile. Unbeknownst to him, an Order Of Dismissal was entered three days after the motion was filed and he testified that a copy was never sent to him. He learned of the order from another altomey with whom the Paradiso's previously consulted. He concluded by stating that he

ACTIONS

ADVISORY

never intended to mislead the Paradiso's about the status of their case. Mr. Clark explained to the Committee that he had recently been diagnosed with Attention Deficit Disorder. The effects of Attention Deficit Disorder, Mr. Clark stated, led to his failure to remember time deadlines and other matters. Mr. Clark had modified his method of calendaring (although he pointed out that such action could not have affected this situation since the order was entered three days after the motion), and he accepted responsibility and admitted his mistakes.

MICHAEL RAY DAVIS Michael Ray Davis, Conway, was issued a letter of reprimand for a violation of Model Rule 1.8(a) as a result of a complaint filed by William Clay Brazil on behalf of Jerome Parker. Mr. Davis received the reprimand following a public hearing on July 16, 1994. Pursuant to his obligation under Rule 8.3, William Clay Brazil submitted an affidavit of complaint against Mr. Davis. Mr. Brazil was hired by Jerome Parker to assist him in recovering money owed to him by Mr. Davis, his former attorney. When Mr. Parker reached fifty years of age, he was to receive the undistributed portion of a trust set up for him by his aunt. He contacted Mr. Davis for assistance in getting the trust assets transferred. In so doing, Mr. Davis also prepared a Will. a Living Will and a Power Of Attorney for Mr. Parker. In these documents Mr. Davis was named as executor, the one to whom power of attorney was granted and as proxy for Mr. Parker. Through testimony it was noted that Mr. Davis and Mr. Parker had been good friends prior to Mr. Davis' handling of these matters and that, as part of that friendship, Mr. Parker had given Mr. Davis many gifts, some of extreme value. Through the personal relationship, Mr. Parker learned of Mr. Davis' need for financial assistance and he agreed to loan Mr. Davis $102,000 for which he executed a promissory note. However, the interest rate which the two agreed upon was not the amount of interest

OPINIONS

reflected in the note. The client was not advised that he might consider consuJtation with independent counsel. Although his initial payments to Mr. Parker were not regular, a new promissory note with security pledged has been executed and payments are timely. Through Mr. Davis' testimony and affidavit of response, he stated that Mr. Parker was his best friend and that he never requested a fee or billed him for any service he performed for him. He testified that Mr. Parker wanted to give him the money as a gift, but he insisted on it being a loan. According to his affidavit, he was unaware that the Model Rules applied since Mr. Parker never "retained" him; rather he was performing these services as a friend. He stated that had he been aware of the need for a security agreement he would have had one executed at that time. Additionally, he would have had Mr. Parker retain separate counsel to advise him on these matters.

RONALD CAREY NICHOLS Ronald Carey Nichols, Little Rock, was issued a letter of caution for violation of Model Rule 1.2 as a result of a Per Curiam opinion issued by the Arkansas Supreme Court. In the petitioner's motion for a belated appeal, Myrna L. Smith staled that following her conviction she asked Mr. ichols to file an appeal. The notice filed by Mr. Nichols was untimely since it was filed before the judgment was entered. Despite requests by the petitioner, Mr. ichols failed to perfect the appeal. However, pursuant to a request from the Criminal Justice Coordinator, he filed an affidavit with the Court addressing the allegations. Mr. Nichols stated that his client never requested an appeal, but he filed notice because the trial judge told him that he would not release the defendant unless this motion was filed. Mr. Nichols denied that he was ever contacted by the petitioner, but added that at the time he filed the notice he was u.naware that it was untimely because he did not know that the date for filing began to run on the date of entry of the judgment. 15

ARKANSAS LAWYER

FALL 1994

DISCIPLINARY DAVID LOY HALE Upon recommendation of the Supreme Court Committee on Professional Conduct, on July 25, 1994, the Arkansas Supreme Court accepted the surrender of the license of David Loy Hale of Pulaski County, Arkansas to practice law in the State of Arkansas.

JUDICIAL ETHICS ADVISORY OPINIONS

The following are summaries of advisory opinions given by the Judicial Ethics Advisory Committee that have not yet been published in the Arkansas Lawyer. If yOll would Like a complete copy of the opinion, please contact the Association office at 3754605 or (800) 482-9406.

ACTIONS

ADVISORY

ADVISORY OPINIO 94-03 MARCH 8, 1994 In an adVisory opinion, the Arkansas Judicial Ethics Committee stated that a judge may not be a speaker at a banquet sponsored by a church where the portion of the proceeds from ticket sales that exceeds the costs of the banquet will go to the church's scholarship fund.

In an advisory opinion, the Arkansas

Judicial Ethics Committee stated that a judge may take a public stand in favor of, opposed to, or indifferent to an upcoming

bond election in which county voters will decide whether to increase the sales tax to

pay for a new courthouse and jail and the judge may be a member of a committee formed to promote pa sage of the sales tax, although there are limits on the judge's involvement in fund-raising.

ADVISORY OPI ION 94-02 FEBRUARY 16, 1994 In an advisory opinion, the Arkansas judicial Ethics Committee stated that a judge should disqualify himself or herself in all cases in which an attorney opposing the judge for re-election appears.

16 ARKANSAS LAWYER

FALL 1994

However, the circumstances in this case are different. There, no other circuit or chancery judge is available to hear juvenile matters, the docket is very busy and the judicial challenger appears before the judge in ten (10) to twenty (20) cases a week. Here this is a unique situation that falls into a narrow group of situations governed by the "rule of necessity." Still, there may be instances when the situation, facts or subjective eV<:lluation will require recusal.

ADVISORY OPI 10 94-04 MARCH 8, 1994 In an advisory opinion, the Arkansas judicial Ethics Committee stated that a judge may take a public stand on d proposed constitutional amendment that would make judicial elections non-partisan and would impose limits on judicial terms.

ADVISORY OPINION 94-06 MAY 3, 1994 ADVISORY OPINION 94-01 FEBRUARY 18, 1994

OPINIONS

In an advisory opinion, the Arkansas judicial Ethics Committee stated that a retired judge, who receives retirement pay, may participate in the campaign of a candidate who is running for judge to the same extent and with the same limitations as any other attorney regardless whether the retired judge is subject to recall to service.

ADVISORY OPI 10 94-07 AUGUST 24, 1994 In an advisory opinion, the Arkansas Judicial Ethics Committee stated that they had dealt previously with the issue of whether a judge who is seeking re-election must, sua sponte, disqualify when a party in a contested proceeding is represented by a declared candidate for the judge's position. The governing standard is that a judge must avoid even the appearance of impropriety (Canon 2) and must disqualify if the judge's impartiality is reasonably questioned (Canon 3(E)(1)).

FORENSIC TAPE SERVlCFS Audio T~chnologiu For 1M Legal Profession

AUTHENTICATION, ENHANCEMENT, ANALYSIS COURlROOM PRESENTATION Of Audio Evidence SIS East Capitol Stree'If410 Jackson MS 39201

1-800-TAPE-SERV

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

ROBERT G. FOLEY FORENSIC DOCUMENT EXAMINER

1109 N. 4th Street Monroe, LA 71201 318-322-0661 Qualified and Experienced Expert Witness in Federal, State, Municipal and Military Courts

'--------------~~~~~~~~~~~~~~~~~~j-------------------

I I

+--------

--+ I I I I I I

I I I I

I I I I I

11I1

I I

JIt\l'l':\

",,'" 1>,. J.~I 1'0;

_-~

I I I I

I I I

I I I I I

I 1 I I I

------------,.----~

I I I

I I

I 1

...

I I

:_-------------~::::::::::::::::::~::::::::::::~----~

In ......un=-u=-

only a select t=eur can discuss the specit=ics ot= a case urith each other. That select group is only in the LawDes~family, including CaseBase". Only CaseBase and LawDesk offer Arkansas cases, statutes and analytical material as part of a complete research library. For the first time, you have instant access to the most complete answers to state and national questions; cases, statutes, regulations and analysis. And our free in-firm training gets you up and running in just one day. So if you've been considering moving to CD-ROM, make sure you select the ones that give you all the benefits of today's technology. For more information on all our CD-ROM products call --eacH! B &S75.

lilt

lawyers Cooperative Publishing More POOJer for Your Arlransos f'lrJdicÂŁ. l.-o.k, e-a-wtdALR_ ~ ~ ~ ~ ~PubliIhing 8ndllSCS".~~~~P\.ItIIilIIIitl

Congratulations On 45 Years Of Distinguished Service

Alston Jennings

On September 1 of 1949 Alston jennings joined our firm after serving his country as a naval aviator during World War II and Pula ki County as deputy prosecuting attorney from 1947 to 1948, On September 9 of this year, we, his co-workers at Wright, Lindsey & jennings, honored Mr, jennings with a celebration of his distinguished career, Lawyers and his clients in Arkansas and throughout the country recognize Alston as one of the great trial lawyers in the United States, His professional and civic honors and accompli hments are legion, Among them are receiving the Outstanding Lawyer Award from the Arkansas Bar Association in 1973 and serving as president of both the International Association of Defense Counsel 0972-73) and the American College of Trial Lawyers 0981-82), Mr, jennings is a member of the American Bar Association, the Arkansas Bar Association, the Pulaski County Bar Association and the Defense Research Institute, Thank you, Alston, for sctting such high standards for our firm,

WRIGHT, LINDSEY & JENNINGS A7TORNEYS AT LAW

2200 WORTHEN BANK BUILDING 200 WEST CAPITOL AVENUE Lf/77.E ROCK, ARKANSAS 72201-3699

(501) 371-0808

As if paying higher taxes in 1993 was not enough of a blow for middle and upper income taxpayers, taxpayers who earn in excess of $150,000 will be hit with another surprise in 1994 with respect to the computation of their retirement benefits. Specifically, pursuant to the Revenue Reconciliation Act of 1993, the amount of compensation that can be considered for purposes of computing contributions and benefits under a retirement plan is now limited to $ 150,000. Previously, the limit had been $200,000 with annual adjustments for inflation (which for 1993 was up to $235,840). The new $150,000 compensation limit on retirement plans will have a material and adverse impact on many plans sponsored by professionals and other small employers, as well as employees with major corporations who earn in excess of $150,000. As a result of this most recent attempt by Congress to discourage the use of retirement plans by professionals and small employers, highly compensated employees will no longer be able to accumulate the same amount of retirement

funds in their qualified plan as they were capable

of doing before the reduced limit took effect. Furthermore, these employees may not be able to contribute as much to their company sponsored 401(k) plan as they had in previous years due to the fact that the compensation that can be considered for purposes of computing the special 401(k) nondiscrimination tests (as more fully described below) has likewise been reduced from $235,840 (in 1993) to $150,000 (beginning in 1994). IMPACT OF REDUCTION IN COMPENSATIO TO $ISO,OOO As a resul t of the new $150,000 limit which is effective for plan years commencing in 1994, it will generally be impossible for a highly compensated employee to obtain a full $30,000 contribution allocation by

means of a single profit sharing plan. Although the contribution allocation limit for an employee with respect to all defined contribution plans (which includes profit sharing, money purchase, and target plans) is the lesser of 25 percent of compensation or $30,000, the maximum tax deductible contribution to a profit sharing plan is 15 percent of the compensation of all plan participants. Prior to the red uction in com pensa tion to $150,000, a professional earning $200,000 or more could obtain a full $30,000 annual tax deductible allocation ($200,000 x 15%) by only having to adopt a profit sharing plan. However, now due to the reduction in considered compensation to $150,000, practically speaking the maximum annual amount that such an individual can now receive by adopting a profit sharing plan is $22,500 ($150,000 x 15%). If the profit sharing plan is integrated with social security (a feature that allows highly compensated employees to receive a slightly greater portion of the annual contribution), the maximum annual deductible amount that such employee can receive on his behalf for 1994, assuming there are 19 ARKANSAS LAWYER

FALL 1994

other employees participating in the plan, could increase somewhat up to a maximum of approximately $24,000. This still represents a substantial decrease from the $30,000 maximum annual profit sharing plan contribution the individual had grown accustomed to receiving in the past with the use of just a single retirement plan. Like prior law, the $150,000 considered compensation level is adjusted for inOation. However, the

compensated employees while at the same time reducing or keeping in check the retirement plan costs of rank and file employees. Alternatively, some sort of "comparability plan" may be worth reviewing. The comparability plan looks at different groups of employees and tests benefits provided to specified groups of employees within the plan as to whether the benefits provided are comparable under Section 401(a)(4) of

accomplished by having the employer adopt a separate money purchase pension plan to be used in tandem with a profit sharing plan. Under this arrangement, the profit sharing plan could be integrated with social security and the employer would be allowed to contribute up to IS percent of plan participants' compensation. The profit sharing plan could also include a 401(k) feature so that employees within certain limits could voluntarily elect to defer a portion of

manner in which it is adjusted is

the Lnh::!rnal Revenue Code.

their compensation into the plan on a

substantially different from the annual cost of living increase adjustments that were observed in prior years and only further aggravates the problem faced by employees affected by this change. tleginl1lng in 1994, the 150,000 compensation level will be indexed for post-1994 inOation, but only in increments of $10,000. This means that, given the current rate of inOation of approximately 3 percent per year, the first increase to the $150,000 limit (which will be to $160,000) will not occur until 1997. As a result of the reduction in compensation to $150,000, employers are faced with doing one or more of the following with respect to their highly compensated employees: (1) Leave the annual contribution

(4) Adopt some type of nonqualified deferred compensation plan that is tailored to make up for the lost retirement benefits on behalf of the employer'S highly compensated employees. MAl TAl I G CURRE T CO TRIBUTJO LEVELS Many employers when reviewing their retirement plan situation may determine that the cost of maintaining the $30,000 annual allocation amount for each of its highly compensated employees docs not outweigh the additional plan contribution costs that will be incurred by the employer on behalf of it rank and file employees. Therefore, they will continue to maintain just a profit sharing plan for its employees which likely will be

amount at current levels so that in

favor its highly compensated employees. However, to soften this blow, many employers (other than professional associations where the incremental tax savings between corporate and individual income tax

tax deferred basis. The money purchase pension plan would then operate as the second plan and would provide for a fixed contribution of anywhere between 5 to 10 percent of pay. The combination of these two plans would enable the highly compensated employees to continue to receive a $30,000 annual allocation. The reason for two separate plans is due to the fact that the maximum tax deductible contribution that can be made by an employer with respect to a profit sharing plan is limited to 15% of compensation. However, with respect to a money purchase pension plan, the maximum deductible limit is 25% of compensation. By maintaining two separate plans and using them in tandem, a highly compensated employee could continue to receive an annual $30,000 allocation which would be fully tax ded uctible. Alternatively, the social security integration feature could be implemented in the money purchase plan in which case contributions to the profit sharing plan would be allocated to each participant on a pro rata basis based upon the compensation of each participant to the total compensation of all plan participants. An example of the above arrangement is as follows. Assume Dr. Quincy, P.A. maintains a profit sharing plan. The P.A. employs Dr. Quincy and has 3 other employees who participate in the profit sharing plan. Dr. Quincy has decided to implement a separat money

effect participants earning in excess of $150,000 will receive smaller allocations each year until the $150,000 limit as indexed reaches $200,000. (2) Implement a money purchase pension plan in conjunction with a profit sharing plan (of which the profit sharing plan may include a 401(k) feature) to achieve a $30,000 annual allocation on behalf of each highly compensated employee. (3) Review the possibility of implementing some sort of "age weighted" profit sharing plan, target benefit plan or a defined benefit plan all of which take into account the age of participants and under the right set of demographics may result in greater benefits being allocated to highly 20 ARKANSAS LAWYER

FALL 1994

integrated with social security to

rates

is not worth

the cost of

administering such an arrangement)

will implement some sort of nonqualified deferred compensation plan (which is more specifically discussed below). ADOPTJO OF A COMBI ATIO PROFIT SHARI G PLA (WITH 401(K) FEATURES) A D A MO EY PURCHASE PE SIO PLA Certain employers may decide that it is in fact important to preserve the annual $30,000 allocation for each of its highly compensated employees. If this is the case, such goal can be

purchase pension plan in 1994 in order to continue to receive a $30,000 annual allocation on his behalf. The Employee

participate in the 401(k) portion of the plan, it may be pOSSible for Dr.

Compensation

Dr. Quincy

Profit Sharing Plan

discretionary so that if an employer does not want to make a contribution

Money Purchase Plan

Total Allocation

$150,000

$22,500

$7,500

$30,000

40,000

4,641

2,000

6,641

20,000

2,321

1,000

3,321

18,000

2,088

900

2,988

228,000

531,550

$11,400

$42,950

Totals

annual allocation under this tandem arrangement assuming the profit sharing plan is integrated with social security at the maximum taxable wage base ($60,600 for 1994) and the money purchase plan provides for a contribution equal to a flat 5 percent of compensation would be as follows: The above allocation does not include a 401(k) feature in the profit sharing plan. If such a feature was added and employees A, Band C elected to

Quincy to also meaningfully participate in such arrangement the net effect of which would be to reduce the above retirement plan costs incurred by the P.A. on behalf of its rank and file employees. For those considering the adoption of such an arrangement, it must be pointed out that a money purchase pension plan is not as flexible as a profit sharing plan. A profit sharing plan's contributions each year are

The

/r=:::::::::=======-Digest ON LINE Arkansas legislative information at your fingertips and on your desk, when you need it, twenty-four hours a day. Basic Service: Dial in and go on-line for up-to-the minute bill status, cOlUmittee and floor calendars, and 1U0re directly from our computer to yours. Custom Bill Tracking: Choose your own priority list of bills for a custom on-line report of their latest status and pending actions. Download Data or Reports: Want to save infonnation? Want a printed copy of a report? Download to your computer, re-read or print at your cOllvenience. Call your experienced legislative service for a free demo:

Arkansas legislalive Dige~ Inc. 1401 Wesl Slxlh Sireel,

unle Rock, Arkansas 72201

(501) 376-2843

for a particular year, it is not required to do so. However, a money purchase pension plan requires a fixed amount to be contributed each year equal to the formula specified in the plan so that once such a plan is adopted, an employer is committed to contributing the same amount each and every year. Therefore, if the employer experienced a year in which profits were minimal or nonexistent, it would (unlike a profit sharing plan in which contributions thereto are discretionary) still have to meet its funding obligations w1der the money purchase plan. While a combination profit sharing plan and money purchase pension plan will allow a highly compensated employee to maintain his annual $30,000 allocation, such an arrangement also means that aU of the other employees participating in the plan will also reap the benefits of such an arrangement. This often tin1es will translate into substantial additional retirement costs being incurred by an employer on behalf of the employer's nonhighly compensated employees who participate in the plan. Therefore, this may not be a viable alternative for employers who either have a substantial number of employees or are cost conscious and desire to keep retirement plan contributions as low as pOSSible for its rank and file employees. 21

ARKANSAS LAWYER

FALL 1994

IMPLEMENTATION OF AN AGEWEIGHTED PROFIT SHARING PLAN, TARGET BE EFIT PLAN OR DEFINED BE EFIT PLAN Due to the increased costs that may result from a combination profit sharing and money purchase pension plan, an employer may want to consider the possibility of establishing ei ther an age-weighted profi t sharing plan, target benefit plan or a defined benefit plan. Given the right set of employee demographics and assuming that the employer is willing to incur the annual actuarial expenses associated with computing the contributions and/or benefits for any of these types of plans, an age-weighted profit sharing plan, target plan or a defined benefit plan is an arrangement worth considering by the employer. An ageweighted profit sharing plan takes into account the age of the participants in the plan as well as their compensation for purposes of computing contributions, thereby favoring older more highly compensated participants. In a small closely held company where the highly compensated own"rs of the business are substantially older than the company's other employees, this type of an arrangement may result in greater contributions being allocated to the older highly compensated employees. Furthermore, due to the fact that age is a deterntining factor in calculating what amounts are allocated to each participant, young rank and file employees will receive substantially less in terms of annual contributions which may reduce an employer's rank and file employee retirement plan costs. Finally, unlike a target plan or defined benefit plan, the contributions to an age-weighted profit sharing plan are completely discretionary so that an employer does not have to make annual contributions to such a plan. As one might imagine the reduction in compensation to $150,000, has created a substantial interest in ageweighted profit sharing plans. As with any retirement plan arrangement that appears to favor highly compensated owner employers, Congress is suspect of such an arrangement and has introduced proposed legislation which 22 ARKANSAS LAWYER

FALL 1994

would substantially restrict U1e ability to use age-weighted profit sharing plans. However, there has been talk that these restrictions may be softened or eliminated entirely from the final bill. However, it is likely this type of plan will continue to be attacked by Congress in fulure legislative proposals. As an alternative to an ageweighted profit sharing plan, a participant may want to consider a target benefit plan. This type of plan has been around for a number of years and therefore is not as controversial ilS an age-weighted profit sharing plan. Just like an age-weighted profit sharing plan, a target benefit plan takes into account the age of its participants as well as compensation for purposes of determining benefits. Therefore, under U1e right set of circumstances, a target plan adopted by an employer may provide substantial benefits to its older highly compensated employees with minin1al benefits being provided to its younger lower compensated individuals. The negative of such an arrangement is that like a money purchase plan (and a defined benefit plan as discussed below), contributions thereto are fixed and must be made on an annual basis regardless of whether the employer had a good or a bad year from a profitability standpoint. Finally, an employer may want to revisit the possibility of implementing a defined benefit pension plan. This type of plan was a very popular plan until the Tax Reform Act of 1986 when the benefits that could be provided under such an arrangement were substantially reduced on behalf of highly compensated employees who retired from such plan prior to age 65. However, with the cutback in compensation to $150,000, it may now be time to revisit the possibility of implementing a defined benefit plan. This type of plan also takes into account the age of its participants as well as compensation. Unlike a profit sharing plan in which the maximum amount that can be allocated to a participant's account is limited to the lesser of 25 percent of compensation or $30,000, a defined benefit plan is an

arrangement where the employer

promises to provide a participant with a specified annual benefit upon retirement. The maximum annual benefit that can be provided by a defined benefit plan is limited to the lesser of a participant's high three years of compensation or $90,000 as adjusted each year for inflation (which in 1994 is $118,800). aturally, the older a participant is, the fewer years there are to fully fund for a participant's maxin1um benefit. Under the right circumstances, this can result in substantial contributions being made to such a plan on behalf of the older highly compensated employees. All contributions made by an employer to meet such funding obligations under the plan's benefit formula are tax deductible. Therefore, under a defined benefit plan, an employer may be able to generate higher tax deductible deductions to such a plan when compared with a profit sharing plan and provide greater benefits to its highly compensated older employees when compared with the benefits provided to its younger rank and file employees. An example of a defined benefit plan arrangement is set forth below. Assume Legal Eagle, P.A. has 3 employees. Mr. Eagle, the founder of the firm, is 51 years of age and earnS $150,000, employee A is 33 years of age and earns $60,000 and employee B is 27 years of age and earns $15,000. Mr. Eagle has never maintained a qualified plan and desires to implement some sort of defined benefit plan. Assuming a plan formula of 68 percent of average monthly compensation plus 26.25 percent of compensation in excess of the 1994 covered compensation table, an interest rate factor of 6.5 percent and using the 1983 individual annuity tables for females, the following would be the end result: Based upon the above, Legal Ea~le, P.A. would make a tax deductible contribu tion to the plan for 1994 of $58,705 of which $53,746 (91.5 percent) represents the amount needed to fund for Mr. Eagle's benefits under the terms of the plan. As an alternative to the age

Employee

Normal Cost

Compensation

Mr. Eagle

5150,<XXJ

553,746

6O,<XXJ

4.303

15,<XXJ

656

225,<XXJ

558,705

Totals weighted profit sharing, target or defined benefit plans, a new type of plan has emerged on the horizon - the "comparability plan." Under such an arrangement, employees are divided into different groups (for example groups in a medical clinic may consist of doctors, nurses and clerical staff or Simply "highly compensated employees" and "nonhighly compensated employees.") Under this approach, each group specified within the plan must receive benefits that are comparable to those received by the other specified groups of employees within the same plan. The new comparability plan involves detailed

calculations where contributions are converted into benefits and each specified group of employees is then separately tested. An actuary is generally needed for purposes of determining whether a comparability plan is appropriate for a specified employer. This type of plan may be useful where rank and file employees represent a significant portion of the total work force. However, as with ageweighted profit sharing plans, there is currently a proposed bill before Congress which would limit their availability. As with age weighted plans, such restrictions may be softened or eliminated entirely from

the final bill. However, as with age weighted plans, it is likely that comparability plans will continue to be closely monitored by Congress. IMPLEME TATlO OF A 0 QUALIFIED PLA Finally, an employer may look at the above qualified plan choices and decide that such alternatives are not worth the effort due to the administrative headaches and/or costs involved to maintain one or more of the above plans. Instead, the employer may choose to replace the lost retirement income through a nonqualified deferred compensation plan in which benefits will not be subject to

ATTORNEY-MEDIATOR SERVICE WINSLOW DRUMMOND 711 West Third Street Post Office Box 1401 Little Rock, Arkansas 72203 Telephone (501) 376-3021 Telecopier (501) 374-5118

DISPUTE RESOLUTION THROUGH SETTLEMENT PRACTICE LIMITED TO LITIGATED MATTERS 23 ARKANSAS LAWYER

FALL 1994

tax until distributed to employees. In order for employees not to be subject to immediate income tax consequences, the benefits provided under such an arrangement must be subject to a substantial risk of forfeiture. While an employee will escape taxation until distributions occur under a nonqualified plan if a "substantial risk of forfeit" exists, an employer is not entitled to a corresponding tax ded uction for such amounts until the employee includes such sum in income. A non-qualified plan will frequently take the form of what is referred to as either an "unfunded excess benefit plan" or a "top-hat plan." The reason for this is to avoid the stringent participation, vesting, funding, fiduciary and reporting requirements that apply under the Employee Retirement Income Security Act of 1974 ("ERISA") to employee pension and welfare plans. An excess benefit plan is a plan maintained solely for the purposes of providing benefits in excess of the maximum individual limitations which apply to retirement plans. On the other hand, a top hat plan is an unfunded arrangement plan maintained primarily for the purpose of providing deferred compensation for a "select group of management of highly compensated employees." In choosing between these two types of non-qualified deferred compensation arrangements, an employer must carefully review the group of employees it wishes to cover, as well as the benefits provided under such an arrangement. With this in mind, an excess benefit plan is more restricted as to the type of benefits that it can provide, but it can generally cover more employees than a top hat plan. IMPACT ON 40l(K) PLANS In addition to the plan design considerations set forth above, any employer who maintains a 401(k) plan must be alert to the fact that due to the reduction in compensation down to $150,000 that this may result 24

ARKANSAS LAWYER

FALL 1994

in its highly compensated employees and middle to upper management employees not being able to defer as much of their compensation through the 401(k) plan as they have become accustomed to in previous years. The reason for this is that a 401(k) plan each year must meet what is referred to as the Actual Deferral Percent'age ("ADP"). The ADP test requires that the amount that is deferred by a plan's highly compensated employees cannot exceed that which is deferred by all of the plan's non-highly compensated employees by more than a certain amount. Generally speaking, this difference in the percentage rates of deferral between these two groups of employees cannot be more than 2 percent. Plans that narrowly passed the ADP test in 1993 may have real problems in 1994 as a result of the maximum compensation limit being reduced to $150,000. If a 401(k) plan fails the ADP test, then the amounts that cause such failure must be refunded systematically as required to the plan's highly compensated employees. Alternatively, the employer may have to make additional contributions on behalf of its rank and file employees to bring up their ADP percentages to prevent the refund of such excess deferrals. However, again this represents additional plan costs that must be paid by the employer, which it did not have to incur prior to the reduction of considered compensation to $150,000. EFFECTIVE DATE OF REDUCTION IN COMPENSAnON TO $150,000 The new wage limitation of $150,000 applies for plan years beginning in 1994. For calendar year taxpayers, this generally means that it will be applicable for plan years beginning January 1, 1994. For fiscal year taxpayers, the old rules will apply through its fiscal year ending in 1994 and the new $150,000 limitation will not become applicable until their plan year beginning in 1994.

CONCLUSION The reduction in plan compensation to $150,000 will, no doubt, prove to be a problem for employers, administrators, and highly compensated plan participants. Hopefully, one or more of the above alternatives will soften the blow of this latest jab enacted by Congress at the retirement benefits of highly compensated employees. Congress, in recent years, has taken it upon themselves to reduce the advantages and inhibit highly compensated individuals and closely held businesses from being able to maximize and/or continue to maintain qualified retirement plans. This latest legislative change represent yet another blow by Congress designed to further restrict the amount of benefits that highly compensated employees can accumulate for retirement. The problem with this Congressional philosophy is that eventually not only will highly compensated employees and closely held businesses cease to maintain qualified retirement plans but the nonhighly compensated employees covered under such plans will also find themselves without a qualified retirement plan.

VALUATIONS CLOSE CORPORATIONS UNIQUELY QUALIFIED CONSULTANTS Analysis & Appraisal Expert wnness

\tIluollon Arbnrollon O.vnershlp Tronsltlon Planning & Implementollon

Estole Ploming AssIstance

SCHULTZE, MAECHUNG & ASSOCIATES 314 N. Broadway, sun. 1921 51. Louis, 1.40 63102 (314) 621路1211 REQUEST OUR BROCHURE

THE NEW STALKING LAW

In lune of 1992, I was asked by

Attorney General Winston Bryant to research and write legislation on the crime of stalking. I was excited about the opportunity to write legislation and lobby for its passage. I had been working in the criminal division for a little over a year and welcomed the change. Two years later, I still deal daily with an explosion of telephone calls and problems that followed enactment of Arkansas' first stalking statute in March of 1993. There are three areas that will be covered by this article. First, is a discussion of why it was necessary to create a

crime called stalking and how it was created. Second, four years after California enacted the country's first stalking statute, there are some published appellate decisions that Arkansas courts, police, prosecutors and defenders may use as legal guidance. Third, there are some problems with the new stalking code for enforcers and victims, as well as potential solutions to these problems. These problems and solutions are presently being addressed by a State Committee I was directed to form by Attorney General Winston Bryant. ( 1) Stalking captured the attention of many Americans in the wake of reports from Hollywood stars who suffered constant harassment from fans. One Hollywood star, Rebecca Schaeffer, was murdered in 1989. It was this act of violence that shocked the legislature of California into enactment of the first anti-stalking legislation in the United States. Once California passed its stalking code, members of many other state

BYCLEMEN

legislatures started receiving and responding to constituent calls demanding that stalking be made a criminal offense. The public has been bombarded by the meclia over the last two years with coverage of victims, young and old, stalked by known and unknown assailants. To those who must write laws to protect its citizens and to those who must enforce the law, the question of how many victims are stalked before they are brutally beaten or murdered is particularly significant. It must be made clear that stalking laws were intended to fill a void in current law, allowing police and the courts to intervene in certain circumstances before

abuse escalates or becomes deadly. Instead of being faced with several isolated misdemeanor offenses, each which must be proved separately, individual acts of harassment and terrorizing can be joined to prove a dangerous pattern of conduct resul ling in a felony stalking offense. As of August 18, 1993, forty-eight (48) states have enacted stalking laws which combine a variety of lessor individual acts to create a greater criminal offense. The original California Stalking Law was passed in 1990. I Two years later, California expanded its law by increasing penalties. By the end of 1992, twenty-four states had enacted laws patterned after the California Code. By 1993, some of

E INFANTE 25

ARKANSAS LAWYER

FALL 1994

these twenty-four states introduced legislation to amend or expand stalking provisions. In their simple t form, the typical stalking law contains the elements of harassment, harassing communications and/or terroristic threatening. A search was conducted in 1992 to see if any relevant case law had developed addressing either constitutional or evidenciary problems in states with stalking statutes. At that time, no published appellate cases addressing stalking anywhere in the United States were found. The California Code was not a convincing model for Arkansas. The public's response to political polls and media coverage reflected the need for a tougher law than California's. In the original law, California made stalking either a misdemeanor or felony with up to one (1) year in jail. In 1992, California amended some of the language in its code and increased the penalties to sixteen (16) months to three (3) years 2 Even if Arkansas were to write a law with these stiffer penalties, the convicted stalker would be on the streets in ninety days. Before writing the first draft of the Arkansas Stalking Code, telephone calls and letters went out to all elected prosecutors in the state asking for input. After all, these were the men and women who would ultimately have the burden of proof. Many prosecutors responded that harassment, harassing communications and terroristic threatening in Arkansas were difficult if not impossible to prove. It was ultimately decided to strengthen these three crimes and make them lessor included offenses of stalking. Elements of these crimes were amended. The old harassment code in Arkansas 3 covered shoving, striking, kicking or otherwise touching a person without good cause or even threatening to do so. Harassment also addressed the use of obscene language or gestures or following of a person in or about a public place. However, the penalty for harassment 26 ARKANSAS LAWYER

FALL 1994

in Arkansas was a mere violation. If the offense were committed against a child, the penalty was a Class C misdemeanor, punishable with jail sentence not to exceed thirty (30) days. The definition was underinclusive and the penalty insufficient to deter the crime. Furthermore, it failed to include elements present in classic stalking situations. For instance, research indicated that the classic stalker was one who repeatedly followed his victim. Therefore, an important definition was added to the new harrassment statute which included placing a victim under surveillance. This new definition prohibits a per on from remaining present outside the victim's school, place of employment, residence or any other place occupied by the victim whether the person is laying in wait inside a vehicle or on foot for the purpose of harassing, alarming or annoying. The new harassment code was made gender and age neutral, with the increased penalty for harassing a child removed. The new harassment code increased the penalty from a simple violation to a Class A misdemeanor. A Class A misdemeanor permits a jail sentence of up to one (1) year. The repeated phone call is another form of harassment. This element of stalking was covered under the crime of harassing communications. 4 Harassing communications is when a person purposely harasses, annoys or alarms his victim by communicating anonymously or otherwise, by telephone or any written communication; or makes, causes or

permits a telephone to ring repeatedly with no purpose to legitimately communicate. Harassing communications is also a Class A misdemeanor. HarassinK communications to a victim's home or place of employment is classic behavior for the stalker, and present in virtually all cases. Extreme emotional distress and mental anguish are suffered by stalking victims who must endure the harassing and terrorizing contents of

repeated phone calls. The definition and elements of this crime did not need amending. However, harassing communications like harassment, impo es penalties that are still insufficient to deter the crime. If you can get a warrant, an arrest and a conviction, the punishment may convince the offender to leave his victim alone. Terroristic threatening in Arkansas5 is defined as purposeful terrorizing of another person by threatening them with death or serious physical injury. It also includes substantial property damage to another person. This crime provided the necessary elements and a workable definition for stalking. Terroristic threatening in the first degree is a Class D felony permitting a sentence of up to six (6) years in prison. Terroristic threatening in the second degree is a Class B misdemeanor permitting a sentence of up to ninety (90) days in prison. The penalty for terroristic threatening in the second degree is not sufficient to deter the crime. Therefore, it wiU be necessary to change the second degree offense from a Class B to a Class A misdemeanor. This change may prOVide more deterrence and will increase jail time. The change will also prOVide for continui ty in punishment among terroristic threatening, harassing communications and harassment. There is one new and important addition to the definition of terroristic threatening which addresses threats aimed at teachers and other school employees acting in the line of duty. Pulaski County Prosecutor, Mark Stodola, had the terroristic threatening statute amended b~ adding Section 3 of Act 1189 of 1993, in response to the outburst of crime against teachers. After making necessary amendments to harassment, harl

assing

communications

and

terroristic threatening, the elements of stalking were in place. The new criminal law to prevent stalking was ready for construction. On March 8th, the Arkansas Legislature passed Act

388 of 1993, A.CA. ยง5-71-229, establishing the crime of stalking. In its simplest form, stalking is when someone purposefully engages in a course of conduct tha t harasses another person and makes a terrorist threat with the intent of placing that person or a member of their family in imminent fear of death or serious bodily injury. The necessary elements of stalking require that a person harass and threaten someone. "Course of conduct" is defined as a pattern of conduct composed of two (2) or more acts separated by at least 36 hours but occurring within one year. A charge of second degree stalking is a Class C felony and carries a penalty of 3 to 10 years in prison and a fine of up to $10,000. 00. Stalking in the first degree is a Class B felony and carries a penalty of 5 to 20 years in"rrison and a fine of up to $15,000.00. To be charged with stalking in the first degree, a person must commit stalking and engage in one or more of the aggravating elements: acting in contravention of an order of protection or no contact order; having a conviction within the previous ten years of stalking, terrorist threatening or a terrorist act in Arkansas or any other jurisdiction; or, being armed with a deadly weapon or representing by word or conduct that a person is armed. Prosecutors can also use the amended harassment, harassing communications and terrorist threatening codes as lessor included offenses of stalking. If the evidence pans out, or even if it doesn't, instructions on any or all of these crimes can be read to a jury. One final addition was placed in Act 388 to assist police enforcement. The circuit and/or municipal courts are required to issue a no contact order consistent with sections 9.3, 9.4 and 9.5 of the Arkansas Rules of Criminal Procedure when a person is charged with stalking, terroristic threatening, harassment or harassing communications. These rules require

that a court of competent jurisdiction issue the no contact order "in

writing" and notify the person of penalties for violation of its provisions. Many law enforcement officials have asked what the legislature meant by two or more acts separated by at least 36 hours. This definition of "course of conduct" has caused some confusion to law enforcement officials, and eventual interpretation will be left up to the Arkansas Supreme Court. The amended definition of "course of conduct" was required by the Senate Judiciary Committee for passage. Some members of the Senate Judiciary Committee, expressed concerns about the time frame between acts which constitute stalking. Senate members did not want a person's conduct during runof-the-mill domestic disputes to be considered stalking. The controversy over the language requiring a 36 hour limitation in the bill was fiercely debated between the House and Senate. The House did not want the limitation because research indicated that the classic stalker was a person who suffered from some form of emotional distress or mental disease. The classic stalker is relentless and the most dangerous stalkers probably do not know their victims. Since the stalking statute and the 36 hour limitation weren't going to effect domestic disputes anyway, why muddy the waters? Somewhat frustrated, members of the Senate and House reached a compromise, and the amendment to the stalking bill passed. Course of conduct was now defined with a 36 hour limitation, but not 72 hours as some Senators originally had wanted. The new stalking code finally breezed through the Senate, 34-0 and its companion bill flew through the house 94-D. The State of Arkansas joined the ranks of states enacting stalking legislation. Arkansas' stalking code is the toughest law in the nation. The National Conference of State Legislatures has compiled a list of all states with stalking statutes. The list contains penalty summaries for each

state. Arkansas' statute makes stalking a felony offense in the first and second degree. Class B and Class C felonies carry penalties ranging from three (3) years to twenty (20) years in jail and fines between ten and fifteen thousand dollars. No other state has gone as far as Arkansa to punish this crime. However, Arkansas' stalking statute is tougher to prove. Evidence of harassment and terroristic threatening is not easy to obtain. Therefore, enforcement of the stalking statute is a great challenge to police and prosecutors. (2) Three years ago, anyone delegated the responsibility of writing and researching a stalking law knew the information network was limited. Only one state, California, had enacted a stalking statute. Research on relevant case law was nonexistent. The law was so new

that there had not been enough time for trial cases to reach the appellate process. When preparing legisla tion, constitutionally protected rights had to be kept in mind. Failure to do so would either prevent passage of the law or produce major constitutional challenges in the courts. Constitutional considerations for a stalking law are most obviously addressed under the First, Fifth and Eighth Amendments of the United States Constitution. These include freedom of expression, freedom of movement, due process and freedom from cruel and unusual punishment. The First Amendment to the United States Constitution generally protects an individ ual's right to expressive conduct and pure speech. The most common constitutional challenges to this right under any new stalking statute will be vagueness and overbread tho Both of these constitutional issues require standing to challenge the statute. A statute is vague if it fails to provide explicit standards for enforcement. It is fundamentally unfair to subject an individ ual to prosecution if the law defining the offense fails to give adequate notice of what conduct is prohibited. 8 The 27 ARKANSAS LAWYER

FALL 1994

vagueness test may also be used to challenge stalking statutes that violate an individual's due process rights under the Fifth Amendment. Under the due process requirement, individuals are entitled to fair notice of the types of conduct prohibited. When the terms of a stalking statute become ambiguous, there is a na.rrow line between expressive and condemned conduct. This ambiguity runs afoul of the individual's due process right to fair notice. Accordingly, an ambiguous anti-

stalking statute may result in a successful vagueness challenge. A statute is overly broad if, in addition to prescribing activities that are not constitutionally protected, it also sweeps within its coverage speech or conduct protected by the First Amendment. There are two common reasons for invalidating overly broad statutes. First, individuals may be intimidated and, therefore, reluctant to exercise their right to protected speech. 9 The statute is said to have a "chilling effect." Second, there is a greater danger of selective enforcement by law enforcement officials if the stalking statute is not narrowly constructed. lO The right to freedom of movement is not mentioned in the United States Constitution, however, it has been dearly recognized.ll So much so that a state must have a compelling reason to restrict the right of an individual to travel. The court will balance the state's interest in protecting its citizens with the stalker's right to travel and determine if the statute is too restrictive. 12 The freedom of movement challenge is closely researched because harassment can involve placing a person under surveillance. As stated above, the stalker's repeated following of his victim from one place to another is classic behavior. Eighth Amendment rights require research into the kind and amount of punishment for the particular crime. Excessive punishment could be cha llenged on the grounds tha tit is cruel and unusual punishment. For instance, if a state should attempt to 28 ARKANSAS LAWYER

FAll 1994

impose caning as punishment for a crime, it is reasonably certain that a challenge would be made on Eighth Amendment grounds. In State v. Clllmo,13 the defendant, Robert F. Culmo, Jr. was charged with second-degree stalking. Culmo moved to dismiss the indictment on the grounds the COllllec/icllt Stalkillg Statllte l4 was unconstitutional. Specifically, Culmo argued that Connecticut's Stalking Statute was unconstitutionally vague, overbroad and invited abuse by police and prosecutorial agencies. The Court ruled that Culmo had standing to raise the void for vagueness challenge but held the statute was not unconstitutionally vague. Culmo's challenge to overbreadth was dismissed. The Court conduded that Culmo lacked standing to raise the claim that the Connecticut Statute was overbroad on its face. Furthermore, the Court rejected Culmo's daim that the statute gave "unfettered" discretion to police and prosecutors due to its alleged imprecisiOns. The Culmo Court provides an indepth analysis of each of the three constitutional challenges raised by the appellant and devotes some of its attention to the issue of standing. The Court adds an analysis on defendant's burden of proof to demonstrate he has standing to challenge the statute on grounds of overbreadth, explaining why the normal rules for standing do not apply. Unlike the analysis for standing to raise a First Amendment claim on vagueness grounds, the United States Supreme Court permits attacks against the First Amendment on overly broad statutes even if the defendant's conduct is not being regulated. The Supreme Court makes a dear distinction between expressive conduct and conduct which consists of action. This distinction has become better known as the First Amendment overbreadth doctrine. IS In Pallas v. State,16 defendant was charged with aggravated stalking under the new Florida Stalkillg Stntllte l ? Defendant pled nolo

contendere, reserving his right to appeal the lower court's order finding the statute constitutional. Under the stated facts, the defendant is the ex-husband of the victim, Edie Pallas. Defendant began calling the home of his ex-in-Iaws at 7:00 a.m. demanding to know the whereabouts of Edie. Defendant's inlaws were hiding Edie because defendant had beaten her and broken her jaw during their marriage. The phone calls continued throughout the day and amounted to approximately fifty (SO) calls containing harassment and threats to kill. Florida's stalking statute is very different from Connecticut's. On appellate review, the appellant in this case, as in the Connecticut case, challenged the constitutionality of the Florida statute on the grounds of vagueness and overbreadth. However, the Florida Appellate Court's analysis provides a more dear and precise explanation. The appellant makes an interesting argument under the vagueness challenge. He addresses the definition of harassment as used in the stalking statute. Appellant argues that the definition creates a subjective standard for the phrase "substantial emotional distress.,,18 This discussion is particularly interesting since the terms emotional distress and reasonable fear were

deliberately eliminated from the Arkansas statute and replaced with the term "imminent fear."

The appellant's overbreadth challenge argues the statute is capable of being applied to pure speech. His claim is directed at the repeated telephone calls made to the home of his ex-in-Iaws. The Court's analysis explains why this is not pure speech or expressive conduct. In People v. Krnwiec,19 defendant was convicted of stalking under the new fIlillo;s Stnlkillg Stntll/e 20 . The Second District Appellate Court of Illinois, affirmed the lower court ruling challenging sufficiency of the evidence on two (2) grounds and affirmed a constitutional challenge to aprovision of the Illinois stalking statute that permits a defendant to be

held without bail pending trial. For defendant's first ground, he argues that the evidence was insufficient to prove he transmitted a threat with the intent of placing Marilyn Krawiec in reasonable apprehension of harm. Defendant's second ground argues that the evidence was insufficient to prove he placed Marilyn Krawiec "under surveillance" as used in the statute. This case gives the states one of its first looks at a court's analysis on sufficiency of the evidence. The analysis does not address all the possible elements of stalking, but it does give us a look at how much evidence is necessary and what witnesses can be used most effectively in presenting the evidence. The fact situation involves a married couple, separated pending a dissolution of marriage. The Illinois Appeals Court pays special attention to each fact and specifically emphasizing that the statute does not necessarily require the intent to inflict bodily harm. The legislative intent behind statute is to prevent intimidation and the infliction of fear, as well as to prevent violent attacks, actions which serve as preludes to attacks and harassing actions. 21 Defendant's second issue challenges a provision of the Illinois stalking statute that permits a defendant to be held without bail pending trial. 22 The Illinois Court refused to address this issue on appeal holding that defendant lacked standing and waived any rights to this challenge. The Court noted that defendant was not held without bail pending trial and he cited to no authority in support of his contentions. Since standing was the reason for rejecting this constitutional challenge, the Illinois Courts will eventually be faced with a tough issue. This provision is not in the Arkansas Stalking Statute. Finally, in People v. Heilma,23 defendant was convicted of first degree murder and stalking. On appeal, defendant challenged, inter alia, the constitutionality of the

Alva Delano

Grahatn

Wendell

Middle names. They honor, preserve and distinguish offering a link to the past, a hope for the future.

American Arbitration Msociation At the core is an enduring ideal synonymous with resolution. Yet, our complete identity is built on a wider-rcnehing range'of services whieh includes cducntion & trnining, provision of cxpcr1 neulra1s and administmtion of mediation, mini-trials and other voluntary menns of dispute settlement

Respect for the past. Confidence for the future.

AAA

Dispute Resolution Services

Two Galleria Tower

Suite 1440 Dallas, IX 75240-6620 (214) 702-8222 FAX (214) 490-9008

California stalking statute on the grounds of vagueness. The reason for mentioning this California case is to give more credibility to the concerns of proponents of stalking laws who fear that many murder victims may have been stalked. It is a perfect example of the person who stalks his victim and commits murder even though, or in spite of the fact, that a protective order was in effect. The second purpose of mentioning this case is to provide an

example of the kind of threatening language used by stalkers and held to be sufficient as a terroristic threat. In Arkansas, there are two stalking convictions presently on appeal. The first one comes from Columbia County; Ricky Hardin v. State, Tom Wynn Prosecuting Attorney and David Butler, Deputy Prosecuting Attorney for the state and J. G. Molleston, a ttorney for appellant. Appellant's brief was submitted to the Arkansas Supreme Court in August of 1994. The state 29 ARKANSAS LAWYER

FALL 1994

brief is to be submitted to the Arkansas Supreme Court by September 26, 1994. The case out of Pulaski County is Wesson v. State; Mark Stodola Prosecuting Attorney and Melanie Martin, Deputy Prosecuting Attorney for the state. As of August 25, 1994, the Wesson case had not reached briefing stage. ( c) Under Pub. L 102-395 ยงI09(b), the United States Congress charged the United States attorney general, through the National Institute of I justice, with the development of a constitutional and enforceable model anti-stalking code to be completed by September 30, 1993. A copy of the completed project was sent to each tate's attorney general. The project contains discussion and recommendations for states to consider when implementing and applying stalking statutes. After the law was passed in March, constituency calls came into the Attorney General's Office from potential victims at an incredible rate. Some calls requested general inJormation on the new statute, while others wanted to know if their individual cases amounted to stalking and how they could get help. lnitially, city, county and state levels of government enforcement knew little about the elements of the crime. The law had not been published in any book and copies of the law were not readily available. 0 one was prepared to handle the number of calls and/or cases from potential victims. State and local police needed to learn about this new

law

order

make arrests,

pro ecutors had to obtain warrants and secure evidence for convictions and criminal courts were required to issue no contact orders in writing on forms which were not yet available. Protective Orders were being issued ou t of chancery courts under the Domestic Abuse Act, but not all cases involve domestic abuse and not all victims are women. Men are stalked by men, women by women and women stalk men.

When a copy of this federal project was given to me by Attorney 30 ARKANSAS LAWYER

FALL 1994

General Winston Bryant, it became an important piece of information for responding to these numerous calls. The federal project recommended establishing a state committee to address any problems generating from the new stalking law. In january of 1994, with General Bryant's permission, letters were sent out to uniquely qualified persons from around the state. In March, the state committee had been formed and a first meeting held. The committee members are city police, municipal, chancery and circuit court judges, prosecutors and defenders, lawyers, state senators and representatives, doctors and victim advocate groups. The committee assignment is to discuss the problems at each level of criminal enforcement, find solutions and implement these solutions wherever possible. The state committee is now looking into ways to address enforcement problems. With each level of government enforcement working together to understand the problems of the other, solutions to these problems are now being addressed. For example, stalking is not the kind of crime that its violators commit in the presence of others. Witnesses are difficult to find and hands on evidence is not always easy to obtain. Police, prosecutor and victim advocate groups are working to educate the public on the methods of obtaining evidence when complaints are registered. Municipal judges and prosecutors are putting together a uniform "no contact order" that can be distributed to each municipal ant! circuit clerk's office and the prosecutor's office in each county. During the arraignment hearing, the judge will provide a copy of this form and its restrictions to each defendant charged with stalking or any of its elements. The judge will then give notice of the penalties

facing violation of the order to the defendant. However, there are many problems facing enforcers the committee cannot control. Crime is increasing in Arkansas as in other

states. Those who answer 911 and direct calls into police stations must set priorities for dispatching officers in the field to a crime location. There are not enough police on the streets to handle the volume of calls that may come in at a given time. Police also face limited space ill jails and must determine in advance of an arrest if jail space is available. Prosecutors face heavy case loads. There are not enough prosecutors nor the time to prosecute every case, and municipal and circuit court dockets are usually full. Some of the solutions may require amending the stalking statute. If this becomes necessary, the legislators will be asked for these amendments when the general session begins in january. For now, the state committee will attempt to solve those problems which are within their reach. The crime of stalking is only one of the many crimes facing today's society. Although stalking is not a crime to be taken lightly, it is not classified as a violent crime. With violent crime on the increase, violators of the stalking statute will take a back seat to enforcement. ENDNOTES 1. Cal. Penal Code ยง646.9 (1990) 2. All data on stalking legislation around the United States prOVided by the National Conference of State Legislatures, 1560 Broadway, Suite 700, Denver, olorado 80202.

3. A.CA. ยง 5-71-208 (1987) 4. A.CA. ยง5-71-209 (1987) 5. A.CA.5-13-301 (1987) 6. "Arkansas Safe School Act" 7. All definitions of criminal penalties can be located at Arkansas Code Annotated ยง5-4-401 (1987) 8. See Generally Connally v. General Construction Co., 269 U.s. 385 (1926). 9. Grayned v. City of Rockford, 408 U.S. 104 (1972) 10. See Generally L. Tribe, American Constitutional Law 825-832 (1988)

(The United States Supreme Court has ruled that in many cases the First Amendment protects expressive conduct as well as pure speech.

HUMOR

THE

LAW

Conduct and conduct mixed with speech are entitled to less protection under the United States Constitution than pure speech. Therefore, it is more difficult to challenge statutes regulating conduct and conduct mixed with

speech on the basis of overbreadth.) 11. Attorney General of ew York v. Soto-Lopez, 476 U.s. 898, 901 (1986). 12. Silvija Strikis, Note, Stopping Stalking, 81 GEORGETOWN L.J. (1993)

"How Ya'II?" Contributions from Robert C. Compton and Nicholas H. Patton

13. 642 A.2d 90, 43 Conn. Sup. 46 (1993) 14. Connecticut General Statute §53a181c through §53a-181d 15. New York v. Ferber, 458 U.s. 747, 767-69 (1982); see also T. Emerson, The System of Freedom of Expression "Maintaining the Public Peace." n p. 17 16. 636 So.2d 1358 (Fla.App. 3 Dist. 1994) 17. Florida Statutes Annotated §784.048. 18. Florida Statutes §784.048(I)(a). 19.634 1994)

Annotated

.E.2d 1173 (Ill.App. 2 Dist.

20.720 ILCS 5/12-7.3(a)(2) (West 1992) 21. 634

.E.2d at 1179

22. The Illinois Code of Criminal Procedure was amended at sections 1104 and 110-6 by adding section 1106.3, (Ch. 38, par. 1104) reads as follows: Section 1104. Bailable Offenses. (a) All

persons shall be bailable before conviction, except the following offenses where the proof is evident or the presumption great that the defendant is guilty of the offense: - - - - or stalking or aggravated stalking, where the cQurt, after a hearing,

determines that the release of the defendant would pose a real and present threat to the physical safety of the alleged victim of the offense and denial of bail is necessary to prevent fulfillment of the threat upon which the charge is based. 23. 30 Cal.Rptr.2d 422 (Cal.App. 4 Dist. 1994)

My client Hamp Strickland was charged with attempted bribery of a government official, namely one James Bush, a member of the Vietnam War. The trial was in the United States District Court, Western District of Arkansas, El Dorado, Arkansas, before the Honorable Oren Harris. The government was represented by Assistant United States Attorney, Jimmy Guttensohn. Allegedly my client had offered Mr. Bush $10.00 not to attend a Draft Board meeting where my client's son's draft status was to be determined. Therefore, he was the principal witness for the United States at the trial. Mr. Bush was called to the witness stand and entered the double doors of the majestic federal courtroom and faced the stern countenance of Judge Harris, wearing his judicial black robe, the twelve jurors, clerk, court reporter, bailiff and lawyers, all looking at the principal prosecution witness. As he reached the witness stand, his countenance and demeanor reflected the fear of the aU-powerful. He was finally able to take a seat in the witness box and the government's attorney said, "State you name, please." James Bush muttered unintelligibly. The U.S.

Attorney again said, " State your name, please." and James Bush could hardly form the words. The government's attorney then said, "Where do you live?" and James Bush's answer was again mumbled and could not be heard. Then, with some exasperation, Jimmy Guttensohn said, "Now, I want you to speak to the jury!" Thereupon James Bush stood up in the witness box, faced the jury and said, "How ya'lI, jury?" From Robert C. Compton EI Dorado, AR

•••••••••••••• In Chancery Court many years ago, in a divorce action, the plaintiff's elderly husband was asked: "Were you and the plaintiff still sexually active?" His reply was: "If she don't mention it, I shore don'I." From icholas H. Patton Texarkana, TX

•••••••••••••• Please send your humorous "'war stories" to Editor, The Arkansas Lawyer, 400 W. Markham, Little Rock, AR 72201. 31

ARKANSAS LAWYER

FALL 1994

There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.'''..The exception is applicable to the federal Constitution (see Mincey v. Ariw/lQ, (1978) 437 U.S. 385 [57 L.Ed.2d 290, 98 S.Ct. 2408]) and "California courts are in full accord wi th the . . . emergency exception to the warrant requirement." People v. Whartofl, supra at page 577. Thus, in ruling on the Motion to Suppress, the "exigent circumstances" which justify the officers' entry onto the home premises of the defendant must be determined. As stated in Wharton, there is no ready "litmus test". The facts of each case must be reviewed. In McDowell. fd. at 563-564, officers entered the home of a suspect, which they located by following a trail of blood from the scene of a murder. There the Court held that the reasonableness of the entry by the officer" ... is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate." In the case of People v. Amaya, 93 Cal. App.3d 424 (1979), a deputy sheriff responded to a report of a shooting at an apartment. Upon arrival, he observed a pool of blood in front of the apartment and a trail of blood leading to a laundry room. There, he found the body of a victim that had been shot. In searching for other victims, the deputy entered Apartment 5, where he again observed blood. The deputy left for the moment and other officers returned within the hour and re-entered the apartment. This time they searched for evidence which they located and seized. The Court held the entry and seizure were reasonable, noting that officers may enter a dwelling without a warrant in fresh pursuit of a dangerous suspect or when they might reasonably suspect victims might be in need of immediate help. Once in the building they may seize evidence in plain sight, including anything which appears to be associated with criminal behavior. See also People v. soldoff, 112 Cal. App.3d 1 (1980), where officers entered a house after receiving a report from an ambulance of a shooting at the location and after they were unable to get anyone to respond to their knocking. The Court found that the entry was based on a valid emergency and was reasonable. Finally, the recent case of People v. Cain, 216 CaI.App.3d 366 (1989) factually parallels those in the instant case. In Cain, at 4 a.m., officers responded to a report of an attempted rape. After seeing to the

3-4 ARKANSAS LAWYER

FALL 1994

victim's needs, officers noticed music through the common wall of the victim's apartment and the apartment next door. The officers decided to check the other apartment for possible witnesses. In addition to the music, the television and lights were on in that apartment. Officers unsuccessfully tried to arouse the occupants by beating on the door. Fearing another possible victim, officers entered the apartment and subsequently found the defendant and incriminating evidence. The Court found these were exigent circumstances which justified the warrantless search.

The Caliiomia Supreme Court has long recognized that police oiiicers, in emergency situations, may enter someone's premises to conduct warrantless searches. Comparing the facts of the case at hand to those of the aforementioned cases, the entry of the officers onto Simpson's property and the seizure of evidence is easily justified, as "exigent circumstances" clearly existed. It must be kept in mind that the actions of the officers must be viewed in light of what they knew or suspected at the time, and not what the actual situation might reveal on a later day examination. See Tambonno v. Superior Court, 41 Cal.3d 919(1986). The detectives in the present case knew Simpson had not been contacted about kole's death. They also were in custody of his two minor children. These two factors alone necessitated finding Simpson. They also observed bloody marks leading away from the crime scene. Upon arriving at Simpson's home they found lights on in the house but were

unable to arouse anyone after extensive efforts. Security personnel advised the detectives that they had no knowledge of Simpson's absence. Detectives had observed the erratically parked and blood stained Bronco in plain sight. Together, these lactors raised the spectre of another victim within Simpson's home. The detectives were thus faced with exigent circumstances justifying an entry onto the property. It is also significant that none of the three items of evidence were found by officers acting in an overzealous manner. To the contrary, they were located within plain view while the officers were investigating the scene for further victims. Finally, the Court's comment in People v. Bradford, 28 Cal.App.3d 695 ( 1973), seems appropriate to the facts in the present case. There the Court reasoned: ''In testing the reasonableness of the search, we mightask ourselves how this situation would have appeared if the fleeing gunman armed with a shotgun had shot and possibly killed other officers or citizens while the officers were explaining the matter to a magistrate. " Id. at 704. So too, with all America watching, how would it have appeared had there been another victim wi thin the confines of Simpson's home on that morning, perhaps even Simpson himself. The defendant's Motion to Suppress was properly denied.

â&#x20AC;˘ Exigent CirCllmstallces Did ot fllstify TIle Searc1, of O,f. SiIllPSOIl'S HOllse alld Velriele, If You Really Want to Know by John Wesley HaU, Jr. Criminal Defense Lawyer Author, Search and Seizure (CBC, 2d ed. 1991-93) 'Til be judge. I'll be jury." said cunning old Fury; 'Til Iry Ihe whole cause and condemn you 10 dealil. '" - Lewis Carroll, Alice's Adventures in Wonderland ch. 3 (1865)

"50, whal do you thillk abolll the a./. Simpson case?" "I don'I." "You don't? Why not? That's all anybody talks abollt. " So goes the usual refrain with nonlawyers I talk to. My usual response is, "Because I have my own clients' problems to worry about. The California courts will deal with it one way or the other, and what I think doesn't matter." (That is a

nice way of saying, "Get a life.") If the 0./. Simpson case was like the 95% of all murder cases tried in America, the pretrial rulings on the admissibility of evidence and the legality of the search would go unnoticed by the media, the case would be tried in an empty courtroom, and the public would never know. The lawyers would file their briefs, the trial court would rule against the defendant (as trial courts aJways do; it is, after all, an unwritten rule of criminal procedure), and the trial would go on inexorably to its conclusion. "The court is taking a rrcfss during this important testimony, ~o now we utili hear a word from our spenser: Ginsu kniIlfS." Sometime in 1996, a panel of the California Court of Appeals will rule on the legality In its mind of the search, and, about two years after that, the California Supreme Court will rule, if it bothers to take the case. Right or wrong, the legal outcome does not matter to anyone else in this country; it only matters to the parties, the criminal law buffs who are addicted to COURT TV and O/NN, and the media persons who need to write about something to justify their existence and the ever-increasing desire for the public about everything Simpson that they have created. The media has created a feeding frenzy over the O.J. Simpson case. The motion to sequester the jury includes the results of a Nexis search showing over 15,000 print articles about the case. "Kllock, kllock." "Wlto's tltere?" "0./." "0./. wlto?" "Yollitave befll selecled for jury dllty. " In playing to the prurient interest of the public in the potential downfall of the rich and famous, the banal has been supplanted by the trivial. 'This is Roblll Uaclt fur 'Lifestyles of tile Riel! alld Famolls.' Today we are m tlte day room all tile fiftlt floor of the Los Angeles County Jail wah Heismanll Troplry and FL H1l11 of Farner 0./. Simpsoll wlrere 0./. is learnillg to Ileedlepoillt wilh his spirilual advisor alld close jriflld, fellow Hall of Farner Rosy Greer. 0./., wllfCe did YO" gel tire idea for Ihal picillre of tire Sail Quellt", gas clramber III your design?" Only in the Simpson case would COURT TV handicap which of the L.A. County Superior Court judges would be assigned the case. Judge Ito was a 3-2 favorite in the Las Vegas and London betting parlors. Only in a country where the public is force fed anything and everything Simpson from the tabloids, the networks, and O/NN would the public care. In a swift preemptive strike, the media has created job security by the Simpson case. Even the not-so-vulnerable

NatIOnal EnquITer scooped the legitimate media by five days on the Phoenix mock trial that produced a mock acquittal. How did the prosecutors expect the mock jurors to keep quiet, anyway? Everybody but the networks, Time, and Newsweek have been buying information about the case. Even the guys who sold the knife imagined by the prosecution to be the murder weapon gol 512,500 to lalk about it in National Enquirer. If you believe the tabloids (print and television). the prosecutors are buying information, too. The defense offered 5500,000 for information through its 800 number. That

Comparing tbe facts of tbe case at hand to tbose of tbe aforementioned cases, the entry of tbe officers onto Simpson's property and tbe seizure of el'idence is easily justified, as "exigent circumstances" clearly existed. will certainly be a ,'aluable source of reliable leads and information. Oliver Stone's "Natural Born Killers" is too close to reality for comfort. This orgy of information about the Simpson case has extended to the trial court's rulings, So what about the search of his house and Bronco? Are they legal? What about this "exigent circumstances" exception to the requirement that searches of home only be conducted with a search warrant? Who cares? What I think about the search does not matter because I am not one of the judges of the case. I proffer to you some observations about the legality of the search under the settled principles of the Fourth Amendment. YOli can take it for what it is worth.

Fourth Amendment Protection of the Home from Warrantless Searches One of the core values of the Fourth Amendment is to protect the home from unreasonable searches and seizures. Payloll v. New York, 445 U.s. 573, 584-B5 (1980). "IPlhysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States 1I. Ullited States Dist. Court for the Easlern DISI., 407 U.s. 297, 313 (1972). Thus, warrantless entries into the home are presumptively unreasonable, and the government has a heavy burden to sustain them. Paytall, +15 U.s. at 586-87 & n.25; Ullited Siaies I'. Karo, 468 U.s. 705, 717 (1984). The protection of the home also extends to the curtilage, which is defined as "the area ... so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." United States {I, DUIIIl,4 0 U.S. 294,301 (1987). The functional test of curtilage is: (1) proximity to the home; (2) whether there is a fence; (3) the nature of the uses of the area; (4) the steps taken to protect the area from observation by passersby. No one factor is controlling. Id. An additional factor is whether the area is "intimately linked to the home, both physically and psychologically, where privacy expectations are heightened." Califomia v. Ciraolo, 476 U.S. 207,212-13 (1986). A fence does not make something within the curtilage, but it certainly evidences an effort to heighten one's expectation of privacy. OliI"r v. Ullited siales, 466 U.S. 170,182 (1984). The yard of a private residence is normally considered a part of the curtilage. People v. Thompsoll, 221 Cal.App.3d 923,970 Cal.Rptr. 863 (2d DisI.199O).

Simpson's compound certainly had complete Fourth Amendment protection from an unjustified or overintense warrantless intrusion. Can the prosecution sustain its burden of proof to justify this search on exigent circumstances? I think nol Exigent Circumslances Exceptions One catchall exception to the warrant requirement is "exigent circumstances," something never specifically defined, but we know it when we see it. All exigentbased exceptions apply in "those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Arkansas v. SaNders, 442 U.S. 753, 759 (1979), oI"rntled 011 oillfr 35 ARKANSAS LAWYER

FALL 1994

grollnds, California v. Acevedo, 111 S.Ct. 1982 (1991). Warrantless entries to render aid to injured persons are also a generally

recognized exception. Mincey v. Arizona, 437 U.s. 385, 393 (1978); Arizona v. Hicks, 480 U.s. 32l, 323-24 (1987). Some courts are justifiably leery of police claims of exigency which smack of having been manufactured after the fact when the invasion of privacy question is raised. As with warrantless searches in

general, the government bears a heavy burden of proof on exigent circumstances searches. Maryland v. Bllie, 494 U.s. 325, 331 (1990); Welsll v. Wisconsin, 466 U.S. 740,748-52 (1984); Paylon, 445 U.s. at 587; Mincey, 437 U.S. at 394; jolnlsan v. Uniled Siales, 333 U.s. 10, 16 n.7 (1948). An issue often overlooked is the scope of search, and the prosecution overlooks it here, probably because it is most vulnerable on this issue. The scope

of an emergency search is strictly limited to its jurisdiction. Hicks, 480 U.s. at 324; Ullie, 494 U.s. at 332-36, both relying on Terry v. Ollio, 392 U.S. I, 18-21 (l968) (justification for a warrantless search defines its scope). Hicks involved police entry into the apartment above the suspect's apartment to look for injured persons where the suspect fired his gun into the ceiling. Once inside, one officer lifted a stereo to get a look at the serial number. That was held a search beyond the scope of the entry that was not justified by plain view. [d. at 328-29. BI/ie permitted the police on entering premises in "hot pursuit" (a classic exigent circumstance, see Warden v. Hayden, 387 U.S. 294 (1967Âť, to make a "protective sweep" of the premises to Look for potential confederates who could harm the officers. "We agree with the State, as did the court below, that a warrant was not required. We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which the attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Lollg, and as in those cases, we think this balance is the proper one. We should emphasize that such a protective sweep, aimed at protecting the arresting officers, is justified by the 36 ARKANSAS LAWYER

FALL 1994

circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises."Bl/ie, 494 U.S. at 334-35 (footnotes omitted). The pleadings I saw in the Simpson case to prepare for this did not address the issue of how intense was this aIJeged search for an injured 0.). and what did the police do when they did not find him?

Simpson's compound certainly had complete Fourth Amendment protection irom an unjustiiied or ol'enntense warrantless intrusion. It seems apparent, however, they did not

leave the premises and apply for a search warrant. Also, there is no reason not to seek a search warrant. California law permits telephonic and fax warrants. The Police Entry Onto Simpson's Property Nicole's and Goldman's bodies were found at her house at 12:10 a.m. on June 12th, and the police were, of course, immediately called. Nicole's and Simpson's children were inside, unharmed. Nicole's house is five minutes from Simpson's house. About 5:00 a.m., officers showed up at Simpson's house ostensibly to inform him of his ex-wife's death and the whereabouts of their children. When they received no response on the intercom at the gate or by

telephone (after having sent an officer to the security company to get the unlisted telephone number because the security company would not give it out over the telephone), an officer went over the fivefoot high wall to unlock the gate and let in the others. The officers testified at the preliminary hearing in L.A. Municipal Court that they went in because they were concemed for Simpson's safety when they discovered what they thought was Simpson's blood on the Bronco parked on the street. How convenient. The Entry Was Pretextual The conduct of the police demonstrates that this was a general exploratory search and not a search for persons in need of aid or potential murder victims; their asserted justification is really only a pretext for their search. To me, two objective facts prove it: The timing of the search and the way it was conducted. Showing up at Simpson's house five hours after the bodies were found shows the emergency claim spurious. The police allegedly indicated some limited knowledge of the Simpson's stormy relationship. If they were really concerned about 0.). Simp on's health and safety and who was going to take the kids, why were they not there as soon as possible after the bodies were found? Because they weren't concerned, that's why. The Simpson "compound" contains at least two buildings. Simpson lives in the main house. His daughter Arnelle lives in one room of the guest house, and Brian "Kato" Kaclin (be sure to catch his hosting "Talk Soup" on the E! Channel) lives in another. The first thing the police did was wake his daughter, question her, get her to open the house, and then try to eject her from the premises. Why eject her? Because she might interfere with police operation: a general exploratory search. They also talked to Kaelin, who said he heard a bump in the night on the outside wall of the compound which he thought was an earthquake. A search by the wall revealed the bloody glove that matches one found at the scene, but without the victim's blood on it. Officers also seized the Bronco to test it for blood (some was found), and found blood spots on the driveway and from inside the house. It is unknown at the time this was written how much of this could come from the victims, but some had already been excluded by blood type. Blood with similar genetic characteristics to Simpson's blood (shown by PGM testing) allegedly was found at the murder scene.

About three hours later, they had Amelle call her father. Simpson promised the police he would come back from Chicago, where he had just flown, leaving LAX at 11:45 p.m. on June 12th for a business engagement, on the next available flight. A couple of hours after Amelle's call, the police finaHy discovered they had been searching for six hours without a warrant; they finally applied for one, suggesting to the issuing magistrate that Simpson had fled on an "unexpected flight to Ctticago in the early morning hours of June 13." This was misleading to the magistrate, and they knew it. Also, Simpson came back voluntarily. The police were still at his house when he arrived that afternoon from Ctticago. They knew where he was. lf they had probable cause to arrest ttim, why did they not have the Ctticago Police Department rush to the hotel and arrest him? Everybody with a television has seen the pictures of Simpson handcuffed behind his back. Looks like an arrest to me. The credibility of the police is seriously waning. The mere fact they claim they are concerned about getting the kids to their father for safekeeping does not wash, either. In every other situation of a murdered parent, the kids go with a juvenile officer to some kind of foster care for temporary safekeeping. Sure! the police might try to find the noncustodial parent, and we should hope that they would if the kids are not cared for, but these were, and their solicitousness in clambering over Simpson's wall to get the message to him at 5 a.m. as opposed to 8 a.m. seems, well, unbelievable. No other citizen gets that kind of "special treatment." Virtually all the time, you cannot even get the police to caU the next of kin until after business hours the next day. Also, how much effort does it take to look for a six-foot-tall man in a house? A quick walk-through of the house should take care of it. And, once it was established that Simpson was not home, the police should have left the premises, regrouped and gotten a search warrant. Of course, under Buie, Hicks, and a host of other cases, anything they found legitimately in plain view could have been seized during this walk through. Instead, they stayed there nearly six hours looking for anyttting and everything. Simpson's case is a lot like Mincey v. Arizona, where police officers entered Mincey's house to attend to a fallen officer shot during a drug raid on the premises. The subsequent search was not a part of the original exigency which justified their entry, 50 the officer could not search.

Usually, the exigency argument arises in the context of a quick police entry in response to a known or likely harm, and the courts are loathe to secondguess police decisions made when the facts are uncertain and the likelihood of danger high. That is not the case with the Simpson search: There was no known or likely harm; it has all the appearances of a legal justification made up after the fact to justify their conduct. The courts should be especially skeptical of arguments which sound so convenient. The prosecution has the burden of proof, and hypothesis is not proof.

cover the true moti ve for the sea rch? Did they have suspicions but not probable cause until they saw the truck? As a practical matter, if the officers could reasonably believe that the vehicle has gas in it and tires on it, the Supreme Court would probably find that the vehicle was "movable" under the automobile exception. But was it, as a practical matter? They believed it was Simpson's vehicle; they talked to him in Chicago (Did the house search tum up the keys? We don't know that); they excluded his daughter and Kaelin as drivers; was the Bronco practically "movable" such that they could not have waited for a search warrant? Maybe not.

The conduct of the police demonstrates that thjs was a general exploratory search•••

What if The Defense Claims A Frame? It is possible that the defense will claim at trial that Simpson was framed by the real killer or by some officers in their zeal to solve a murder. If so! the search and seizure issue will become much more complicated, and! at some point! such a defense will likely constitute a waiver of a Fourth Amendment claim. The defense would thus have to show what was illegally seized to show that it was planted.

Conclusion The Seizure and Search of the Bronco on the Street Simpson's Bronco was "haphazardly" parked on the street! not inside the wall. Blood stains were found on the outside of it, and that helped officers justify going over the waJl. Later, it was seized as evidence so more detailed forensic testing couJd be done. The automobile exception to the warrant requirement only dispenses with the warrant requirement if the vehicle was movable. The way the Supreme Court construes probable cause, practically anything can be probable cause. Now the standard is "fair probability" of guilt, and, as a practical matter! it is only a "strong suspicion." lllinais v. Gates, 462 U.s. 213,235 (1983). Nevertheless! where was the probable cause for the search of the Bronco? Do the blood stains alone amount to probable cause? If you buy the police argument that they went to Simpson's house solely to inform him of his ex-wife's death and the location of his children and they were allegedly concerned for Simpson's safety, then they did not have probable cause to believe that he was involved in her death. Or did they? Is this just a convenient statement to get inside Simpson's front gate and

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rules. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning but without understanding." Olmstead v. United States, 277 U.s. 438, 479 (1928) (BRANDEIS, J., dissenting). The harsh reality of the law of exigent circumstances searches is that the police seem to always get the benefit of the doubt from the courts on their claims of exigent circumstances! even when their claims fail the laugh test, as they do in the Simpson case. The Fourth Amendment should not look like a baseball game where the home town official scorer gets to call the home team's errors as hits or where the strike zone is smaller for the franchise players. In baseball, everybody knows that happens. So, too, in Fourth Amendment litigation. The courts and prosecutors pay lip service to the Constitution, but we know the realities. To the criminal defense bar, we are the visitors in the field and Bobby Bonilla is at bat. That is my only opinion. You can take it or leave it.

ARKANSAS LAWYER

FALL 1994

There's More To Life Than Money. Well, at least to your life. On the other hand, our bankers at First Commercial make money their business for you. They are always searching to improve upon the quality products and services that they offer you while striving to provide them in a manner that not only meets your expectations, but exceeds them. That's something customers have come to expect from us. You see, we make money our business so you don't have to.

FIRST COMMERCIAL N.A./MemberFDIC

EXECUTIVE

DIRECTOR'S

REPORT

Seven Habits... By William A. Martin

The Seven Habits of Highly Effective People is a popular book by Dr. Stephen R. Covey. The National Association of Bar Executives at its August meeting had a speaker from the Covey Leadership Center, Todd King. He not only gave us a quick tour of the seven good habits but went beyond the book and contrasted them with seven habits of ineffective people. Both are worth thinking about and the following table gives us some reference points. INEFFECTIVt HABITS

- Be reacti ve -Wander - Do the urgent first -Think only of winning - Try to get own ideas accepted -Compromise - Fear Change EFFECTIVE HABITS

- Be proactive - Begin with the end in mind -Put first things first -Think win/win -Seek first to understand...Then to be understood -Synergize -Sharpen the saw The balance of this column is my summary of a few of the highlights from Todd King's presentation. I hope to whet your appetite to think on these matters and perhaps read Convey's book. Adopting and building these habits can make us better people and better lawyers. These habits develop somewhat in

sequence. ineffective people start from a position of dependence and continue to depend on other people for how they feel about themselves. The ineffective habits reflect immaturity and lead people from dependence to counter dependence to codependence. Effective habits also start with dependence but they reflect maturity and lead to self confidence and independence and then lead on to interdependence and effective working relationships. One of the big differences starting out is the reactive person responds to a stimulus at once and with little thought. The proactive person who perceives a stimulus has the self confidence to make a choice based on values and then respond in accordance with a sense of direction that comes from having developed principles and goals. An effective person has the results desired-the destination-in mind from the start. The ineffective person is inclined to wander as in the old saying: "If you don't know where you are going any road will get you there." The tyranny of the urgent is often the enemy of accomplishing important things. We tend to do tasks which have deadlines attached and may never get to important tasks that seem less urgent but in the big picture return far greater benefits. King commented: "Successful people have a habit of doing things unsuccessful people do not like to do. " Another old saying is: "There is no limit to what someone can accomplish if he or she does not care who gets the credit. " Most human interactions involve

situations in which each party can benefit-win/win. It is based on the idea there is plenty for everyone. This frame of mind and heart is conducive to on going, long term coopera ti ve relationships. It is an approach which can enable us to settle cases. Empathic listening-really trying to understand where the other person is coming from is the beginning of effective communication. Often we are so busy thinking how we want to reply that we fail to receive the message being sent. When we truly understand the other person's point of view, needs, and interests we can adapt to them and make our message responsive and more likely to be appropriate and understood. The exercise of the good habits just described puts us in a position to put everything together to create synergymaking the whole greater than the sum of the parts. It may sound illogical, but putting good things together can release creative energy and produce results far beller that logic says is possible. "Sharpen the saw" is a way of telling us we cannot sit back and relax if we develop the six habits just discussed. Like a saw that cuts wood we will get dull if we do not go through a sharpening-a renewal- process. We must exercise the physical, mental, spiritual and social/emotional dimensions of our nature to continue to be highly effective persons. Then we can live confidently and effectively and meet the challenges each day brings.

39 ARKANSAS LAWYER

FALL 1994

Three Point Attack On Cancer

<\n Interview With

Steven W. Quattlebaum, Chair

WHAT ARE THE SPECIFIC GOALS OFTHE PROJECT?

Young Lawyers' Sectiun

WHAT IS THE PROJECT? The project is entitled "Three-Point Attack," and is a fundraising project to benefit the American Cancer Society. It is a pilot project in the Arkansas Division of

the American Cancer Society and is sponsored by the Arkansas Bar Association, Young Lawyers Section. The operation of the project is simple. Persons

pledge 5~, lO~, 25~, SO~, $1, or more for each three-point shot made by the Arkansas Razorhacks or UALR Trojans

basketball teams. At the end of the year, the pledges will be collected by the American Cancer Society and the Arkansas Bar Association will be credited for having raised the funds for the American Cancer Society. The Arkansas

Razorback basketball team made 301 three-point shots last year. Thus, assuming the Razorbacks perform similarly this year, an individual pledge of SOc per three-point shot will result in a contribution of approximately $1SO.OO.

HOW DID THE BAR -\SSOCIA no">; GET INVOLVED? This project originated in Missouri under the sponsorship of Coach orm Stewart, who had undergone cancer treatments The project raises thousands of dollars for the American Cancer Society in Missouri. orm Stewart appeared at the Mid-Year

Meeting of the American Bar Association in Kansas City in February, 1994, to promote his program to affiliate bar associations. Robert Jones In attended that

meeting on behalf of the Arkansas Bar Association and was impressed with the purpose, simplicity and positive image of the project. President Jones assigned the project to the Young Lawyers Section as our primary project for 1994-1995.

40 ARKANSAS LAWYER

FALL 1994

The Young Lawyers Section hopes to obtain pledges from 2,000 Arkansas

lawyers and from at least 3,000 other individuals throughout the state. Assuming the pledges average a minimum of 25~ per three-point shot and the Razorbacks make 303point shots during the year, the Bar Association will raise $375,000.00 or more for the American Cancer Society. We would like to obtain pledges from lawyers in every county throughout the state.

WILL PARTICIPATING IN THIS PROJECT HELP LAWYERS? HOW? There are few charitable organizations as worthwhile as the American Cancer Society. Our contributions to the American Cancer Society will primarily benefit the Arkansas Division of the American Cancer Society, and, thus, will benefit all Arkansans. The ongoing battle against this disease requires tremendous funding for research, education and rehabilitation. Our contributions to the American Cancer Society will aid in the fight against cancer. This alone is reason enough to contribute. Incidental to the contribution will be the positive reflection upon our profession. The image of the practice of law has reached an all-time

low. This highly-publicized project will present a much needed positive reflection upon our profession. We hope that the commentators of the basketball games wUI make public service announcements regarding this project when three-point shots are made and at the end of each ballgame. For example, if the Razorbacks shoot 10 three-pointers in a particular game and we have obtained pledges which total $1,000 per three-point shot made, at the end of the game, the announcer may announce that the Arkansas Bar Association has sponsored a

fund drive which resulted in the donation of $10,000 to the American Cancer Society for the three-point ~hots made in une basketball game. As the pledges inerease, the dollar contribution increases proportionately. This kind of publicity must be obtained by our association if we are to have any positive impact on the predominantly negative public perception of our profession. This kind of project, if successful, will be ~ ~ public relations project the Bar Association has supported for many years.

WHAT IS THE "GA\1E PLA, '?" The game plan is simple. Lawyers around the state will receive pledge cards in Arkntlsas Lawyer, in maHouts from the Bar Association, in seminar publications, at meetings of the Bar Association and at seminars. Booths wiJI be set up at various seminars and bar association meetings promoting the project. The success of the project is directly related to the community spirit of the members of our organization. It is incumbent upon the members of the Arkansas Bar Associa tion to generously participate in this program for the support of the American Cancer Society and the image of our profession. It is equally important for members of our association to encourage participation in the project by other organizations and professions. For example, I will be traveling around the state speaking to local bar associations, civic club meetings, associations of accountanb, doctors and other professions in an attempt to obtain pledges. Lawyers throughout the state should obtain pledge cards from bar association publications, booths at seminars and bar association meetings. Members of our

a sociation should generously contribute to this worthwhile project, and, in the process, help in the fight against cancer and in the fight against our negative image.

41 ARKANSAS LAWYER

FALL 1994

•

Bell & Company, PA is a local accounting firm with a reputation for delivering the personal attention you expect with the professional expertise and experience you need. Richard BdI, the company founder, is a licensed attomey and CPA, bringing an added dimension to the numbers and service he can provide your firm. When you're building a case and require litigation support, we're prepared to follow the paper trail, research and analyze documents, investigate records and translate figures.

Bell & Company will comprehend the paper trail not compound your paper trial.

Bell & Company, P.A. C£IlTlfIHO

PUBLIC;

ACCOUNTANT'

4508 Burrow Dove' Nonh lillie Rock, AR 72116' (501) 75)·9700· FAX (501) 753-3794

YOUNG

LAWYERS'

SECTION

COLUMN

ASpirit of Public Service By Steven W. QuaUlebaum, Chair

Dean Roscoe Pound wrote and spoke about the profession of law and the purpose of bar associations over 50 years ago. His sage commentary is perhaps more relevant today than ever before. Historically, there are three ideas involved in a profession: organization, learning, Le., pursuit of a learned art, and a spirit of public service. These are essential. A further idea, that of gaining a livelihood, is involved in all callings. It is the main if not the only purpose in the purely money making callings. 111. a profession, it is incidental. By a bar association, then, we mean an organization of lawyers to promote and maintain the practice of law as a profession, that is, as a learned art pursued in the spirit of public service - in the spirit of a service of furthering the administration of justice through and according to the law. Speeclt to the graduating class of Notre Dame Law Scltool 1944 . This spirit of public service has been maintained within the Arkansas Bar by the laudatory activities of so many of our predecessors and today, when our mem bership is a t an all time high, we should not let down the mantel. Indeed, given the dismal image of our profession, all lawyers should give life to the spirit of public service

for which our bar association was formed by participating in projects supportive of our communities. The Young Lawyers Section is especially devoted to Public Service. Section two of Article one of the ByLaws of the Young Lawyers Section reads: "The purpose of the Section shall be to stimulate the interest of young members of the bar of Arkansas in the objects of the Arkansas Bar Association and to provide such younger members of the bar with a more effective means to participate in activities directed toward improving the administration of justice and promoting the public welfare." The Young Lawyers Section of the Arkansas Bar Association was formed in 1946. Since that time, public service has been the hallmark of the Young Lawyers Section. This year we are concentrating our efforts on the fight against cancer by sponsoring "ThreePoint Attack:' which is discussed in detail in this issue of Arkansas Lawyer. Through this project our profession has the opportunity to perform another service valuable to our communities by raising money to help in the fight against cancer and, simultaneously, to enhance the image of our profession. Because this project will be highly visible to the public, widespread and generous participation is needed. Your participation is easy. The Bar Association will be

distributing pledge cards with seminar materials and other barrelated publications. I will be addressing county bar association meetings, other professional groups and civic organizations soliciting participation, and booths promoting the project will be set up at seminars and bar meetings. Although the Bar is sponsoring the project, participation is by no means limited to attorneys. The true success of this project will be realized if we have widespread participation within and beyond the members of our profession. Of the 4,000 or more members of our association, 50% participation in this project should not be unreasonably optimistic. If 2,000 lawyers each pledge a millilllum of 25~ per three-point shot, we would raise in excess of $90,000.00 for the Arkansas Division of the American Cancer Society. Imagine the positive impact of Paul Eells saying, "With that three pointer, the Arkansas Bar Association has donated another $300.00 to the American Cancer Society:' and, at the end of the game, saying, "Tonight the 10 threepointers made by the Hogs resulted in donations to the American Cancer Society of $3,000.00, thanks to the efforts of the Arkansas Bar Association." While no single project or service will ever change the image 43 ARKANSAS LAWYER

FALL 1994

of our profession, small efforts like this project which cast us in a more positive light may, in the aggregate, help to turn the tide of negativism. The only way this project can generate a negative reflection on our

profession and our association is if we

have minimal participation from our membership. Please do your part in the fight against cancer and in the effort to better our image by completing the pledge card with a generous pledge and by encouraging others to participate. A parable used by U.M. Rose in his address to the graduating law school class of the University of Arkansas in 1894 is appropriate. "A foolish man says it is impossible that I should be able to remove this immense heap of dust; I will not attempt it; but the wise man says I will remove a little today, some tomorrow and more the day after, and, thus, in time I shall have removed it all." Like the immense heap of dust, our battles against cancer and the public perception of attorneys necessitate uur tloi..ng a lillIe eadl day. This project is your opportunity to contribute to the public and the profession.

Handwriting Experts Linda L. Taylor Howard Chandler Examination Consultants, Inc. (501) 336-0820 291 Hwy. 65 North - Conway, AR 72032 • Handwriting / Handprinting Identification • Typewriting Identification • Inks, Paper and Other Related Examinations • Expert Consultation on Criminal and Civil Cases

Retired from the Arkansas State Crime Laboratory with over 60 years of combined experience.

John T. Bates - 1-800-299-5950 Accidents on highways, streets, railroads, highway construction zones and parking lots. All types of vehicles. Computer graphics prepared for exhibits. Over 38 years engineering experience.

TRAFFIC ACCIDENT RECONSTRUCTION

John E. McAllister, P.E. EXPERT WITNESS Graduate Electrical Engineer, 34 Years Industrial Experience. Specialist in Industrial Machine Guarding and Safety. Born 1921. B. Sc. in Electrical Engineering 1947. 14 Years experience with General Electric Co. in engineering and industrial sales. 11 Years President of company involved with repair and rewinding of electric motors and the manufacture, sales, installation and servicing of electrical control panels for industry. 9 Years President of large distributor specializing in the sales, manufacture, installation and servicing of all types of safety equipment for industry with major emphasis on metal forming and stamping. Registered Professional Engineer in 3 stales. Curriculum vitae and references on request. EXTENSIVE COURTROOM EXPERIENCE.

John E. McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909·3..214 Phone: (501) 922·1709 Fax: (501) 922·4177

44 ARKANSAS LAWYER

FALL 1994

When you're in the final throes of trial preparation, the last thing you em affOrd is wasted rime. That's why we've been designing rime-saving trial referen= decIdes. We know that ~tigators, perhaps more than any other attorneys, need infOrmation quickly and accurately.

ror

Weve been publishing legal r<fuen= since 1855, bringing Arkansas practitioners works such as Aricansas Model Jury Instnlctions - Criminal, Second Edition. ince me Arkansas Supreme Coon Committee on Criminal Jwy lnsrrucrions last supplemented this practical oiaJ tool in 1982, me legislature has recodified, reclassified, and added bifurcated trial procedW'eS to me Arkansas Criminal Code. The required standard by per curiam order ofme Supreme Court, Ari<ansas Model Jury Instruetions Criminal, Second Edition adheres to me new requiremenlS, bringing to me aiminal defense lawyer or prosecutor an official set of instructions that rovers i=es arising most frequendy in aiminal cases. Otes on Use and Commel1ls acrompany each lI1SUUCDon.

Cross-Examination: Science and Techniques, by l.any pozner and Roger Dodd shows that cross-examination is simply a series ofoll1crete Steps building to a rational and predictable resuk Follow their preparation procedW'eS and coumoom techniques, and yoUT cross-examination will be completed befOre you even seep into the coumoorn.

With Michie, you'll hit the jackpot. Whether you need me Ari<ansas Code of 1987 Annotated, Official Edition, practice r<fuen= from some of the brightesr legal minds in me counny, or infOrmation &om OUT sister company Mead Data Central, provider of the u:xJ.S'Il on-we servioes, tum to Michie for quick, comprehensive

To order coJlyour MidiL snks 7rf1Tl!SmtntiveAllin R. Jones 8001448-511 0

research.

The Michie Company

Call us. lis about time. _ IIodll )ry Instn-.-CrmniI, loan! E_ ("110) ~ Soonc! Old T""""" (iSlIlj

Legal Research on yourrerms

I:1lIl1mIDD 591

SIOS

~1Ild NexdI_.....-J "*'-bt#Mad lklCcncnl. ......... cI1locM..!~elm ThtMidw(Almponr. ......aIlhr Madc....pe.-. AI . . . .......t.

Private Placement Adoptions ... I. Preface:

As of August 1994, the National Conference of Commissioners on Uniform State Laws has prepared a comprehensive draft of a proposed new Uniform Adoption Act (UAA). The UAA addresses some of the issues predominant over the last several years: putative fathers' rights l the time a parent has to revoke his or her consent, and transracial placements. The UAA will be available in 1995 for consideration in state legislatures. Private attorney-assisted adoptions have become increasingly complex due to the continually shifting nature of case law regarding the rights of biological parents and conflicts of laws with interstate placements. It is wise to err on the side of caution, particularly with regard to the payment of expenses, ethical considerations and identity of putative fathers, as will be presented later in these materials. For the careful practitioner, adoptions Clll1 be described as a "happy" business and usually results in ecstatic adoptive parents, birthparent(s) who are satisfied with the adoption plan, a beautiful newborn baby and a beaming judge who graciously poses for a picture with the long-awaited family. Be mindful that adoption also represents loss - to the biological parents of the ability to parent their child to the adoptive parents of their ability to conceive, and to the adopted child of the opportunity to know his or her biologicaJ roots. Therefore, when an adoption disrupts it can be one of the most emotionally draining and dreaded events in a family law practitioner's career. The resulting litigation can be complex, expensive and lengthy. Occasionally adoptive families faced with the emotional onslaught of caring for and bonding with an infant they may ultimately have to return to a biological family, cannot survive the emotional upheaval associated with such litigation and they divorce. On the other hand, l

46 ARKANSAS LAWYER

FALL 1994

when a biological parent decides to parent her child and revokes her consent, in most instances she is faced with the financial burden and the emotional and physical fatigue of raising a child alone. As a practitioner, it is imperative that you provide careful and prudent counsel to your clients about the risks and exposure involved in private adoption. Human nature being what it is, there are no guarantees.

n. Working with Adoptive Parents: A. Requirements: You are an attorney with a practice in family law. One day you g~t a call (rom a couple who is interested in adopting an infant and they want you to handle it. They do not have an infant already identified for adoption, and they want you to help them realize their dream of having a family. Typically, the prospective adoptive family profile goes something like this: The couple has been married for several years, both are in their mid-thirties to mid-forties, have reached a comfortable stage in their careers, are financially stable but have not been able to conceive a biological child. Most have run the gamut of infertility treatments: surgery, hormonal therapy, artificial insemination, more surgery and quite often, in vitro fertilization. Most infertility treatments and surgeries are not covered by insurance. At this point, their physician may tell them there is nothing more to be done medically, and (some several years and tens of thousands of dollars later) that they should consider adoption as an aJterna ti ve. At this time, the couple begins the search for an agency to find their baby. Sadly, by this time, they are too old by rna t agency criteria to adopt an infant. Agencies are flooded with requests for infants and many limit the number of applicants by establishing age criteria for

application. The typical age "cutoff" is 40. Some agencies further reduce the number of applicants by setting 36 as the age cutoff for adoptive parents. Another consideration is that many agencies are religiously affiliated and for that reason require the prospective adoptive family to be a member of that religion for eligibility. Still others will not place an in.fant with a family that already has a child (i.e., biologica I from a previous marriage or through adoption). And if a family call meet all the criteria, they are usually advised there is a five to seven year wait, on the average, for an infant. For most prospective adoptive parents, by the time

an infant mjght be available through an agency, they are too old to adopt by that agency's criteria. Catch-22. So what do you, a sympathetic, anxious-ta-please, family law practitioner advise them to do? First, advise your clients to have a home study (Ark. Cnde Ann. Â§9-9-212(bÂť) prepared by a qualified agency or licensed, certified social worker. A copy of the home study requirements promulgated pursuant to regulations of the Arkansas Child Placement Agency Licensing Act, Ark. Code Ann. Section 928-401, et. seq., appears later in these materials. Note that the requirements include a clearance from local criminal records and child protective services. Additionally, a statement from the adoptive parents' physician is required as to the health of all family members. Due to the increase in the incidence of HJV, the physician should test for this disease also. Next, I usually advise the couple to start telling everyone they know frum family members, friends, their minister to the check-out clerk at the grocery store that they are trying to adopt. Some couples are willing to install a separate unlisted 800 telephone line in their home and place ads in the "personal" column of the classified section of newspapers

throughout the state. There is no law in Arkansas prohibiting the placement of such advertising by adoptive parents. However, under the Child Placement Agency Licensing Act, Ark. Code Ann. ยง9-28-401 el. seq., and specifically, Act 761 of 1991, Ark. Code Ann. ยง9-28-404 (b) (1993 Rep!.) it is a felony for a newspaper or other publication of advertisement to place any public notification in order to promote a placement or assist in the placement of a child in an adoptive home without first obtaining an Arkansas child placement agency license. Although it is not clear from the code provision, the legislative intent was to prevent agencies licensed only in other states and nonresident lawyers from placing telephone directory and classified advertising without first obtaining an Arkansas License to make child placements. It was not intended to prohibit prospective adoptive parents from advertising. There is a question as to the constitutionality of this code provision, and more practically, its enforcement. Another method commonly used by adoptive parents is to prepare a biological resume, attach a photograph of themselves and mail it to obstetricians and pediatricians. Although most of these end up in the doctor's circular file on the floor, the more your clients actively seek a child to adopt, the better their chances. You can assist your cbents by telling your colleagues that you represent a family who is looking for an infant to adopl. etworking with other adoption agencies, Licensed clinical sociaJ workers and colleagues who concentrate their practice in adoption is also very effective. Utilizing these methods, within a year most families wilJ be able to identify a pregnant biological mother or biological couple who want to make an adoption plan for their baby. (For an exceIJent treatise on adoption law see: J. Hollinger, ADOPTlON LAW AND PRACTICE, (Matthew Bender 1989). B. Jurisdiction and Venue 1. Jurisdiction. Ark. Code Ann. Section 9-9-205 (1993 Rep!.) represents a change in law as of 1991. The intent was to discourage nonresident adoptive parents from adopting in Arkansas and also to discourage non-resident birth parents from relocating to Arkansas simply for the purpose of giving birth and placing their child for adoption here. The new code provision requires at least tltirty (30) days residency (defined as physical presence in the state) by the adoptive parentis) before the filing of a petition for

48 ARKANSAS LAWYER

FALL 1994

adoption or thirty days residency by the biological parent(s) before execution of a relinquishment or consent. An exception to this requirement occurs when the rights of the biological parent have been terminated more than thirty days prior to the filing of the petition for adoption or their consent is not required. In either of these events, physical presence of the adoptive parent(s) or child is sufficient to confer subject matter jurisdiction in Arkansas. In a recent case involving resident adoptive parents and a non-resident biological parent, In Re Adoption of K.F.H. alld K.F.H., 311 Ark. 416 (1993) the Arkan~a~ Supreme CowL was presented with a new question about jurisdiction and choice of law. In a surrogate arrangement turned sour, an Arkansas resident sought the assistance of a Michigan attorney to locate a surrogate mother who would bear his child and give him custody so that his wife could adopt the child. After several artificial inseminations and a miscarriage, the surrogate mother, a Michigan resident, became pregnant with twins. Prior to their birth, she decided to keep the twins she was carrying and filed a complaint in Michigan to void the surrogate contract. The father countered with a complaint alleging he was the biological father and asking the court to permit his wife to adopt the children according to the contract. Six months after the birth of the twins, the Michigan court voided the contract but gave legal and physical custody to the father in Arkansas with visitation rights to the surrogate mother. The Michigan courts utilize a friend of the court system to arrange and supervise visitation in custody cases. The surrogate mother was to keep the friend of the court advised as to her current address and marital status and make arrangements for visitation with the twins in Arkansas according to a predetermined schedule. The father was to provide the surrogate mother with quarterly progress reports about the children through the friend of the court. Two years later, without notifying the friend of the court of her change in address, the surrogate moved from Michigan to Ohio. She failed to communicatE" with the children for over one year from March of 1989 until September 27, 1990, after the Michigan court had transferred jurisdiction to Arkansas. In November of 1990, the father and his wife filed an adoption petition claiming that the surrogate mother's consent was not required under Ark.

Code Ann. ยง9-9-206(a)(2) because she had failed, without justifiable cause, to communicate with the children for a period of at least one year. The probate judge granted the petition for adoption in July 1991 and found the surrogate's consent was not required for the reasons alleged and that the best interests of the children wOlDd be served by granting the petition. On appeal, the surrogate argued that the appropriate choice of law was Michigan law until the case was transferred to Arkansas in September of 1990. Michigan law requires two years' failure to significantly communicate with the child without justifiable cause. The surrogate also argued that the one year period under Arkansas law could begin to run only after the date the case was transferred here. Citing Dixall v. DixOII, 286 Ark. 128, 689 S. W.2d 556 (1985), and Pellder v. McKee, 266 Ark. 18,582 S.W.2d 929 (1979) the court noted that as long as a parent has failed to communicate for anyone year period prior to the filing of the petition for adoption, he or she may lose the right to consent. Further the court noted that the same one year period has been applied to a non-resident parent who has failed to pay support for a period of one year and who consequently lost the right to consent (citing Henson v. Money, 273 Ark. 203, 617 SW.2d 367 (1981)). In K.F.H. the court found that the probate judge clearly had jurisdiction at the time the petition for adoption was filed to hear the case and therefore it was not error for the trial court to apply Arkansas law to circumstances occurring prior to the transfer of jurisdiction. 2. Venue. Ark. Code Ann. ยง9-9-205(c)(1) (1993 Repl.) also represents a change from prior law as to venue and provides that the adoption be brought in the county where the adoptive parents reside, where any person required to consent resides or is in military service, or in which the agency having the care, custody or control of the minor is located. Prior to 1991, the code failed to distinguish adequately between jurisdiction and venue. If you represent resident adoptive parents, yOll may have a choice as to venue. The case may be heard in the county where they reside, where the consenting birthparent resides. or in the case of a temporary guardian of the person being appointed for the child, where the guardian (agency) who has the care, custody and control of the child resides. Usually the guardian is an individual designated by the birthparent to be empowered with the birthparent's

right to consent. In that instance, there is a choice of forums available to the attorney. 3. Hearing. Another 1991 amendment changed the time when an adoption petition could be heard. Ark. Code Ann. §9-9-212(a) (1993 Rep!.) prohibits a hearing during the consenting party's ten day right of withdrawal period after execution of a consent under Ark. Code Ann. §9-9-21J9 or a relinquishment executed under §9-9-220. Under prior law, there was no absolute ten day right of withdrawal after a birthparent executed a consent. Further, a consent could not be withdrawn after any order affecting custody of the infant was entered except for good cause shown (fraud, duress or undue influence). An order discharging the infant from the hospital to the custody of the adoptive parents under Ark. Code Ann. §9-9-101 was obtained immediately after the child's birth. In some jurisdictions, the probate courts would expedite a hearing on an uncontested adoption within a few days after the petition for adoption was filed. After the 1991 amendment, however, the courts are prohibited from hearing the petition until the ten day right of withdrawal has expired. (Note that it is not clear whether this right of withdrawal appljes to temporary guardians appointed to consent on behalf of a relinquishing parent.) Ark. Code Ann. §9-9-214 (1993 Repl.) requires the presence of the petitioners and the individual to be adopted WI less th presence of any party is excused for good cause shown. In some Arkansas Probate Courts, the judges excuse the presence of the minor due to its infancy or if the baby is still in the hospital (good cause). Still other jurisdictions require the baby to appear at the interlocutory hearing and will issue an order to direct the hospital to release the baby into the care of the attorney or the adoptive parents pendmg a hearing on the petition to adopt. Ark. Code Ann. Section 9-9101, supra, directs that when a petition for adoption or a petition for guardianship in a pending adoption is filed and the minor to be adopted is an infant in the custody of the hospital withjn the state, the court "shall issue an order directing the hospital to surrender physical custody of the minor to the petitioners or to the agency or attorney acting for either." (emphasis added). The 1991 amendment rewrote Ark. Code Ann. §9-9-214(d) and represents a vast departure from prior law. In an adoption hearing the court must determine whether the requisite consents or relinquishments have been obtained or excused and that the ten day period for

withdrawal has passed. Moreover, the court must determine whether the adoption is in the best interests of the indi"idual to be adopted (emphasis added). If the foregoing requirements have not been met, §9-9-2U(d) dictates "the court shall dismiss the petition and the child shall be returned to the person or entity ha"ing custody of the child prior to the filing of the petition." The question is therefore raised that if the court has determined placement with the adopti\'e family is in the best interests of the child, but the required consent or relinquishment has not been obtained or excused, whether the adopti\'e family has the right to retam physical custody of the child pending further determination by the court. The purported legislati\'e intent of the biU which resulted in this Act was that the child be returned immediately to the custody of the birthparent. In this author's opinion, the end result is an erosion of the court's ultimate authority to make a binding determination of the child's best interest. One way to avoid such a result is to have a guardian of the person appointed for the child prior to filing a petition for adoption. If the court then determines under §9-9-214(d) that a required consent or relinquishment has not been obtained or excused, the child is returned to the custody of the guardian for further determination of the child's best interests. By the time you get to the initial hearing tage of the proceedings, all the pleadings and documents required to be furnished to the court should ha,'e been filed. It is essential to ha\'e a hearing set as soon as possible after the petition and all required pleadings have been filed and the ten day withdrawal period has expired to effect a transfer of legal custody from the biological parent (or guardian of the person) to the adoptive family. Moreover, the biological parent typically does not have medical insurance to cover the infant and until a petition for adoption is filed, the adopth'e parents' insurance will not cO\'er medical expenses for the infant. Ark. Code Ann. §23-79-137 (1992 Rep!.) requires insurance companies who provide coverage to the adoptive family to cover the infant from birth" .. .if the petition for adoption and application for coverage is filed within sixty (60) days after the birth of the minor." ld. By the time of the hearing, the judge has usually reviewed the file and all the pleadings. An adoption is a closed hearing and some judges will hear it off the record in chambers. Procedurally, the adoptive parents are sworn and testimony is presented on their willingness and ability 10 provide for the child's best

interests if the adoption is granted. A precedent interlocutory decree is presented to the court and entered of record immediately after the hearing. A point for draftsmanship of the interlocutory: pecify that no further hearings shall be required by the court and that the interlocutory shall become automatically final upon the expiration of six months from the entry of the interlocutory decree. (See: In re Appeals from Adoption Orden" 277 Ark. 520, 642 S.W.2d 573 (1982) wherein the Arkansas Supreme Court by per curiam order determined that prospectively any decree is a final decree, ,...hether interlocutory or final, if no further hearing is required by the terms of that decree.) Various jurisdictions may require the entry of a separate decree at the end of the six month period, but few require the appearance of the adoptive family for a hearing at that time. on-Resident Adoptive Parents: 1. Venue As mentioned previously, venue is determined by the residence of: the petitioner(s), any person required to consent to the adoption, or where the individual to be adopted resides or is in military service, or \vhere the agency having the care, custody and control of the minor is located. Ark. Code Ann. §9-9205(a) (1993 Rep!.) When working with non-resident adoptive parents, a choice of venue is then determined by these conditions. The Arkansas Supreme Court, in hI th" Matter of the AdoptiolJ of Pollock, 293 Ark. 195, 736 S.W.2d 6 (1987), (a case under prior law) declined to grant an adoption when the biological mother, a resident of the State of Washington, gave birth in Hot Spring County, Arkansas, ew Jersey residents came to and Arkansas to adopt. The biological mother executed her consent to the adoption and immediately returned to the State of Washington while the baby remained in Arkansas. Shortly afterward, the trial court entered an order granting a temporary guardianship to the adoptive parents who then returned to ew Jersey with the infant. A petition for adoption was not filed until after the couple had left the state. (This fact was obscure in the majority opinion.) The lower court ultimately refused to grant the adoptjon, stating it had no jurisdiction since the adoptive parents were ew Jersey residents and the biologicaJ mother was a resident of the State of Washington. Ttie Supreme Court affirmed. In his concurring opinion, Justice ewbern C.

49 ARKANSAS LAWYER

FALL 1994

NEW FOR 1994 Arkansas FreedoDl of InforDlation Ad Se«:ond Edition by John J. Watkins Comprehensive guide to the Arkansas FOIA, including information on access to records, open meetings, enforcement, use of FOI requests in discovery. Cites and discusses cases and hundreds of attorney general opinions, relevant examples from other jurisdic-

tions, and from the federal act. Sample pleadings; full index. New 1994 edition. 400. pages 520

Arkansas Linuted Liability CODlpanies by Lonnie R. Beard & Carol R. Goforth The Arkansas Limited Liability Com-

pany Act was signed in 1993, making Arkansas one of more than 30 states that have LLC statutes. This new form of business organization preserves the limited liability aspects of corporations with the taxation advantages of partner-

ships. The Arkansas act is not the same as LLC law in other states and there are pitfalls and strategies to be mastered. The authors provide a com-

plete analysis of the act, with guidelines for attorneys and forms that will prevent unfavorable IRS actions. Indispensable for general practitioners and

tax attorneys. 500. pages

522

Dis«:overy Pra«:ti«:e in Arkansas by Carlton Bailey

$18

Add 52 sib for first book, $I for each add'i book to same address

M &M Press P.O. Box 338

Fayetteville, AR 72702 50 ARKANSAS LAWYER

FALL 1994

hearing on the judge's docket as soon as

record in this case had shown that the child was present in Arkansas at the time the peti tion was filed, I would have concluded that the court had jurisdiction to enter an adoption decree." Id. Given this proviso, when working with nonresident petitioners and where the biological mother resides in Arkansas during her pregnancy and leaves after surrendering the infant for adoption, a careful practitioner will file a petition for adoption prior to the adoptive family removing the child from the jurisdiction of the court.

possible after the petition is filed. If the court enters an interlocutory decree that is automatically final without

2. Interstate Compact on the Placement of Children (lCPe) Ark. Code Ann. Section 9-29-201 (1993 Rep!.) When a non-resident adoptive family petitions to adopt a child who resides in Arkansas, if no decree of adoption is entered before they remove the child from this jurisdiction, permission must be

obtained from the [Cre both in Arkansas (sending state) and the state where the petitioners reside (receiving state). otice of a pending adoption is

provided to the ICPC by filing a 100-A form proscribed by that division of the

further hearing, it is a final, appealable decree. In re Appeals from Adoption Orders, supra. The parents are therefore

the legal parents of the child when they

leave the state and the Jepe may not have jurisdiction. 11, however, the court doc,kets the case at such time in the fu ture so as to require the parents' return, then

jurisdiction attains in the Icre and JCre approval must be sought prior to their departure. 111. Working With Biological Parents:

A. Medical and Social History A non-identifying medical, genetic

and social history of the biological family is required to be furnished to the adoptive

family prior to the placement under Ark. Code Ann. Section 9-9-505 (1993 Rep!.) This code provision also requires the person handling the adoption to retain

Utis non-identi.fying history in the file for ninety-nine (99) years. It further allows for the transfer of this information to the Department of Human Services if the

Department of Human Services. (A copy

person, agency or entity handling the

of the form appears later in these materials). This form is to be accompanied by a copy of the adoptive parents' home study; the biological parents' consent or

adoption "ceases to function". A growing trend in recent litigation premised on wrongful adoption (a topic which requires a separate article) suggests

relinquishment and/ or the consent of the

that a careful lawyer should thoroughly

temporary guardian; a narrative statement of how the adoption was arranged, who

disclose the biological parents' available medical background. Lawyers, doctors and agencies who have failed to disclose or negligently concealed pertinent

has informed the biological parent of her legal rights; medical history of the biological parent(s) and physical description; medical records of the infant to be adopted upon its birth; and court orders. Some of these documents will not be available until after the birth of the

infant. Additionally, the ICPC in the

Helps formulate and execute a discovery plan for civil litigation. Chapters provide primers on the various tools for discovery-depositions, interrogatories, physical examinations, admissions, production of records. Guidance on pros and cons of the various devices and analysis of Arkansas caselaw on discovery. Includes many sample forms. Useful for general practitioners and good reference for experienced liti-

gators. 300. pages.

clarified the issue when he noted, "If the

receiving state may require other documents prior to approval. All the required information must be

provided to the Arkansas ICPC and the JCPC in the receiving state. If a

medical history have been held liable. I seek permission from the biological parent to request specific testing during her pregnancy for sexually transmitted

diseases (STD's) and AIDS. Other biological family members may be helpful in garnering this information if the biological parent is unfamiliar with medical history of his or her extended family. The genetics department at Arkansas Children's Hospital in Little

determination is made by the Icre offices

Rock, Arkansas, is skilled at interviewing

that the placement is in the child's best interest, approval of the placement will be granted. Until you receive that approval, it is illegal for the adoptive parents to remove the child from the state. Ark. Code Ann. Section 9-29-201, Article lV. 3. Hearing. The procedure for hearing with nonresident adoptive parents is the same as for resident adoptive parents. Since the clients are usually caring for an infant in a hotel room during the ten day period during which consent may be revoked, I try to obtain a setting for an uncontested

birth parents to construct a genetic history

for the child to be adopted. Further, the American Academy of Pediatricians

through its committee on Early Childhood Development and Adoption has devised a form for nonmedical professionals to use during medical intake of a birthparent. It is contemplated that the form will be distributed to the American Academy of Adoption Attorneys for use and evaluation within the next year. B. Ethical Considerations When a biological parent seeks to

place his or her infant for adoption, the parent is usually acting on his or her own and is not represented by an attorney. Arkansas law does not require the biological parent to be represented by independent counsel. However, I advise the biological parent(s) that I am the attorney for the adoptive parents and that I do not represent them. I encourage the birthparent to obtain independent counsel and give them the name of several attorneys who are familiar with adoption law, as well as the telephone number for the Statewide Lawyer Referral Service operated by the Arkansas Bar Association. Some attorneys will represent a birthparent pro bono for the limited purpose of advising her or him of their rights and explaining the legal documents the birthparent will sign. More often, the adoptive parents pay for this consultation and advice provided to the birthparent(s). At the time the consent is signed, if a birthparent has chosen not to consult an attorney, I again advise him or her that I do not represent them and that the parent is entitled to have their own attorney present. The documents contain a statement to the court that the parent knows I do not represent him or her. These steps are necessary to properly apprise the biological parent of the right to counsel and to negate any potential claim of conflict of interest under the Model Rules of Professional Conduct. C. Putative Fathers When a child is born, unless a man claiming to be the father was married to the mother at the time the child was conceived or any time thereafter until the adoption, or he has adopted the child, has had custody of the child or has otherwise legitimated the child, he is not required to consent. Ark. Code Ann. Section 9-9206(a)(2) (1993 Repl.) Further, under Ark. Code Ann. Section 9-9-207(a)(3), and (b) notice is not required to be provided to a putative father. Where an unmarried father does not have a substantial relationship with his child, has exhibited absolutely no interest in the child and probably does not even know of its existence, notice to and consent of the father is not required. In tlte

Matter of the Adoption of 5.J.B., A Minor, 294 Ark. 598, 745 SW.2d 606 (1988). This case addressed a typical adoption scenario: an isolated sexual encounter results in an unplanned pregnancy. The biological mother either does not know the identity of the father or refuses to reveal his identity. In 5./.B., the trial court found all

aspects of the adoption were proper except that the unidentified putative father had not been notified of the proceedings. In upholding the adoption, the Supreme Court found that a putative father was not similarly situated with the biological mother nor with a class of fathers entitled to receive notice. The court declined to find the putative father was entitled to protection under the U.S. Constitution's due process and equal protection clauses. Citing Lehr v. Robertsoll, 463 U.s. 248 (1983), the court noted: '·...a parent lacking a custodial, personal, or financial relationship with his child is not constitutionally entitled to notice. We agree with the appellants' statement that the question is not so much whether the state may terminate the father's parental rights without notice, but whether parental rights attached in the first place." 5.].B., supra, at 294 Ark 602. In direct response to this case. the Arkansas legislature enacted the Putative Father Registry, Ark. Code Ann. §20-18-701, et. seq., (1991 Rep!.) which requires a putative father who claims to be the biological father of a child to be adopted and who wishes to receive notice of any adoption proceeding, to register with the Arkansas Department of Health. Once he has registered, the putative father is to be served with notice of a hearing and a copy of the petition for adoption. As an alleged father, he is entitled to notice and an opportunity to present best interest of the child evidence at a hearing to determine his status. He is not automatically entitled to custody nor visitation. This legislation was enacted to assure more finality to the adoption proceedings and to afford aUeged putative fathers with protection of their due process rights. A recent case interpreting Arkansas' Putative Father Registry resulted in deI)ying a putative father standing to challenge an adoption In Re Adoptioll of Reeves, 309 Ark. 385 (1992). In Reeves, the biological parents were married and had one child of their marriage. They later divorced. During a reconciliation period, the mother discovered she was pregnant and although the child was born and carried the father's last name, the couple did not remarry. Moreover, the father's name did not appear on the child's birth certificate. The couple separated and the mother later married another man. After one year, they petitioned the probate court for the present husband to adopt the child born between marriages. to her consent, the mother swore she did not know the identity of the father. After the final order granting the adoption, the biological

NEW FOR 1994

Arkansas Professional and Judicial Ethi«:s Third Edition by Howard W. Brill Rules of Professional Conduct, Code of Judicial Conduct, Rules dealing with specialization, mandatory continuing legal education, interest on lawyers' trust accounts, client security fund, admission to the bar, unauthorized practice of law, judicial discipline and disability commission. Annotated. New 1994 edition. Approx. 400 pages 520

Arkansas Rules of Eviden«:e with '93 supp. by Mort Gitelman, Marcia McIvor, and Carl Smith Loose-leaf notebook containing the text of the Arkansas Rules of Evidence, commentary on each rule, and annotations of all Arkansas Supreme Court and Court of Appeals decisions applying the rules. More than 1,000 annotations, including cases not annotated elsewhere. A true time-saver and indispensable in court. Annual supplementation at reasonable cost. 175

Arrival Point A Novel by Phillip H. McMath A political spy thriller in the genre of Le Carre set in Hong Kong and Siberia. This is a well-polished book by a Little Rock attorney. "Phil McMath has written that rarity, a spy novel that is at once ironic, uncompromising and gentle."-Jack Butler 516.95

Confederate WOlDen of Arkansas in the Civil War Memorial Reminiscences Civil War accounts by Arkansas women, rust published in 1907 to raise money for the memorial at the State Capitol. Republished with additional material and introduction by Michael B. Dougan, Prof. of History, Arkansas State University. 520 Add S2 sth for first book, S1 for each add'l book to same add.ress

M &M Press P.O. Box 338

Fayetteville, AR 72702 51 ARKANSAS LAWYER

FALL 1994

father found out about it and petitioned to set it aside. He alleged in his petition that he was the biological father, that he had significant contact with the child after his birth and that he had not received notice of the adoption. Jd., at 386. The trial court found that the father was not entitled to receive notice because he had not registered with the putative father registry. The appellate court affirmed. Like most appellate decisions in adoptions, the Reeves case raised more issues than it resolved, the most significant being the constitutional adequacy of Arkansas' notice requirement unut:>f the pUlative father law. In a developing trend nationwide, the rights of fathers in adoption proceedings are being tested daily, particularly by thwarted fathers. This is a thorny segment of adoption law and the lawyer who represents adoptive parents without clearly determining the status of the biological father had best beware D. Child Born to Unmarried Mother: With the enactment of the putative father registry, a companion piece of legislation was passed which required a registered putative father to be served with a copy of the petition for adoption unless he waives his right to service in

writing under oath. Ark. Code Ann. Section 9-9-224 (1993 Rep!.). This provision is disturbing because the petition contains complete and full disclosure of the adopting parents' identities, their address, birthdates and the adoptive name of the infant. The unmarried biological mother, who waives service and enters her appearance and who usually has closer connections with the child, does not receive a copy of the petition. In fact, once she signs her consent, her participation in the adoption proceedings is no longer required. Ark. Code Ann. Section 9-9-207(b). Arguably, the putative father should not be entitled to receive more information than the biological mother, although notice of the hearing is required to be furnished to him. E. Pregnancy Expenses Be careful here. Ark. Code Ann. Section 9-9-206(c) sets out the items of pregnancy expenses allowed to be paid to or for the benefit of a biological parent who plans to place his or her child for adoption. Although the code does not require it, a practice pointer is to obtain a sworn affidavit from the biological parent itemizing the expenses paid during the pregnancy. I pay as many expenses as possible directly to the service provider. I

THE LAW FIRM OF BRIDGES, YOUNG, MATTHEWS &DRAKE

PLC

is pleased to announce PAUL

E. AllSlIEGER

has joined the firm as an associate

F. G. BRIDGES (1866-1959) FRANK G. BRIDGES, JR, (1906-1973) PAUL B. YOUNG STEPHEN A. MATTHEWS TED N. DRAKE JOSEPH A. STRODE JACK A. MCNULTY TERRY F. WYNNE 315 East Eighth Ave. P. O. Box 7808 Pine Bluff, AR 71611 (501) 534-5532 52 ARKANSAS LAWYER

FALL 1994

JAMES l. MOORE, III MICHAEL J. DENNIS DAVID l. SIMS R. SCOTT MORGAN JEFFREY H. DIXON CARY E. YOUNG JAMES C, MOSER, JR. PAUL E. AllSlIEGER

obtain receipts from the biological parent for any amounts reimbursed directly to him or her. If the court finds the biological parent has accepted compensation or other thing of value in exchange for placing the child for adoption, the parent may be guilty of a Class C felony. Most private dltorney~assisLed adoptions include the payment of layingin expenses for the biological mother. This is an increasingly risky area, however, because of the opportunity for fraud practiced by desperate or unscrupulous birthparents. In order to protect the financial investment of an adoptive family, it behooves the adoption lawyer to investigate and confirm the support requested by the birthmother. It is emotionally devastating when an adoptive family loses the opportunity to adopt becau e the birthmother decides to parent the child herself. It is financially ruinous if the adoptive parents have spent a great amount on her support. The total cost of an independent adoption typically ranges from 510,000 to 525,000 for medical, living expenses, social work and lawyer's fees. One way to protect your clients is to advise your clients to investigate the availability of adoption disruption insurance for independent adoptions. (At this writing, this coverage is not presently offered in Arkansas.) The risks covered include: the birthparents keeping the child or withdrawing their consent to adoption within the time allowed by law; miscarriage by the birthmother; or the death of the child at birth or before the last day on which the birthparents can withdraw their consent. The in~urance lioes nol cover foreign adoptions, adoptions by relatives or surrogate mother arrangements. It also excludes legal fees and advertising expenses incurred by the adopting parents. IV. Conclusion Adoption law is "happy" law - most of the time. Careful preplacement investigation and document preparation should result in that beaming judge and family mentioned in the beginning. If you prepare with the idea that every adoption is an at-risk placement, you may be fortunate enough to know the good feelings that come from placing a child in a good home. "A baby is God's opinion the world must go on." . Carl Sandburg

Kaye Hartellsteill McLeod is an attomey in Little Rock.

UPDATE

FOR

MEMBERS

Case Mediation - The Next Step For the Trial Bar by David U. Strawn (Editor's Note: The Arkansas Bar Association officially supports voluntary alternate dispute resolution (A DR) but opposes court mandated ADR as a condition precedent to a trial. In August the American Bar Association adopted a resolution proposed by the Arkansas Bar Association opposing mandatory ADR in federal Courts. Any references in this article supporting mandatory mediation represent the author's opinion and those references do not reflect the position of The Arkansas lawyer or the Arkansas Bar Association. In particular, the first paragraph misstates the position of most Arkansas judges and lawyers.]

Leading Arkansas judges and trial lawyers are urging adoption of a program of court mandated mediation of pending cases. What are the criteria for building a successful and useful system? What results should you expect from the changes? Who will be the mediators? How will they act? How should you and your client approach the mediator, and the mediation environment? Should you fight this trend? Is it bad for lawyers, bad for their clients, or bad for the courts? Fortunately, others have faced and answered these questions. Florida in 1987, then Texas, Indiana, orth Carolina and most recently, South Carolina have adopted systems of court mandated mediation of pending cases. So, what can lawyers and judges from these states tell us? "It (medIation) isn't just the wave of the future. It's the best thing we can do for our clients, today. Iients like it, it ends cases. It rewards good negotiators." Bill Barfield, Florida construction lawyer and litigator. "We know that more than ninety percent of all our cases have always settled. Mediation lets it happen earlier, and with the help of the mediator we settle cases we might have tried in the past. Since most cases settle anyway, why haven't we been more focused on the settlement process? Mediation does that." Bill Wagner, personal injury lawyer and past President of the American Trial

Lawyers Association. "From a Judge's point of view, nothing makes more sense. Dockets have been cleared so that cases that reaUy need. trial get it, quickly. Cases are settling earlier and more often, and that is the only way to practical docket control." Hon. William Gridley, Circuit Court, Florida's Ninth Judicial Circuit. "Just do it!" Tom Lemon, commercial Htigator, and past President of the Indiana State Bar. Mediation has become an integral part of the litigation process in the adopting states. The bar has embraced the process as an advancement and enhancement to litigation. It has not replaced the trial, but has made the prospect of quicker, less expensive dispute resolution something lawyers can now offer their clients. Several words help characterize case mediation, and will help you better prepare for the differences between working with a mediator, and attempting to persuade a decision making third party neutral. The following is a brief. operational description of mediation: Mediation is a voluntarily conducted, non-adversarial, cooperative process in which a neutral, impartial facilitator aids disputants in arriving at mutually acceptable, binding and durable settlements of pending and indpient cases. Litigation, by contrast, is adversarial, does not depend on the cooperation of the parties, expects the third party to be impartial but not a "neutral". In litigation, the third party is relatively passive whereas in mediation the third party is an active participant and intervenor. The mediator does not decide the case, but helps the parties choose their own resolution. In litigation we expect the third party to decide the case after passively listening to evidence and argument. I know, you don't think it's very "voluntary" if the judge orders you to go. But the process itself, once you're there, can only function if yOll and your client voluntarily participate. Litigation is not at all voluntary for defendants, and ceases to be "voluntary" for plaintiffs when counterclaims are filed. The new systems have become voluntary quickly in the states that have adopted them. Florida

judges report that lawyers are arranging for mediation of their cases without urging from the courts. The Florida bar has taken mediation to heart as the forum of choice, reserving litigation for the estimated two per cent of cases that do not conclude without adjudication. If Arkansas lawyers are like lawyers in other states that have been through the evolution of a court mandated mediation system, you will quickly come to realize that it is yet another forum, and a very beneficial one at that, for the resolution of your client's disputes. The new systems are not intended to replace litigation. Rather, they are additional to litigation, and occur as a process parallel to litigation. They don't impede the progress of a case, and operate inter-dependently with the litigation process. The idea that mediation is cooperative and non-adversary marks a sharp departure from trials. No one is permitted to leave a trial. It's a tar baby. Once you decide to give it a lick, you're there tiU it's over. In mediation, people can walk out, or can decide they simply can go no farther towards common ground and a solution. That gives the other party a chance to decide whether to go forward with the case, or to accept the last and best offer of the opponent. The process forges the neutral's roU as well. Judges and juries make decisions, mediators do not. Therefore mediators can be spoken to privately. Trained mediators know to encourage these priva te communications, as the information gained through them can greatly aid them in reaching acceptable settlements A private agenda for a grudging settlement can be shared with a mediator. The mediator can now understand that impasse should not be lightly declared. The impartiality mentioned above is the same as that you expect from your judges. Mediators should not be partial to any persons or entities, nor should they give the appearance of partiality. Neutrality means that mediators should leave the parties as free as possible to choose their own outcome. Mediators are not authorized to dictate outcomes, and should be cautious in offering their own opinions for how cases might be settled. Experienced attorneys will solicit 53 ARKANSAS LAWYER

FALL 1994

mediator opinions when they respect the mediator, and in a last ditch effort to avoid impasse and frustration of settlement efforts. Of course, the most neutral, impartial mediator will also be a facilitator. The training which court mediators are required to undergo focuses heavily on the facilitation role. Keeping things moving in negotiation, suggesting options and agendas, and articulating possible settlements are among the critical tasks of mediators working for lawyers and the courts. The mediator will make every effort to keep both sides at the bargaining table. Obviously, there can't be a settlement if someone walks out. Mediators exercise varying degrees of restraint about pressing for settlement. Obviously, every mediator is gladdened by settlement. Since we are task oriented and goal oriented, settlement is a payoff for us. The mediator's feelings about settlement and its importance, both objectively to the court system and the parties, and subjectively with reference to the mediator's needs, will cause the mediator's behaviors to vary. Varying these behaviors will result in use of the following styles of mediation, sometimes in combination within one conference or set of conferences: -Orchestration -Hashing -Trashing -Bashing -Third party negotiation -Deal making Deborah M. Kolb reported on selfperceptions of labor mediators in the northeastern United States. She advises some saw themselves as "orchestrators" and others felt they were "deal makers" (The Mediators, MTT Press, I 985). Orchestrators are people who believe it is largely inappropriate for them to suggest outcomes and to press for resolution of a case. Philosophically, they held that it was the process of mediation that brought about settlement. They saw mediators more as guardians of the process than as professionals required to produce a settlement. Deal makers, on the other hand, believed that they were employed because they crafted settlements, sometimes with high pressure techniques. Kolb also reports that some mediators felt that misrepresentation of the evidence held by each party, to the other, in private sessions, was justified if a settlement resulted. Modern standards of conduct don't agree with this position, and certainJy attorney mediators should never 54 ARKANSAS LAWYER

FAll 1994

engage in such fraudulent and deceptive practices. Mediation slang in Florida has come to define three roles for mediators. These words are also descriptive of the processes used by the mediators. A mediator may, in any given conference session, be a hasher, trasher, or basher. Hashers mediate very much as orchestrators by discussing the legal aspects, innuendoes, and potentials of the case, as well as possible effects of the evidence on the decision maker, should settlement efforts fail. The trasher obviously must first hash, but then begin to point out all the things that are wrong with the case, quite directly. Obviously, hashing and trashing are best done in private sessions, in order to keep from alienating the party because of a feeling that the mediator has "taken sides." The basher will hash to get information, trash the case, then use high pressure techniques on attorney and client in an effort to get settlement. Sometimes the pressure comes simply from the force of arguments. Other times, the pressure may be the equivalent of the worst of used car sales techniques! Bashers are closely related to deal makers, although an ethical basher is a possibility! Ethical bashers would refrain from misrepresentations and deceits designed to encourage people to settle. Most experienced mediators confess to doing some bashing when the going gets rough, or settlement is close but the parties are recalcitrant. Attorneys report that the techniques are not offensive or improper. Once lawyers learn the different styles of mediators, a majority of trial lawyers exhibit a preference for a mediator who will aggressively press for resolution of the case, short of deceit and impolite bashing. Perhaps this is because clients are sometimes part of the problem of settlement, and lawyers appreciate having a lawyer mediator come to their aid in helping a client accept an advisable settlement. The process of third party negotiation is unique to mediation. Negotiation can occur on a one to one basis. However, we lawyers are sometimes so successful in impressing our adversaries with our strengths and implacability that we find ourselves unable to negotiate with them. We assume too quickly that the effort would be hopeless. This phenomenon creates a serious problem in mediation. In trials, you litigate. At mediation, you negotiate.

Anything that impedes successful negotiation, impedes mediated settlement. The mediator can act as a third party negotiator when a party doesn't wish to negotiate, the opposing lawyer does not negotiate or can't negotiate effectively, dnt! wh~n p~rbol1d1 connicls have invaded a lawsuit, making it very difficult for parties or their attorneys to talk with each other. Priva te sessions are used in which the parties and their lawyers are isolated, with the mediator shuffling back and forth between attorney-client groups. In third party negotiation, the mediator negotiates in a principled way with each party, towards an acceptable settlement. The practice of third party negotiation is widespread in states using extensive case mediation. Many lawyers report that it is their preferred method of mediation, permitting the mediator to aggressively pursue a settlement that has eluded counsel and their clients. Third party negotiation requires that the mediator be a student of negotiation, and a capable practitioner. Care must be taken not to use negotiation styles or techniques that will be offensive to lawyers and their clients. Obviously, some people are intuitively good mediators, perhaps because they are intuitively good negotia tors. It is fortunate for mediators and attorneys that a fair body of literature is being accumulated both on the theoretical aspects of negotiation, as well as on the practical aspects. My favorite two books on the subject are Gelling To Yes, by Roger Fisher, William Ury, and Bruce Patton, and YOII COlI Negotiate Anything, by Herb Cohen. Lawyers are learning that adaptable mediators, capable of using different styles and techniques, in the structured mediation process, give their clients an opportunity to have strong speaking rules, aid in dealing with difficult adversaries, and assure a thorough negotiation and exploration of settlement opportunities. Mediator style is important. Matching your style, and the needs of your client and case to the mediator chosen are critical items in ensuring success of the mediation process. As orth Carolina's mandated case mediation system matures, you will gain knowledge of mediators, and their styles. Initially, you won't be able to do this, as mediator styles are evolving, and there are too few case events to give you a basis for comparison. But it won't be long before some

]

mediators' records of settlement begin to be discussed, and you find some rising towards the eighty and ninety percentiles, and others slipping below sixty per cent. Personal style will be a way of explaining the differences among the mediators, and the differing perceptions and appreciations of lawyers for the mediators serving their clients. In the early 1970s, the indexes in law libraries didn't include the word "mediation", unless one searched first under "labor". By the end of the '90s, mediation will probably be the device used to resolve most clients' contested cases. In Florida, current estimates suggest that ninety-eight percent of all cases are being disposed of with methods other than adjudication or trial. Obviously, some cases simply go away. Others are resolved by motions for summary judgment, or other dispositive judicial actions. Very few others are resolved by juries, when compared to the entire population of cases. Informal estimates of attorneys suggest that fewer than five per cent of their cases are being disposed of in hearings or trials. Our company's records indicate that fewer than ten percent of the cases we mediate travel on to trial. In mediating cases in many states, I can't say that I notice significant local differences in lawyers. In states where the mediation process is new, lawyers can be suspicious of it, just as they are a few hours later amazed at how effective the process is in settling the "case that couldn't be settled!" The process seems to work to the benefit of lawyers and clients, wherever located. Lawyer-mediators and trial lawyers representing their clients become a team dedicated to, and powerfully equipped to resolve client's disputes, And to do so in ways clients truly appreciate! Lawyers make top mediators, Training followed by experience in mediating is the key to becoming a respected mediator. Training is also appropriate for lawyers who will be representing clients in mediation. Since more than seventy percent - perhaps as high as 98% - of your cases will be resolved in mediation, shouldn't you know at least as much about mediation as you do litigation?

David U. Strawn is the President of Dispute Mmlagemenf Inc., in Orlando, Florida.

G.A. Tomlinson P.E. 8425 So. 73rd East Ave. Tulsa, OK 74133 (918) 252·1905 80m 2-12-24, Amarillo. Texas; U.S. Navy. 1943·1946; Oklahoma

Stace Universily, 1946-1949, 8.S. Mech. Engineering: Unit Rig "Equipment Co.. Tulsa, 1949·1982; Responsible for all engineering functions 19S1·I97S; Formed Company for Unit Rig In Brazil 1976: General Manager. Canadian Oper. alionJ, 1m; In charge of Unit Rig Product Lili.ation 19n-I982.

EXPERT WITNESS

GRADUATE MECHANICAL ENGINEER 32 yen experience In design, teslinO, ma-w.lf~. supervlsion and oper8tion of equipment. AI80 elltef\aiYe executive experience. Qualified as ..... 8xper11n many

fieIdo._'

• ForilJ;ft & Hoists ·~~Ecp.

• ConAruction EWneni

• Truc:ka of all types • Heavy Vflhldes • Aiftine Ground HandIng

E_ ··M_..........., """'"" • Bedric VeNcIes

9 YEARS COURmQOM EXPERIENCE

MORTGAGES PURCHASED NATIONWIDE

Now you can advise your clients of a cash buyer for mortgages. We purchase Seller Financed Notes, Mortgages, Deeds of Trust, and Contracts for Deed-Nationwide. First, Second, Wrap-Around, or AIDT. Residential, Rural, Industrial, or Commercial, Recreation, Retirement, Resort, Lottery or Annuities. If your client elected to provide seller financing of any kind, we would like to provide a free quotation. We will pay a referral fee.

R.S. ZILM MORTGAGE INVESTMENTS

918/745-9199 FAX 918/747-2747 ECONOMIC and VOCATIONAL STUDIES Economic Analysis for Personal Injury, Environmental Resources, Business Valuation, and Healthcare Planning Lost Profits. Lifetime Cost of Care Medical Records Review Wrongful Termination. Lost Earnings Vocational Assessments

• Ronald T. Luke, J.D., Ph.D.• Research & Planning Consultants, Inc. 1- (800) 580-4567 55 ARKANSAS lAWYER

FALL 1994

eey,

o eo ome

By Gregory E. Padgham

C. A Survey of Some Areas of Russian Law (1) Commercial Law and the Courts. At this writing, there is no comprehensive commercial code in Russia, though ther is pressure to draft one_ In f<lrt, the term "commercial law" until recently, was not even used in Russian law school classes. The legislation which could be considered to be "commercial law" is embodied in the Civil Code of the Russian Federation" and the Founding Principles ("Osnovi") of the Civil Legislation of the Russian Federation? A number of specific sections are of special importance to the corporate practice_8-12 Thp<;(' laws apply to all companies and legal entities, state and private, domestic and foreign and can be said to govern all commercial transactions within the territory of the Russian Federation. Additional special legislation exists which is applicable to companies with state ownership. The Russian civil law does provide at least a framework for the courts to follow in determining the rights and obligations of parties to commercial transactions. Further, the Russian ci,-i1 courts and arbitration courts traditionally have been considered competent in matters concerning commercial transactions. As a consequence, both the ci"i1 courts and the courts of arbitration have jurisdiction over disputes which are commercial in nature and provide for an appeal process to a higher court of competent jurisdiction. Choice of forum, choice of law and governing language clauses are common in contracts involving a Russian and an American party. As in the United States, factors such as convenience and cost are considerations of both sides. American clients are generally wary of the Russian courts and Russian law, while the Russian pJrty is sometimes equally reluctant to

56 ARKANSAS LAWYER

FALL 1994

commit itself to resolution of a dispute governed by foreign laws and in a forum other than Russia. It becomes the task of the corporate lawyer in such a circumstance to facilitate the transaction while advising of and minimizing the risks to the client. Without an arbitration or other choice of forum clause, or a later mutual agreement to arbitrate, a dispute must be settled in a general civil court according to specific rules of procedure. The fee for applying to a civil court is extremely high-15~ of the amount in controversy-and is returned, with nominal interest, to the prevailing party only at the end of the litigation. 13 The parties may elect to insert an arbitration clause in their agreement providing for consideration of the dispute by a neutral third party and, absent a satisfactory re ..olution, a hearing before a court of arbitration within the Russian Federation. Depending on the situation, in a contract involving a moderate sum of money and where the Russian party is wholly uncomfortable with a non-Russian forum, it is sometimes advisable to provide for arbitration in Russia. Probably the most reliable and experienced of such tribunals is the Court of Arbitration of the Russi,," Fpdpr"tion under the Moscow Chamber of Commerce. Though the procedure is no less time consuming.. the application fee is a small fraction of that required for application to a regular civil court. Contracts involving a large sum of money or investment should almost always provide for dispute resolution in an international court of arbitration. The Arbitration Institute of Stockholm Chamber of Commprce is the most common international forum for contracts between Ru sian and foreign parties, in large part because of its proximity to Russia and its experience in dealing with disputes involving Russian trade. In a contract involVing Russian and American parties, the procedures for international arbitration must be carefully drafted in the contract or agreement and provide a specific mechanism which mu..' be followed to avoid confusion later. In some ways the Russian court system is similar to our own. There are backlogs and delays and it helps to know the clerk. In addition, the level of professionalism of judges and attorneys varies greatly. However, at times the system can be very efficient. On one occasion while representing an American client, we were required to apply for enforcement of a foreign arbitration judgment to a regional level civil court in the Russian Far East (9 time zones from Moscow). We were surprised to receive a response from the court by mail within 10 days acknowledging receipt of our application. Maybe praise for the quick response should go equally to the Russian mail system. It took several more months to receive

a decision from the court. Enforcement of judgments, especially locating property to attach, can pose a special problem in Russia. Entities dissolve and ownership of property can be difficult or impossible to trace, especially in lieu of privatization of former state enterprises. In addition, the Russian courts generally lack a practical method of enforcins; a writ of execution. In theory, after a judgment is handed down, or recognized in the case of a foreign judgment, a law enforcement officer directs the losing party to transfer voluntarily within five days any property attached for satisfaction of the judgment. Refusal to do so results in seizure of the property and transfer to the judgment creditor. However, even if property is located, the seizure of property for purposes of satisfying a valid judgment is problematic - even Russians have little faith in the system. For example, we once approached one of the largest and most reliable Russian commercial banks regarding financing for one of our American clients. In listing collateral, we included property, the value of which represented a substantial portion of the proposed loan and which was under tight security in a Moscow warehouse. The president of the bank told us point blank that, though the bank would consider other collateral, including property located in America, the warehoused inventory was practically of no consequence because the Russian court and legal systems are ill equipped to collect in the event of a default. r>ec.pite the complications and uncertainties voiced by this bank it is possible to collateralize a loan with property located in Russia. A number of international and domestic programs and treaties have been created and signed with the aim of promoting business and protecting creditors. With the creation of these mechanisms, and as the prospects for doing business in Russia have grown. some Russian and Westprn bank.. have displayed a willingness to finance projects under certain terms. (2) Real Estate. One of the most frequent questions from the corporate client is whether it is possible to buy or lease real estate for office, manufacturing or liVing space in Moscow, and if so, what are the terms. As with everything in Russia there is both theory and practice. The genera) rules for a lease are determined by civil legislation. Leases may be short term (up to 5 years) and long term (5 to 50 years) and both foreign companies and individuals may lease land and existing facilities. The terms and conditions of the lease are established between the owner of the building and the lessee. Specifically. if the title holder to the real estate is a Russian individu<ll or company or a company with joint foreign and Russian ownership, all terms and conditions are established by mutual agreement between the lessor and the lessee. 14 If the State owns the real estate, foreign individuals or companies and companies with joint Russian and foreign ownership may lease space pursuant to the decision of the corresponding Committee of

Property. 15

In Moscow foreign individuals and companies may participate in auctions and bids for the lease of real estate. including land separately or with buildings, or for the sale of buildings only. 16 Foreign individuals and companies may buy land only through the privatization process and then only the land adjacent to, and on which, the privatized enterprise sits. 17 The formation of a jointly owned foreign and Russian legal entity, either a joint-stock company or partnership with limited liability, provides the Russian participation required by law to allow the foreign investor, through its shares in the jointly owned company. to procure an ownership interest in land not connected to a privatized enterprise. Subject to zoning and certain other restrictions, the jointly owned company may then develop the land as it chooses. In most other instances the foreign individual or company may lease both buildings and land without Russian participation. Or so it is written. From a practical standpoint it is difficult for a foreign company to gain access to a choice piece of property without the participation of a Russian party unless the foreign company is very large or has access to skilled negotiators. Intense competition, corrupt officials, organized crime and the general economic situation in Russia has created a difficult environment for the real estate market. Participation with a Russian party may take a variety of forms路 from a company with joint foreign and Russian ownership, to an agreement of "mutual cooperation" between separate Russian and foreign companies with a corresponding lease. A common situation involves a large formerly state路owned enterprise, very often in the field of construction, or a large public organization with little income but a good deal of unused space which it is willing to lease to a foreigner. Ln addition, in Moscow the amount of rent and land tax depends on how the land or premises will be acquired. One way is to simply lease the property from a Russian private entity and let that entity worry about real estate taxes. On the other hand, if the foreigner forms a jointly owned company with a Russian partner that has title to land or premises, and that can provide the land or premises as a capital contribution, at least a portion of the annual land tax and rent will be much lower than the situation where it is necessary to lease the real estate from the government. For example, a 100% Russian owned company having its own land might pay no more than the ruble equi\'alent of $700 per hectare (2.471 acres) per year in property taxes for land near the Kremlin. A foreign company leasing a simiJar piece of land directly from the State Committee of Property or the Moscow city government might be expected to pay up to a half milHon dollars in annual land tax and the company does not ever own the property. If a company is a Russian legal entity with a portion of foreign investment the foreign investor is subject to paying the land tax at a higher rate according to the percentage of

ownership it has in the entity.18 Fortunately, in nearly every situation the rate of tax and any corresponding tax holidays are subject to negotiation, depending on the amount and nature of foreign investment. (3) Business Organization-Choice of Entity. I recall an American client who several years ago hired a large international law firm to incorporate a foreign owned Russian company for him in Moscow. The process took many months and ended up costing $16,000. Registering a Russian company today has been simplified but it is still conSiderably more complex than drafting a set of Articles of Incorporation and dropping them off at the Secretary of State's office. It can take up to two or three months and requires the submission of a multitude of documents to various government offices, including the police and the tax authorities, and involves at least two waiting periods. As in most socialist countries, the first allowable form of foreign investment in the Soviet Union was the joint venture, a peculiar form of business entity similar to a joint stock company with limited liability with special tax and other privileges. The first western style hotels, supermarkets and clothing stores which appeared in Moscow were by necessity all joint ventures. As other forms of business entity have been recognized, the tax and other advantages formerly afforded to the joint venture have gradually been eroded until today it stands in no different a F:'ition than any other form of business entity. 9 In fact, Russian legislation now suggests two main types of business organization: the joint stock company and the partnership with limited liability. The two entities are very similar and both may have any percentage of foreign ownership. The founders and owners may be individuals, companies, governments or combinations thereof. 20 A common practice for Americans is to form a separate Russian joint~stock company with 100% American ownership and, through this company, conduct only those day-to-day operations necessary on the territory of Russia. This arrangement is especially useful for the company interested in a long~term presence in Russia and can have certain tax benefits. It can also simplify many aspects of doing business in Russia, despite the fact that it involves maintaining a Russian bank account and employing a Russian accountant. There are other options which exist, depending on the type and extent of activity of the American client in Russia. For example, a foreign company can have a representative office or an affiliate but the procedures for registration can be even more time consuming and can place restrictions on the company's activities in Russia. (4) Taxation. The rates and types of taxation in Russia are in a constant state of flux. An economic depression, a revenue starved government, widespread tax fraud and disputes in the government regarding fundamental economic policy have created a long sequence of confusing changes in this area of Russian law. In America much debate occurs

before formal changes are made in the income tax system and the majority of persons know beforehand what they can expect. In Russia this is not always the case. For example, recent changes dictated that all companies pay an income tax of 35% of net income-with 13% going to the federal budget and 22% going to the local budget of the area where the company is doing business. 21 However, local governmental entities, such as the Moscow city government, were given the right to raise their own tax rates above the existing 22%. Moscow wasted no time in doing this and promptly raised the rate going to its local budget to 25%, bringing the total income tax rate to 38% for companies operating in Moscow's jurisdiction. 22 The change made by Moscow was made quickly and many companies did not learn of it until it had already come into effect. Ln addition, there are numerous other taxes that can be imposed on certain transactions and activities at a moment's notice. Examples are Moscow's new 3% "special tax" on loans, which is tied into the already existing 20% federal sales tax, 23 or the new customs duties. 24 (5) Banks and Banking. With the implementation of some of the basic principles of a capitalist economy the Russian banking industry has undergone profound changes in a relatively short period of time. Literally hundreds of commercial banks have been created since the breakup of the Soviet Union, a few of them providing a range and quality of services commensurate with their Western counterparts. In addition, because of its late entry onto the world banking scene, the Russian banking industry is being developed with the latest innovations as companies from around the world scurry to supply Russia with modern banking technologies and systems. There are, of course, many problems. A vast number of restrictions and reporting requirements Significantly slow transactions and add to the cost of doing business. Many Russian banks are simply inexperienced in dealing with international transactions. Even those foreign companies that do not have a direct presence in Russia, but which are dealing with Russian parties, can be affected by the shortcomings of the Russian banking system. A common example is that where an American supplier of goods ends up waiting days or even weeks for an international wire transfer because the Russian party transacts through one of the smaller commercial banks. In addition, any transaction involving the conversion of a substantial sum of money from one currency to another is potentially subject to delays. The best bet is to deal with one of the larger, more experienced banks. (6) Privatization. My own experience with privatization is rather personal. tn December of 1992, I represented an American client in the check auction of the second major Russian enterprise to be privatized in Moscow. 25 Several weeks later J was elected in the company's first general shareholders meeting (presided over by a Russian Orthodox priest in full robe) as the only foreigner to serve on the

57 ARKANSAS LAWYER

FALL 1994

Board of Directors. This has afforded me an opportunity to see some of the problems associated with this aspect of foreign investment in Russia. Though a comprehensive treatment of privatization is clearly beyond the scope of thjs article, a few comments can be made. The basic procedures for privatization as sct out in legislation are relatively straight forward. The general rule is that a foreign individual or company, including a Russian company with 100% foreign ownership can buy into a Russian enterprise through the privatization process. Under the three schemes of privatization authorized capital can be registered under categories of voting and nonvoting, preferred and ordinary shares with varying amounts of each being subject to purchase by outside investors. 26 Last year I spoke with an American who described the privatization process in Russia as the "biggest fire sale in history." To a large extent this is true. However, most Russian enterprises suffer from outdated and poorly maintained equipment and the enterprises often produce products of tittle or no value on lhe world market. Russian enterprises are therefore understandably eager for foreign investment in every form, from contributions of cash and equipment to technical training of employees. Though there are numerous exceptions, and some may be considered jewels of Russian industry, the vast majority of enterprises are extremely inefficient and outdated and have no Western style accounting sy:;tem ur business plan in place. For example, one recently privatized Moscow enterprise, now proudly referred to as a "joint-stock company," is more fortunate than most in that it is of medium size and engaged in an activity for which there is great demand. The leadership of the new joint-stock company is energetic and business-minded and dissent among the stockholders regarding payment of dividends, capital investment and the course of the company is minimal. There has been a small amount of foreign investment, as well as some fairly significant investment in new European equipment and training by some of the Russian stockholders. But the overall condition of the equipment and premises, though superior to most Russian operations of a similar nature, is decidedly outdated and substandard to that in th~ W~l. The company does not have a Western style accounting system or a formal business plan necessary to attract the attention of a Western bank and high interest rates make loans from Russian banks unattractive. This company will probably survive and even become profitable but not without a substantial and long term investment in time effort and capital by the shareholders. V. Conclusion The "great experiment," as J sometimes refer to Russian communism, was the culmination of various 19th century European political and philosophical ideas and theories implemented in a huge agrarian backwater of an empire with its own unique circumstances and at a unique time in history. The czarist

58 ARKANSAS LAWYER

FALL 1994

regime was an anachronism of an unconscionably repressive and reactionary nature and it seems almost natural that such an extreme system would itself be replaced by extremists, namely the Bolsheviks. Despite this, at the time of the 1917 Revolution the Russian Empire though behind its European and American counterparts, had embarked soundly on the course of capitalism. The roots for a free market do exist. Today the opportunities for American companies in Russia are enormous. But doi-ng business successfully in Russia takes patience, the ability to take some knocks and a longterm commitment of time and money. Regardless of the obvious challenges, busi.ness continues to grow and diversify in Russia, and so dOM the need for the corporate practitioner who can operate in such a complex environment while providing quality legal services aimed at minimizing the risks to his or her clients. Integration into the world economy is critical to the survival of any country. Despite the rhetoric of some groups Russia cannot go back to ommunism. It doesn't have that luxury. This reaJi7.f1tion is best summed up by the words of the General Director of one of Moscow's privatized enterprises. On the eve of the public check auction for shares in the enterprise aU five hundred of its workers were herded into the company's large communal meeting hall. On either side of the raised stage at the front of the room were large oil portraits of Karl Marx and Vladimir lIyich Lenin. Under the stem gazes of these f"thp"" of Socialism the General Director addressed the crowd of humble Russian workers, many of them nervously twisting their caps in their hands. "We have tried Communism but it did not work. The State can no longer own everything but someone has to own it. That someone is you." Gregory E. Padgham is all associate ;'1 tile Uttle Rock law firm of Cnt/elt & Ynnay, w}u'rp /tis practice focuses on advising American corporate cliellts doing business in the former Soviet Union. The firm cllrret/t/y consists of five Americnn and two Russian attomeys. T/lree nttomeys are 011 a permane1l1 basis in Moscow and one works primarily in Little Rock. Three of the firm's attorneys travel back and forth between tile Moscow and Li/tle Rock offices. Special recognition goes 10 Evgue"y Boureiko a"d Nntnliya Priezjaya of O,e Moscow office of Catlett & Yancey for tlleir valuable contriblltioll in ti,e preparation ofUlis article. [Part I was published in the Summer 1994 Arkansas UlwyerJ ENDNOTES

1 This situation has changed much over the last several years as Russians have gained experience working under capitalism and with Western companies. Today many Russians, especially those of the younger generation, are creative and energetic in the work place and have become sophisticated members of the work force. Many of them have developed impressive resumes. 2 I want to stress that today the custom of trading endless letters of intention is by and

la.rge the exception rather than the rule. Many Russian companies are experienced in dealing with foreign business partners and foreign transactions and are prepared to begin concrete negotiations immediately upon a first meeting. However, many state owned and privatized enterprises are headed by oldfashioned management which still insists on doing business according to Soviet customs. 3 See generally 15 USC Sec. 778 dd, wmch prohibits an American company or its officers, agents or employees from giving a foreign official anything of value for purposes of influencing any act or decision of that official in his official capacity. 4 Decision of the Government of the Russian Federation No. 196 of March 10, 1994. Concerning Approving the Rates of Import Customs Duties, Collected Decisions of the President and the Government of the Russian Federation, No. 11, Art. 863 (1994). 5 Decision of the Moscow Government, No. 184, Concerning the Order of Foundation, Registration. Records and Control of Enterprises with Foreign Investments Using Municipal Property, Vestnik of the Office of Mayor. No. 10 (1992); Order of the Moscow Registration Chamber of February 12, 1993, Concerning Conducting Re-Registration of Enterprises with Foreign Investments Based in Moscow. 6 Order of the State Customs Committee of May 20, 1993, Concerning the State Registration of Enterprises with Foreign Investments. 7 See generally GK RSFSR (1990) and Ved. Verkh. Sov. SSSR No. 26, Art. 733 (1991). 8 Concerning Property in the Russian Federation, Ved. Verkh. Sov. SSSR No. 30, Art. 416 (1990). 9 Concerning Enterprises and Entrepreneurship in the Russian Federation. Ved. Verkh. Sov. SSSR No. 30, Art. 418 (1990). 10 Concerning Foreign Investments in the Russian Federation. Ved. Verkh. Sov. SSSR No. 29, Art. 1008 (1991).

11 Concerning the Founding Principles of Investment Activity in the Russian Federation, Ved. Verkh. Sov. SSSR No. 29, Art. 1005 (1991).

12 Concerning Currency Regulation and Currency Control in the Russian Federation", Ved. Verkh. RF No. 45. Art. 2542 (1992). 13 Concerning State Fees. Art. 3, Sec. A, Ve<!. Verkh. RF No. 11. Art. 521 (1992) 14 See generally GK RSFSR (1990) and Ved. Verkh. SOy. SSSR No. 26, Art. 733 (1991);

Founding Principles of Leasing, Ved. Verkh. Sov. SSSR No. 25, Art. 48 (1989).

15 Decree of the State Committee of Property o. 217 of February 5, 1993 Concerning Regulation of the Process of the Records and Division of the Rights of Property for Uninhahitable Premises: Founding Principles of Leasing, Ved. Verkh. Sov. SSSR No. 25, Arts. 7, 48 (1989); See generally v 6 Program of Privatization (1993). 16 Decree of the Moscow Government No. 860 of September 9, 1993, Concerning the Order for Management of Real Estate, 11-12 Nalogi (1993).

Catlett & Yancey Continued on Page 65

GIves Meaning to the Numbers

Attorneys know the law, accountants know their numbers, and when a case in litigation involves complex accounting, tax and financial issues, you bring in a CPA to "make sense of the numbers:' That's where BKD can help your case. 'lake a recent business dissolution case, for example. We objectively determined the value of the business in question, then testified about the tax consequences, the company's fair value and the independence of the parties involved. Call us for more information about how our tax and financial expertise can help your case in business splits, business continuations or structuring noncompete agreements.

Little Rock

521路5650

372-1040

Fort Smith

Pine Bluff

452路1040

534-9172

LAW

OFFICE

TECHNOLOGY

COLUMN

Newest Entry in CD-ROM Legal Research By Stan Rauls

By the time this article is published, every lawyer in this state is likely to have heard about the newest entry in th~ Arkansas CDROM legal research war. LOIS (Law Office Information Systems, Inc.) now produces a CD-ROM containing the Arkansas Code and appellate cases which employs a retrieval system called PITA. The name or technology may not currently be of much interest to most lawyers in this state, but the features of the product and the method by which it is being introduced to the market is likely to have a significant impact on legal research in Arkansas. LOIS has produced a computer research system wltich is easy to use and understand. The program guides the lawyer through research in a manner which closely simulates procedures employed for manual research. Help is always one keystroke away (Fl), and the program

cost to be paid as is presently the case with competing products. The question is not, "why try it," but, rather, "why not?" In fact, the offer is so attractive, it almost invites skepticism. The disk contains the Arkansas Code, appellate opinions and headnotes from 1925 (official version), rules (criminal procedure, civil procedure, evidence, appellate proced ure, Supreme Court, inferior courts, CLE, professional conduct, judicial conduct, unauthorized practice of law, federal district court, bankruptcy court, eighth circuit and bar admission), Acts (1993 and 1994) and judicial ethics opinions. Information may be retrieved through global word searches or in any manner conceivably needed by

contains it:, uwn manual on disk

an attorney. e.g. Act number/year,

which may be searched using the computer. An additional security blanket might be found in the name and appearance of the program's internal word processor, the Yellow Pad. Attorneys who have

date of signing, party name, rule, citation, docket number, appellate court, year of opinion, headnote, trial court/judge, altorney on appeal, appellate justice, dissent, supplement, constitution (state and federal), code number/heading, code history, A.S.A. cross reference or judicial ethics opinion number/date. The program may be used with a mouse, keyboard or both. Any or all of the data bases may be searched simultaneously, e.g. one may research both the Arkansas Code and the cases at the same time. When

become accustomed to

Case Base

West's Arkansas Cases might wonder what a new product has to offer and why they should review it. This article is intended to give a brief overview of the features provided. As for a reason to try the prod uct, one factor seems overwhelming. LOIS is 60 ARKANSAS LAWYER

FALL 1994

making a compact disk available to any lawyer for review with no obligation. If the lawyer wi hes to subscribe, there is no initial fcc or

reading a case, a lawyer may instantly skip over to any referenced Arkansas citation to read the case or statute and easily return to the citing case. One needs to review the program to fully appreciate this feature as well as others incorporated in the program. If an analogy to manual research is fair, picture silting at a table reading, for example, a case in volume 303 of the Arkansas Reports. You see a statute cited and you want to retrieve the appropriate Code volume and lay it on top of or near the case book while you read the statute. When finished, you put the Code volume aside and return to reading the case. With LOIS, you may do the same thing - only faster. One need only double-click on an Arkansas cite within an opinion (or use the keyboard if no mouse is connected) to bring up the statute or case cited. The program "lays" the new volume on top of the other, "opened" to the cited case or statute. The lawyer is free to read that cite only, the entire volume or any other citation contained therein. One may wander as fa r as the memory of the computer permits before pressing the escape key (as many times as the number of new "volumes" which were "laid" on top) to return to the original case. Footnotes, too, may be viewed in the same manner, making them easier to read using a computer screen.

The program contains its own wunJ processor called, appropriately,

YellowPad. Although one might not care much for its yellow appearance on a color monitor, it is somewhat appropriate for legal research notes. Using the Yellow Pad, one may copy cases or portions into the word processor for export to their own word processing program or for finalizing a brief. Though not as fancy as most word processing packages in use by attorneys, it is a fully functional word processor. It automatically turns on a timer for allocation of time where desired, and several pads may be used at a time depending, again, on the memory constraints of the computer in use. For those concerned about getting case updates only on a quarterly basis, the program contains what is called the N-Line service. With a modem connected to the computer, Subscribers may update their library as frequently as desired. The computer will, on command, call LOIS to supplement the information on a lawyer's computer with the most recent information available. To access the information obtained from the N-Line service, the

subscriber's computer must have a label on the hard drive(s). Adding a label to a disk which has been previously formatted is a relatively simple procedure, but those who don't know what this means should ask for technical support from LOIS before making adjustments to the computer. Although the program will operate with other equipment, LOIS recommends the product for use on a computer with an 80386 or faster microprocessor, four megabytes (4Mb) of extended or expanded memory, an MPC Level 2 compatible CD-ROM drive, color monitor, mouse, a Hayes compatible modem (9600 baud or higher) and ten megabytes (10Mb) of free hard drive space. The system has features too numerous to mention within the confines of this article. As with any computer program, a "hands-on" review is preferable to a written description. Excerpts from the main screen display and pull-down menus from the system are printed below. More information may be obtained from LOIS by calling (800) 232-0085.

LANDTECH86 Real Estate Settlement System For Laser or Matrix Printers • HUD 1 Automatic Calculations • Checks & Escrow Accounting • Word Processor - Spell Check Policies & Commitments Deeds & Mortgages • Data Base Reporting (SQL) • On Site Training Available

LANDTECH

Federation, o. I, Art. 5 (1994). 24 Decision of the Government of the Russian Federation o. 196 of March 10, 1994, Concerning Approving the Rates of Import Customs Duties, Collected Decisions of the President and the Government of the Russian

Federation, No. II, Art. 863 (1994).

$1,495.00 CORPORATION

Catlett &: Yancey Continued From Page 62 17 See generally Concerning Privatization in the Russian Federation, Ved. Verkh. Sov. SSSR 0.27, Art. 927 (1991); Decree of the President No. 30t of March 25, 1992, Concerning the Sale of Land to Physical and Juridical Persons During the Privatization of State and Municipal Enterprises, Ved. Verkh. RF 1'0. 14, Art. 761 (1992); The Order of the Sale of Land to Physical and Juridical Persons During the Privatization of State and Municipal Enterpri.5elo, Ved. Verkh. RF No. 25, Art 1427 (1992); The State Program of Privatization, Collected Decisions of the President and the Government of the Russian Federation, No.1 Art. 2 (1994). 18 Decision of the Lower House of the Moscow City So\·iet of june 28. 1993. Statute Concerning 'Rates of Land Tax and Bases of the Annual Rent or Pavment for the Temporary Usc of Land lotS in the Zones of the City, 1 Ekonomika i Zhizn (1993). 19 Concerning the Founding Principles of Investment Ach\"ity in the Russian Federation, Ved. Verkh. Sov. SSSR No. 29, Art. 1005 (1991), Concerning Foreign Investments in the Russian Federation, Ved, Verkh. So\'. SSSR No. 29, Art. 1008 (1991). Enterprises and 20 Concerning Entrepreneurship in the Russian Federation, Ved. Verkh. Sov. SSSR No. 30, Art. 418 (1990); Statute Concerning joint Stock Companies, Collection of the Decisions of the Government of the Russian Federation, No.6, Art. 92 (1991). 21 Decree of the President of the Russian Federation 0.2270 of December 22, 1993, Concerning Some Changes in Taxation and Mutual Relation of Budgets of Different Levels, Collection of Decisions of the President and the Government of the Russian Federation, No.1, Art. 5 (1994). 22 Decision of the Moscow City Duma of March 2, 1994, Vestnik of the Office of Mayor, (1994). 23 Decree of the President of the Russian Federation, No. 2270 of December 22, 1993, Concerning Some Changes in Taxation and Mutual Relation of Budgets of Different Levels, Collection of Decisions of the President and the Govemment of the Russian

(407) 833-0454

303 Guaranty Building. 120 South Olive Avenue. West Palm Beach, FL 33401

25 A check auction is one form of privatization whereby state issued privatization vouchers (with a face value of 10,000 rubles) are exchanged for shares in an enterprise in an auction environment. 26 See generaUy, Concerning Privatization in the Russian Federation, Ved. Verkh. Sov SSSR o. 27, Art. 927 (1991); Decree of the President No. 301 of March 25, 1992, Concerning the Sale of Land to PhYSical and juridical Persons During the Privatization of State and Municipal Enterprises, Ve<!. Verkh. RF No. 14, Art. 761 (1992); The Order of the Sale of Land to Physical and Juridical Persons During the Privatization of State and Municipal Enterprises, Ved. Verkh. RF o. 25, Art. 1427 (1992); The State Program of Privatization, Collected Decisions of the President and the Government of the Russian Federation, No.1 Art, 2 (1994). 61 ARKANSAS LAWYER

FALL 1994

Arkansas School of law. He was a member of Club 99, Rotary Club of Rotary

EDWIN JACKSON Edwin Franklin Jackson, of Little Rock died in July at the age of 67. He was a World War II veteran, a former state representative from Benton County, a

partner in the Mitchell Law Firm, a board director for the Arkansas Territorial Restoration Foundation, a member of the

American Bar Association and served on the Des Moines Science Center Board. He is survived by his wife, Denise Patton Jackson; his mother, Fay Darbo; four daughters, Courtenay Steele Jackson, Cynthia Wilson Jackson, Lisa Bianco, and Leslie Hiscocks; a stepbrother, John R. (Skip) Gregory; and a grandson.

International, American Bar Association, Arkansas Bar Association and Pulaski

County Bar Association. He was a partner of the Pope Law Firm for over 30 years. He is survived by his wife, Dorothy Lybrand Buffalo; two daughters, Becke Buffalo and Elizabeth A. Buffalo; two son., Joe L. Buffalo III and John B. Buffalo; father and mother, Edward Joseph Lemont and Lydia Maude Buffalo; two brothers, Doug Buffalo and Bull Buffalo; and a sister, Barbra Almond.

MABEL FARMER MAHONY

Edward Joseph Lemont Buffalo, Jr., of Little Rock died in July at the age of 58.

Mabel Farmer Mahony, of EI Dorado, died in JuIy. She moved to EI Dorado in the 19305 and studied law alongside her husband, Emon Armstrong Mahony. She raised three sons, Joseph "Jodie" Kirby Mahony II, Emon Armstrong Mahony Jr. and Michael Mahony, who all

He graduated from the University of

becamf> attornf>ys.

EDWARD JOSEPH LEMONT BUFFALO JR.

JAMES HARROD BERRY, SR. James Harrod Berry, Sr. of North Little Rock died in July at the age of 76. He graduated from the UALR School of Law and has been a member of the Arkansas Bar Association since 1941. He had a private practice since 1947. He is survived by his wife, Betty Teague BerrYi a son, James Harrod Berry, Jr.i three grandchildren and two brothers.

BILLY GE E STOCKTO Billy Gene "Bill" Stockton, of Paris, died in July at the age of 45. He was a member of the Arkansas Bar A::.::.ociation and Arkansas Trial Lawyers Association. He is survived by his wife, Sharon; a daughter, Jessica Stockton; a stepdaughter. Sloan Beverburg; a son, Brandon; his father. Byrd Deerinwater; and a brother, David Deerinwater.

,I ,I

$ ~C!O

b â&#x20AC;˘ IF I

PosterPrinter"Plus by VARITRONICS

Create your own Exhibits In-House! For More Information, Please Call:

Brett Stewart 377-2753 or 1-800-829-2679 62

ARKANSAS LAWYER

FALL 1994

Loss control is anything but aquick study, The less you know, the more vulnel'1lble you are,

So when it comes to help, you want an insurer that gives you the whole story, â&#x20AC;˘ That's why, at CNA, we offer comprehensive loss control seminars to help you control your exposures, We know the risks you face, which means we can help you reduce them, And should aclaim ever occur, we'll provide you with a defense team that underst>nds your pl'1lctice, â&#x20AC;˘ The happy ending' Attend our seminars, and your finn can earn a premium credit of up to 7.5 percent for three years, Not to mention any applicable CLE credits, For loss control expertise you won't find in any book, call your independent agent or broker,

C'NA

For All the CommJtment8 You Make-

r-~ ~

Rebsamen Insurance

POBox 3398 1500 Riverfront Drive Ultle Rock,Mansas 72203-3398 501.&>+8791

The Arkansas Bar AsSOCtal101l sponsored professlOMl liability Insurance progtam l$ underwritten by Continental casualty Company. one altha CNA Insurance CompamesICNA ~azaIChlcago. IIhnotS 60685 CNA II a'~ sorvte::C tnart< 01 /tie CNA" 'IlIflC al COI'pol'alJOfl

THE ARKANSAS LEGAL DIRECTORY "YOUR BLUE BOOK OF ATTORNEYS SINCE 1935"

SPECIAL FEATURES • A handy guide to county, state and federal offices including departments of U.S. and Arkansas state government. • A complete digest of courts containing terms, rules and juri diction of federal, tate and local courts wit h names, addresses and telephone numbers of court personnel. • Acomplete roster of attorneys and law firms in Arkansas with addresses and telephone numbers listed b)' counl)·/city and alphabetically statewide.

Official Directory • Professional associations including officer, committees and sections of the Arkansas Bar Association.

o/the Arkansas Bar Association

• Professional and biographical data of some of the law firms and individual practitioners in Arkansas. PLEASE CALL OR WRITE FOR ADVERTISING OR BIOGRAPHICAL CARD RATE INFORMATION

Order as many copies as you need today! $38.00' plus $3.92 for postage and handling, $2.09 for sales tax, totaling $44.01. Check must Accompany order. ·Pnce subject to change WIthout notice.

LEGAL DIRECTORIES PUBLISHI 91 1 1 Garland Road Facsimile (214) 324-9414

•

P.O. Box 189000

G CaMPA •

Toll Free (800) 447-5375

Y, I

Dallas, Texas 75218-9000 Telephone (214)H 1- )2)8