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Letter From The Editor




The Commercial That Sells

400 \VI. Markham linle Rock, Arkansas 71201

By Stacey DeWiTt

Arkal1sas Bar Association



Sara Landis OFFICERS President Carolyn Witherspoon President-Elect Harry Truman Moore Immediate Past President Robert L. Jones III Secretary -Treasurer Frank B. Sewall Executive Council Chair Sandra Cherry Young Lawyers' Section Chair Stuart Miller Executive Director William A. Martin Assistant Executive Director Judith Gray EXECUTIVE COU CIl Teresa M. Wineland A. Glenn Vasser R. Scott Morgan Don Hollinw;:worth Charles L. Carpenter, Jr. Stanley D. Rauls Charles L. Harwell Robert R. Estes Louis B. Jones, Jr. Donald P. Raney Mike Everett MIchael E. Irwin David K. Harp Mark Cambiano Lynn Williams

Thr Arkansas LaWVt'f' (L'SPS 546-{).W) ~ publi~hed quarter1\" by the Aritans.b Bar Association Second eWe; postage paid at Little Roclr... Ark.uls<b POSTMASTER: send address changes ttl l1u Ar,l:l;Ir,sas Lawyrr. -tOO \"'-e;1 Markham. Little Rl"lCk. Arkansas 72201, Subscnption price to nO.Nnembers of tIw Arkansas Bar Associahon $15.00 per year and to member.. 10.00 peT ,ear included in annual dues. Any opmlOn ell;pressed hen'''' is thai of the author. and not necessanly that of the Bar Association or n,t! Arkansas Lawyer. Contributions to n'l! Arkf.lllsas Lawyer are welcome and should be sent in two copies to EDITOR, The Arkansas LArllY", 400 \\'e:.1 \1arkham. Little Rock, Arkansas 72201 All inquiries ~ardinK advertisin~ <Jlou1d be sent b."t Thl' .4..rkalls4b LAwyn .1t the aboH' addreo:;..~ .

ommercializing our profession. Some despise it. Othe" bank on it. Whatever your view, the United State\ Supreme Court has put some teeth into the lawyer adveni\ing debate. In June, the Court upheld the Florida Bar's 30 day ban on attorney solicitation of accident victims. The ruling should encourage professional introspection. This issue of The Arkallsas Lawyer offers some thoughtful perspectives on lawyer advertising. Tom Carpenter tracks "The initial impact is clear. the history. Gal) Eubanks and Wendell Griffen debate the risks versus benefits and John Tull evaluates free speech We can regulate ourselves or implications. Take some time for study. The Bar needs operate under imposed your input. restrictions" Henry Hodges is chairing a special committee on lawyer advertising. The committee is charged with examining self-regulation and the impact of the Supreme Court ruling on lawyer advertising in our state. The initial impact is clear. We can regulate ourselves or operate under imposed restrictions. Lavvyer-Iegislators have promised to push a tough bill regulating commercial speech if the profession doesn"t propose its ovvn regulations. The bill was introduced by the Senate Judiciary Commiuee during the last legislative ,ession then put on hold at the urging of past president Bob Jones, 11\ who promised Hodge"s committee and others would do more lhan jusl talk. elf-regulation may be our savior. It should appeal to those on both sides of the issue because it enhances OUf public image and that benefits those who do advertise and those who don路t. Internally imposed \tandard\ give lawyers sub~tance and credibility. External watchdogs substantiate the suspicion that lawyers can"t be trusted. Which product would you buy' Policing ourselves helps us all. Self-regulation is a commercial that always sells.



Special thallks to Tom Carpenter for his coullsel all this issue.

CORRECTION In the Summer 1995 issue of The Arkallsas Lawyer, we stated that Carolyn Witherspoon graduated from the University of Arkansas School of Law. We would like to correct that as follows: Carolyn Witherspoon graduated from the University of Arkansas at Little Rock School of Law.


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Features A




SOUCITATIO On the Cover: 'Television Reaching To Man", Artist, Una Chesak/SIS

Little Rock City Attorney Tom Carpenter tracks the development of lawyer advertising and court imposed regulation.




Leonard Scott, Chair of the Probate Commjttee of the Arkansas Bar from 1972-74, gives his readers a "Birds Eye View" of the Proposed Uniform Probate Code.



Gary Eubanks and Wendell Griffen present opposing views on the risks and benefits of lawyer advertising.



John Tull presents a first amendment perspective on commercializing the profession.

In Every Issue LEITER FROM THE EDITOR, by Stacey DeWitt


PRESIDENT'S REPORT, by Carolyn Witherspoon





11 19 20 23 43





President's Report

Enhancing the Image of Lawyers by Carolyn Witherspoon The law often permits what honor forbids. Bernard Joseph Saurill, French tragic write,;

SpartaclIs, 1760 hiS issue of The Arkansas Lawyer is devoted to the hotly debated topic of lawyer advenising. Atlverti~illg illld our profession's image are completely illlertwined now. Jumping into that arena will require bold new ideas. I am immensely grateful to Henry Hodges, the Chair of the Bar's Lawyer Advertising Committee, and to his outstanding committee for all of the work that they are doing for the Bar and for each of us on this controversial topic. Please be sure to thank each of them when you have that opportunity. It is difficult to balance the First Amendment rights of the members of our honored profession with the legitimate intercsts in upholding thc image of our profession and thc interest of educating the public about the availability of legal services. Many lawyers, myself included. strongly believe that extreme lawyer advertising has been the direct cause of the poor image in the eyes of the public, thai it has reduced our profession 10 its lowest levcl, and that it has caused the public to perceive the legal system as nothing more than a lottery with the lawyers as the only real money winners. As. you know from the last edition of The Arkansas unvye,.. the Arkansas Bar had filed a petition with the Arkansas Supreme Court to amcnd certain of its Rules of Professional Conduct. In light of thc U.S. Suprcme Court decision in Florida Bar v. Went For It, Inc.. (the case name alonc was bound to attract some attcntion) we must address the issues presented in our petition somewhat differcntly. Thus, the House of Dclegates this month will address this issue and the steps necessary 10 balance the interest in protecting the public and the profession. To properly study thc issue and then propose rules that will withstand any legal challenge will take rime and money. To movc tOO swiftly is not in the best interests of anyone. "The law will never move as. mpidly as a bullet. nor will its dispositions ever be as demolishing as a bomb. Justice should be reasoned, and reasoning takcs a certain Icngth of time." Edward L. Wright. Arkansas Lawyer; presidcnt. American Bar Association, Plainview (Texas) Daily Herald, July 13,1971. In the mcantime, there are a number of things Lhat each of us can do to enhance the image of our profession and ourselves. You have heard them all



The Arkansas L"'a:w"-y.. er'---_F,,'a. .lI. .t~9,,9":'5'___

before I am sure. First lreal your clients well. How many of yOll have your calls screened first? Try answering your own phone without the screen-

ing of all calls. All clients want a lawyer who is competent and thus busy, blll not too busy to gi ve their mauer. and them, the attention it and they u~~t:rv~. The next logical step is to return calls. If you are tied up in a conference or in court. have someone else return the call in an expeditious manner.

Second. each of us can provide individual encouragement of lawyers who do advertise to do

so within certain bounds. The more senior lawyers can assist those new lawyers with some specifics on propriety. Individual mentoring of new lawyers starting out in practice is critical and can be rewarding For each of you more than you realize. In that way. you can have a direct impact on Ihe way that new lawyer is perceived by his or her clients in a positive way. hird. gel involved! Involvement by lawyers in the community in nonlegal boards and commissions in a positive way is critical. I strongly believe that since each of us has had the good fortune 10 be able LO obtain an education to allow us to participate in the judicial process. we must understand that we have a moral obligation to give something of ourselves bnck fO 0111' community. What R. Sargent Shriver. Jr. said of our obligation to provide for legal services for the poor can be applied to our overall obligation to our community: ..... 1, as a lawyer, believe that some significant part of my money, time. thought, and energy belongs - I don't give it, it belongs - to others, not just to me." Washington Post. June 6, 1982. The public and our communities musl once again begin to perceive that lawyers are important to the community for the leadership roles that they provide. Lawyers should be encouraged by each of us to run for local and stale office and then. once they are there. supported positively and emotionally in those positions. We all must accept the challenges before us in the advertising area. Hopefully, in the l11onlh~ ahead we will find the answers to those challenges.


"Justice shouLd be reasoned, and reasoning takes a certain length of time." Edward L, Wright, Arkansas Lawyer; president, American Bar Association, Plainview (Texas) Daily Herald, July 13, 1971.




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Executive Director's Report

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"Cyberspace" and The Law by William A. Martin yberspace" seems to be the latest "buzzword" being used to describe

information technology. The August

1995 American Bar Association meeting contained numerous programs on the ways computers, animation and the information

superhighway are changing the ways law is practiced, courtrooms look and operate and the services bar associations need to provide.

"Speed" probably is the best single word to describe what is occurring- speed of locating information and speed of changing technology are increasing at an accelerating rate. One presenter commented that, "Vt:ry lillie of a

lawyer's time is spent applying legal judgment." He added much of what we do involves the black hole of litigation expense-filing, retrieving, copying. refiling and related efforts. Computers are better at sOrling, filing and retrieving then humans and lawyers must make computers work for them so

they can spend more time applying legal judgment. Their opponents are going to use technology-they must use it also. Electronic legal research is becoming faster, easier and more affordable.. Expensive on line research services are being supplemented and to some extent

supplanted by fixed cost (and often lower cost) CDROM (Compact Disk-Read Only Memory) libraries of legal information. There is less need for shelves

of books. For example the whole Arkansas Code, the case reports and our Arkansas Bar Association

books fit on one disk which are available through LOIS (Law Office Information Systems, Inc.). which has what I believe to be the fastest and easiest to use research engine in PITA. Our Association has rln agreement with LOIS to make our books available electronically. Vast amounts of information, including legal information, are available on the Internet. To get on it lawyers (and everyone else) need software. a modem, and an agreement with a company which for a fee provides Internet access. Our Electronic Data Network Committee is seeking an access provider who will provide a discount for our members. Law firms and bar associations are starting to

develop "Home Pages'> on the World Wide Web (which essentially is a collection of millions of

computers hooked together by the Internet.) Home Pages can contain information an organization (or an individual) wants 1O make available to the public and some firms lIo;;e them for marketing. A Home Page consists of an opening contents page with the ability for a computer operator using a mouse to LThe Arkansas Lawyer

Fall t 995

click on a variety of subjects and immediately see a page giving information on that particular subject.

Use of E Mail. by which documents can

be transmitted between law offices and between lawyers and clients much faster than by FAX, is rapidly growing and is usually a feature provided by companies which provide Internet access. The ability to transmit documents electronically gets them to a receiver's computer in a form in which they can be edited on the receiver's computer and printed in what is often a clearer form than receivcd on a FAX machine. The day when business clients

.1 ~

rJ '



expect their lawyer to have EMail capability is rapidly approaching if not already here.

Arkansas has lagged behind may states in making governmcnt information (such as corporation data) available to the public electronically, but based on

aClions of our last Legislature the day should be coming when a lawyer will be able to pull up Stich information on a computer screen without having to send a letter or a person to the Secretary of State's office to get a document. Some state bar associations such as New Mexico, West Virginia, Ohio. and Kansas have set up services so lawyers. and others, for a fee can gain computer access to these records when the state puts them on line.


nyone who watches TV news has seen the computer monitors used in the Simpson trial in California. Al

the 8th Circuit Judicial Conference.

President Carolyn Witherspoon saw a demonstralion of how computers were used in the

Exxon Valdeze litigation where both sides agreed on using computers and then spent vast amounts of money on preparation. In complex litigation computers may be the only way to keep track of tremendous numbers of documents, e.g. depositions that can be instantly put on screen and witnesses cross examined on previous testimony. Accident reconstruction experts can use computer generated animation to explain their opinions and make them more understandable to a jury.

All this technology is not without problems. While much of lh~ cumpulcr hardware and software are very expensive. competition and advances in creating new ways of using technology gradually brings prices down. Much can be done with existing software. I saw some impressive presentations of words, numbers and charts done with Power-

Point which is a part of Microsoft Office--{)ff the shelf software. A lawyer using a computer in a court room must have mastered the computer and

See Page 42

"Speed" probably is the best single word to describe what is occurring路 speed of locating illformation alld speed of challgillg technology are in.creasing at an accelerating rate.

ou?": o L er :Advertising and Solicitation

"Have I Got A

by Thomas M. Carpenter It was 1978. The U.S. Supreme Court had recently decided Bate . SWle Bar of Ari ~olla I. The Ar n u~me Court had amended its ban on I "yer advertising. 2 Local telephone com anie \\ ere preparing

tlonal. Recently,' 1'10'da Bar v. Wen or It. Inc.3, !be U. . u erne Coun, for the fir t tin mce Bales, held that some retei lion n commercial lawyer advertlj:'"'"g:.'ID' appropriate. 3

and 3 Lof 55 tb , ne the Constitution, after the R vol\Jlionary War, lawyers were en blood suckers or smooth-tongued rogues. 12 Lacking any formal disciplinary process,

copy for the next phone book. 'During a loea

Arkansas lawyers "max. advertise services

bar association meeting in eastern Ark-ansas, the president rose to addtess the que<lion of yellow pages advertisement b cause a telephone company official had appr cbed him about ideas to assure "dignifie ads.

through public media, such as a telephone director}', legal directory, newspaper or other periodical, outdoor advertising. radio or television. or through written or recorded communications. ,4 However, there are limita-

open. Even future President Abraham Lincoln took out such an ad in 1838. 13

The president expressed great interest in

tions. Advertisements cannot be misleading 5, cannot create an unjustified expectation about the results a lawyer can achieve6. and cannot compare one lawyer's services to those of another7, Further, in-person or live telephone solicitation with per-

advertising evidently started in 1908 with

the views of his colleagues and it appeared that a meaningful debate was about to occur. One older lawyer joked that since the state supreme court had recently rejected a prisoner's claim that he had been ineffective in a criminal case, and would say that he was the only lawyer in town to have been declared effeclive by the Arkansas Supreme Court. Everyone laughed, but before other comments were permitted one lawyer said adver-

tising was not an issue in that area since no

sons with whom the lawyer lacks a personal or prior professional relationship are forbid-

den 8 Now in light of Well1 for It IIlC., it is possible, if not likely. that some time limitations on wrinen solicitations will be added. 9 Before rushing to judgment about the wis-

there were no rules to prohibit lawyer advertising and many good lawyers used newspapers to inform the public their offices were

The traditional American ban on lawyer the adoption of the American Bar Association's Canons of Professional

Responsibility. 14 From the early to late twentieth century, the goal of various legal associations has been to exalt the practice of law as a profession. Because the profession is dedicated to public service, commercial advertisement is deemed to be totally inconsistent with the goal of profe sionalism.

Indeed, advertising was seen as the road of good intentions leading to the hell of fraudu-

worthwhile attorney would stoop so low. The meeting adjourned. However, shortly afterwards one young attorney quickly cancelled his yellow pages advertisement for the

dom of any particular rule. it would be wise

lent claims. 15 Yet, since all lawyers are aJso

to review some of the history of lawyer advertising in America. Has it always been

regulated by the state. total bans on the com-

next year.

Or, for that maneI'. why was it ever banned?

This meeting illUSlrates the broad range of views on lawyer advertising that continues

even after the absolute ban was lifted. Today many lawyers. and countless nonlawyers. believe that it is beneath the dignity of the profession to engage in shameless commercialism. In Arkansas, just a few years ago two former Association presidents convinced

the House of Delegates to adopt a resolution to ban lawyer ad'vertising despite a clear

awareness that such an act was unconstitu-

banned? When did it start? Why did it stan? Lawyers, trained in the English couns. came to America long before it was a united country. An educated lot, lawyers were seen

as men that should do great good and, men that should shun mere riches. IO Opposed to the wise and learned men, there were other practitioners known as knaves. spellbinders, or penifoggers who were known for stirring

up litigation merely for the fees. tl Although 25 of 56 of the men that signed the Declaration of Independence were lawyers.

mercial speech of advertising implicates the

First Amendment 10 the U.S. Constitution. In 1977, the U.S. Supreme Court said that this total ban violated the First Amendment. John R. Bates and Van O'Steen were admitted to the Arizona Bar in 1972 and worked for the Maricopa County Legal Aid Society. 16 Two years later they opened their own law office with the goal of providing quality legal services to persons with modest means who could not afford other lawyers but, who did not qualify for legal aid. 17 When two years of effort failed to provide

See Page 9 7

The Arkansas Lawyer

Fall 1995

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Continued from Paee 7 any financial security. they decided to take out an ad in the Arizona Republic that

community:' 26 But not all efforts were

offered "Iegal services at very reasonable

have some constitutional protection. direct solicitation still presented major problems.

fees. 18 The Arizona Bar. pUT\Uant to its version of

appropriate. While the indirect solicitation of

legal business through advellisement might

the Code of Professional Responsibilit).

The U.S. Supreme COUll first addressed these problems in 1978. Ohralik \'. Ohio

brought a disciplinary action against Bates

State Bar Ass'1J27; In re Primus. 28

and O¡Steen. Initially suspended from the

In Ohralik the COUll determined if disci-

practice of law for ~ix months. after appeal the two lawyers were given a censure by the Arizona Supreme COUll 19 But. the Arizona

plinary action for a direct personal solicitation of traffic accident victims violated the constitution or the decision in Bales.

Supreme COUll rejected both an antitrust

The facts were fairly straightforward. Albell Ohralik. while at the post office. leamed of a traffic accident which involved

claim and the First Amendment claim. The

U.S. Supreme Court noted probable jurisdiction and agreed to hear the case. The COUll rejected the argument that antitrust law prohibited an advertising ban. 20

But. the COUll agreed that a total advellising ban violated the First Amendment. Cognizant of a state's strong interest in maintaining professionalism among lawyers.

the COUll also recognized that a total ban inhibited "the free flow of commercial infor-

mmion and ...keplt] the public in ignorance.'¡21 In doing so. the COUll answered several arguments offered against advertising. For example, to the claim that

there would be an adverse effect on the professionalism of attorneys. the COUll said that was questionable since both bankers and engineers advertised "and yet these professions are not regarded as undignified:'22

A three-pan claim that lawyer advellising was misleading was also rejected. The Coun concluded that the individualized nature of legal services was not a concern as long as

the attorney does the necessary work at the advenised price. 23 Further. the Coun gave

little shrift to the claim that all ads were misleading since the client did not know exactly what services were necessary. 24 Finally. the

COUll totally rejected the claim that advertising would highlight irrelevant factors so.

a casual acquaintance. In response, he contacted one victim's parents, visited the vic-

that a broad prohibition on solicitation violated First Amendment principles of associa-

tion. 33 Two impollant aspecls of this ruling were the COUll'S view that this type of mailed solicitation "involved no appreciable invasion of privacy: nor did it afford any significant opportunity for overreaching or coercion."34 In addition. the written communication. because it could be reviewed. made it substantially easier for a state to review and regulate Improper activities. 35

In two years the

.S. Supreme COUll

forced states to reconsider rules that prohibited advertising and solicitation which had

been in effect for three quaners of a century. States adopted new rules that allowed nonpecuniary solicitations and appropriate legal advertising. But. as the COUll noted. these amendments were not the equivalent of no

e'eeting th bel' â&#x20AC;˘ that advertising was per se unprofe slOnal, t Court ~ indicated that the ban may be one reason for the rofession's failure to "reaoh out and serve the



regulation. When two young Arkansas lawyers included a mail-out advertisement for their law firm. the Committee on Professional

Conduct took action. 36 Relying upon the requiremelll that legal advertising assist in

the informed selection of legal counsel. the Committee felt this ad was misleading since

it listed a $10 consultation fee. but then listed a wide variety of legal issues without any additional indication of charges. Both the contenl of the ad. and the fact it was included with a packet of coupons for french fries,


discount meals. automobile tune-ups and a one month membership at a health spa, was

tim in the hospital. and then secretly recordcd conversations with the victim's parents. 29

more than the COUll could accept. The U.S. Supreme COUll refused to consider the

He also visited another minor involved in the accident and obtained assent to represent her against the first victim. When the second

issue. 37

victim's parents objected. he stated that he had a binding contract. 30 A complaint to the Ohio State Bar resulted in an indefinite suspension 31 The COUll concluded that states have a

Mailed advertisements, even to unknown persons. are not per se improper. First Amendment protections attend such action unless the state can show the advertisements

are false or misleading. In re R.M.J.. 38 The question in R.M.}. was whether an attorney

was properly disciplined when a mailed

even relevant information should be denied

strong interest in regulating. or prohibiting,

announcement of his new office address was

the public. 25 The ban was lifted. Legal advellising was

direct client solicitation or. the offer of legal advice given with the hope of pecuniary

inadvellently sent to people he did not know. The Coun refused to permit such sanctions.

seen as a means to provide commercial information to the consumer. While there was still room for lawyer regulation, the question was no longer whether an attorney could advertise, but what kind of advertisement was permissible.

gain. The conduct involved in solicitation is the basis for greater state regulation since overtures under adverse conditions "may distress the individual because of their obtrusiveness and the invasion of the individual's

basic framework used to analyze constitutional issues raised by lawyer advertising. or solicitation, were well established. First, adverti ing was a question of commercial

privacy 32

speech. While commercial speech is entitled

Rejecting the belief that advellising was per se unprofessional, the COUll indicated that the ban may be one reason for the pro-

Yet, when the solicitation is not for a pecuniary motive. a state's regulatory

to protection, this protection is less extensive

fession's failure to "reach out and serve the

authority is diminished. Dealing with a mail solicitation from the ACLU. the COUll found

By the time of the R.M.J. decision. the

than that afforded noncommercial speech. See Page 10


The Arkansas Lawyer

Fall 1995

ordered by the Ohio Supreme COLIrt. In doing so. the Ohio court held there was no First Amendmcnt problem with slate disciplinary rules on advertising or solicitation. The U.S. Supreme Court reversed in large part. The Court held that stale rules thaI prohibiled self路recommendation of a lawyer were too broad to withstand constitutional

d rom Pa 9 The governmcnt is frce to prevent the dissemination of commercial speech that is false. deceplive. misleading. or Ihal proposes an illegal transaction. 39 till. government action must be "in service of a substantial governmental interest. and only through means that directly advance that intt::rest: 040 The Court used Zllllderer I'. Office oj qsciplinary COLlnsel 41 to discuss the scope of statc power in advancing these interests. In Zauderer, an anorney ran sevcral advertiscments in local newspapers. The initial ad offered 10 defend persons arrested for driving while intoxicated with the additional assurance that no fec was duc if the persons wcre convicted. After a complaint from the Ohio Disciplinary Counsel. this ad was stopped. 42 A second ad publicized a willingness to represent women that had suffered injuries from use of the Dalkon Shield contraceptive device. It provided information aboul the shield and ended with Ihe comment that an unsucccssful case meant no legal fee was due. However, several disciplinary violations were found including Ihe fact Ihere was no comment about costs and expenscs. 43 A public reprimand, originally suggesled to be an indcfinite suspension. was eventually

...1awy:er egan sending letters to all kinds of clients, particularly, it seems, traffic accident victims.

scrutiny. 44 "An attorney may not be disciplined for soliciling legal bUSiness Ihrough printed advertising containing truthful and

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l'tIIl'l't" Iht"

11"t" /)/1.


Fall 1995



SUI11I l'NI\I:.R"ill'



nondeceptive information and advice regarding Ihe legal rights of potential clients 45 While the Court upheld discipline for the criminal contingent fee ad. and the failure to mention litigation cosls in the Dalkon Shield ad. it otherwise rejectcd Ohio's attempts to curb written advcrtisements. ~6 The analytical framework was now set for Shapero \'. Kefllllcky Bar Association, 47 This decision rejected a state's right to categorically prohibit lawyers from direct mail solicitations, for pecuniary gain. if the leiter!) were truthful and nondcceptivc. Grounded in the belief that commercial speech permits the free flow of information to consumers. thc Court rejected an argument that direct mail writtcn solicitation by a lawyer to a potentia] client was no differcnt that in-perSOn solicitation rejected in Ohlarik. Essentially, Ihe Court noted that two major exceptions to written communications made the Ohlarik ban inapplicable. First. the written communication avoided the potential overreaching and invasion of privacy concerns raised by personal solicitation. Further, written communications were clearly susccptible to a scrutiny lost with nonrecorded oral communications, 48 The rc!)ult of the case is that l'Iwyt:r~ began sending letters to all kinds of clienls. particularly, it seems, traffic accidcnt victims. When Bllles first allowed advertising, the courthouse gossip each year sccmed to focus on which law firm did what kind of ad in the yellow pages. Then. the jingles of radio and telcvision spots becamc the focus uf discussion. After Shopero, Ihough. the concerns expressed were about lawyers buying accident reports and sending letters to anyone involved in a traffic accident to let them know Ihey had legal rights. 49 Had the profession come full circle? Had the ban on advertising from a sensc of personal pride now become an acceptance of advcrtising as a commcrcial necessity? Would the U.S. Supreme Court ever say enough was enough? It appeared thaI calegorical bans could nOI withstand constitutional scrutiny. While evcn Bllles had reservations about ads touting the qualily of legal services, the .S. Supreme Court issued two opinions that permittcd professionals to declare national certifications. Ibanez v. Florida Dept, of Business ;50 Peel v. Al10nley Registration & Discipliruu:v Camm 'n oj Illinois, 51 The Court permitted See Page 39

Young Lawyers Section Report

Attorney for Hire by Swart Miller hat do a billboard. a bumper sticker, a license plate. and a bus SlOp bench have in common? All are avenues used by Arkansas lawyers to advertise their avail-

ability for hire. The debate over lawyer advertising has taken on a new fervor as the legal community struggles 10 rebuild its reputation from the ominous slide in its public image.

Advocates of lawyer advertising contend it has generally been the case that complaints about lawyer advertising come nO( from consumers or the

general public bUI rather from other lawyers. On the nip side. proponents in favor of restricting lawyer advertising argue that lawyer advertising is

the single worst thing thaI has happened to the legal profession.

ing in the public's image of the legal profession are

One need only look al the phone book to obtain a sense of what lhe public's perception must be of Arkansas lawyers. Thirty-nine pages of the Yellow Pages in the Lillie Rock/North Lillie Rock phone book are devoted to advertisements by members of

not unanimous, it is clear that advertising is a major

our time honored profession. Nine of the thirty-nine

factor in the delivery of legal services, especially to

pages are full-page ads related to counsel for personal injury. Eleven finns or individuals have half-

Earlier this year, The American Bar Association Commission on Advertising nOled in its executive summary, "While opinions on the role of advertis-

the poor." The summary went on to state,

"Nationally, more than one in every five low

page advertisements. Most interesting is the

income households who have used the services of a

"Consumer Tips" offered by the Yellow Pages.

lawyer found that lawyer through some form of advertising."

Using a telephone, a consumer may access general information on attorneys related to (I) areas of

The legal profession's internal conflict over

specialization; (2) selecting an auorney; (3) when do you need an allorney?; and (4) understanding contingency fees. All categories are sponsored by a

advertising is renecled in lhe results of a Gallup Poll conducted in late 1993. The random poll produced these somewhat conflicting findings:

law firm with their stated expertise noted immedi-

ately following the free information. -of the 400 ABA members responding to the random telephone poll. 61 percent said their finns engage in some form of advertising.

-Lawyers who advertise primarily employ Yellow Pages telephone directories and brochures, while !.he two most notorious forms of advertising-television and direct

mail-are used by only 2 percenl and 12 percent. re,pectively of the respondents who adveni\c. -Of the respondent> whose firms advertise, 87 percent said they expected to advertise as much or more in the fmure as they do now.

A whopping 87 percent of the respondents said they believe advertising has a negative effect on the image of the legal profession, compared to 3 percent who said it has a positive

effect. - A third of the respondents said advertising has a positive effccl on efforts to inform the

public aboullegal services (42 percent said it has a negalive effecl), and 43 percent said it has a positive effect on the public's ability to hire lawyers (24 percent said the effect was negative).



is evident that the legaJ profession must

accept responsibility for protecting the public from those lawyers that might not practice

"Nationally, more than one in every five low income households who have used t he services of a lawyer found that lawyer through someform of advertising, "

the highest ethical standards. It has fallen on the organized bar to identify the problems

related to lawyer advertising and to take corrective action to ensure that the public is protected. As a practical matter, it must be conceded that enforcement of advertising and mail solicitation is

extremely difficult. If Arkansas lawyers hope to regulate those few lawyers who might use unethical means to garner clients, a process must be implemented. It does not make sense to have every phone book or periodical reviewed by a committee or the bar staff to ensure compliance with rules.

Likewise, it would be impossible 10 have those same people watch every television advertisement or listen to every radio spot to mandate compliance

with ethical standards. What is the solution? Possibly, a system that would require the filing of certain advertisements and written solicitation with the state bar for review and enforcement. Such a system would require that

certain basic standards be followed. In my view, nothing short of mandatory standards will surtice. Advocates for education, self-policing, and minimal

standards are misguided. /l should be presumed that the lawyers who need to be reined in want no part of education, self-police, or standards of any kind related to their advertisements. 11

The Arkansas Lawyer

Fall 1995



.. . .... ," ,










A Bird's Eye View of the Proposed Uniform Probate Code by Leonard 1. Scott A special committee of the Arkansas Bar

Association, headed by Randall Ishmael of Jonesboro, is currently studying the adoption of the Uniform Probate Code by Arkan as. The bill that was proposed in 1995 to our legislature with reference to the


not have the lime, and possibly not the interest, to acquaint themselves in any great

detail with this imponant proposal. Hence, this panicular anicle. to give you a

bird's eye view of what is involved. The

purpose of offering such a view is to help you determine if you are fundamentally



furniture and furnishings nec-

essary to occupy the dwelling, and to an allowance of S500 per month for two months. A.C.A. ยง28-39101(a). (b) and (c). Funher. the spouse may "tarry in the mansion" for two monLhs without paying rent (or

until dower is assigned). A.C.A. ยง28-39-702. The U.P.c. has an exemption of $10.000 for the spouse or children (2-403); and a reason-

Probate Code was 209 pages long. It was deferred for funher study and, as indicated. a special committee has been appointed for that purpose. It is my understanding that at

opposed or fundamentally in favor uf tht:

panicular provision or the U.P.c. as a whole. Thus, if the discussion sets off a definite reaction, you need go no funher (though

able family allowance during administration. not ro exceed one year if the estate is insol-

the initial committee meeting the chair allo-

there's no law against it). This bird's eye view was primarily

you feel the existing provisions are too anti-

cated cenain ponions of the U.P.c. to the members who were to repon back and exchange the inforrn3tion with one another.

Ultimately. their conclusions will be submitted to the Executive Council who will, no doubt. in due course, make its own recommendations.

If the Uniform Probate Code is adopted in its entirety, or substantially so, it will affect the entire bar, not just those practitioners who deal primarily in {rusts and estates.

Nevenheless, most lawyers will simply 12

The Arkansas Lawyer

Fall 1995

obtained by a cursory, not a detailed, study. Because the investigation made was Lhus superficial and cursory, you cannQl rely on it as containing a complete statement. You can

rely on it as indicative of. generally. what provisions of the Arkansas Code or the U.P.c. are involved, and some of the general solutions made, and you can then decide whether you want ro go funher. For example, currclHly. a spouse and/ur minor chil-

dren are entitled to S2.000 (SI,OOO as against

vent (2-404). Let me ay. generally. that if quated. whatever the .P.c. offers in its place has to be an improvement. (It is.) Of course, some areas are more complex. I. BACKGRO D

The author of this anicle was chair of the Probate Committee of the Arkansas Bar for its years 1972-1973 and 1973-1974. one of the major purposes of which was to study the U.P.C. Among its membership were four Probate Judges, all of whom had served with distinction in such capacity for years.

Those judges were: Judge Warren Kimbrough. Judge Alex Sanderson. Judge Thomas BUll. and Judge Royce Weisenberger.I The opinion was unanimous against any

adoption of the Uniform Probate Code in 1010, or substantially in toto. To quote the report. it was felt that by and large the existing Arkansas Probate Code provided "a quick and workable system of distributing a decedent's assets while balancing the needs of his distributees and those of his credilars:' There were several rea~ons for this determination. First. OUf Code was rela-

aroused. you can (and should) go further. (See the Uniform Probate Code. or the 800page official text with comments by West Publishing Company, or the 48-page article authored by Prof. Lawrence H. Averill, Jr. and Ellen B. Brantley. Chancellor. 5th Division, Pulaski County. Arkansas. or the 95-page updated version of the earlier article by those two authors, being published this fall in the UALR Law Journal (which I have been privileged to see in advance), or finally, the excellent text by Prof. Averill. "The Uniform Probate Code in a Nutshell" (1993), consisting of 553 pages plus index

tively new. having been enacted in

1949. Secondly. 14 different provisions of the niform Probate Code were recommended for adoption and were in fact actually enacted. Also. there were several provisions

of the Uniform Probate Code which were basically already in law. although not necessarily in thai fann or wording. Incidentally,


the Arkansas Probate Code of 1949 embodied many of the provisions

of the Model Probate Code (the forerunner of the Uniform Probate

Code) approved by the American Bar Association.

One of the major concerns of the then committee was that the U.P.e. consisted of eight separate articles covering some 278 pages and that its adoption would. in tum. repeal or at least change an almost unbelievably large amount of existing statutory law, most of it already judicially construed. Ay, there's the rub 2 However, the lastlinc of the

If the Uniform

Probate Code is adopted in its entirety, or substantially so, it will affect the entire bar, not just those practitioners who deal primarily in trusts and estates.

report was: ..... that Arkansas will not forever tum her back on it (the U.P.e.) ... if further study or experiences of other states demon-

strates its desirability." And, in fact. it has already enacted several components of the

U.P.e. ill\olving these niform Acts: the Simultaneous Death Act; the TeMamentary Additions to Trust Act: the Disclaimer of Property Interests Act; the Durable Power of Attorney Act; and the TOO Security

(some nutshell!). Articles 1II and IV of the U.P.e. are basically procedural. i.e. the administration of estates. Article II of the .P.C] deals more

think your response could be: "Yes, I think they are entitled to more." or "No. they are not." And if they are entitled to more, I am

for the .P.e. (on that issue). [If you want more enlightenment. read (a) the proposed legislation. or (b) the articles referred to, or (c) all. There also is an 18-page article by Prof. Averill (Administering Decedents' Estates Under the Uniform Probate Code, 1993). (Call him for reprints.)] What about family exemption allowances previously referred to? Do you think they are enough? If not, let's go for the U.P.e. What about execution of wills? It is an area like that which tends to make one desirous of "chopping up:' i.e. removing some of the sections, and leaving others in.

Frankly. I hate to change our wi II requirements because I am

"scared." I think I know what the correct requirements are but I don '{ know how the new requirements

will be construed, or whether they will be construed like our existing decisions.

Yet, because I am thus frightened, I will check into the matter a little more. On page 19 of the Averill-Brantley article you will see the excellent comparison of the Arkansas law with the U.P.c.. From this it appears that. although some instruments possibly not valid under

Arkansas law would be valid under U.P.C.. making a quick judgment, it appears that there are no situations

where a will which complies with Arkansas law does not comply with U.P.C.. The lapse or anti-lapse provisions exemplify what the authors meant when Lhey said that some situations require a complex solution, because these complex situations do exist. I don't try to shorten your interest into this

except to say it is very worth while looking into. One of its outstanding provisions is that

the anti-lapse provisions apply not only to wills but also to non-will substitutes, i.e.

with substantive maHers. 4 As Prof. Averill Mated in a recent leHer to Steve Bauman,

insurance policies, POD accounts. profit-

Registration Act.

who is the current Chair of the Arkansas Probate and Trust Section, that, although

This seems a statutory provision well worthy

II. THE BIRD'S EYE VIEW I have previously intimated that the primary purpose of this writing is to give you a

there are numerous issues in Article II, resolution of those issues really is a maHer of opinion. As an example. should we in

resume of a resume, so to speak, to give you

Arkansas adhere to the old rules of dower

(barely) enough information to enable you to make a quick but not completely unreasonable determination for yourself. Obviously,

and curtesy or are spouses entitled to more

if time permits and/or your curio!'tity is

than dower and curtesy? You could argue forever on the minutiae of what "more" ought to consist of, but at this point in time I

sharing. retirement and other benefit plans. of attention. It is proof of my theory that once you are satisfied we need to make a

change, you will find the U.P.e. change is well considered and reasoned. In this particular field, the question is, do you think our anti-lapse provisions are broad enough? If you do not, then go with the U.P.e. and don't concern yourself with the actual provi-


The Arkansas Lawyer

Fall 1995

sions lhat (hey make. In that vein. there is this telling com-

ment by the author: "A properly

"But one thing is certain. If you do any probate work at all - and most lawyers do some - if the U.P.C. is passed, you (and all probate judges) face hours and hours of study before feeling comfortable in dealing with any substantial item involving its subject matter. Hopefully, in time, such necessity will ease, but it will not be there initially - and initially you cannot afford to be only partially familiar. You cannot afford to only have a little knowledge about it." ,


drafted instrument will never be

interpreted under Ihis provision'"

Following the above I have comparing most of the other

sions are similar on descendants of decedent conceived before decedenl'~ death but born

more signiticant provisions in

Article II of the Uniform Probate Code with Arkansas' current law - again. merely to give you a short-cut roUfe to a decision of

tentative approval or disapproval, or a determination to go

further. I have indicated that the inquiry (on spousal rights) could simply be. do you think the share of the surviving spouse is too small and/or too antiquated? (If you are uncquivocally committed to dower and curtesy (they're abolished. 2-113). SlOp right now. But that's a little arbitrary ... ) Going - brieny - a little further, the U.P.c. has an accrual type of benefit for the elective share of the surviving spouse. Such spouse has a rising percentage scale based on years

of the marriage, from a low of 3% of the "augmented estate" after the first year of marriage. to a high of 50% after 15 years of marriage - with a minimum of 550.000. The augmented estate includes some inter·vh'os transfers. There's more detail you

may desire to examine. (2-201. et seq.) Procedurally, the U.P.c. in effect gives the pretermitted

spouse the share she would have received on intestacy with exceptions not here noted. Arkansas merely permits the sur· viving spouse to lake against the

There are potentially more escheats under the U.P.c. In Arkansas there is an escheat only if there is no spouse. descendants. grandparents. greatgrandparents nor their descen-

dants. Under the U.P.c. there is an escheat simply if there is no spouse, no descendants, no grandparents nor their desceneots and collateral relatives from

Fall t995

Arkansas and U.P.C. have the same law

with reference to half-bloods and the provi-

dants. (2-103) Gre31-grandpar-

The Arkansas Lawyer

Interested? Read the Averill-Brantley remarks. (p. 5)

attempted to make summaries

.. '• ••• will.


them don't take. The U.P.c. never allows a person of more remote degree to inherit more than a person of close degree.

afterwards. But only decedent's posthumous descendants are covered (28-9-210) whereas the U.P.C. covers parents. their descendants or grandparents' descendants. but the afterborn person must survive by 120 hours. In Arkansas proof of survival. if there can be such, by 10 minutes is enough. whereas. under the V.P.C. the survivorship must exist

by 120 hours. (2-108) The .P.c. relating to adoption is particularly interesting and well conceived. In Arkansas the adopted child does not inherit under or through the non-custodial parent. but will under the .P.c.. a well-reasoned di>tinction. (2-114) Arkansas absolutely protects children or issue of deceased children who are preter-

mitted. Under the U.P.c. only children are protected. It further limits its protection to

pretermitted children born or adopted after the execution of the will disinheriting the child; the intent to disinherit must appear on

the face of the will and. finally, if the omitted child has been provided for by transfers outside the will intended to be in lieu there-

of. he is not pretermitted. (2-302) The homestead rights in Arkansas are

rather limited. e.g. in Arkansas, such rights in city property are limited to 1/4 acre without regard to value. (The homestead in coun-

try property i 80 acres without regard to value.) (It's hardly worthwhile mentioning that country homestead could be 160 acres if not exceeding in value 52.500.) The U.P.c. simply allows 515.000 (which probably will be raised in due course). (2-402) But we must not forget our homestead provisions are contained in the Arkansas Constitution

(Article 9. §4, 5. 6 and 10). The U.P.c. credits that to the allowance (2-402A). I have already referred to the 5 I 0.000 exemption provided by the .P.c. in lieu of the smaller Arkansas figure. (2-403) As noted. the family allowance in Arkansas is limited to $500. payable for two

months after death. The U.P.c. allows a "reasonable monetary allowance" for the benefit of the surviving spouse and minor dependents. which allowance cannot continue for more than one year from death if the estate is insolvent. but apparently can continue longer if the estate is solvent. (2-404) The provisions for execution of a will

have been previously alluded to. They are different and more liberal than the Arkansas provisions. but the important thing, it seems to me. as previously stated, is that any will executed under the Arkansas formalities will comply with the U.P.c. (For specific comparisons, see p. 135 of the Nutshell.) A holographic will is more easily sustained under the U.P.c., i.e. may be proven on the basis of a statement or affidavit of one witness. or even a sworn petition if there is no contest. The u.p.e. does nor require the holographic wi II be dated or that it must be signed at the end. The U.P.c. also has a "dispensing power" provision that, for example, peffilits the establishment of a will by clear and convincing evidence that the testator intended the document to constitute his will. It does not specify which formalities may be dispensed with. (!). As to proof of will, the U.P.c. and Arkansas law are similar except that the U.P.c. says a self-proved5 will may be admitted even in a contest without testimony of any witness, though still subject to contest for incompetency, undue influence. revocation, etc. ll3-406(b)] A will executed outside of Arkansas seems to be valid under both the U.P.c. and Arkansas law except possibly a will executed in Arkansas according to the law of the testator's domkile but not valid in Arkansas may not be valid. As to the troublesome question of revocation by a subsequent instrument which does not expressly revoke a prior will but is inconsistent in whole or in part with it: does a revocation of a later will revoke the earlier will also, or only the laner? The U.P.c. addresses those questions. (2-507) The U.P.e. provides that. if there is no evidence. the testator is presumed to have intended revocation rather than supplementation of the previous will, if the subsequent will makes a complete disposition of testator's estate, If it does not make such a complete disposition. the subsequent will would be deemed merely supplemental. But either presumption may be rebutted. In Arkansas a will, once revoked, cannot be revived except by re-execution or by execution of another will incorporating it by reference. The U.P.C. appears to make it depend on evidence. Does the subsequent will wholly revoke the previous will, or merely partially revoke it? In Arkansas divorce revokes the provision of the will in favor of the divorced spouse and the Arkansas law provides that the spouse shall not be "endowed" if convicted of ftrst or second degree murder of the

spouse. Under the .P.c.. on divorce. all provisions for the ex-spouse and the exspouses family are revoked. All persons guilLy of felonies and homicide are precluded from benefitting from a victim's will or other interests (2-803, 804). The rules of construction with reference to both testamentary and donative transfers appear to be the same under Arkansas rules and the U.P.c.. although the U.P.c. has a specific provision so stating (see 2-60 I and 2-70 I) and Arkansas apparently does not. The Arkansas Anti-Lapse Statute is limited to (predeceased) children or descendants, and residuary bequests to two or more persons (A.C.A. §28-26-104). U.P.c. is much broader (2-203). Ademption involves the question of what happens to specifically devised property not in existence at the death of the lestator, e g. testator devises his home at Black Street, but sells same and has a home at White Street: or the home bums and there are insurance proceeds available, etc. The Arkansas law is not clear (A.c.A. 28-24-101 and 102). The U.P.c. certainly has the benefit of clarity and even provides thai if Ihe property is not in the estare, Ihe devisee is presumptively entitled to a general pecuniary devise equal to the value of the property (2-606). It also covers the situation where the change is made by a conservator or agent under a

durable power of attorney. Both Arkansas and the U.P.c. pennit unexecuted documents or instruments to be incorporated in a valid executed will, and both Arkansas and the U.P.c. have adopted the Uniform Testamentary Additions to Trust Act permitting a testator to add a "pourover" of assets in an existing trust to a revocable trust or a life insurance trust or a trust not established when the will was executed. Events of "independent significance" are not touched on here, but both Arkansas and the U.P.C. permil separate writings to dispose of certain tangible personal property. Both limit them to disposition of tangible personal property and not money. You should be aware that Article II also includes the Uniform Statutory Rule Against Perpetuities. As I understand it, it does not change the exisling rule bUI does not let a transfer be contested for 90 years, i.e. "wait and see" until then, and then permits reformation. but only after it proves invalid. This is technical and you should decide for yourself, but I doubt whether it would upset current titles, as I think some have claimed. Article III is at the same time both easier and more difficult to explain. Its general concepts are reasonably easy to explain. Enumerating its specific requirements would make this explanation too lengthy. at least by my self-imposed parameters.


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The Arkansas Lawyer

Fall 1995

I pretermit discussjulI~ for small estates merely in the interest of conserving space. and go straightway to the more important provisions of the Article III procedures. First, there is the concept of universal succession, whereby basically the applicants accept responsibility for the estate and assume persona/liability for the decedent (and the decedent's estate's). taxes, debts, claims and distributions. The registrar, hereafter referred to, has little discretion but to grant the application. The application is usually filed by all the heirs, or by all the residuary devisees under the will (or all heirs if there is no residue). If a will is involved, then "informal probate,'路 hereafter n:.rerred to, must be complied with. As noted by Prof. Averill, universal succession should not be sought by heirs or a devisee unless they are positive that claims and debts against the estate will not exceed the value of the estate assets. Informal probate is begun merely by filing an application to the "registrar" who basically is merely required to see that the application satisfies statutory requirements, and is generally satisfactory (see 3-201, et seq.). Incidentally, there can be no appeal from a denial of informal probate, but anyone disappointed or objecting can and must go through the more formal probate proceeding. Ordinarily, on intestacy a request for informal appointment of a personal representative will be made. When a person dies testate. informal appointment may and ordinarily will be instituted in combination with informal probate proceedings. In either case, once approved, there would be no further proceedings unless a creditor or dissatisfied devisee or heir requires it. (3-704) Notice to heirs and devisees and to creditors is still required (3-708 and 3-801). An inventory must be prepared but need only be furnished interested persons (3-706). A personal representative may. in due course, obtain complete discharge by either filing a sworn statement that the estate has been fully administered (3-1003) or obtaining a coun order (3-100 I and 1002). The contents for application for an informal appointment are not here listed. They are very similar to the Arkansas requirements for appointment of an administrator or executor. 16

The Arkansas Lawyer

Fall 1995

Actually. the registrar can deny informal appointment for almost any reason, which power is not subject to review. It is used as a protection for unnotified interested parties when the registrar has knowledge or suspects that the application is inappropriate. Formal appointment, which is a step above the informal appointment, is necessary anytime there is a question of priority or qualification of an applicant for appointment, or when the registrar refuses to approve an infonnal application, or formal testacy is sought. Formal testacy (3-401, et seq.) is really a procedure involving litigation. It is initiated only with a petition filed by an interested

A formal testacy order is very hrnad nnd i~ final with respect to all issues that the coun actually considered or might have considered. It is subject to appeal and vacation for a limited period of time. Bond is not required of personal representatives unless a special administrator is appointed or the will requires it. or interested persons obtain an order for it on petition. This is true of informal proceedings or formal proceedings. (3-603) Finally, there is supervised administration. which is a formal proceeding. (3-50 I) Although the power of the court ends basically with the entry of an order in formal proceedings, the power of the court to supervise extends from the granting of a petition for supervised administration to the entry of a final distribution termination order. very much like the proceedings we now have in Arkansas. 6 At page 379, Prof. Averill 7 summarizes the difference between the personal represemative under the U.P.c. and nonU.P.c. states. Generally. he points out, in non-U.P.C. states, the personal representative requires an order by the court in initiating action or obtaining approval. Second, the personal representative lacks a degree of broad powers in administering the estate~ and, finally, the law places a burden of severe potential liability on the personal representative if one attempts to act on one's own without court order. To quote Prof. Averill:

person, requiring pre-hearing notice and terminating final order by the court. Such proceeding can be used to obtain an order probating a will or to set aside an infonnal probate or prevent a pending application from obtaining informal probate, or even an order that the decedent died intestate. What is required is an order of court, after notice and hearing. It can cover just about any aspect with respect to intestacy, testacy administration or cJosing. The laner wuuld be ordinarily sought.

"The consequence of these characteristics is that the prudent. cautious personal representative is forced to obtain court approval for every action tuken. thereby substantially increasing the time and cost involved in administration of the estate. Significantly, the provisions limiting court involvement. broadening the personal representative's powers and exculpating the personal representative from certain liabilities typically constitute a substantial and significant portion of a well-drafted will in these states... However, the U.P.c. subjects a personal representative to the same standard of care imposed on any trustee and makes him liable for any damage or loss that results from breach of fiduciary duty. The line drawn does not seem to me to be far different from

that drawn for non-U.P.C. adminblraroTs or executors. Under the U.P.c.. if a person deals with a person representing in good faith, that person is protected. This is proba-

bly not so in the non-U.P.C. states. or nOI to that extenl. One question that occurs to me with the

various methods of administration, i.e. informalar formal. Sections 3-701. 3-711. 3-714 and 3-910 permit a personal representative

to give marketable title on sales or distribution without a court order. The question is, what protection is afforded the representative who in good faith makes 5.uch a sale or

distribution? One answer is that a distributee remains liable to relUrn improper distributions for the latcr of six months after distribution or three years from death. Arkansas lifted this thought from its study of the Uniform Probate Code over 20 years ago (A.C.A. §28-53-11 0). The standard of compensation of the personal representative is rather simple. The personal represemative is entitled to reasonable compensation and is entitled to personally determine that amount. (3-719) He can also set the compensation for all agents, including attorneys employed by the representati ve [3-715( 18)(21 )]. Interested persons may bring special proceedings solely for the purpose of reviewing the reasonableness of the fees. As Prof. Averill points out at p.392. the courts are beginning to develop defini-

tions for reasonable compensation. but they do not really differ from definitions already in existence with reference to broader areas. i.e. such factors as one's time and labor or the likelihood that other employment may be precluded: the fee customarily charged in the locality; the amount involved and the results obtained; time limitations and the experience. reputation, and ability of the worker. I would say this particular area is the one of the IllOSt. if not the mosl. important area to be considered in a U.Pc. or non-U.P.C compari'on. It is my speculation that, currently. 80% (or more) of all probate matters. whether concerning testacy or intestacy. are handled by waiver of notice. waiver of accounting, and consent to discharge of the personal representative. This may be the real crux of the fight between U.P.c. and non-U.P.c.. I call attention to A.C.A. §28-41-108(f). which ol'er 20 years ago was lifted from the Uniform Probate Code. Il provides that any fees or compensation may be challenged by any interested person and that "any person who has received excessive compensation may be ordered to make appropriate refund,' which specifically adopts or incorporates the Uniform Probate Code provision. (3-721) It does not do away with the arbitrary schedule which is, of course, not legally binding anyway, but many attorneys and particularly

professional personal representatives have followed those ;chedules rather rigidly. If the attorneys. fiduciaries and the courts would cooperate in not following those hidebound schedules and merely going by the standard of reasonableness. I think a major conflict between U.P.C. and non-U.P.c. provisions would be solved. I am not sure that the adoption of Article III of the U.P.c. with reference to proceedings will lessen the time involved in the ordinary non-contested proceeding. Perhaps the courts may currently sign a few more orders than they would under the U.P.c. provisions, but for the most pan. the judges rely. as well they should. on the initialed approval of the attorneys involved, and their trusted clerks. The fee provisions are more the heart of the matter. I am not sure that adherence to the fee schedules. even if deleted, would be substantially discontinued. but if we don't adopt Article III. at least we should delete the fee schedules. and see what happens. Special attention should be given to this: the proposed bill (and the U.P.c.) provides (or may provide) that jury trials may be demanded in will contests (see 1-306)' This. of course, would be a decided departure from our current procedures. However. the wording of 1-306 is that aparty is entitled to SEE UPC, PAGE 41

Professional MediationArbitration Service • An Arkansas private dispute resolution company providing mediation and arbitration services throughout the State of Arkansas • Serving the legal profession, business community and insurance industry • Mediations are scheduled to occur within 30-40 days • A referral to mediation or arbitration is at no cost to the parties if the session does not take place • Statewide Arbitration Panel of Retired Judges For further information, a brochure or to refer a dispute to mediation contact:

Professional Mediation - Arbitration Service Prospect Building. 1501 No. University Ave. • Suite 268 • Little Rock, Arkansas 72207 Telephone: (501) 666-2121 Fax: (501) 664-5532

Frank S. Hamlin Director, Attorney-Mediator Oyer 20 Years Tort and Commercial Litigation Experience Oyer 100 Mediation and Arbitration conducted Graduate, The Attorney-Mediators Institute


~tanoaros for 1:1xamination of J1{£aI ~stah~

Wit1£s in J\rkansas ":1FJublisll .. .}\lIb :1FJlIblisll o-'\lIb


Enclosed please find my check for 5 . for _ _ copies of the Starrdards for Examillatioll of Real Estate Titles ill Arkansas.


J5'rt Jf orll] _'\



Wllo wOllld ltave tllollght tllat tllere was a title lawyer amollg tile Old Testamwt Proplrets! Bllt, tile effort to pllblisll stalldards for examiltatioll of real estate titles ill Arkallsas goes back almost tllat for, to 1962 alld earlier. III 1993, tile Arkallsas Bar Associatioll's Natllral Resollrces Law Sectioll decided to do some/llillg abollt tile lack of stalldards, appoilltillg acommittee to start draftillg. Tiley were later joilled by members of tile Real Estate Law Commiltee. By Febrllary 1994 afirst draft, distillillg years of experiellce, was ill circlliatioll to lawyers, title professiollals alld milleral rights lalldmell.

Artic1£s were writ/en ooUmg atlentim to tile pro· ject, alld tile stalldards were disCllssed at meet· illgs, semillars alld fllrther draftillg sessiolls throllgh 1994 alld 1995. Tiley were approved for pllblicatioll over tire Associatioll's Ilame by tile Execlltive COllllcil ill April 1995 alld tile

Arkallsas Bar FOlllldatioll awarded agrallt to fillld illitial expellses. Tile stalldards will be available November 1st. TIley 0011 ocorden>f by selldillg !flllr clleek to TITLE STANDARDS, Arkallsas Bar Associatioll. 400 West Markllam. Little Rock. AR 72201. Members of either promiligatillg sectioll call obtaill tire p"blicatioll for $10; ABA members pay ollly $lS; alld Iloll-Arkallsas Bar Associatioll members am receive it for 525. How do liD/I joil1 either Sectioll? Simple! Wlrell yOIl order tile Stalldards witll tire form below, yOIl call also serrd ill YOllr dlles alld joill aile or botll Sectiolls. Order YOllr copy 1l0W.

o a member of one of the Sections; o an Arkansas Bar member, but not a Section member; o neither of the above. Enroll me in 0 Natural Resources Law Section ($15 a year), o Real Estate Law Section ($15 a year). Dues are also included in my check. NAME






If yOIl IIave hm'e allY qllestiolls regardillg tire Title Stalldards, please feel free to call tact tile Rabert Avery, 501-265·3861, Presidellt of tile of tile Real Estate Title Stalldards Commiltee

NOMINATIONS FOR PRESIDENT-ELECT Article III, OFFICERS of the Arkansas Bar Association's Constitutiun, provides in pertinent part that: "Section 2. ELECTION OF PRESIDENT-ELECT. The President-Elect shall be elected by a ballot of the entire membership of the Association. Nominations shall be made by petition signed by at least twenty-five Association members residing in the nominee's State Bar District as hereinafter defined. ominating petition shall be filed with the Secretary-Treasurer at the Association office at least 60 days prior to the first day of the Mid-Year Meeting." The President-Elect for 1996-97 will be nominated from the Southern District comprising the counties of: Ashley, Bradley, Calhoun, Chicot, Clark, Cleveland, Columbia, Dallas, Desha, Drew, Grant, Hempstead, Hot Spring, Howard, Jefferson, Lafayette, Lincoln, Little River, Miller, Montgomery, Nevada, Ouchita, Pike, Polk, Saline, Sevier and Union. Petitions must be filed by Monday, November 27, 1995 with the Secretary-Treasurer at 400 West Markham, Little [{ock, Arkansas 72201 18

The Arkansas Lawyer

Fall 1995

_ _ _ _ _ _J

Law Laughter & Literature

In Wake of State v. 0.1., Let Us Return to the High Road CopyrighT /995 hatever we Ihink of Ihe lighlspeed verdicI in People of California \'. Orell1hal James Simpson. a stigma has been etched onto the image of a profession. And it may take decades to repair. Indeed. il may be irreparable. With press conferences and public displays of Ego. the Dream Team exuded an arrogance that slicks like Velcro. Even 10 lawyers who don't hold press conferences and publicly air their animosities. The invidious. insidious (and somewhat hideous) Prosecution, with combative and high-minded selfrighteousness. added to the shell from which average attorneys must emerge to talk with other elements of society. So jaded are so many against "A" word professionals. that even in ca~ual cOllversa路 lion, attorneys often cannot escape chastisement and insult among non-legal friends. A New York Times editorial called the verdict "understandable given the relentlessly exposed bungling of the Los Angeles Police Department [whose] investigators made so many errors that the mountain of evidence against Mr. Simpson began 10 look like an eroding sandpile." A back-handed rebuke of the prosecuting attorneys. who ultimately supervise (and woodshed) their key witnesses. pol ice officers. In a Times op-ed piece lawyer SCOll Turow, author of Presumed Innocent. opined that the case against Mr. Simpson was "3 low road enterprise that began with the kind of ugly lactics Ihat have aroused suspicions about the criminal justice system among members of racial minorities in Los Angeles and elsewhere." He said blind acceplance of "most unlikely slories from police officers" precluded the D.A."s recognizing in Detective Mark

Fuhrman a genuine evil. Columnist Maureen Dowd wrote. "Any finale except instanl acquinal capped by a clenched-fist salute from a juror who was once a Black Panther. anything other than the white van going down the freeway while motorists cheered and waved would not have been artistically fining for Ihis Babylon tragedy-turned-farce thaI crystallizes everylhing warped about our society at century's end." Columnist Thomas Sowell called for overhauling the criminal justice sy!\tem by creating Professional Jurors. trained in law. anonymous. and immune from "being taken in by lawyers' Iricks." The Simpson case, he said, "was a painful demonstration of what is wrong with Ihe American legal system:'

by Vic Fleming


Make no mistake about it. The pundils cited above have reference to the legal profession. To lawyers! Ironic, isn't ii, thatlhe media critics lake down Ihe legal profession before, during, and aner the nOlorious coverage. via TV. that they thel11. . elves demand! More ironic. really. thai some lawyers insist on playing to cameras as "analysts" and, thus. contribute to the diminished image. In my opinion. even High Profile allorneys oughl not sell their services as legal commentators. especially if the motivation is business development. "Legal analysis' (by lawyers-via-the-media) of every gesture. comment. and grunt of the trial participants is not. in my opinion. on the High Road. LeI Ihe Law Professors do the analysis. Why? Because to the extelll thai it is appropriate, it is so for teaching. not client development or extra income! hope lawyers will. with a renewed sense of focus. demonstrate that they are, first and foremost. problem solvers. connict resolutionists, dispute managers. and business advisors. In my opinion. the entire legal profession is on Ihe brink of unprecedented revamping because of an image - foslered by Ihe OJ. Ifial and its legalistic commentators - that all lawsuits involve trickery, deceit. and manipulation and that. therefore. ethics and lawyers don'l mix. I predict that in the end, State \'. Simpson will be remembered as a trial in which the prosecution wa~ its own worst enemy_ And in which Ihe defense was so highly-paid Ihal il had 10 deliver in court where it counted. The Smarts of the defense case was to let the prosecution slowly self-destruct in colleclive blindness. Would that the stralegy could have played itself out wilhout off-court coverage of personalities! I hope Mr. Simpson did not commit the crime~ of which he's been found not guiliy. Would Ihat so many were not so convinced (from media coverage that the jury did nOI receive) of his guilt. Moreover, I hope he does not return to acting. get millions for after-the-faCl unsworn testimony, or get his own talk show. Let him go inro seclusion for awhile <as did the Irue heroes of myth) and. if free of guill, make good on the promise to search for the murderers. If he com mined the crimes, I hope he pays every day for the rest of his life. And I strongly suspect thaI he will.



I hope lawyers will, with a renewed sense of focus, demonstrate that they are, first and foremost, problem solvers, conflict resolutionists, dispute managers, and business advisors.

The Arkansas Lawyer

Fall 1995

CLE Director's Report

Evidence of a Few Bad Apples Doesn't Mean We're all Rotten by Char/oTle Morrison


n our first day of law school, professor after professor told us that our minds were mush and thm after dili-

gent study we would be able to think

like lawyers. Implied in this stale路 ment, we thought, was a guarantee that if we spent much lime and money to earn our degree and pass

the bar, people would now into our office pleading and paying us to do their work. Once in practice. it didn't take long to realize that things don't quite work that way. It's very competitive, and it is imperative to market your tal-

ents - either overtly or covertly. But this can creale major inconsistency.

Not only did our law schools

not offer marketing courses: they instilled the strong attitude that soliciting business or advertising was offensive at best. Unfortunately, a lot of the advertising is insulting - not only to the public. but to the entire profession. But before the whole barrel is thrown away, we

need to remind the public that evidence of a few bad apples does not mean we're all rotten. It is time

we lawyers stop apologizing for being members of our profession, which just happens to be one of the

oldest, most honorable professions the world has known. The reasons why the public views lawyers in less than a positive light is no mystery. (Just watch some of the commercials lawyers run on television, or read the mail one receives after having a car wreck.) Instead, let's focus on some of the more positive aspects of being a member of the

legal profession. Historically, lawyers have made imponant contributions to our country's developmenl. Thomas Jefferson is largely credited with drafting the

Declaration of Independence, and 25 of the 52 signers were lawyers. Two lawyers, Alexander

HamilLol1 and John Jay. worked with James Madison on the drafting and ratifying of the U.S.

Constitution. Lawyers have helped in the development and protection of the basic freedoms guaran-

teed to all citizens by the Bill of Rights. Efforts to dilute the power of the U.S. Constitution often have been defeated because of lawyers who stood finn in its defense. Lawyers provide much of the leadership in our communities as well. We are called "ambulance chasers" and "crooks:' but the problem is that most people do not know the good things we do. Lawyers devote thousands of hours each year to their community and their profession. Various 20

The Arkansas Lawyer

Fall 1995

Legal Services agencies provide representation for the indigent who might otherwise go unrepresented. These agencies cover every county in Arkansas.

Central Arkansas attorneys alone provided 5,552 hours in 1994 for VOCALS (Voluntcer Organization for Cenlfal Arkansas Legal Services) .

Lawyers also do pro bono work for the elderly. In 1994. Arkansas lawyers provided 4,077 hours to AVLE (Arkansas Volunteer Lawyers for the Elderly). oth law schools devote thousands of


hours to community service. For

example, UALR School of Law has a partnership in education with

Rockefeller Elementary School in Little Rock. Law students devote their time to help elementary students with their school work so they will not fall behind their classmates. Fayetteville Law School has a law related education program where law students talk 10 elementary,

junior high, and high school students about the Bill of Rights. the legal system. and the problems of atrisk youth. Both schools have been involved in Habitat for Humanity. food drives that benefit their local areas. and projects to help their local battered women's shelters. This year the Arkansas Bar Foundation has given the Arkansas Bm' Association an endowment to subsidize the registration fee of newly licensed lawyers who are atLending the "Bridging the Gap路' seminar. More experienced lawyers give back to our profession by teaching at this seminar. Not only do they cover substantive areas of law, but they also lake the time to teach the younger lawyers the importance of being professional and ethical in their practice. This is not the only seminar in which lawyers give generously of their time and talents. It happens all year long at CLE seminars; lawyers across the state volunteer their time to teach both the new and the experienced attorneys. e agonize over the public's perceptions of us, and we have good reason to do so. Perceptions tell us some mem-

bers of the public think we are dishonest. difficult to deal with. drag out cases increase fees, represent bad people, and thai . ..

THERE ARE TOO MANY OF US. In light of these perceptions. we have established our own dis-

Ciplinary rules and havc made our disciplinary system more understandable and accessible to the pub-

It is time we lawyers stop apologizing for being members of our profession, which just happens to be one of the oldest, most honorable professions the world has known.


lic. We have also established the Client Security Fund to compensate clients who are defrauded by their attorneys. What else can we do? Place better client-lawyer relationships at the top of your list. You mu~t do your part. Your client see, you as our profession. When your client is silting across from you in your office, remember you represent all of us. You will either be what is right or what i51 wrong about our profession. The key to improving the public's perception of us mu't begin one lawyer and one client at a time. \Ve can all,o support stronger regulation of anomey advertising and tougher griC\ance penalties. You and I must be enforcers of our rules. We must pursue those attorney, who deliberately disregard our rules and those who are repeat offenders. In the past 3 years, there have been 188 disciplinary actions. Last year alone. there were 77 disciplinary actions. including 5 disbarments/surrenders. At the present rate. it appears we will match or exceed those numbers in 1995, but we don't have to. Take the time to get involved by offering your input to the chairs of the Lawyer Advertising Committee. the Professional Ethics & Grievances Committee, or one of the other committees that work to improve our community and our profession. Above all, be an advocate for the good things that lawyers and the legal 'ystem siand for in our society. We have taken steps (0 improve in (he areas in which we have been criticiled. and we need (0 continue in the future. These are excellent Meps toward an improved public image. but more is needed. We are each responsible for making it happen. We need not apologize for being lawyers. Instead. we should strive to be better at what we do.



June 12 -15, 1996 Plan to attend the

Arkansas Bar Association Arkansas Judicial Council Joint Annual Meeting Arlington Hotel Hot Springs, AR

EEOC Discrimination Consultant Charles Bucher (501) 224-0877

Retired from EEOC with 20 years experience

Goodwin, Moore, Colbert & Broadaway Attorneys at Law are proud to announce the association of Angela Bowden Gray and Michael Scott Phillips (September 1, 1995), the relocation of our offices to 1201 West Court Street Paragould, Arkansas, and the election of

Harry Truman Moore as President Elect of the Arkansas Bar Association for a term as President to begin June, 1996.

Career Opportunity DuTY STATION: United States District Court, Western District of Tennessee POSITION OVERVIEW: The incumbent provides legal advice and assistance to the court in connection with pro se litigation, and prisoner petitions and complaints. Pursuant to action of the United States Judicial Conference at its September 1994 meeting, pro se law clerks are appointed and supervised by the chief district judge, under the authority of 28 U.s.c. ยง 752. The chief district judge may delegate this authority to another judicial officer or the clerk, as deemed appropriate. CLOSING DATE FOR ApPLICATIONS: October 31, 1995 SUBMIT ApPLICATIONS To: Clerk's Office, U.s, District Court, 242 Federal Building, Memphis, TN 38108 JOB LINE #: (901) 544-4537 21

The Arkansas Lawyer

Fall 1995

Law Office Technology

Random Notes on the Passing Cyber Scene (In Ascending COlllfilexitr.frolll Ne\l'bie TO Geek) b,' Maggie Nell'lOn hat are they saying? Here is a handy fold-up dictionary 10 keep in your pocketbook. until you become a certified gecko whereupon. you may keep it in your pocket protector. -BAUD\ unit of mea\ure which signific51 hO\\ fast data tfaycls to and from your computer: the higher the baud nne. the faster you can send and receive info oBBS Bulletin Board Syslem. \\ hich is where one can post a message for others to read and. hopefully. respond -BRO\\SER soflwan: which aHo\\ '" you to "Surf Ihe Nel" (see Internet. below): Mosaic and NClscape are two popular browser~ -E-;\IAIL electronic mail (see e-mail tips. below): opposile of snail mail oFAQ Frequently Asked Questions 路FLi\~lING a Netiquettc no-no. i.e.. sending really mean messages to ignorant or irritating people oFTI' File Transfer Protocol. which allows you to send documents and program~ -GOI)IIER method by which one tunneb from one part of Ihe Net to another oHTML Hypertexl Markup Language. which allows a suffer to click on high-lighted term to a connected Net ..,ite -iNTERNET 3 network of nt:twulk..,. on an international scale. alkla the el: de\eloped originally as ARPA ET (Ad\anced Research Projects Agenc} network) olRC Internet Relay Chat. a Iype of realtime e-mail -USTSER\ electronic mailing list (see list of list"erv". below) -SSAIL MAIL mail sent via the .S. Postal Service: opposite of e-mail -SPA~I~IISG another Netiquette no-no. i.e.. mass emailings. usually advenising. to unrelated places -SYSOI) system operator who administer.., a network. BBS or forum: you complain to them about spamming oTCPflC Transmission Control Protocolllntcrnet PrOlocol. which allows access to Ihe Web if you don't use an on-line service. such as a BBS. or one of many commercial services: to implement TCP/IC. your Internet provider will use either the SUP (Serial Link Internel Prolocol) or PPP (Poinl-IO-Point Protocol) method -URL Universal Rc..,ource Locator, the stan22

The Arbn'\311 Lawyer

Fall 1995

dard system of \\fiting an Internet document address ..,0 that} our browser can locate it o SENET analogous 10 a colleclion of BBS, divided into topics, called newsgroups or forums. which are then ..,ub-dh ided into hit:rarchies (i.e.. group.lopic.,ubtopie) oWAIS Wide Area Information Servef'. a database manager. used to allow searches of vast info Iibrarie\ stored on the et: other se;trch tools include Archie. Veronica and Jughead oWWW World Wide Web. or the Web. i, a \uhcalegory of the ct consisting of multi-media sites. arranged by topics. which contain dO\vn-loadable text. images nnd sounds.

Location, Location, Location Confu'ed by Ihe jumble of leiters u,ed for e-mail uddresse'\ and Web sites? Think back to your first year of law ..,chao!. Did you understand citations right away? Of course not. But now yuu know that a cite tells you where to find a case. just like e-mail addresse' and Imernet URLs lell your computer 10 find those places. The Lrick is knowing the key. E-mail follows Ihi' formal: someone(@<omeplace.domain (said ....,omeone al someplace dOl domain"). Generally. info aboul Ihe person is before the "(-" :md where they are located is after the ..(- ". For example. my e-mail add res< is mmne\\ ton( My 10 is 路路mmne"'ton" which dhtinguishes me from other people using 111} network. "Someplace" is CEI. which is my Internet provider. and "net" indicates that CEI i, a major suppon center of networks. Other domain suffixes include .com (commercial organizations) (educational Institutions) (governmcl1tal ill'aitutions). .int (international organizations) (military groups) and .org (miscellaneous orgnnizations). ere are a couple of e-mail addressc..,. one from the len and one from Ihe right: U.S. Vice Presidenl AI Gore (\'lcepresldent(@whltehOlI\ and Rush Limbaugh (70277.2502 @compuo;, URL< follow this format: hltp://address.documenl name. URL locations commonly follow the email format for addresses. Web addresses usually have "www'" as a prefix. Generally, Ihis address will take yOll to a "homc page" which i'\ analogous to the lobby of a building. From thal lobby. you can acces.., all Ihc


Here in ollr home State, people are gettillg wired all over the place! The Workers' Compensatioll Commission has christened their EDl program, and carriers are linillg lip to send their info electronically.

offices in that building, or jump to other buildings. If you don't know the URL of a company or organization's Web page, you can often guess the URL of their "front door" by trying 路路htrp://www.companyname. com (or other domain suffixes)". Time is mone)' Especially when you arc paying by the minute. As a result. regular e-mail users use u!)ual and unusual methods to get across a point - abbreviations and smileys. which convey nonverbal cues. such as voice lone and inflection and facial expressions. Smileys are especially helpful when you are attempting to convey irony.

around the country have created vast repositories of legal info. or at least point you in the right direction. Check out: Guide to Legal Resources. Chicago-Kent College of Law (hll p:// nl); Legal Information InstilUte. Cornell University Law School ( Villanova Center for Information Law and Policy. Villanova University School of Law (; Villanova Federal Web Locator (http:// FedAgency/fedwebloc.html); Virtual Law Library, Indiana University School of Law (hll p:// tOll); ARIA WEB. The American Risk &




by the way

:- )



bottom line



TTYL- talk Lo you later




;- )


laugh out loud

ROFL- rolling on floor laughing <g> -


YMHO - in my humble opinion

Research Rules the Day A brief is due tomorrow. so you '1\ be up all night working on it. But by the time you get to the law library, it will be closed. Are you SOL (and we don't mean stalUte of limitations)? Nope! Just logon to the Internet. and, oh, the places you'll go! Be sure to visit the following sites: Library of Congress (; Federal agencies (; U.S. Congress (; U.S. Supreme Court (hllp://www. pct!supct.table. html): cases from the Third (! 011). Fourth, Sixth and Eleventh Circuit ( Courts of Appeal: SEC EDGAR filings (; U.S.c. text ( 8001Ihis/usc.htm); and C.ER. text (hllp:// Several law schools and organizations



:-\ frustrated or puzzled :-# exasperated

Insurance Association (ARIA) Web Server (http://13 I .-6.-4.5/ARIA.HI'M); Law Links by Lexis Counsel Connect. law materials by topical index (; The Legal List (http:// www.lcp con-IThe-LegalListlTLL-chapter4.2.html); and P-LAW Legal Resource Locator (http/ What a Wicked Web We Weave Navigating the Web and Internet are easy with search engines like the Webcrawler ( or lists, lists and more lists. like Yahoo ( or handy-dandy home pages. like The Universal Home Page (, The Info Highway) or The Internet Guide (!Guides/decemj/t ext.html). If you have a hankering to pay someone to find your info. try InfoSeek (

All Work and No Play ... For a little diversion. while you're ~urfing the 路Net. check out these fun places. or discover your own. Try Cool Site of the Day (and Year) - a perennially cool and groovy place (! cool.htrnl), Calvin and Hobbes Jumpstation - if the daily comics are not enough of a fix for you (hllp:// Kingswood Kranium Home Page - the weird and wild on the Web ( and Ari's Today-Page - someone in Finland has alot of time on their hands (http://www.uta.fil bl arku/ ml). Gelling Wired Here in our home State. people are getting wired all over the place! The Workers' Compensation Commission has christened their EDI (Electronic I:)ata Interchange) program, and carriers are lining up to send their info electronically. Meanwhile. up in the N. W. corner. the Washington County Court system is getting networked. courtesy of the Arkansas Supreme Court Committee on Automation and the National Center of State Courts. News Junkies Unite! Newsgroups and listservs are two fav ways to go for an extra shot of news in the cyber world. Check out USENET FAQs ( tlfaq/usenet IFAQ- Li st. html) before you jump into Inlernet Newsgroups (http://www.w3.orglhyptertextlDataSourcesINews/Groups/ Overview.html). If you love lists, legal and otherwise, take a look at http://scww-.v,usc.indiana.eduJ mlarchive and http ;lIwww. kentlaw. eduAawlists/list servs. htm!. If that's not enough for you, you can always subscribe to some on-line mini-Il"lags, like the Pathfinder Compass, by Time Warner (subscribe to compassrequest(, the clnet Digital Dispatch (subscribe at their home page: the Dell Computer Corp. NetGuide Now' (subscribe to netguidenow(, or The Computer Law Report, by attorney William S. Galkin (subscribe to}. Fini, The sites listed above are not meant to be definitive. If you know of some places I didn'( mention, or have thoughts or comments. let me know bye-mail ( or snail mail, Matthews, Sanders & Sayes, 325 W. Third, Little Rock, 7220 I. I'd be glad to share any additional info with Arkansawyer lawyers on the Arkansas Lawyers Listserv. Happy surfi ng'


The Arkansas Lawyer

Fall t995

I _~_The Arkansas Lawyer


A good name is rather to be chosen than great riches.



FaJl) 995 _

- the Bible


have an} evidence to bad. up its assertion of harm caused by direct mail. Some Bar Associallons have apparentl) seen Went For It as a green light for other restrictions on advertising. I think a careful reading of the ca'e doc, not justify that conclu:-.ion. It is true that the Supreme Courl con"lidered harm to the profession a~ one of the faclors that ju~tified the regulation. But throughout the decision" the Court makes it clear that it was the element of invasion of privacy that justified the regulation. One of Weill For lI's arguments wa~ that the Florida Rule may prevent injured person, from learning about their legal rights at a time that insurance compan} adjustor" and attorneys are pennitted to contact them. The Supreme Court relied on the many other ways for injured people 10 find out about the a\-ailability of legal sen ices in rejecting that argument. 3 Because the Supreme Court is requiring at least some kind of empirical evidence to jm,tify restrictions such as (he one in Weill For It, it is not at all clear that another state-say Arkansas- could enact the same ban without at leasl some type of expensive empirical study.

"Whether you are a lawyer or not, if you have been injured in an accident recently, you probably received anywhere from two to fifteen solicitation letters." Gary Eubanks


ast June. proponents of restric-

tions on lawyer advertising won a narrow VICtory at the United States Supreme Court. In Florida Bar \". \\elll For Ir. II/c. tâ&#x20AC;˘ The Court allowed Rorida 10 place a limited time restriction on targeted direct mail solicitations to pep,ons injured in accidenls. Now Florida attorneys must wait until thirty days after the accident to send direct mail solicitations. The victory was-indeed-narrow for Lhe regulators. Florida met Its burden of proof


The Arkansas Lawyer

Fall 1995

by supporting its ban with evidence. The Florida State Bar had to show a substantial state interest. The court recognized prOlcction of potential clients' privacy as a sub~lantial state interest. The Florida Bar relied on stati~tical and anecdotal evidence that Floridian, overwhelmingl) found direct mail advertising to accident victims an invasion of privacy. The Supreme Court found that ev idence sufficient. The Supreme Court further noted that Lhe restriction wa~ narrowly tailored to its stated objectives. The Court diqinguished Shapero \'. Kemllcky Bar Auodlllion 2 b) noting that in Shapero the \late did not use privacy a.\ a basis for its regulation. The ban in Shapero was also too broad. dealing with all direct mail solicitations "whatever the lime frame and whoever the recipient.¡¡ The State in Shapero did not

hose of you who have ~e~n my"mall order lawyer" advertisement know that I am not using the direct mail method of soliciting business. What you may nOl know is that the "mail order lawyer" phenomenon only scratches the surface of a much more serious problem. I have come across cases in which lawyers. or their "runners:" \kip advertising entirely and show up at Injured peoples' doorsteps shortly after accidents. A number of my clients have called me because someone showed up. unmvited. at their doors. Although this activity i, highly unethical and is grounds for disbarment. nothing is effectively being done to stop it. This i, in ,pite of the faci that my firm. and other firms that spend money 011 advertising. have reported the instances that we have been able to document. I know of no competent


Lawyer lawyer who engages in direct in-person ,olicitation. I hu\"e run an advertisement about this misconduct. My ad was lillie more than a public service announcement. do not believe it got me much business. I was getting as many or more calls from outraged victims of door knockers before I ever ran the ad. Whether you are a lawyer or not. if you have been injured in an accident recently. you probably received anywhere from two to fifteen solicitation letters. One local Administrative Law Judge's wife got six \\-hen ~he had an accident a few months ago. One of the lawyers in my finn got a couple of letters after his car was hit. But unless you are a lawyer. there's no way to tell which-if any- of these lawyers is really prepared to handle your case competently. A few of the mail order lawyers I "-no\\ ofyou know who you are---<:an at leas,t per路 form in the courtroom. Others are simply not really Iitigators. Many of them offer "cut rates." You get what you pay for. The best I can say about some of these lawyers is that they know how to find their way to the police station to request an accident report. The Yellow Page, are a little better. but there is still no way to determine whether the lawyers listed are really prepared to carry your case through to trial.

ttorney certification has been under consideration in Arkansas for more than 25 year,. So far. we have board certification in a few fields. but not in the field of civil trial advocacy,




where it is moM needed. Arkansans with tax problems can consult a Board Recognized Speciali't in Tax Law. but people with tax problems usually have money. Money usually means connections with people who know lawyers and law firms to recommend. People do not choose their tax lawyers from adyertisements. They get their lax lawyers at the country club. Many of the people who need civil trial lawyers most. on the other hand. have little or no connection with Ihe legal community. Arkansans desperatel) need some wa) to know whether the lawyer they are thinking of hiring has the necessary experience and !>kill to handle their case to a successful conclusion. I wrote an article in August of 1988 for Arkansas Business in which I said that certification is imperative to protect the public and that the public could not afford any unnecessary delay. We have had unnecessary delay. Unnecessary delay has resulted in mail-order lawyers. door-knockers. and lawyers wjlh more dollars than sense holding themselves out as trial lawyers when they are not. Because of the vacuum created by the failure of bar associations to recognize certification. groups such as the National Board of Trial Advocacy have formed. The National Board of Trial Advocacy is a voluntary association open to qualified trial lawyers. The United States Supreme Court has recognized that the standards of NBTA are "objective and demanding." 4 The Task Force on Lawyer Competence described NBTA certification as a "highly-structured" and arduous process that employs a wide range of assessment methods"路 S


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

~~ ~

I was the second lawyer in Arkansas to be certified by the NBTA. It was my intention at that time to advertise my NBTA certification. The NBTA asked me not to adverti,e my certification at Ihat time. I was willingbut not happy-to comply. An IIlinoi, attorney included his BTA certification on his letterhead. The IIlinoi~ disciplinary commission charged the attorney with an ethical violation. The United Stales Supreme Court decided that "the quelitioll to be decided is whether a lawyer has a constitutional right. under the standard, applicable 10 commercial ,peech. to advertise his or her certification as a trial specialist by NBTA ..路6 The Court answered that question in the affirmative. The NBTA now permits all certified attorneys to advertise their certification. It it., my intent to do so. But I do nOI believe Ihat certification by NBTA is enough. We need state certification as well for the benefit of the public. It will not be enough for trial lawyers to call for certification. If the public does not help us in our efforts. specialty certification in Arkansas will remain on (he drawing board. and the consumer will have no way of knowing whether the lawyer who sent the letter, appeared on the billboard, and showed up in the Yellow Pages. radio and tele\'ision has the skill necessary to provide adequate representation. Before Bares v. State Bar of A ri:,olla. 7. no advertising was permitted and lawyers were protected at the expense of the public. ow, with ad\'ertising without state cenification. nobody is protected. Although we can market our services just as used car salesmen do, the publi has no lemon law for lawyers.

Lawyer There is no '"Bluc Book"8 for comparing prices of lawyers. I repeal what I said in 1988 and before. We need certification guidelines. The public cannot afford any unnecessary delay.


I. 63 U.S.L.w. 4644 2.486 U.S. 466 (I Y88). This is the case in which the United States Supreme Court held that the State could not categorically prohibit lawyers from soliciting legal business by sending truthful letters to potential clients. This case authorized direct mail solicitation. 3. Respondents' ~ecumJ point would have force if the Bar's rule were nol limited to a brief period and if there were not many other ways for injured JI ••• Floridians to learn about the availability of legal representation during that time. OUf lawyer advertising cases have afforded lawyers a great deal of leeway to devise innovative ways to attract new business. Florida

permits lawyers to advertise on



the ample evidence. testimony. and commentary submitted by those favoring (as well as opposing) lInre~lricted direct-mail solicitation. respondents have not pointed to--and we have not independently found--a single example of an individual case in which immediate solicitation helped to avoid, or failure to solicit within 30 days brought abOlIl, the harms that concern the dissent, scc post. at 9. In fact. the record contains considerable empirical survey information

7. 433 U.S. 350 8. The term "Blue Book" refers to a refercnce book giving the fair market value of used cars. The book is not blue.


Wendell Griffen

he Supreme Court of the United Slates has upheld the right of attorneys 10 advertise. finding that legal advertising comes within the meaning of "commercial speech" for Fir~t Amendment analysis. BaTes \~ Ari~olla Slale Bar, 433 U.S. 350. 97 S.C!. 2691 (1977). Since that decision. the Supreme Court has struck down a state bar rule which prohibited direct mail solicitation by lawyers. Shapero \'. KetlIlIcky Bar Associatioll. 486 U.S. 466. 108 S.C!. 1916 (1988). However. the Court has only in its most recent term upheld a state imposed 30-day waiting period for lawyers who solicit accident victims by direct mail. Florida Bar v. WellT For IT, Illc.. U.S., 115 S.C!. 2371 (1995). Throughout these decisions. one can detect what might be termed the discomfort of ti,e legal profession with advertising by lawyers and its relationship to professionalism. To put it succinctly. advertising by lawyers is constitutional. but there is widespread concern that it is also damaging to the professional reputation of lawyers as a whole and to the public's regard for law as something more than a trade that one pursues with personal gain as a primary objective. Thus. the true question is not whether it is legal for lawyers to advertise; rather we should ponder whether lawyers have a duty to something beyond personal libel1y insofar as advertising is concerned. This is a question of professional ethics. of morality. and may very well approach the spiritual dimension of law. lawyers. and the public that law protects and whom lawyers are sworn to serve.

the Jlmail order lawyer" phenomenon only

scratches the surface of a

prime-time television and radio as well as in newspapers and other media. They may rent space on billboard~.


"end untargctcd (cuefs to the general population. or to lTI:ly

discrete segments thereof. There arc. of course, pages upon pages devoted to lawyers in the Yellow Pages of Florida telephone directories. These listings are organized alphabetically and by area of specialty. See generally Rule 4-7.2(a), Rules Regulaling The Florida Bar (-[A] lawyer may advertise services through public media. such as a telephone directory. legal directory. newspaper or other periodical, billboards and other signs. radio. television, and recorded messages the pllblic may access by dialing a telephone number. or through written communication not involving solicitation as defined in rule 4-7.4-); The Florida Bar: Petition to Amend the Rules Regulating The Florida BarAdvcrtising Issues. 571 So. 2d. at461. These ample alternative channels for receipt of information about the availability of legal representation during the 30-day period following accidents may explain why, despite 28 The Arkansa~ Lawyer Fall 1995

much more serious problem"

suggesting that Floridians have little difriculty finding lawyers when they need one. See. e. g., Summary of Record, App. C(4), p. 7: id .. App. C(5). p. 8. Finding no basis to que~tiull the common sense conclusion that the many alternative channels for communicating necessary information about attorneys are sufficient. we see no defect in Florida's regulation. 4. Peel". Attorney RegisTrtuio" and

Disciplinw)' COII/llliuiofl oj IIlillois, 496 U.S. 91. 95 (1990). 5.ld. 6. Id.. at 99- f 00.


Lawyer My response to the assignment given me in this article. therefore. does not oppose advertising by lawyers on legal grounds. The question is whether there is a higher good beyond legality which should be considered. It is true that it is permissible (0 advertise. but does that mean that the public is wellserved by the exercise of thaL freedom as we have observed it'? Is the trust lhat society needs to have in the legal profession as a calling of people dedicated to truth and justice likely to be damaged or advanced by the speckle of 13\\ yers writing solicitation letters to grief-stricken family members. or hawki ng our services through the use of overly-dramatic television re-enactments? Can we truly ignore this dimension to our profession in our discussion of advertising by attorneys, particularly in the face of public opinion polling which shows us that the public perception of lawyers is falling, coupled with survey data from a poll of lawyers which indicates that advertising has a negative effect on the image of the profession? Is this merely a private issue to be confronted by each lawyer individually, or does the legal profession owe itself, the public it serves. and the institution of justice to which it is called. some obligation beyond the quest for personal enrichment? I do not pretend to have the answers to these questions. and yet I raise them from the conviction that the legal profession will not answer them unless the) are confronted. Personal freedom to ad'"ertise notwithstanding. it is time that we consider what it means to be a profession. Unless we are to adopt the idea that consumerism is to define the ethical parameters of permissible conduct by lawyers. there must be some sense within our profession and each lawyer that we owe the public something more than the right to know that we are lawyers and where we can be found. We owe a duty 10 uphold the



pie and property are manipulated for gain, and not an effort, albeit imperfect, by which humans seek to justly resolve their differences and conduct their Lransactions. So rather than argue that lawyers should not advertise. or denounce the court decisions on lawyer advertising, we should be talking with one another about what it means to be a profession. If being a professional means being a person of trust concerning a discrete subject maner on which the general public lacks knowledge and is dependent. then we should be a~king ourselves whether the public is likely to trust a "profession"

whose members resort to commercial manipulation in order to foster demand for our services. Lf we are free to advertise. we are free to temper the way thm we advertise so that the confidence and trust that the public needs and upon which our justice system depends will not be undermined.


hose who support the de-regulation of lawyer advertising assert that the public needs to know its right to legal services. and where to find the people

"It is true that it is permissible to advertise, but does

that mean that the public is well-served by the exercise of that freedom as we have observed it?"

PubUc confidence and trust ill the imegrity of our legal system. If that sense of confidence and trust is lacking, the public will come to view law as a system by which peo-

Lawyer who have been trained to assertlhose rights. This is true, and is one of the reasons that the Supreme Court has invalidared efforts to suppress entire areas of lawyer advertising. But sure-


Advertising we advertise) in ways that inspire trust rather than cynicism. One would hope that our efforts to

"Those who support the

Iy there must be a beller way of informing the public than some of {he devices that have appeared on television screens and through direct mailings around the country. One

consistent with the nobility of the

de-regulation of lawyer

would hope that the quality of the lawyering offered by those ads and appeals is higher than the tastefulness

advertising assert that the

of the messages that are communicated. But this is more than a discussion of etiquette, more than a debate about manners and social prou)Col. This is a discussion about professionalism. There are certain behaviors that,

public needs to know its

while cenainly legal. are beneath the dignity of our profession. One would

inform the public about the availability of our services would be profession that we have been

blessed to enter. One would hopc. in shon. that we would raise our standards above what b minimally

acceptable in the marketplace because we are a profession. not a

market. or bazaar. or shopping mall.

right to legal . " servIces...

hope that the strenuous academic preparation and discipline demanded of us to become lawyers would inspire us to advertise our services (if


he freedom to advertise carries with it the freedom not to advertise or to use one's

best and highest efforts

to advertise in ways that promote public confidence and trust in the system of justice that allows LIS to

be lawyer; in the first place. We should stop arguing about whether





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The Arkansas Lawyer

Fall 1995




we have the right 10 advertise. or even whether we ought (0 advenise. The Supreme

a personal basis. Since we have the freedom

Arkansas Bar Foundation Special Projects Grants

to advertise. we should focus our attention on doing so in ways that enhance and slrengLhen the public trust in the rule of 13\'v.

Arkansas Bar Foundation Special Projects Committee Chair Richard A. Williams invites the submission of grant applications for legally related special projects.

COUft has answered (he first question, and each lawyer must answer the second one all

the integrity of Lhose who have been blessed to become lawyers. and sense of well-being thai is so vital if our legal system is to survive. For if Shakespeare was correct when he stated through one of his characters that

in order for tyranny to prevail. one must first kill the lawyers. then there is something else to be considered. Before one can kill the system of law which lawyers are sworn lO serve. one must kill the confidence and trust

that Lhe public has in lawyers and the legal system. h is one Lhing for a despot or tyrant to try to do this. It is something altogether different, and more troubling, when lawyers do this LO ourselves in the name of personal


DEADLINE FOR SUBMISSION: 4:00 P.M., Tuesday, November 28, 1995. The applications will be circulated to the Special Projects Committee immediately and the committee will meet for its first review in December. Arkansas Bar Association and Foundation committees and sections and other entities and individuals having worthy, legally related projects may submit grant applications. No grant money will be approved finally or be available until after the Trust Committee meets in January, 1996 before the winter Foundation dinner. To request an application, or to ask questions, write the Arkansas Bar Foundation, 400 West Markham, Little Rock, AR 72201 or call Ann Dixon Pyle at the Arkansas Bar Foundation by dialing 3754606 or 800-609-5668.

Arkansas Bar Association • Calendar of Events HOUSE OF DELEGATES MEETING Dale: October 21,1995 Location: Inn of the Ozarks, Eureka Springs

PUBLIC SECTOR LAW Date: October 27, 1995 Location: UALR Law School, Little Rock

BRIDGI G·THE·GAP SEMINAR Date: November 2-4, 1995 Location: UALR Law School, Little Rock & Ark. Law Center

CLE CRUISE Date: O\'ember 4-11, 1995 Location: Caribbean

FEDERAL TAX INSTITUTE Date: December 7-8, 1995 Location: Excelsior Hotel, Little Rock

MID-YEAR MEETI G Date: January 25-26,1996 Location: Peabody Hotel, Memphis House of Delegates Meeting, January 27,1996

5TH DISTRICT TRIAL PRACTICE Date: February 2, 1996 Location: SAU, Magnolia

FAMILY LAW Date: February 9, 1996 Location: TBA, Little Rock

ENVIRO MENTAL LAW Date: ovember 17, 1995 Location: U of A Law School, Fayetteville

EXECUTIVE COUNCIL Date: December 2, 1995 Location: Arkansas Law Center, Little Rock

ATURAL RESOURCES LAW INSTITUTE Date: February 20-24, 1996 Location: Arlington Hotel, Hot Springs

To get more illformatioll 011 these or otller eLf semi/lars, COIl tact tile eLf office of Ihe Arkallsas Bar Associalioll 01 501 -375-3957. 31

The Arkan,as Lawyer

Fall t995

and Freed oitbe by

Until recently, the United States Supreme Court took

HistiIIW tr of commercial speech.

the position that the First Amendment does not protect commercial speech. See, Valentin.e v. Chresten.sen, 316 U.S. 52, 62 S. Ct. 920, 86 L.Ed.2d 1262 (1942). That position was repudiated in Virginia Board of Pharmacy

v. Virginia Citizens Consumer Council, Inc., 425 U.S.

748,96 S. Ct. 1817,48 L.Ed.2d 346 (1976). In striking down a ban on price advertising of prescription drugs, the Court stated: It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the 32

The Arkansas Lawyer

Fall 1995

First Amendment makes for us. In Central Hudson Gas & Electric CO/Po v. Public Sen,ice Commission

of New York, 447 U.S. 557 (1980), the court set forth the four-part test that governs commercial speech: In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial free speech to come within that provision, it at least must concern lawful activity and not be misleading. Next we ask whether the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is more extensive than necessary to serve that interest. 447 U.S. 557 at 556. The last prong of the Central Hudson test was modified in Board of

Trustees of State Univ. of Nell' York v. Fox, 492 U.S. 469 (1989). The court indicated that the "least restrictive means" test was itself too restrictive, and the test has become one of a "rea onable fit." The modified Central Hudson test was applied recently in City of Cincinnati v. Discovery Network, Inc., 113 S. Ct. 1505, 123 L.Ed.2d 99 (1993). In striking down the City of Cincinnati's categorical ban on the distribution of commercial handbills through the use of freestanding news racks located on public property, the Court determined that the City did not establish a "reasonable fit" between the government regulation and the government's professed goal in public safety and esthetics. Important to the Court's decision was that other forms of speech such as newspapers were not subject to the ban. Justice Stevens, writing for the majority in Discovery Network, noted that: In later opinions we have stated that speech proposing a commercial transaction is entitled to lesser protection than other constitutionally guaranteed expression. We have also suggested that such lesser protection was appropriate for a somewhat larger cate33

The Arkansas Lawyer

Fall 1995

gory of commercial speech thaL is, expression related solely to the economic interests of the speaker and its audience. We did not. however, use that definition in either Bolger I'. Youngs Dfllg Prodllcts. 463 U.S. 60. 103 S. Cl. 2875, 77 L.Ed.2d 469 (1983) or in Board oJTfllstees oj State University oj Nell' York I'. Fox,492 .S.469, 109 S. Cl. 3028,106 L.Ed.2d 388 (1989).

Discol'e,y Network, 113 S. Cl. 1505 at 1513 (citations omitted). In olher words, commercial speech receives less protection from the First Amendment because of its economic nature: however, the Court, by its own admission, has been inconsistent in its application of that protection. The commercial free speech test in its current form allows commercial speech to be regulated. even if thal speech is truthful and nondeceptive, but the state substantiates a significant interest when the proposed regulations directly advance that stated interest and those regulations are a reasonable fit thal arc narrowly tailored to achieve the de ired objective. The Cell/ral Hlldsan leSI is inexact at best and, at its worst, may leave commercial speech struggling to predict its future course before the Supreme Court. Justice Hugo L. Black warned "Ihal the creations of 'tests' by which speech is left unprotected under certain circumstances is a standing invitation to abridge

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il." Konigsberg v. State Bar oj Califomia. 366 U.S. (1961) (dissenting). First Amendment protection of truthful and nondeceptive commercial speech was extended to lawyers in Bates v. State Bar oj Ari~ona. 433 U.S. 350 (1977) where the court held that it was unconstitutional for states to prophylaclically ban truthful and nondeceptive communications. There, the court rebutted the sixpoinL analysis presented by the stale bar to justify limited rights of its lawyers and focused on the public's need for information, concluding that advertising was not inherently misleading and could play an important role in the determination of whether an individual had a need for legal services and. if so. the method of finding a lawyer to help meet that problem. The constitutionality of in-person solicitalion was unclear after Bates, but that issue was decided the next year by the companion cases of In re Prill/liS, -136 .S. 412 (1978) and Ohrulik Ie Ohio S,a,e Bar Assn., 436 .S. 447 (1978). In upholding the state's ban on in-person lawyer solicitalion. the Supreme Court concluded that in-person solicitation for pecuniary gain was subject to regulation as an important stale interest and that the potential for overreaching was significantly greater when a lawyer. profes ionally trained in the art of persuasion, personally solicits an unsophisticated. injured or distressed person." 436 U.S. 447 al 465. Since Bares, the U.S. Supreme Court has supported limitalion on the communication of legal services only four times. As noted. in Ohralik. supra, the court upheld the state's ban on inper on solicitalion and in laude reI' v. Office oj Disciplin((ly COl/nsel. 471 U.S. 426

ited (1985). •





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The Arkan'ias Lay, yer

Fall 1995

p as ·al comm erc I speech.

although the court found that the pubI"(cation 0 f an

ad with an illustration of a Dalcon Shield IUD was constitutionally permissible, the court upheld the state's right to require a disclosure informing consumers thal they may bc rcsponsible for costs in comingency fee ease where ads

indicate there is no fee unless there is a recovery. The third limit on communication of legal services was the court's refusal in 1985 to grant certiorari to the second appeal of Commiltee 011 Professiollal Ethics alld COlldllCt of the 10IVa State Bar Association v. Humphrey, where the Iowa Supreme Court had upheld a reprimand of a lawyer whose television advertisements violated the state's restrictions. Iowa ethical rules provided "the same information in words and numbers only articulated by a single, nondramatic voice. not that of the lawyer, with no other background sound maybe communicated on television. In the case of television, no visual display shall be allowed except that allowed in print as articulated by the announcer ...." 355 N.W.2d 565 at 569. The Court vacated the Iowa Supreme Court's opinion upholding the regulations and remanded the case to reconsider in light of the Zauderer decision. However. the Iowa Supreme Court distinguished Zallderer because it involved print ads and not television commercials. Humphrey again appealed the decision to the United States Supreme Court which then refused to grant certiorari, citing the lack of federal question. The fourth limit by the court was in Florida Bar v. Weill for It, IIIC., sllpra. [n Florida Bar v. Weill For It, the Supreme Court voted 5-4 to uphold a rule adopted by the Florida Bar that prohibits lawyers from using direct mail to solicit personal injury or wrongful death clients within 30 days of an accident. Prior to the Wellt For It decision, the U.S. Supreme Court rejected attempts to limit lawyer advertising and marketing through the application of the commercial free speech doctrine. For instance, in Shapero v. Kelllllcky Bar AsslI.. 486 U.S. 466 (1988). the Court upheld the right of a lawyer to send direct mail that was truthfully nondeceptive to those known to be in need of legal services, overturning regulations forbidding direct targeted mail. The Court ruled on a Kentucky ethical provision prohibiting the "mailing or delivery of written advertisements precipitated by a specific event or occurrence involving or relat-

ing to the addressee and or addressees as distinct from the general public." 486 U.S. 466 at 467. Speaking to the difference between the permissible general mail and the impermissible targeted

mail. the court stated that the First Amendment "does not permit a ban on certain speech merely because it is more efficient; the state may not constitutionally ban a particular letter on the theory that to mail it only 10 those whom it would most interest is somehow inherently objectionable." Id. In Shapero, the Court contrasted targeted mail 10 in-person solicitation and indicated that face-to-face solicitation was rife with possibilities for overreaching, invasion of privacy,

the exercise of undue influence, and outright fraud." Id. at 472. The Court found the direct mail to have much less risk of overreaching or undue influence than in-person solicitation and more like print advertising where the potential client may disregard the information by merely averting his or her eyes. The Court found that targeted letters do not invade a person's privacy any more than general letters, and to the extent there is an invasion, it is the lawyer's discovery of the recipient's legal need, not the lawyer's confrontation of the recip-


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ient, by mail, with that discovery. Id. at 473. See also, Peel v. At/orney Registratioll Disciplinary Commission 0/lllinois,496 .S. 91 (1990). In Weill For II, fllc.. Florida Bar rules prohibited personal injury lawyers from sending targeted direct mail solicitations to victims and their relatives for 30 days following an accident or disaster. Justice O'Conner. writing for the majority. noted that lawyer advertising is well established as commercial speech, and "as such, is accorded a measure of First Amendment protection. Such First Amendment protection of course, is not absolute." 115 S. Ct. 2371 at 2374. After reaffirming the Cenlral Hudsoll test. the Coun had little trouble crediting the bar's interest to be a "substantial state interest". so as to meet the first prong of the Hudsoll test in "protecting the nagging reputations of Florida lawyers by preventing them from engaging in conduct that .. is universally regarded as deplorable and beneath common decency." Id. at 2375. This finding is a substantial depanure from precedent. To so find. the Court had to distinguish Edenfield v. Fana, 113 S. Ct. 1792 (1993) by noting that the record in that case failed to provide any studies in suppon of the proposition that personal solicitation of prospective business clients by CPA's creates a danger of fraud. The Court noted that the Florida Bar had submitted a 106-page summary of its two-year study of lawyer advenising and solicitation. and that the "antidotal record mustered by the bar is notewor-

thy for its breadth and detaiL" 115 S. Ct. 2371 at 2376. The Coun struggled even more to distinguish Shapero v. Kelllucky Bar ASSII., 486 U.S. 466 (1988). which the Coun of Appeals had held was controlling precedent. Justice O'Conner, writing for the majority, determined that targeted solicitation within days of accidents will have a much greater impact on recipients than would the more generalized solicitation at issue in Shapero. That distinction is questionable since the Kentucky lawyer in Shapero proposed to send solicitation letters specifically to parties who had foreclosure suits filed against them. In dissent. Justice Anthony M. Kennedy. joined by Justices Stevens. Souter and Ginsburg warned against depriving accident victims of immediate. and necessary. representation: ... when an accident results in death or injury, it is often urgent at once to investigate the occurrence, identify witnesses and preserve evidence .... Meanwhile, represented and better informed panies. or panies who have been solicited in ways more sophisticated and indirect, may be at work. Indeed, these parties, either themselves or by their attorneys. investigators, and adjustors, are free to cnntact the unrepresented persons to gather evidence or offer settlement. 115 S. Ct. 2371 at 2381. Noting that lawyer solicita-

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lion is "an essential pan of the public disclosure that the First Amendmelll secures," Justice Kennedy concludes that the Florida Bar rule that suppressed speech that informs the public how the legal system works is "censorship, pure and simple". Id. at 2383. Interestingly, in Rubin v. Coors Brewing Co., 115 S. Ct 1585, 131 L.Ed 2d 532 (1995), a unanimous coun invalidated a federal statute that barred brewers from displaying alcohol contents of their beers on beer labels. In a footnote in his opinion, Justice Thomas rejected the government's contention "that legislatures have broader latitude to regulate speech that promotes socially harmful activities such as alcohol consumption, than they have to regulate other types of speech." 115 S. Ct. 1585 at 1589-1590. However, perhaps the clearest statement of the current state of the commercial free speech doctrine was set forth by Justice Steven in his concurring opinion in Rubin. Arguing that the statute in question had little to do with commercial speech, Justice Stevens

Alva Delano



wrote a separate concurrence stating that

the reason broader regulation of commercial speech is tolerable is because of commercial speech's potential to mislead.ld. at 1595. [T]he consequences of false commercial speech can be particularly severe: investors may lose their savings, consumers may purchase products that are more dangerous than they believe or that do not work as advertised. Finally, because commercial speech often occurs in the place of sale, consumers may respond LO the falsehood before there is lime for more speech and considered reflection to minimize the risks of being misled.

Id. at 1596. Thus, it is the fear of false, overly persuasive materials affecting consumers that triggers the need to protect les commercial speech as opposed to other mainstream types of speech, and in effect, the Court has superimposed the fear onto the Cenlral Hudson test. This rationale appears to be the one that was

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employed III the Weill For II and Rubin decisions. Unfortunately, the imposition of the Court's fears onto the Cenlral Hudson test allows the Court LO give uneven treatment to cases which raise social concerns that trouble the Court, as is evidenced by the two most recent decisions. As Justice Kennedy notes: The Court's opinion reflects a new-found and illegitimate confidence that it, along with the Supreme Court of Florida, knows what is best for the bar and its clients. Self-assurance has always been the hallmark of a censor. That is why under the First Amendmelll, the public, not the state, has the right and the power to decide what ideas and information are deserv37

The Arkansas Lawyer

Fall 1995

ing for their adherence. 115 S. Ct. 2371 at 2385.

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The Arkansas Lawyer

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Continued from Page J0 the listing of certifications. subject to any appropriate disclaimers required by the states, as long as the listing was nOI misleading. However, Peel was decided by only a 5-4

vote. Justice White objected that the listing of certification was potentially misleading, so stales should be allowed to regulate such activity.52 Justices O'Connor. Scalia and Chief Justice Rhenquist dissented on grounds that the listing was simply mislead-

ing since no one could ascertain the basis for certification. 53 Perhaps more significant is the faci that three justices in the majority -

Brennan, Marshall. Blackmun - have

since retired from the Court. This past term in another 5-4 decision, me Court held mal certain restrictions on direct mail solicitation did nOl violate First Amendment commercial speech protections. Florida Btlr v. Went For II l"c. 54 The Court decided that requiring a 3D-day waiting period before direct mail solicitations to traffic accident victims was a reasonable state regulation. "The Bar has substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered."55 Things have changed dramatically since the local bar association meeting referred to above. For lawyers, ads and direct mail solicitation are not only permitted, they are utilized on a major scale. If an ominous note has been sounded, it is in this last holding by the U.S. Supreme Court. When Bates was decided. the Court rejected arguments thaI the profession would be demeaned if print advertisements were permitted. Now, to justify some regulation. the Court has relied upon the demeaning and invasive impact of a written solicitation. It seems ironic that a profession which survives on written and oral communication now has its highest court holding thm such communication is unduly invasive and unnecessarily demeaning. How, and through which medium, does the profession answer that concern? ENDNOTES

I. 433 U.S. 350 (1977). 2. '" re Petition oj Ihe ArklUlsas Bar Associatioll. 263 Ark. 948 (1978): /11 re Amendments to the Code oj Profenional Re~po"sibilityalUl CanOlI.\' of Judicial Elhics. 276 Ark. 600. 637 S.W.2d 589 (1982). 3. 115 S.Ct. 2371 (1995) 4. Rule 7.2 (a). Ark. Mod.R. Prof. Conduct.

5. Rule 7.1 (a). Ark. Mod. R. Prof. Conduct. 6. Rule 7.1 (b). Ark. Mod. R. Prof. Conduct. 7. Rule 7.1 (c), Ark. Mod. R. Prof. Conduct. 8. Rule 7.3 (a). Ark. Mod. R. Pror. Conduct. 9. L.McDaniel. Florida Bar V. We1l1 For It. Inc.. 29 Ark. Lawyer 30. 32 (Summer. 1995). (.....a special committee on lawyer advenising... will immediately set about to evuluatc the [Weill For II, Inc. I decision ...and detenninc how its rule...should ad\'cnising in Arkansas....··). 10. A. Chroust. The Rise of the Legal Profession ill America x-xi (1965). ("A lawyer must shun all those indirect ways of making haste to be rich. in which a man cannot be innocent:') II. J![. al 6. 12. C. Warren. A History of the Americall Bar 216(1966). 13. M.Victor, "The Signs Are Very Ominous and a Chill Wind Blows:" Recent Del'elopments i1l Legal Advertising. 44 Ark.L.Rev. 123. 133 (1991). 14. Id. 15. Note. Ambulance Chasing. 30 N. Y.U.L.Rev. 182 (1955): Settlement of Persollal "yury Claims in the Chicago Area. 47 NW.U.L.Rev. 895-899 (1953). 16. Bmes v. Stllle Bar ofArizona. 433 U.S. at 354. 17. /d. 18./d. 19. /d. at 358-59. 20. /d. at 362-363. 21. /d. at 365 (explanation added). 22. /d. al 370-371. 23. Id. at 372-73. 24. Id. at 374-75. 25. /d. at 375. 26. /d. at 370. 27. 436 U.S. 447 (1978). 28. 436 U.S. 412 (1978).

29. Ohralik, 436 U.S. at 450-51. 30. /d. at 451-52. 31. /d. at 454.

32. /d. at 465. 33. 111 re Primus. 436 U.S. at 434. 34. 436 U.S. at 435-436. 35. 436 U.S. at 436. 36. Eaton \'. Supreme Court of Arkansas. 270 Ark. 573. 607 S. W. 2d 55 (1981). 37. Eato" \~ Supreme Court ofArkansas. 450 U.S. 966(1981). 38. 455 U.S. 191 (1982). 39. Zallderer v. Office of Disciplinary Counsel. 471 U.S. 626. 238 (1985); Friedman \'. Rogers, 440 U.S. I (1979); Pillsburgh Press Co. 1'. HI/mall Relmiofls Comm'n, 413 U.S. 376 (1973). 40. Zauderer. 471 U.S. at 638. ciling Central Huds011 Gas & Electric Corp. \~ Public Sen'ice Somm·" of Nell' York. 447 U.S. 557. 566 (1980). 41. 471 U.S. 626 (1985). 42. /d. at 630. 43. Id. al 632-33. 44. /d. al 646. 45. /d. at 647. 46. Id. al 656. 47. Shapero I'. KetltLlcky Bar Ass·n. 486 U.S. 466 ( 1988). 48. /d. at 475. 49. Having recently been in all automobile accident. the author can personally allest to these letters. To add insult to injury. the senders did not even bother to address me by my first name even though 1 had known many of them for almost 20 years. 50. 114 S.Ct. 2084 (1994). 51. 496 U.S. 91 (1990). 52. Id. at 119. 53. /d. at 123. 54. 115 S.Ct. 2371. 55. 115 S.Ct. at 2381.

Special Education Impartial Due Process Hearing Officers Needed The Arkansas Deparlment of Education, Special Education, is recruiting attorneys to serve as Impartial Due Process Hearing Officers in special education hearings. Hearing Officers must meet the following qualifications:

I. Hold a college degree in education, special education, educational administration, law or psychology; 2. Prefer previous experience as a teacher, administrator, or psychologist;

3. Hold appropriate certification or credentials; 4. Participale in a training program for Impartial Due Process Hearing Officers sponsored by the Arkansas Deparhnent of Education; and 5. Be sufficiently free of other obligations to complete the duties and responsibilities of the lmpartiaJ Due Process Hearing Officer. Interested parties should submit a resume to: Margie Wood, Administrator Compliance/State Program Development Arkansas Department of Education, Special Education 4 State Capitol Mall, Room 105·C Little Rock, AR 72201 The Arkansas Departmenl of Education is an equal opportunity affinnative action employer 39

The Arkansas Lawyer

Fall 1995

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UPC a jury "in uny proceeding in which a controverted j\jljue of fact arisc!'o, a~ 10 which a pany

has a con'titutional right to trial by jury:' Thi, mal well not affect Arkansa,. but if not so intended. to a\'oid any que~tion. should be deleted. Anicle IV deal; with foreign personal represenlati\'e~ and ancillaI) adminiSlration. Foreign reprclicntatives can prosecute or

death. a~ well a.. . the Important protection of financial institutions (6·221 through 6-227). In view of the latter. the financial institutions

the word ··.. .eclion:· viz., "7-203:' not ",ec-

may well agree to the U.P.c. provisions.

4. Ba,ically. I touch fir't on Anicle II. then III and IV. and then the rest.

although the current provision.. . purpon to

,olve the troubled ,ea of litigation sparked by prior provir.,ionr.,.

5. A ,elf-proved will i, one proven by an

Pan 3 <6-30 I through 5-311) incorporate, the Unifoml TOD Security Registration Act. which \\eJu't enacted In 1993 (A.CA. §1814--101. et ,eq.). Anlcle VII deal, with Trust

affidavit . . imilar to our present procedure.

defend a claim (or be sued as such) in the ancillary juri,diction (3-715). may collect debh H-l0!). Local interested panies are protected. ,ee 4-207. He basically ,ubmits to

Admimstratlon. It doe, not trouble me. but the probate court is given exclusive jurisdic-

personal jurisdiction in certain situations.

d::ne and repealer c1ause~.

See 3-601 and 4--301. Point V governs persons under disability. I cannot hope to outline its provisions and still

hope to contain the length of this anicle. Specifically. a parent can appoint a guardian of the person for a minor: a parent or spouse can do so for an "incapacitated person" ( 5-

30 I). Failing appointment above indicated. the guardian must bc appointed by the court. See 5-303(a). 5-304. The provi,ions for the per,onal ,upervision of the per\on arc separate rrom provisions for property and asset management through a conservator. This can only be done

by formal proceedings before a coun. 540 I(a) The provisions with respect to conservmon,hip are cXlenflive and detailed. Again_ I cannot hope to cover thi,. The U.P.C. provisions are exten~ive. but so are

ours (A.c.A. §2 -65-101 through 18-65503) If not in fact lifted in whole or in pan from the .P.c. (and I believe it i, not). it certainly seems to cover the \ame aspects and problem,. I do note that a conservator

under the U.P.c. takes title to the propeny of the incapacitated person. (5-419) It also has a provision for foreign guardian,hip (A.C.A. §28-65-601 and 2-601 and 603). as does the U.P.C Arkansas. like U.P.C. has strict court ,upervision. It would ,eem generally that we would look to the U.P.C only for ,ome minor change, rather

tion 7-103:'

uon over tru ,,(1-101). Finally. VIII comain, imponant effective CONCLUSIO This article mayor may not give you a bird's eye \ iew. You will certainly get better and more accurate information from the

6. If it appears that there is. or might be. a deadlock. could we let the Probate clerk. or a judge, law clerk. or both. act in effect a, a regi,trar. and then lel matter,; proceed pur"iuam or . . imilar 10 informal proceedings. with the right of any interested part)' to petition that our exi . . ting procedures (not too different from supef\ised proceedings) go into effect?

7. From \1, ho.. .e works much of thi~ article has ,hamelessly evolved.

repom of the members of the Special Committee (who have been assigned sepa-

rate sections by the Chair). You will likewise learn from the ultimate repon of the Executive Council of the Arkan"ias Bar. You may. of course. get excellent information from the articles I have referred to. From these ...ources you can decide whether to


oppose or back the adoption of the U.P.C Depending on the extent of . . uch reliance

you will expend a liule or a great deal of time.

But one thing i, cenain. If you do any probate work at all - and most lawyers do

,ome - if the .P.C i, passed. you (and all probate judge,) face hours and hours of study before feeling comfonable in dealing with an) substantial item involving its subject matter. Hopefully. in time. such necessi-

ty will ease. but it will not be there initiall) - and initially you cannot afford to be only panially familiar. You cannot afford to only have a liule kno\\ ledge about it. The word, of Pope (not the one who authored Pope's Digest) will. initially. certainly fit: "A Iiule learning i, a dangerou\ thing; Drink deep. or ta.. . te not the Pierian spring:'

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than a complete substitution.

Our own prO\isions. A.CA. §28-67-101. et "ieq.. permit the appointment of a "conservator" in"itead of a guardian. but those provi\ions are cumulative to the guardianship pro~ visions.

Pan 5 of Article V deals with durable powers of auomey. which we already have (A.CA. §28-68-101 through 203). (I under'tand a full important part wa, deleted.) Article VI deals with non-probate transfer"i. i.e. multiple person accounts. and the

right' with re'pect thereto during life and at

I. None of whom could be described as bashful. 1. Or. to complete the allu,ion. do we "bear the ills we have or ny to others we know not

. o r o.

3. The U.P.C consist' of eight articleswhich are divided into parts and. in tum, are divided into sections. References in the

U.P.c. itself are hy article and section but apparently are ,imply cited without u,e of

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The Arkansas Lawyer

Fall 1995

disciplinary actions JOHN



Upon the recommendation of the Commillee the Supreme Court accepted the surrender of Arkansas Law License of John

L. John,on. Jr.. of Ru>selleville. Arkansas.





A letter of caution was issued to James M.

Bryant II. for violation of Model Rule 5.5 (a) upon the complaint of Mark . Waller. In his affidavit of complaint. Mr. Waller attached a leller dated September 22. 1994. he received from Bryant relative to Bryants representation of Restaurants of Arkansas. Inc.. and Jim Manning. Mr. Waller was sur· prised to receive the letter of representation

leller of suspension was filed with the Clerk on July 7. 1995. Mr. Marcinkowski stated in his affidavit thut he is a claims adjuster doing business as Marcinkowski Claims Service. a sole propri-

etorship. A competitor of his is Affirmative Risk Management (ARM). Both companies had adjusted claims for the Economy Companies in the past. These service agreements were entered into on a claim by claim basis; neither company had a continuing contract with Economy. On or about July

21. 1993. complainant receIved. by fax. a claim from the Economy Companies. but it had ARM's addre" on it. Mr. Marcinkowski telephoned the Economy Companies and ",as told that he could handle the claim. In the meantime, however. ARM received the same claim from Economy by regular mail. ARM sued Mr. Marcinkowski in Municipal Court alleging

complainant that his continuing legal education hour~ were deficient and that he may need another attorney. Mr. Marcinkowski then told Weaver that hi~ services were no

longer needed. The complaint wa, sent by certified. restricted delivery ntail on April 26. 1994. to Weaver's address as it appears on the registry of allorneys kepI by the Clerk of the Arkan,as Supreme Court. The complaint was returned by the postal authorities with the noration. ··Unclaimed'·. Following attempts at two other addresses to serve \Veaver with the complaint in the manner

described above. both of which were returned "Unclaimed". Weaver was personally served on June 29. 1994. with the complaint and Lransmittal letter. Weaver failed to respond to the complaint and pursuant to

that he interfered with their business

the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Allorneys at Law. Section 5D (I). the formal

was automatically suspended from the prac-

expectancy and also filed a complaint with

complaint was submitted to the Commiuee

tice of law for failure to pay his license fees.

the Arkansas Insurance Department. Mr. Marcinkowski then hired Weaver to repre· sent him and provided Weaver with a copy

for adjudication.

of the Complaint. Interrogatories and


,ince he had been informed by the Clerk of the Supreme Court of Arkansas that Bryant

Mr. Waller\ affidavit also contained a state·

ment from the Clerk which evidenced Bryants failure to pay bar dues for the years 1990. 1991. 1992. 1993. and 1994. Bryant's response contained an explanation concerning the tennination of his full

time law practice in 1990 because of health related mailers. Bryant stated that he did not have a formal office but that. unknown to

him. the Supreme Court Clark's office continued to send his statements for bar dues to

his former address. Bryant asserted that he never received a bar dues notice so apparent· ly no effort was made to forward Olle to him.

In concluding his response. he asserted that he checked with the Clerk. on a rare visit to the Justice Building. and learned that his dues were nOt current so he paid the defi-

ciency in full. Further. he apologized for the oversight and Slated that he correcled it as

promptly as possible when discovered.


Request For Production of Documents. Answers to the Interrogatories were mailed

to Wea\eron September 21. 1993 and \Veaver informed complainant of an October

12 court date. Complainant told Weaver that he would nOl be in court on that date and ,aid that Weaver told him that he should get a ruling from the court in the near future. Apparently. however. Weaver did not attend the hearing. lIIe a timely answer. nor file answers to the interrogatories because later Weaver informed Mr. Marcinkowski that he

stumbled upon a default judgment in his case. but he ,hould not worry because Weaver would request a damages hearing. A hearlllg date of January 13. 1994. was ,cheduled. At about the same lime. ARM was attempting to sati fy a Writ of Execution and Weaver infonned complainant that. because there was a lien on his vehicle, it could not

be seized. Subsequently. when the tow tfllck Upon the complaint of Chris

arrived to seize the vehicle complainant was

Marcinkowski, Gregory W. Weaver was sus-

able to borrow money to satisfy the judg-

pended for a period of one year for violation of Model Rules I. I. 1.3 and 8.4(d). The


Prior to the damage, hearing. Weaver told

Upon the complaint of oemi Stair. Gregory W. Weaver was .uspended for a period of one year for violation of Model Rule> 1.3. 1.4(a) and 8.4(d). The leller of .uspension was filed with the Clerk on July 7. 1995. In August 1992. complainant hired Weaver to represent her in a legal maller. Weaver was provided requested documents and received a filing fce. Ms. Stair was unable to contact Weaver until April 1993. when she went to Wea\crs office. Weaver lold her that he was sorry. but he was having ~ome personal problems. Weaver promised to look the documents over and return them

along with the filing fee if he decided not to lake lhe casco When Weaver did not contact

M,. Stair in two (2) days. as promised. she contacted him and learned that he was work-

ing on the case. She has not heard from him since that time although ",he went to his

office which was closed. M,. Stair has been unable to locate Weaver since then.

The complaint was ,ent by certified. re'tncted delivery mail on April 26. 1994. to 43

The Arkansas Lawyer

Fall 1995

disciplinary actions Weaver's address as it ~lppear\ on the registr) of attorneys kept by the C1er~ of the Arkansal\ Supreme Coun. The complaint

was returned by the postal authorities with

the notation. ··Unclaimed··. Following

matter prior to the time allowed to file an answer. When the matter was joiml} dismissed and the default judgment set aside. anford continued to assert a right to the

attempts at two other addresses to serve

3.000 attorneis fee he was awarded in the default judgment. Despite there being a dis-

Weaver with the complaint in the manner

pute over which lien


were emitled to

described above. both of which were

the funds. Sanford did not voluntarily

returned "Unclaimed". Weaver was person-

implead any of the funds into a courl of competent jurisdiction but was forced to do \0 in a subsequent lawsuit. Sanford never

ally served on June 29. 1994. wi.h the complaint and transmiual letter. Weaver failed

to respond to the complaint and pursuant to

the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Section 50 (I). the fomlal complaint was submitted to the Committee for adjudication.



wa~ is~ucd

to Jon R.

Sanford for violation of Model Rules IA(b). 1.5(a), 1.5(c), 1.15(c) and 1.16(d) upon the complaint of Carroll and adine Jackson. The letter of caution was filed wi.h the Clerk on August I . 1995. The Committee had presented '0 it for consideration Lhe affidavit of Carroll and

adine Jackson. Mr. and M". Jackson asserted many


in their affidavit rela-

tive to Sanford·s representation of lhem in a personal injury matter and a lender liability lawsuit. Mr. and Mrs. Jackson were origi-

nally represented by Evelyn Moorehead but elected to have Sanford solely represent them during March 1991. In theiraffidavil.

Mr. and Mrs. Jackson stated that Sanford advised them of one settlement offer but failed to advise of structured settlement

offers. Sanford advised Mr. and Mrs. Jackson not to accept the one offer of which

he did tell them. Their reliance on his advice was to their detriment. It was also his decision to have a bench trial without

explaining this to Mr. and Mrs. Jackson. After the bench trial. Mr. and Mr>. Jackson requested that Sanford appeal the decision of the trial judge but he refused. After receiv~ ing the insurance draft, Sanford brought suit against Mr. and Mrs. Jackson b:'l<;;ed n their failure to endorse the insurance draft.

Sanford lOok a Default Judgment in this ~

cussed the options with them. Sanford acknowledged his to prosecute an

appeal for the Jacksons. As to the $3.000 fee. Sanford stated that he had relinquished any claim to it and had voluntarily deposited it into the registry of the Court. I-Ie asselled that he did have a right to the fee he charged in reducing a previous attorney's lien because of the amount he saved lht:1Il on the

demonstrated that he took a fee on an

lien first asserted by the previous allomey. As to the release of 1r. and Mrs. Jacksons files. Sanford stated that he offered to accommodate them but he could not simpl)

amount not detennined as protected and a $1.000 fee on an action which was dismi"ed. Sanford also paid himself 606.69

ardize hi, defense of any legal malpractice claim that had been threatened again"il him.

provided explanation. Sanford did make pay-outs and provided explana.ion '0 the Internal Revenue Service. The explanation

turn over the file since to do so would jeop-

for litigation costs to which no documenta~ tion was provided to establish. In addition,


A letter of caution

Jackson testified that she just ··assumed·· he had alread) waived a jur) trial when he dis-

The Arkansas La" er

Fall 1995

Sanford paid himself a large fee for reducing ano.her allorney"s lien. Because of all the problems wiLh the insurance draft and pro~ ceed,,>. Mr. and Mrs. Jackson chose to hire another lawyer to represent them in their lender liability lawsuit but were unable (0

obtain release of their files from Sanford. This was despite having others also request

their files from him. Finally, Mr. and Mrs. Jackson al~o included information relating to Sanford's entry of a Consent Judgment on

their behalf without ad\i,ing them. When responding to the affidavit of Mr. and Mrs. Jackson. Sanford requested that the Committee consider the aflidavit in the


teXl of clients who were billerly disappointed wi.h the results of their trial. Sanford ~tated that he put n great deal of effort into

Mr. and Mrs. Jackson's lawsuit. Sanford also set out thai both he and a certified financial planner explained the structured settlement offers to the Jacksons and encour~

aged lhem to consider the offers but they refused. Sanford stated lhat they were adamam in rejecting any structured settle-

ment. Sanford also asserted tha. he was not asked any advice on whether to accept any

offer. Sanford denied a bench trial without consulting with Mr. and Mrs.

Jackson. Sanford set Ollt that he discussed the option with them in detail and that they lavored having a bend! trial. Sanford staled that in a subsequent depo~ition. Mr~.



A letter of caution was i~sued to A. Wayne Davis for \iolation of Model Rule

1.5 (cj upon the complaint of Ka.hryn Garrison. The letter of caution was filed

"ith the Clerk on Augu<t 18. 1995. In her affidavit. Ms. Garrison stated thai Da\'is agreed to represent her in a personal injury matter and that he would not charge a fee fur this representation. Ms. Garrison.

who was one of Davis employees. insisted that he take a five percent contingent fee and made many requests that a written fee agree-

ment be prepared. She <ta.ed that Davis became hostile and refused saying thai therc was no need for a wriuen agreement. When the matter was ~etlled. Ms. Garrison requested the entire amOUIH be given to her so that

she could make disbursements to the medical providers. She averred thaI this request made because. during the course of her employment. Ms. Garrison became uncomwa~

fortable with the leng.h of time it took Davis to payout funds of any kinu. Instead. Da\is

provided Ms. Garrison with a S7.500 cashier's check which represented her portion of the settlement. When she requested a sculement statement. Davis told her that her

bills were paid and that there were still funds owed her. When she received those funds and the statement of disbur~cments. ~everal discrepancies were noted including failure to

disciplinary actions pay all of her medical providers. For his re<.,pono;;e. Davis "tated that he never "insi"ted" that he would not charge a fee. but would represent her for a reduced nlle depending on the time, efron. energy and complexity involved. Davis stated thai Ms. Garrison never asked for a written agreement and that if she had. there were numerous fee contracts in their orrice that would have been appropriate. Furthermore, David added. she would have prepared the fee contract for your review prior to its execution. which she never did. Davi\ also denied that she requested the entire $12.000 seulement adding that that would have been "Iudicrous and totally unreasonable:' Davi\ stated that the 7.500 was provided to Ms. Garrison at her request so she could meet certain personal financial obligations. Davis denied having advised Ms. Garrison that her bills had been paid. In fact. Davi, 'tated that she understood that she was to seule with the medical providers. Davis concluded by ,aying that he will never represent a friend. family member or employee in a personal injury claim without a written fee agreement.




A letter of caution was issued to Gerald W. Carlyle for violation of Model Rules 1.3 and 1.4(a) upon the complaint of Jimmy Carl Green. The leuer of caution was filed with the Clerk on August 18. 1995. The information before the Committee wa, based on the affidavit of Jimmy Carl Green. Mr. Green hired Carlyle during December 1993 to represent him in an auempt to stop an unlawful garnishment of hi<., paycheck and to recover sums previousl} taken. Mr. Green路s paycheck continued to be garnished even after he hired Carlyle. Mr. Green tried to contact Carlyle about thi, but Carlyle did not return his calls. Late in December 1993. Carlyle told Mr. Green that the garnishment would SlOp as soon as the lawsuu was filed. From January 199~ until December 1994, Mr. Green had very liule e.plained 10 him by Carlyle. He was. in"itead. offered excuses and found that communication with Carlyle became more and

more difficult. Mr. Green terminated Carlyle"; ,ervices on December 6. 199~ and then received a refund of what he had previously paid Carlyle. Carlyle admiued in his re'ponse to having been retained by Mr. Green on December 2. 1993. It was Carlyle"; assertion that Mr. Green wa~ primarily concerned with the rccovery of money instead of stopping the garnishment. Carlyle al,o admitted that it wa~ po,,<.,ible that he did not return some of Mr. Green路s phone call but he did not think ~o. It \Val., also Carlyle\ a"senion that Mr. Green rejected what Carlyle told him could poSSIbly ,ettle the mauer. Then he admits having told his secretary to advise Mr. Green that he would file a lawsuit which he did not do.

that Mr. Perina was mad at him. and the Judicial system, from the stan because the defendant could not be placed in jail for failure to pay the debt. Lynch路, response also lIleluded a summary for failure to pay the debt. His response ah.o included a summary of the pleadings and court actions taken in the lawsuit from the time of filing until the time of the settlement agreement. Lynch received the first $500 payment during December 199~ and then discussed it with Mr. Perina. It was Lynch's assertion that Mrs. Perina wanted him to keep the payment at that time and he did not know they were upset until receiving the affidavit of complaint.




A letter of reprimand was issued to Joe 1'. Lynch for violation of Model Rules 1.5(c) and 1.15 (b) upon the complaim of Robert and June Perina. The letter of reprimand was filed with the Clerk on August 18. 1995. Robert M. and June Perina submitted an affidav it of complaint relating to Lynch路, representation of them in a debt collection mauer. In their affidavit. Mr. and Mrs. Perina said they first contacted Lynch by telephone during September 1993. He agreed to represent them 011 a 25% contingency fee but he never reduced the agreement to writing. Lynch filed a lawsuit for the Perinas in OClober 1993. The cause continued on until December 22. 1994. when a settlement agreement was reached. An agreement was entered into between Lynch and Lhe Perinas whereby he would receive each payment and then send 75'k of it to the Perinas while retaining hi 25'k fee. The first payment was received by him during January 1995. Despite varlOU, assurance, by Lynch. Mr. and Mrs. Perina had received nothing from him. In re,ponding 10 the affidavit. Lynch acknowledged representation of the Perinas. Lynch asserted that he did send a Contract and Agrcement For Legal Representation to the Perinas but it was not returned and he never thought of it again. He al,o explained

A letter of reprimand was issued to Sam L. Anderson. Sr. for violation of Model Rules 1.3 and 8.4 (d) upon the complaint of Christopher Cooper. The letter of repri mand was filed with the Clerk on Augusl 18, 1995. Mr. Cooper stated that in 1991 his wife died following a brief period of hospitalization. He believed that the physician cau,ed and/or contributed to her death by prescribing a certain drug for her when she was discharged. In December 1992. Mr. Cooper hired attorney Tim Womack to file a medical malpractice action against the doctor. Subsequently. Mr. Womack associated Anderson a~ lead counsel and a complaint wa, filed in February. 1993. The defendants filed a Motion For Summary Judgment in August. 1994. On September 19, 1994, Mr. Womack advised Mr. Cooper that the complaint had been di,missed for failure to obtain an expen witness. However. Mr. Cooper later learned that Anderson had filed no response to the Motion for ummary Judgment. On November I. 1994, Anderson wrote Mr. Cooper advi,ing him of the dismissal and that on October 3 I. 1994, he had filed a Notice of Appeal on his behalf. However. the atice was not timely filed and Mr. Cooper lost his right to appeal. For Anderson's response, he stated that he believed all client contacts to be through Mr. Womack and that Mr. Cooper was the client of Mr. Womack. Anderson averred that the





Fall 1995

disciplinary actions/advisory opinions complaint was filed and that it proceeded as one would expect with the taking of depositions. requests for interrogatories. responses

and a search for a qualified medical expert. In October. 1993. the defendant requested information about the expen and indicated that a Motion For Summary Judgment was anticipated if an expert had not been located. Anderson stated that he did not file a response to the Motion since he believed il to be without merit. Once the judge directed entry of a precedent Anderson faxed this information to Mr. Womack who notified

Mr. Cooper that the complaint was dismissed. The leller. dated September 19. 1994, added that Mr. Cooper should contact either Anderson or Mr. \Vomack if he wished to "discuss these procedures." Anderson stated that his next communication was on

October 28. 1994, when Mr. Womack's office relayed Mr. Cooper's desire to appeal. Anderson averred that Mr. Womack was

health insurance claim forms. Ms. Riggin Slated that Clark did send a letter to her assailant and received a letter in response from his attorney. However, this matter was never concluded despite Clark's assenions

that he would take care of the lawsuit. A lawsuit was never filed and the statute of limitations has run.

For ClaJ"k's response. he admitted that his conduct was probably dilatory and that he failed to keep Ms. Riggin informed. By way of mitigation. he averred that there were no witnesses to the altercation and that her injuries were difficult to substantiate because of pre-existing medical conditions. She declined his suggestion to see a medical doctor. Although she sought relief from the prosecuting attorney. they opted not to file

lem with his case. Every time Mr. Cooper contacted Williams. Williams provided some excuse as 10 why the case had not gone to trial. Mr. Cooper finally obtained his file from Williams during ovember 1994. At this time, Mr. Cooper also went to the Circuit Clerk's office and learned his case had been dismissed in 1992. Williams never advised Mr. Cooper of this fact. When confronted with this. by Mr. Cooper, Williams again told him everything was okay and still in effect. Williams response acknowledged that he believed Mr. Cooper's affidavit set out substantially what had occurred in this maller.

charges against the assailant. Finally. Clark


stated that. in his opinion. the matter would not generate sufficient fees to justify its pursuit on a contingent basis and he advised

I. Canon 5(C)(2) states that a [Judicial] candidate shall not personally solicit or


advised that the time to appeal had passed,

Ms. Riggin of his findings and belief by

but prepared a Notice of Appeal and had it

telephone. but not in writing. As a result,

filed. In conclusion. Anderson stated that he did

she believed that Clark was pursuing the

a candidate may not personally ask a sup-

matter when, in fact. he was not.

porter for a contribution. (The canon also

not have access to Mr. Cooper on any regular basis because he was Mr. Womack's

client. Anderson added that Mr. Womack was to have notified Mr. Cooper of the dismissal and advise him of his options.

Finally, Anderson stated that had he been communicating directly with Mr. Cooper,

Mr. Cooper would have heard what he told Mr. Womack: that perhaps the case should have been dismissed and given back to the client.

accept campaign contributions or personally solicit publicly slateu ~uppurt. Accordingly,

states that if funds are personally received. JON ALAN WILLIAMS

A letter of reprimand was issued to Jon

Alan Williams for violation of Model Rules 1.1, 1.3. 1.4(a), 1.4(b), 1.5(c), 3.2 and 8.4(d) upon the complaint of Robert P. Cooper. The letter of reprimand was filed with the Clerk on August 22, 1995. In his affidavit of complaint, Mr. Roben

as for example in a contribution by maB to the candidate's residence. the candidate shall promptly turn it over to the campaign committee). Similarly. the candidate may not ask a

supporter for permission to put the supporter's name in a newspaper or other form of media advertisement, and may not ask a landowner for permission to place a sign on

the property. Such endorsements ally the supporter or landowner with the candidate

PreSIOn Cooper set out various matters which occurred in relation to Williams' representation of him in a lawsuit against A.J.D.

and potential judge. In order 10 avoid the appearance of impropriety and to assure the

Temporary Services. Williams was hired by Mr. Cooper during 1988. Mr. Cooper

see Canons I & 2. the candidate is not to

Andrew L. Clark for violation of Model Rules 1.2(a). 1.3, 1.4(a) and 8.4(d) upon the complaint of Linda D. Rjggin. In her affidavit. Ms. Riggin stated that on June 30. 1993. she was assaulted and injured. She hired Clark on July 7. 1993. to

believed there was a written fee agreement

but when he asked Williams for a copy

personally solicit publicly stated support of such a type.

Williams told him that the agreement was verbal not written. Various pleading were

bulk mail or individually addressed.

represent her in connection with the personal injury claim. She stated that this was the only time that she met with him and he was

Cooper also set out that Williams was difficult to communicate with at this time. The last correspondence Mr. looper received

provided copies of the police report and her

from Williams was during 1991. Williams never told Mr. Cooper that there was a prob-

ANDREW L. CLARK A letter of reprimand was issued to

statement as well as her medical records and


The Arkansas Lawyer

Fall 1995

filed in the lawsuit Williams filed on behalf of Mr. Cooper during the year 1990. Mr.

integrity and independence of the judiciary,

A candidale may write a letter. either by 10


the attorneys in the stale or a district or to other members of the electorate. The letter may be mailed at any time. Such a letter may include information about the candidate's background, the reasons for seeking the office, and the candidate's plans for judi-

cial office, consistent with Canon 5(A)(3).

advisory opinions The candidate may ask for suggestions,

shall not authorize or knowingly permit any

support of the recipient. Such a letter seeks

name of the supporter and give it to the committee; ask the supporter if he would like a bumper sticker for the car and give

support in a generaJ sense, but does not seek

him the sticker; ask if she would be willing

candidate is prohibited from doing.

"publicly stated support." Similar requests can also be made by the candidate to potential supporters by telephone or in person. 2. Financial support and "publicly stated support" are to be obtained by the campaign

to have her name appear in an advertisement and give the information to the committee;

Accordingly, a candidate could not stand by and do nothing if such an independent sup-

ask the supporter to call her friends and put in a good word for the candidate; ask if he would be willing to have a yard sign and physically deliver and erect it. The candi-

porter were placing a misleading advertise-

date, on the other hand, can never personally ask for a contribution. The committee can prepare a list of important individuals in the district that the candidate may wish to contact personally.

priate, and whenever they wish, to aid the campaign of the candidate.

advice, the encouragement. the vote and the

committee. Obviously the only method for a candidate, or potential candidate, La put together such a campaign committee is to contact personally potential supporters and ask them to serve on such a committee. The formation of the committee can take place at

any time. The candidate has an obligation to ensure that the committee understands the restrictions in judicial campaigns that are nol present in other political races. The purpose of the committee is to isolate the candidate from involvement in fund-rajsing and public statements of support. The integrity of the courts is nol served by the suggestion or the appearance that donors or supporters have special influence with the

candidate and potential judge. Ideally a candidate's only knowledge of supporters and donors would come from public advertisements and media coverage of campaign finance reports. It is the committee that solicits funds from attorneys and members of the public. As mentioned above, with one minor exceptjon, the candidate cannot even personaJly accept contributions. Likewise, it is the committee that obtains pernlission for names of supporters to go into media advertisements, requests landowners to allow signs to be

placed, and seeks olher forms of "publicly stated support." However, the Code does not prohibit a candidate from accepting (as

opposed to soliciting) such "publicly stated support." This distinction is crucial, for it

hinges upon whether the candidate is taking the initiative and seeking such support or merely responding to the supporter's offer. The former is prohibited; the latter is not. For example. assume a candidate gives a well received speech and an individual comes forward to "learn what I can do to

help," The candidate may ethically do any or all of the following: tell the supporter to contact the campaign committee; obtain the

Canon 5(A) (3) (c) states that a candidate other person to do for the candidate what the

ment, see Canon 5 (A) (3) (c) (iii). Apart from this limitation, independent supporters may take whatever actions they deem appro-

The candidate may then ask for their private support, but cannot solicit publicly stated support. For example, the candidate can ask individuals to send post cards to friends

encouraging support of the candidate, The committee may also contacl those individu-

als on behalf of the candidate and ask for publicly stated support. The committee solicits names for the newspaper advertisement, volunteers to make phone calls to the community, and signatures on widely dis-

tributed post cards. The committee can seek publicly state support from an organization. a local bar association, or a well known individual or public figure. The candidate cannQl person-

VALUATIONS/FAIRNESS OPINIONS Closely-held Businesses. Banks. Professional Practices. For ESOPs, gifts, estate planning, charitable contributions. mInority shareholder dispules, divorces. Economic loss studies (personal/business). Expenence with hundreds of cases and many industnes. Court Testimony by credentialed experts.

MERCER CAPITAL 5860 Ridgeway Cenler Parkway, SUIte 410. Memphis. TN 38120. (901)685-2120.

ally solicit such support. 3. The committee can solicit funds and

publicly staled support no earlier than 180 days before a primary election. All committee solicitations must cease no later than 45 days after the last contested election in

which the candidate appears. Funds received prior to the 180 day period or after the 45 day period are to be returned


to the contributor. A candidate shall not use or permit the use of campaign contributions


for the private benefit of the candidate or others, Canon 5 (C) (2). Any campaign fund surplus shall be returned to the contributors or turned over to the state treasurer, and may not be retained for future cam-

January 25-26


paigns, See Advisory Opinions 93-04 and and 93-07. 4. Apart from the campaign commjttee, individuals may seek to assist the judicial campaign by writing letters to friends or by placing advertisements in local media.

Peabody Hotel, Memphis, TN 47

The Arkansas Lawyer

Fall 1995

In Memorium WILLIAM



...- - - - - - - -......., William S. (Bill) Arnold. age 74. of Crossett. died Saturday, October 14. 1995 at DartmouthHitchcock Medical

Center in Hanover,

New Hampshire. He was a

native and life-long resident of Ashley County. Mr. Arnold served in the United States Air Force from 1942 until 1945. and was honorably discharged to active reserve as Second Lieutenant having previously held all ranks from Private to Master Sergeant. He received a SA and JD Degree from the Universily of Arkansas and a Master of Law degree from Columbia University. New York City, NY. He began his law

practice in Hamburg, Arkansas in July 1948. He was presently Senior Partner of Arnold, Hamilton and Streetman, a five man law firm, with offices in Crossett and Hamburg. He was presently serving as Chair of the Arkansas Code Revision

Commission and as a Uniform Law Commissioner from Arkansas; Member of the Arkansas and American Bar Associations and American College of Trust and Estate Counsel and member of American Trial Lawyers. His past legal activities include: Pasl President and former Chair of the Executive Council of the Arkansas Bar Association; and a founding member of the Southern Conference of Board Presidents of the American Bar Association; Life Member Fellows of the American Bar Foundation: Chair Arkansas Fellows, American Bar Association. He became a life member of the Uniform Law Conference in 1989, where he chaired numerous drafting committees including most receI1lly Committee on Multi-Party Accounts and TOO Securities Registration and Chair of Committee 011 Review of Conference Acts. He is survived by his wife. Sylvia Arnold: his SOil and daughler-in-Iaw. Richard and Cindy Arnold; his daughter and son-in-law, Patricia and Henry King; his sister and brother-in-law; 9 grandchildren: 3 great-grandchildren; his nephew; two nieces and two stepsons. PresidcI1l of the Arkansas Bar Association, Carolyn Witherspoon. said "Bill was a true gentleman and a leader in his community and in the bar:'


The Arkansas Lawyer

Fall 1995

Runl HUSKEY BRUNSON Ruth Huskey Brunson, of Little Rock, died in September at the age of 79. She 路~W'~fl'" was a retired Professor of Law and director . , . " ' . " o f the UALR-Pulaski County Law Library.

'~"III'" Mrs. Brunson accepted the job as law Iibrar-


ian in 1965, and began as one of the library's first three employees. She had graduated from law school 24 years earlier, ~1I!1~1M;I receiving her L.L.B. from Arkansas Law School in Lillie Rock in 1941. Her professional background also included serving as law clerk to Arkansas Supreme Court Justice Paul Ward and private practice of law, Brunson & Brunson, in her hometown of Prescott, Arkansas. Mrs. Brunson was one of four women in her entering class at the Arkansas Law School. She was admiued to [he Arkansas Bar in 1941. Mrs. Brunson was a member of the Arkansas Association of Women Lawyers, the Pulaski County Bar Association, and the Arkansas Bar Association. She was a member of the American Associalion of Law Libraries, which she served as chairperson of the Memorial Committee. Mrs. Brunson received the Arkansas Bar Association and Arkansas Bar Foundation Outstanding Lawyer Service Award in June, 1982. In honor of her late husband, John H. Brunson. Mrs. Brunson set up a scholarship fund through the Arkansas Bar Foundation in his memory. The John H. Brunson Memorial Scholarship fund, whose purpose is to further legal education in Little Rock by awarding scholarships and awards to selected student members of the UALR Law Journal, is the largest endowed scholarship of the Arkansas Bar Foundation. The scholarship is being renamed Lhe RULh Huskey and John H. Brunson Scholarship. Memorials may be made to Lhe Arkansas Bar Foundation, 400 West Markham, Little Rock. Arkansas 7220 I. Ruth Huskey Brunson dedicated over two decades of exemplary service to the law library and she saw a dream fulfilled. William H. Bowen, Dean of the UALR School of Law, expressed these thoughts: "Ruth Brunson was persistent, continuing presence for excellence in the Arkansas Bar Association for half a century and particularly so in law library science. She will be sorely missed:' Carolyn Witherspoon, president of the Arkansas Bar Association, had this 10 say about Mrs. Brunson. "She was a true professional. a friend to all of us and one of my mentors:' JOHN



Phillips County Circuit Judge John L. Anderson died in July of hean failure at the age of 80. Anderson served as judge of one of the most talked-aboul murders in Arkansas' history. The case involved Dr. Porter Rodgers Sr., a Searcy physician who was convicted in the September 1974 murder of his estranged wife of 50 years. Anderson served as circuit judge in the state's First Judicial Districl from 197310 1983. He retired from the circuit judgeship in 1983 and was appointed juvenile judge referee. a position he served until 1989. lie also served on the Phillips County Democratic Central Committee, the HelenaWest Helena School Board. and was a mem

bel' of both the Phillips County and Ark(ln"as

Bar Associations, the American Legion and Sl. John's Episcopal Church. REP.

L.L. "Doc"


Rep. L.L. "Doc" Bryan died in July at the age of 75. He is survived by his wife, Evelyn Bryan; two daughters and sons-ill-law: a sister; and seven grandchildren.

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VOL.29_NO.4_FALL 1995