The Arkansas Lawyer Winter 2000 by Arkansas Bar Association

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VOLUME 35, NUMBER 1 PUBLISHER

Arkansas Bar AssociDtion Phon" (501) 375-4606 Fax: (SOl) 375-4901 Homepage: www.arkbar.com E-Mail: onoring@arkbar.oom

on en s

EDITOR

Connit:Moring ASSOCIATE EDITOR, GRAPHIC DESIGN

Sara lAndis EDITORIAL BOARD

David H. Williams. Chair WLley A. Branton Thomas M. Carpenter Jacqueline]. Cravens

An Inuoduction by Roy F. Cox, fr.

Morton GiteLman

Intellectual ~erty 10

James C. Graves

Lucinda McDaniel

Trademark Law for the General Practitioner

Thomas H. McGowan Jacqueline S. Wright

OFFICERS President Louis 8. (Ducky) jones, Jr. President-Elect Ron D. Harrison Immediate Past President Robert M. Ce;arley, Jr. Secretary路Treasurer H. Murray Clilycomb Executive Council Chair Christopher Barrier Parliamentarian MMie-Bemude Miller Young Lawyers Section Chair Baxter Sh.arp Executive Director Don Hollingsworth Associate Executive Director Judith Gray

by Ang<fa Ohm Inuoducrion to Technol~ Licensing

by Harold J Evans

On the Cover: The artwork featured on the cover was done by illustrator Bernard Bonhornrne.

UnFair Competition In Arkansas: An Overview

Everything You Ever Wanted to Know About

Alice Holcomb Bradley D. Jesson Harry Truman Moore Judge David B. Bogard Carolyn B. Witherspoon 1M Ari:4II5lI$ ~ (USPS 5%-040) is published quarterly by the Arkansas Bar Association. Peliodicals postage paid at Uttle Rock. Arkansas. POSTMASTER: send address changes to Thr Arklln.sas LAwyer, 400 West Markham. Uttle Rock. Arkanas 72201. Sub!cription price 10 nonm!'mbers ~ the AIbnsIs Bar Ast.ocYIion $25.00 per year. Any opinion ~1t'55td herein is that c:J the author, and not necessarily thai of the Arkansas Bar Association or 1M ArlrQMllS lllU楼'". Contributions to 1M ArluInS4lS LAwyn are wekome and should be Je'\t in two copies to EDITOR, 1M ~ ~, 400 West Markham,. UttIe Rock. Arkansas 72201. All inquiries regardifl8 advertising shouJd be sent to Editor. 1M Arhnsll$ uwyn al the .bove address. Copyright 2000, Arkansas Bar Association. All lights

""""d.

Ask

by Dmnis Haa"

The Impac, of Paren< Law On Everyday P,ac,ice by fo< D. Calhoun

Choosing ,he Bes, Method of Prorec,ing Compu,er Soltware - One Size Does No, Bi, All by Charles Dough<r1J

In This IsslH' by Louis B. "Bucky" JOlles, Jr. AMENDMENT 3 THE JUDICIAL ARTICLE Frequelltly Asked Questions A LITTLE GOOD NEWS, by COllnie Moring PRESIDENT'S REPORT,

EXECUTIVE COUNCIL UAISON MEMBERS

by Tim A. Chwham

Copyrights (Almost) Bu, Neve, Bo,hered

EXEcunVE COUNCIL

William M. Clark. Jr. F. Thomas Curry Thomas A. Daily Kay West Forrest Lance B. Gamer Ron D. Harrison Dave WISdom Harrod Knox B. Kinney Edwin . McClure Lance R. Miller Michael W. Mitchell Charles C. Owen Brian H. Ratcliff James D. Sprott Danny Thrailkill R. Scott Zuerker

2 3 4

MEMBER BENERTS

LAW OffiCE TECHNOLOGY

CLE CALENDAR

YOUNG LAWYERS SECTION REPORT

37 37

BOOK REVIEW,

by Judge lVilliom R. lVi/son, Jr.

39 39 42

JUDICIAL ADVISORY OPINIONS JUDICIAL DISCIPLINARY ACTIONS LAWYER DISCIPLINARY ACTIONS

by Kyle King, INA 1999 CLE SPEAKERS AND

GET IN STEP, GET ONLINE, A SPECIAL THANKS TO

MEMORIAM

CLASSIFIED ADVERTISINGIlNDEX TO ADVERTISERS

PROGRAM PLANNERS

53 54

January 2000 ••. A Good Time To Reflect by Louis B. "Hucky" Jones, Jr.

y the time you read this page, the much heralded and over-hyped "new millennium" will be hisrory. and all of LIS will have returned {Q our daily routines in private practice, government service, education, business, etc. I am assuming. of course, [ha[ all of [he Y2K hype and hysreria came to naught and OUf office computers, lap mps, palm pilms and e-mail are scill in operation. However all of that plays our, January 2000 will srill be <he mid-poin< of the I02nd year of our Association and a good rime to reflect on where we are as well as where we hope to he by the time of our

Annual Meeting in June. • Membership - As of this writing, our membership mral is at 4.314, an all rime

record, and we are well on our way goal of 4,500.

our

Swarr Miller and <he

Membership Development Committee have done an outstanding job. • Sustaining Members - Currently we have 238 sustaining members with a very arrainable goal of 280. Bob Cabe and his committee deserve thanks as well. • Annual Meeting - Morris Dees, founding director of the Southern Poverty Law Center in Montgomery, Alabama; Chief Justice Thomas Zlaket of the Arizona Supreme Court; and Governor Huckabee are all confirmed speakers for our Annual Meeting. Several other keynote speakers are in the works. The Cate Brothers Band will be entertaining us on Thursday evening. Many inreresting and wide-ranging CLE programs are also being planned by AnnuaJ Meering Chair Mike Crawford and his committee. • President-Elect Ron Harrison and the Lawyer Assistance Program Committee have filed a petition with the Arkansas Supreme Court requesting the establishment of a statewide program to assist those

2 Tlr ,lrkulll Ll\\)rr

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I/Willrr 2000

with addiction problems that affect their practice as well as the public's perception of our profession. Currently, Arkansas is one of only seven states without such a program. • A new Professionalism Task Force chaired by Pas[ Presiden< Bob Cearley has recently been appoinred and wiJI begin looking at ways to emphasize professionalism and civility in practice as well as in life. • Bar Exam Changes - The Lawyer Admission Subcommittee of the Task Force on Lawyer Admission & Discipline chaired by Audrey Evans will soon file its petition with the Arkansas Supreme Court to make certain changes ro the Bar Exam pursuant ro approval by [he House of Delega[es. A subcommittee to study the recommendation for the Bridging the Gap seminar is being formed. • A study group on the issue of Multidisciplinary Practice will be appointed to review the ABA proposal on this very controversial topic and make recommendations ro our House of Delegates and our Association's ABA Delegates Carolyn Witherspoon and Harry Truman Moore. • Brian Ratcliff and his committee have enrolled over 425 lawyers in arkansasfindalawyer. This is a great new service ro our members, as well as the public, making it easier to access legal services through the Lnterner. Thanks to Brian and his committee for a job well done. • Thanks for Stark Ligon and his comminee for their work on technology and legal research issues facing our Association and profession. Their's had truly been a labor of love, and we appreciate their many hours of service. • CLE - The Fall Legal Insri[ure rerurned to Northwest Arkansas, after a long absence, with a very informative. practical

and well-attended program on Friday. November 10th. This was a cooperative effort between U of A Law School and [he Arkansas Bar Association. Cheryl Pinkerton and Virginia Hardgrave along with Charlie Owen and members of the CLE Commirtee did a commendable job. Excellen< CLE programs lasr fall from [he Government Practice Section and other sections continue the CLE tradition. An exciting and informative program on negotiation and another on technology are planned for the Mid-Year Meeting in Memphis. • Cooperation and coordination between U of A and UALR Law Schools Deans Bob Moberly and Rod Smi<h are exploring ways for bo<h of [heir schools ro cooperate with each orner and the Arkansas Bar Association to meet the education and professional needs of future attorneys. The Law School Committee, under the leadership of Georgia Elrod, is aJso working closely with both schools to offer assistance and suppOrt. These are only a few of the many activities, projects and challenges of your Arkansas Bar Association as we enter the new millennium and 21st Century. I am happy to report that, at the mid-point of our I02nd bar year, we can all take pride in our Association. Thanks to all of you and the best bar association staff in the coumry, led by Don Hollingsworrh and Judi[h Gray, for your hard work in 1999 and BEST WISHES ro all for <he year ahead. I look forward to meeting the challenges and opportunities for service the next six months will bring. With your input, involvement and support, we will have one of the best years in our long and proud hisrory. Thanks for [he opporruniry ro be your servant leader.•

AMENDMENT 3 THE JDDICIAlARTICLE Frequently Asked Questions* 1. QUESTION: What is Proposed Amendment 3? ANSWER: Jr is the constitutional amendment that will replace the existing Judicial Article in the Arkansas Constitution. Jr will appear on the general election ballot in November. 2000.

2. QUESTION: What are the key provisions o/the amendment? ANSWER: The key provisions are: I. Merger of courts of law and equity: 2. Election of judges on a non-partisan basis; 3. Original jurisdiction to the Supreme Court regarding initiative and referendum petitions and proposed constitutional amendmentsi

4. Creation of District Courts. merging together municipal courts. police courts, courts of common pleas and justice of the peace courts; and

5. Authorization of the use of referees and masters by circuit and district courts.

3. QUESTION: Where did the proposed change originate? ANSWER: There has been general agreement regarding the need for this change for nearly 30 years. The 1970 & 1980 Constitutional Conventions recommended almost identical changes to the judicial article. The Arkansas Bar Association has presented similar proposals to several previous legislative sessions. Legislators in the 1999 session chose to include the reform of our judicial system as one of the 3 constitutional amendments that they referred to the November. 2000 ballot for a vote of the people.

4. QUESTION: Why is this being brought up again ifit's already been defeated on several occasions? ANSWER: The voters have never had a chance to vote on a change in the Judicial Article alone. Political observers credit the two failures to pass a new Arkansas State Constitution to conuoversial issues such as right-to-work. usury and concerns over aborcion rights. Voters had to vote "for" or "against" the docll.menr as a whole. If they objected strongly to one item, they voted "no".

5. QUESTION: How will the change affect my practice o/law? ANSWER: Accessibility to judges should be enhanced since judges currently designated as circuit or chancery judges will no longer be restricted to hearing matters solely in their court's jurisdictional framework. Any judge will be able to handle routine matters involving any area of the law. Lawyers in rural areas will be able to have simple legal matters. such as criminal arraignments or pleas, taken by the judge available at the time. The change will also eliminate the possibility of filing a case in the wrong trial court and experiencing a reversal based on that choice of courts. Since judges will be given the jurisdiction to decide both mattets of law and equity, you and your client should be protected from reversals at the appellate levd for wrong jurisdictional choices. It is expected that these changes will result in the alleviation of crowded dockets, allowing you to conclude cases more quickly. However. the new Judicial Article allows specialization among the judges in each judicial division. "This column is part one of four. Watch for more Frequently Asked Questions regarding Article 3 in upcoming issues of The Arkansas Lnwy~r.

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BECAUSE OF HIS ONGOING DEDICATION AND COMMITMENT••• by Connie Moring

"Reaching children with the message is so important, " Buddy says. "There is such a small window of

reachability which closes rapidly.

If we do not take

the time to build an understanding ofrespect and a feeling ofpositive selfesteem during their formative years, these children have no chance. ... "

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n October 14, 1999, William H. "Buddy" Surron. managing parmer of the stare's largest law firm, Friday, Eldredge and Clark, received a very special award. The Arkansas Sheriffs' Boys and Girls Ranches recognized Mr. Sunon's "ongoing dedication and commitrnem as an advocate for all children" with the 1999 Arkansas Children's Award. Mr. Sutton has assisted the Ranch in securing funding from major corporations and foundations. A native of Hope, AR, Mr. Sutton has spent the last 40 years in Little Rock, and a great deal of his time and energy has been dedicated [Q creating opportunities for young people to reach their fuji potential. The Arkansas Sheriff's Boys and Girls Ranches is just onc organization to benefit from Mr. Sutton's commitment CO children. However, the Arkansas '. Sheriffs' organization is near and dear ro Mr. Sucton's hean - his father was a Sheriff in Hope while Buddy was growing up. "It was from my father that I learned about care and compassion, Buddy says. "Our sheriffs ,- 1are good influI .\ ences in their ~ communities with a very tough job to do." He says the scaff at the Boys and Girls Ranches are also to be commended. "I spend a few hours helping this cause and feel good about it, but the folks that work at these Facilities are to be admired," he says. "They are genuinely devoted to children - it is a ministry of rea1love."

...'.

.....

On Motivation... If you are at all familiar with Buddy, then you already know religion is a tremendous influence on the way he perceives his duty to help others - especially children. "Reaching children with the message is so important," Buddy says. "There is such a small window of reach ability which closes rapidly. If we do not take the time to build an understanding of respect and a feeling of positive self esteem during their formative years, these children have no chance. They

must understand that people care about them, and they have expectations of good."

On Gratification... According to Mr. Sunon, merely feeling personal gratification from having dedicated his time and energy is an over simplification of how he understands his role. "It is difficult to feel gratification when I always feel I haven't done enough," he says. "I feel as though I'm doing my duty, and you can find peace in doing your dury - if you don'c, there is no pace."

On Participation... There is no doubt thac opportunities to volunteer and serve are out there. Many believe the legal profession as a whole could truly benefit from wong a more active role and holding a greater presence in the community and grass roOtS charities. Mr. Sutton is of the opinion that, for accorneys, panicipation is not an option to possibly be exercised - it is a responsibilIty.

"Our communities perceive us as advantaged, and we do have certain advantages. However, along with those advanrages comes responsibility," Buddy says. "A lot is expected of us. We need co be grateful for the resources we have available to us, and we must be , willing to use them." The argument can be made that along with certain advantages comes a very busy work schedule, the demands of family and friends on our time. and many other things that seem co "ear up" every hour of every day and all of our energy. So how is it possible to give any more? Mr. Sutton says, "Dedication to helping others is like getting into shape: if it hurts, you know your getting something accomplished. We need to give enough so that ir hurrs a little - then we'll begin to see the results - and the rewards." To sum it all up, Buddy uses the words of Robert E. Lee, "Duty is the sublimest word in the English language." Think about it. Congratulations again Buddy!.

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Now Up and Running... "arkansasfindalawyer" Over 425 Association members have regisrered for "arkansasfi ndalawyer".

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I ne ,Irkmn Ll~!p,r

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Make Arkansas Bar Association Booklets and Guides Available as a Service to your Clients Tizk( advllntage ofa series offtu publicatiom offired by the Association. }Our clients will be impressed with their quality and grateful to you for providing tfum. Arkansas Senior Citizens Handbook designed to answer basic questions abour Social Security, Medicaid, Wills and Estare Planning, Guardianship, erc. Arkansas CareGivers Handbook wrirren to heip your clients as they undercake rhe roll of caregiver for parents or other loved ones. Small Claims Coun Booklet shows your diem, whose dispure and damages are less than $5,000, how to take necessary steps to file a claim. Arkansas Veterans' Handbook provides informacion about VA entidemems and services available. To order, call (501) 375-4606 or (800) 609-5668 or e-mail dgerrald@arkbar.com.

Visit www.arkbar.com to view or download some of these publicarions.

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Lexis-Nexis

New online anomey directory for Association members

Online legal tesearch from Lexis-Nexis is discounted for

only. Review me directory by going to www.arkbar.com

members. Call 800-356-6548 ext. 1178.

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Advisory Ethics Opinions

The cornerstone of an attorney's professionalism is up-to-

It's not always black and white. In the practice of law, there's a

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provides the most comprehensive statewide CLE program,

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and members pay reduced tuition!

the Committee will issue an opinion on the member's proposed conduct. There is an administrative charge of $50.

Legislative Program You are well represented on legislative issues affecting the

Publications FREE to Members

profession and the legal system.

The Newsbulktin, The Arkansas Lawyer. Legis!4tive Summary From the Hill, Guitk to Arkansas Statute ofLimitations, Annual Membership Directory, The Arkansas Law Review, The UALR Low Review. Brochures on law-related topics are

Insurance Discounts Call Reb,amen Insurance at 501-664-8791 or roll free 888-272-6656 for the following insurance products (5% discount for members): Professional Liability, Accidem, Term Life, Hospital Indemnity Protection, Overhead Expense, Disabilicy Income, and rwo NEW products-Long Term Care and Critical Illness.

Delivery Service UPS gives Arkansas Bar Association members discounts and quick tesponse time. Call 800-325-7000 and identifY YOUtself as a member of me Arkansas Bar Associatjon or use account #CP290001685.

Credit Card Program The MBNA Platinum Plus MasterCard includes a card with the Arkansas Bar Association logo, no annual fee, miles plus opoon, a low APR and travel services. Call 800-847-7378 fat an application.

Handbooks Members receive a special discount - Ten practice handbooks on CD-ROM &om WIS and in print and disk from the Arkansas Bar Association. The 1998 version of the Arkansas Form Book is now available. To order, call Diane at the Association at 501-375-4606 for print or disk versions or call LOIS at 1-800-364-2512 for the CD-ROM verSIon.

Retirement Plan ABA Members Retirement Program - Call 800-826-8901 or visit the website at http://abra.ris.ssga.com.

available for members

share with diems or civic groups.

Improving the Legal System The Arkansas Bar Association has historically worked to secure adequate funding of the Court system, to revise outdated laws, and to provide needed legal information to the public. Association members do this through the legislative program, sections and committees, the Association's Mock Trial Program, the Young Lawyers Section's projects, and special studies.

Car Rental Avi, - For discounts call 800-331-1212 (give them this number: B-314500).

Professional Networking The Arkansas Bar Association is the best opportunity in Arkansas for attorney inreracoon through the Association's public service projecrs, sections, and committees. The Annual Meeting of the Association each June is attended by 1,000 Arkansas attorneys and hundreds of family members.

Finding Case Information on the Arkansas Judiciary Home Page by Timothy . Holthoff Director, Arkansas Supreme Court Library anuary 2000 marks the fourth anniversary of the Arkansas Judiciary Home age.! Since its inception, the web site has received millions of hits by thousands of users looking for informadon from and about Arkansas courts. Although there are many pages of valuable information, mOSt users visit the site looking for case information. By explaining what information is available. when it becomes available, and how it can be accessed, this aniclc may serve as a guide to Arkansas atmrneys seeking case information on the ArkamflS

Judiciary Home Pagl. A description of the Internet-publishing process for this information may be useful. Each Wednesday and Thursday when me courtS are in session, the decisions of me Arkansas Coun of Appeals and the Arkansas Supreme Coun, respectively, are handed down at 9:00 a.m. At the same time, the Supreme Court Clerk's Office releases the syllabus of the day's court proceedings. These documents are immediately available in print from the Supreme Court Clerk's Office and the Supreme COLIn Library. The Office of the Reponer of Decisions 2 is provided with electronic versions of the opinions designated by the courtS for publication. The Reporter also receives an electronic version of the day's syllabus. In addirion ro preparing the Arkansas Advance Reports and the official bound Arkansas Reports, rhe Reporter now prepares the electronic versions of rhe published opinions and the syllabus and posts them to the Arkansas Judiciary Home Page. The Internet-publishing process begins with rhe electronic syllabus. For each opinion, published or unpublished, the Reporter inserts information about whether the opinion is published, the number of pages of the slip opinion, and whether any concurring or dissenting opinions accompany the decision. The edited syllabus file is then transmirred to the Ark-Lawyers emaillisr. 3 The Reporter again edits the syllabus file, adding hyperlinks ro me pub-

8 The Irkmas 1,3W!rr

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lished opinions, then poses it on the web site. After a preliminary review of the electronic version of the slip opinions, the Reporter merges concurring or dissenting opinions into the main opinion, converts them to HTML, compresses them into a ZI P file, then pOSts them on the web site. The syllabus fiJe is then submitted to an indexing program. The program adds information from rhe syllabus ro the search engine very quickly. However, the full text of the opinions is not indexed until the next day. The Internet-publishing process is complered within a few hours of the time the courts announce rheir opinions. On Fridays, the previous week's electronic slip opinions are updated with editorial corrections and head notes. The Reporter convens the corrected files ro HTM L, compresses them into a new ZIP file, then places them on the web site. The Friday opinions are very similar to the Arkamflj Advance Reports; however, they do not have volume or page informacion, so rhey may nOt be cited. 4 The Reporter's Office also creates an electronic table of contents that appears in the Arkansas Advance Reports. The electronic table of contents page is appended ro the beginning of rhe syllabus and hyperlinks to the published opinions are added. The original syllabus is then replaced with the new table of conrenrs and syllabus.' From the time the slip opinions are released umil they are published in their hnal version in the bound volumes of the Arkansas Reports, they may undergo significanr editing. With few exceptions, the edirorial changes are not made in the electronic version. That is why the opinions pages on the web site comain the cavear that, "Only the bound volumes of Arkansflj Reports and Arkansas AppellLlte Reports contain the hnal, official texts of rhe opinions of the Arkansas Supreme COllft and the Arkansas Court of Appeals." Similarly, because the bound volumes of the \-\7ests

Somh Western Reporter are produced more quickly

than

rhe bound

volumes of

ArkallJflj Reports, some of the later editorial changes may be omitted from the regional reporrer. With a better understanding of how and when the case information is posted on the Inrerner, the challenge of finding the information becomes less daunting. There are (WO primary access poims to information abour Arkansas Supreme Coun and Arkansas Court of Appeals cases: through me syllabus by known date or through [he search engine. To find a case where the dare is known, users may select the "Opinions" link from the Arkansas judiciary Home Page to navigare to rhe main opinions page. 6 To access the opinions, one musr scroll down ro the listing of fall and spring terms for each court. 7 After clicking on the link for the term, the user will be presented with a list of court dates. Upon selecting a date, the syllabus for that date will be displayed wirh links to me published opinions. The opinions are available in HTML, ASCI I and WordPerfect 5.1. 8 Ar the top ohhe page is a link to the ZIP file containing all the opinions published on that date. 9 There are cwo other important links on the main opinions page that merit discussion here. OccasionalJy the electronic opinions are modified after they have been posted. One may view these changes by selecting the link to "View a list of opinions corrected online after the update with headnotes is posted". The narure of the corrections varies. There may have been an error while compiling the opinions or a problem during conversion or transmission of the opinions. Substituted opinions on gram or denial of rehearing are also included in the lisr. A substituted opinion completely replaces the original slip opinion. The second link is to a table of parallel citations. As each volume of the Arkansas Reports is compiled for printing, the Reporter of Decisions prepares a table of

parallel citations from the Arkansas R,ports [Q the Wt'sts South W'tortt'rn Rt'porur. Although the electronic opinions are not "star paged" ,10 the parallel citation table provides a convenient way [0 locate in the Wars South ~rtt'm RqJortt'r an Arkansas opinion with a known citation. Although access to cases by date is the easiest way (0 find a known opinion. this method of access is nOt conducive to legal research. The search engine was added to provide bencT access to the opinions. II The Supreme Coun librarians first posted opinions in 1996 when the web site was created. 12 After the Information Nccwork of Arkansas (INA) made the search engine available, the Reporter of Decisions supplied INA with additional published opinions dating back ro August 1994. The opinions from 1994 and 1995 may be found through the search engine, but they will nor be found by browsing by date from the opinions main page as described above. To access the search engine. users should dick on the "Search Opinions" link from the Arkansas Judiciary Home Page or from the opinions main page. The search engine is neither as complex nor as reliable as those used by the legal publishers. J3 Still, it is a usefuJ rool for locating recent published decisions and case status information. Research is accomplished through three access points on the search form. One may search the full text of decisions, search for cases by case name, or browse opinions in a particular month. The latter two search options may be limited to published cases, unpublished cases or both." To conduct a full text search. the user must enter the search terms or phrase then click the "Search!" button to execute the search. If more than one word is entered into the box, the search engine will locate cases that contain all of the search terms. Users may also search for phrases by enclosing them in quotation marks. For example. entering the phrase "testamentary disposition" with the quotation marks will yield different results than entering the words without the quotation marks. The search engine also supports more complex Boolean searching. The operatOrs <AND> and <OR.> perform the same function as in other search engines. The <NOT> operator is used to modifY <AND> or <OR.> opera-

tors. For example "contempt <AND> <NOT> civil" would retrieve cases that contain the word "contempt" but do not contain the word "civil" .15 The search engine also supports an adjacency operator <NEAR.> that allows the user to specify how near the terms must be. For example, a search for "life <NEAR/5> insurance" will locate cases where the word "insurance" appears within five words on either side of the word "life". Researchers may also use the wildcard the characters "?" and ...... to specify a single character or muJriple characters respectively. For example, to search for the words "woman" or "women" one couJd use the wildcard thusly, "wom?n". However, to truncate a word, the ",.,,, would be used. For example. "adjudicar-*" would retrieve cases with any word that begins with the letters "adjudicat" such as adjudicate, adjudicated, adjudication. and so on. Further hints on searching fuJJ text are available online. 16 In addition to full-text searching, users may find cases by case name or by browsing a particular month. The case name search is the most difficult and least reliable search method. To index case names, the program relies on information in the syllabus file. Because of variations in the syllabus file, inconsistencies arise in the indexing. The case name search is most successful when one of the parties has an uncommon name and that is the only search term used. The case name search is a phrase search. so neither the Boolean operacors (AND, OR, NOT, NEAR) nor the wildcard characters (* ,?) may be used. When using more than one word in the case name search. unless one is certain of the exaCt phrasing of the s<rle of the case, results will be disappoinring. AJthough the case name searches are not flexible, the searches may be limited to a particular range of dates. By selecting a month and year in the drop-down boxes, the results will be limited to dates within the range. A successful case name search will reward the user with more than just a link to the fuJI text of the case. If both published and unpublished cases are searched, the user will see links ro all of the Court syllabi where the case was mentioned. The case names are indexed through the entire syllabus. so emries for motions submitted, submissions, and rulings on motions by per curiam order

will exist for most cases. Users may use this method to track the statuS of particular cases. Other than finding cases by name, the most common request is for cases by docket number. This too is a difficuJt search because of the structure of appellate docket numbers. 17 To successfully conduct a docket number search, both the full-text and case name searches shouJd be used. The docket number in the full-text search should be enclosed in quotation marks. The docket number in the case name search should nOt. Finally. visitors to the Arkansas judiciary Hom~ Page may browse cases, published or unpublished. for a specified month and year. A drop down box allows the user to select a month and year to browse. The resulting links will be ro cases, if published opinions are selected, and to syl1abi for either published or unpublished cases. The Internet has become an indispensable rool in the practice of law. and the Arkansas Judiciary Home Page plays a unique role in the practice of law in Arkansas. This web site is the first place that recently-decided Arkansas cases are available e1ecrronically.18 With a better understanding of the lmerner-publishing process and the methods of accessing Arkansas cases, anorneys will be well equipped ro keep abreasr of changes in Arkansas case law.* Endnotes t. &c hmrllcollfrs stare.M.US. 2. The Reporter of Decisions has a home page at hrq;)"lIcourrs srarc.ar.uslrcROrrer.hrm. 3. The Ark-Lawyers e-mail list is a FREE service provided by the University of Arkansas

School of Law. To subscribe

the Ark-

Lawyers list, one must send an e~ma.il message to listproc@cirabra.uark.edu without a

subject line. The text of me message shouJd be subscribe ark路 lawyers Firstname Lastname. The Listproc software automatically adds the sender's e-mail address to the list of subscribers. To send a message [Q the list, one must use the e-mail address ark路 la"X)'i;rs@citabra.uark.edu. Messages sent to this address will be forwarded to all list members. When replying to an ark-lawyers message, selecting "reply" in mOSt e~mail Law Office Technology Continued on Page 56

lei. l~ 10. I/llil!er 2000

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A Brief Tour of Hot Topics by Ray F. Cox, Jr.

Intelleccual Property ("IP") may be one of the smalJest and most specialized segmenu of practice among the members of the Arkansas Bar Association. So why should this Issue concentrate on Intellectual Propercy law? And more to the point, why should you, the non-IP practitioner, be inrerested? Rather than answer that question direcdy, I will take you on a brief rour of some of the hot topics in IP

today. JUSt abour everyone today is mmiliar with Internet terminology. You are probably aware that domain names are the addresses of sites on the Imernet. Most businesses wam to have a domain name that is the same as or similar to the name under which they do business, which is usually protected by trademark. But are you aware of the widespread practice of "cybersquatting", where modern pirates of the Inrernet register domain names that may be idenricaJ to your client's trademark? Angela Ohm's article on "Trademark Law for the GeneraJ Practitioner" is the place to start. What if your c1ienr hired someone [Q write an advenisemenr or create a logo? It

belongs to the client, right? Well, maybe not. Dennis Haase explores the "work for hire" doctrine and mher subjects in copyright law in his article, "Everything You Ever Wamed to Know abom Copyrights

(Almost) But Never Bothered to Ask".

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Your client operates under a name that is not trademarked and cannot become a vaJid trademark. A competitor begins using a similar name in me hopes of confusing the public and drawing customers away from your diem. What can you do? See Tim Cheatham's discussion of "The Law of Unfair Competition".

Even without producing patemable invemions or copyrighted works, your client may very well be creating intellectual property without knowing it or benefiting from it. Technical "know how" may be one of the most valuable byproducts of any business activity. Once it is created, how does the diem profit from it? Maybe the vehicle is licensing the technology to others who need it. Harold Evans gives an indepth discussion of the subject in

"Introduction to Technology Licensing". No one these days is far from compurer technology. Businesses often find themselves in the role of creating meir own computer software when the commercially

available product doesn't do the job. Can computer software be protected from use by omers? At one time the answer was:

probably not effectively. Today, though, the question is not whether, but how to protect your computer software. For the details, see Chuck Doughery's article on "Choosing the Best Method of Protecting Computer Software - One Size Does Not Fit All". If there is one area of Intellectual Property that most people have had some exposure to, it is patents. Joe CaJhoun shows you the numerous ways in which patent questions can arise for the general practitioner in his article "The Impact of Patent Law on Everyday Practice". These articles show me broad range of issues in the IP area and how IP can impact many of your c1iems' interests. I hope this brief introduction will whet your appetite to dip into these articles, and after sampling them, I am sure you will agree thar you and your clients need to know IP.Q

Ray F. Cox, Jr., is with the Little Rock Inw jim, afWright, Lindsey 6- JC1Illillgs LLP.

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LAW

For the General Practitioner By Angela Ohm

Much media attention has been focused recently on an area of law nm known for grabbing headlines; namdy, ""demark law. The advent of the internet has caused the opening of a new frontier in trademarks in the form of domain name registrations. Both well-known individuals and companies have found themselves unable to use their rrademarked iclenriries for the domain names of their Internet web sites because someone else has beaten them to it. As small businesses proliferate, and rhe Internet becomes an important parr of their prosperity. it is becoming more likely that attorneys with a general practice wiU find that issues involving trademark law will be a faeroe in the commercial aspect of their pracrice. This anide is intended as an introduction co tfademark law, with an emphasis on obtaining trademark registration.

WHAT CONSTITUTES A TRADEMARK? Basically. a trademark is a brand name in the form of a word, phrase, symbol, design or combination thereof, which identifies me source of me goods of one party and distinguishes the goods from those of orhers. Service marks do me same for the source of a service. Trademarks will normally appear on the product or its packaging, while service marks normally appear in the advertising for services.! Trademarks are a type of intdlecrual property. but while trademarks protect the goodwill of a business, patents protect inventions and copyrighrs protect artistic and literary creations. The designations of TM (""demark) or SM (serviee mark) are used to alert rhe public that someone claims rights in rhe mark. It does not mean mar the mark in question is registered or mar a regisrration is pending, nor does it speak to rhe validity of rhe claim. However, the registration symbol 速 may

only be used if a mark is registered wim me Patent and Trademark Office (PTO) and should nor be used ar any point prior to registration. 2

HOW DO YOU OBTAIN RlGHTS

IN A MARK? Federal registration of your mark wim me United States Patent and Trademark Office (PTO) is by far rhe best merhod of securing your rights to a mark. However. it is not required ro establish rights in a mark or ro begin using the mark. Scate registration can secure some rights for a mark used only wimin the particular state. There are also common law trademark rights, which are based upon actual use of the mark, but they are not as far reaching as federaJ registration. Some advantages to obtaining federaJ registration are; (I) Registration can last indefinitely if the owner continues to use the mark to identify its goods or services (me term of federal registration is 10 years, wim 10 year renewal terms - nOte; between the 5th and 6th year of the date initial registration, the registrant must file an affidavit setting forth cerrain information to keep me regisrration alive - if it is nOt filed, the registration is cancded);> (2) Registration provides the owner with nationwide priority rights from me filing dare of the application for registration;" (3) It provides the owner with presumptive evidence of the validity of the registration, ownership of the mark, and the right to use me mark upon the date of the application for registration; ; (4) It provides the owner with presumptive evidence of the validity of the registration, ownership of me mark, and the right to use the mark everywhere in me

U.S.;6 Angela June Ohm works for ABF Freighr System, Inc. and focuses on rransponarion, contract and trademark law.

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damages for coumerfeiting a mark;8 and (7) Registration gives you rhe right ro obta..in registrations in foreign countries pursuant to international ueaties m which the U.S. participates. 9

(5) A copy of rhe registration can be filed with the U.S. Customs Service to block the importation of products which infringe the owner's rights;? (6) The Trademark Acr of 1946 (The Lanham Act) provides unannounced seiwre remedies and increasing civil

ARE THERE BENEFITS TO STATE REGISTRATION? The only real advantage to state registration is that, unlike the Lanham Aer. mere is no requirement that me owner be engaged in either interstate or foreign commerce. It only offers protection against infringement within the State of Arkansas; it offers none against infringement outside me state and does nor provide a defense to me owner from claims of infringement against other marks. 10

WHAT IS THE RELEVANT LEGISLATION? Federal -

Trademark Act of 1946 (L1nham Act), as amended 15 U.S.c. Section 1051 et. seq.; The Trademark Rules, 37 CFR Part 2; The Manual of Examining Procedure (2nd ed. 1993); State Arkansas Trademark Act (AR Code Ann. 4-71-201 to 218 Supp. 1997); Common law APPLYING FOR FEDERAL

REGISTRATION If your dient is already using the mark in commerce, they may fiJe a use application. If they are not yet using the mark in commerce, mey should file an intent-to-use application. There are two Registers. me Primary and Supplemental Registers. on which rhe mark can be placed. The Primary is me preferred regisrer and bestows the most righrs in rhe mark. The Supplemental Register is used for those marks that do not meet the requirements of the Primary Register, bur are still capable of distinguishing the goods of the applicam. For your client to file based on its use of me mark, the use must be a bona fide use in the ordinary course of trade and not merely

to reserve a right in the mark. Irs use in advertising before a product or service is actually provided in a normal commercial scale would nor qualify as use in commerce. nor does commerce within a state. A client filing an intem-to-use application must not have used the mark in commerce. but must have a bona fide imention to use the mark in commerce (defined as all commerce which can be lawfully regulated by the Congress - for example, interstate commerce and commerce between the U.S. and another country). Before the PTO will register the mark, the applicant wiU have to use the mark in commerce and submit an affidavit of use to the PTa. Also, in some cases, an applicam from outside the U.S. may file in the U.S. based on applications or registrations in another country.l!

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WHO FILES THE APPLICATION? It must be filed in the name of the owner of the mark, most often an individual, corporation or partnership. The owner is the person or emiry that controls the nature and quality of [he goods or services identified by the mark. It is not required that the applicant be represented by an attorney. If the applican[ has an address oucside the U.S., they must submit the name and address of a domestic represemative - someone who lives in the U.S. and can be served for proceedings affecting the mark.!2

STEPS TO TAKE BEFORE APPLYING FOR REGISTRATIONTO SEARCH OR NOT TO SEARCH FOR CONFLICTING MARKS Applicancs are not required co search for conflicting marks before applying for registration. When the application is processed. [he PTO will conduce a search and the applicant notified if a conflicting mark is found. To determine if a mark is conflicting, the PTO derermines if there is a likelihood of confusion (if relevant consumers would be likely to associate the goods or services of one parry with those of another as a resul[ of the use of me marks by boch parties). To decermine mis, the PTO looks at the similarity of the marks and me commercial relationship between the goods or services identified by the mark. For mere co be a conflict, the marks do not have to be identical, nor do the goods or services have to be the same. Even though a search is not required, it is a good idea. Otherwise you may find yourself having taken the time and expense to

apply. only to discover that your application cannot be approved due to its conflict with another mark. AJso, if your diem begins using a mark without having searched for conAiceing marks, [hey could find themselves unable to register their mark and being sued for infringemem. The PTa will not condua searches for the general public, but there are several ways of conducting your own search. You can visit the PTa public search library or visit a patent and trademark depository library (me locations are lisred at the PTO's web site - www.uspto.govl. Many attorneys provide this service, as do private trademark search companies. To ensure that no one has common law rights in a mark. you can perform a common law search which will involve searching more than the federal register and pending application records. The search includes yellow pages, state trademarks directories, phone directories, etc. and can determine if a mark is being used by some one who has nOt filed for federaJ registration.!3

THE REGISTRATION PROCESS The application (a separate one is needed for each mark) should be sene co The Assistant Commissioner for Trademarks. 2900 Cryseal Drive, Arlingcon, Virginia 22202-3513. As the fiTS[ seep, the PTO reviews the application to determine if it meets the minimum requirements for receiving a filing dace. If i[ does, me PTO assigns a serial number. It will then send the applicant a receipt approximately two months after filing. If the minimum requirements are not met. the entire mailing (fee included) is recumed. For applications made prior to October 30, 1999, [0 receive a filing dace, the applicant must have provided the following: 1. written application form; 2. a drawing of the mark; 3. me filing fee; and 4. specimens (if the application is based upon prior use).14 The Trademark Law Treaty lmplemeneation Ace (TLTlA), which goes ineo effece alter Oceober 30, 1999, loosens the filing date requirements. All that will be required is the applicant's name and address, a clear drawing of the mark, a list of goods and services, and the filing fee. An examining attorney at the PTO will review the application about four months after it was filed, and determine if the mark may be registered. If it can't be, the examin-

ing attorney will issue a letter listing the grounds for refusal and any corrections required (they may contact you over the phone if only minor alterations are needed). Applicants must respond to the objection within six months - if not, the application is abandoned. If [he applicants respond and the application still does not meet the requirements, a final refusaJ is issued. It can be appealed co me Trademark Trial and Appeal Board, an administrative Tribunal within [he PTO.J5

GROUNDS FOR REFUSAL There are many possible grounds for refusal,!6 including: • likelihood of confusion between the applicant's mark and a registered mark;17 the mark is scandalous or immoral;!8 the mark is deceptive;!9 • the mark disparages or falsely suggests a connection with persons (either living or dead), institutions, beliefs or national symbols;2. • the mark includes the U.S. flag or coat of arms or those of any nation;21 the mark includes the name, portrait or signature of any living person without their consent;22 • the mark is primarily descriptive or deceptively misdescriptive of the goods or services themselves;23 the mark is primarily descriptive or deceptively misdescriptive of the geographic origin of the goods or services;24 • the mark is primarily merely a surname;25 • the mark is the title of a single work;26 it is a promotional advertising campaign;27 • it is product configurations which are purely functional;28 and • it is for activities which are nOt services performed primarily for the benefit of a third party.29 Even if a mark falls into the above categories. it may be placed on the Principle Register once it has become distinctive of the applicant's goods in commerce30 and is one of [he following: • merely descriptive or deceptively misdescriptive;}! primarily geographically descriptive;32 • primarily merely a surname;33 or • primarily geographically deceptively misdescriptive34 (as long as it became distinctive of the applicant's goods In fol.l~ Sf.

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commerce before the enactment date of the North American Free Trade Agreement). Proof of substantially exclusive and continuous use in commerce by the applicant in commerce for the five years preceding the date on which distinctiveness is claimed may serve as prima facie evidence that the mark is disrinctive. 35 There are marks that can be registered once they acquire secondary meaning. In accordance with The Trademark Act, Section 23 (15 U.s.c. 1091), all marks capable of distinguishing the applicant's goods or services that cannot be placed on the principle register may be placed on the Supplemental Register. Those marks are: those that are merely descriptive of a feature, function, purpose or characteristic of the goods or services; those that are primarily surnames; and non-traditional trademarks - product or packaging configurations, colors, sounds or scents - all of which are nonutilitarian (not purely functional). If there are no problems with the application, the examining attorney approves the mark for publication in the Official Gazette (a weekly publication of the PTO), and the PTa sends notification of the publication to the applicant indicating the date of publication. Any parry that believes it has been damaged by the registration of the mark has 30 days from the date of publication ro file an opposition to registration. The opposition is held before the Trademark Trial and Appeal Board. If there are no objections and if application is based on actual use, the PTO registers the mark and issues the registration certificate about 12 weeks after the date of the mark's publication. If it was based on intent to use, a notice of allowance is issued 12 weeks after date the mark was published. The applicant then has six months to use the mark in commerce and submit a Statement of Use or request a 6 month extension. If the Statement of Use is filed and approved, the PTO will issue the Certificate. 36

DOMAIN NAMES AND TRADEMARKS Domain names are parr of the Uniform Resource Locator (URL), which is the address of a site on the Internet. The parr of the address referred to as the domain name is usually preceded by http://www. A domain name cannot be registered as a trademark if the company in quesrion creat-

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ed the web site solely to advertise the company's products and services,3? However, many companies understandably wish to register their trademarks as domain names. Currently, Network Solutions, Inc., a private cOntractor utilized by the National Academy of Sciences to handle .com, .net and .org registrations, is in charge of the registration of domain names (their monopoly on .com and .net registrations expires at the end of this year),38 It has frequently occurred that a company with a trademark tries to register it as a domain name only to discover that it has already been taken by someone else. Network Solutions has a Domain Name Dispute Policy available on its web site that lays out the procedure by which these controversies are to be handled between the parties. However, even if you can produce a federal registration of your trademark, unless the other parry agrees to give up use of the domain name, the most Network Solutions will do is place the domain name on hold meaning that no one can use it. Ultimately, your only remedy is to take the other parry to court to enforce your rights to the mark. The best way to protect your clients rights to their mark and to ensure that they can use the registered mark as a part of their Internet domain name is to apply for the domain name at the same time you apply for federal registration. Cybersquatting and cyberpiracy (the registrarion, trafficking in or use of a domain name that is identical to, confusingly similar to or dilutive of a trademark or service mark of another with the bad faith intent to profit from the mark's goodwiU) is the subject of legislation that has passed the Senate. The Domain Name Piracy Prevention Act of 1999 (5.1225), introduced on July 29, 1999, by Senator Orrin Hatch (R-UT), would amend the Lanham Act to clarifY the rights of mark owners and provide adequate remedies for the abusive and bad faith registration of their marks as Interner domain names. This legislation does not address conAicts that do not involve bad faith. A similar measure (H.R. 3028) was approved on October 18, 1999, by the House Judiciary Committee.39

CONCLUSION The protection of a client's trademark rights is an integral pan of prorecting their overaJl business interests. In the case of domain name issues, it can also be one of the most frustrating parts. The best method

is to act early and act thoroughly. Once you have secured your client's rights to a mark, note that it is the responsibility of the client to police the mark (ensure chat there are no violations that might dilute it). The PTO will not inform the owner of a mark of any actual or potential violators. Constant vigilance is the only way to ensure their mark's cominued viability.9

ENDNOTES 1. United States Patent and Trademark Office, Basic factS Abour ~tering aTrademark, available at www:uspto.g.ov, pg.l (hereinafter, Basic factS). 2, Basic factS, pg, 4. 3, Basic factS, pg, 1. 4, 15 USc. 1057(b)(c) 1994. 5. 15 USc. 1057(b)(c) 1994. 6. 15 USc. 1115(a) 1994. 7. 19 U.S.c. 1526 (a) 1994, 8. 15 USC. 1116(d), 11 17(b) 1994, 9. Basic Facts. 10. Philip K Lyon & Jeffrey J. Look , How Inrelkctual Propmy Imparts a Comm=ial LAw Proaic,," Trademarks and Servia Marks, Arkansas LAw /Wino, Volume 1, Number 3, pg, 486. 11. Basic factS, pg. 2. 12. Basic factS, pg. 2. 13. United. States Patent and Trademark Office, Frequently Asked Questions About Trademarks, available ar www:uspro ~' pg. 5. 14, Basic factS, pgs. 5-6, 15, Basic factS, pgs. 4-5, 16, TrademarkAcr, Section 2,15 U.S.c. 1052. 17. Trademark Aer Section 2(d). 18, 2(a). 19. 2(a). 20. 2(a). 21. 2(b),

22. 23, 24. 25. 26. 27. 28. 29. 30. 31.

32. 33.

34. 35. 36. 37. 38.

39.

2(c). 2(e)(I). 2«)(2) & 2«)(3). 2«)(4), Sections 1,2,3 & 45. Sections 1,2,3 & 45. 2(e)(5). Sections 1,2,3 & 45. Trademark Aer, Section 2(1), 15 U.S.c. 1052. 2(e)(l). 2(e)(2). 2(e)(4). 2(e)(2). 2(1), Basic Facts. PTO Examination Guide No. 2-99, pgs. 3-4. Tom Diederich, Appea/$ Coun Dismisses Domain-Name Antim/St Charge, Compurerworld An IDG.net site, May 19, 1999. Michael Posner, Hot~ ]udidary BiU To Give Boot to CybmqULltttn Gets House Judiciary} OK, Nacional Journal New, Service, Oerober 13, 1999.

III III III III Ilf III II f III III III III III III. III III III III III III III III III III II f III III II f III III III III III

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Vuginia Hardgrave, Arkansas Bar Association, 800-609-5668, 501-375-3957, yhardgrave@arkbar.com OR THE CLE PAGE at www.arkbar.com

Registered Professional Engineer in 3 states.

9 years of experience as President of large distributor specializing in all types of safety equipment, major emphasis on metal forming and stamping. 11 years of experience as President of company involved in repair and rewinding of electriC motors and manufactufC, sales, instaUation and servicing of electrical control panels for indu,stry. 14 years of experience with General Electric Co. in engineering and industrial sales. Earned BS . Electrical Engineering in 1947. Complete curriculum vitae and references on request.

• fol. II No. I/lfiller !ODD

T~e

Mkllsas La~ler

INTRODUCTION TO Te ch no

• • 1 o gy L lcenSln g By Harold

In this volatile, Internet-driven economy. the lifeblood of many commercial firms is their technology. This technology, or the intellectual property which embodies it, may be developed in-house or externally acquired but is usually jealously guarded yet often traded like tate baseball cards. A busi-

ness lawyer may easily find himselfor herself representing either the owner of the inreUecmal property or the recipient of the right to use the inreLlecruaI property. Thus. the anomer must be knowledgeable about the types of agreements which effectuate these transfers of technology. The purpose of this article is to familiarize such a lawyer with the key provisions of a technology license agreemem and with some of the issues which arise QU[ oflicensing transactions.

WHAT IS A TECHNOWGY LICENSE AGREEMENT? A technology license agrecmem is a contract which transfers technology and associated legal rights berween parties primarily for the purpose of fostering an ongoing business relationship. The owner of the technology (or me parry with aurhority to control its use) is the "licensor". The party that is granted me right or license to use the technology according to the terms of the contract is the "licensee". The grant of a license is not an outright assignment of me technology but is actually more in the form of a lease since the licensor retains ultimate ownership ohhe imellectual property. Once

Harold J. Evans is the Associate Vice Presidem for Legal Alfairs-Rese:uch and Technology at the University of Arkansas.

J. Evans

the license expires, the rights granted to the licensee revert back to me licensor.

WHY LICENSE TECHNOLOGY? The reasons for licensing technology are myriad bur a few predominate. For example, a smaJl, start-up company or a research university may have developed an innovative method for the distribution of widgets over the Imernet but lacks me financiaJ resources to take me technology to me marketplace. It may make good economic sense to parmer with a large company that has the capital and manufacturing and marketing capabilities to commerciaJize the technology. For me large commercial firm, the license may constitute a cost-effective means for acquiring new or exiscing technology needed to augment or continue its own development and product sales efforts. Also, with respect to the licensor, granting a license may be the best way of generating royalties and fees from the technology. In other instances, a license may act as a defense to, or a settlemem of, the conflicting imellectual property rights of other companies. l

DRAFTING THE LICENSE Since a license agreemem may remajn in effect for a number of years, it is important that the terms of the agreement fully reflect the understandings of the parties and accurately describe their rights and obligations under the agreemem. A significant objective should be to state me terms in a clear, precise manner to avoid future misunderstandings. An added consideration is that the writing style be easily understood by non-lawyers since, most of the time, it is the business and technicaJ personnel who handle license administration and implememanon.

KEY CLAUSES OF THE LICENSE Gra71ting ,/nllst. The importance of the clause granting the licensee various legal

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rights to commerciaJize me licensed technology cannot be overemphasized. This "granting clause" must articulate the rights given to the licensee and the parameters of the authorized uses of the technology. In drafting such a granting clause, the attorney muSt carefully delineate: (I) the acruallegal rights which are the subject of the license; (2) the authotized uses of such tighrs; (3) whether the license is exclusive or nonexclusive; and (4) whether the licensee may grant further licenses (i.e., sublicenses) to the licensed rights to third panies. Definition of licemed technokigy. In any license agreement, the current and amicipated subject matter of the License should be clearly and unambiguously defined. 2 For patents, copyrights and trademarks, this includes each element of the statutory rights. In the case of trade secrets, there should be a description of the "know-how" to be transferred. The grant of a license to patent rights should reference all parents issued in every country where the licensee will engage in activities contemplated by the licensing transaction. Usually, the definition of "patent rights" incorporates a reference to an exhibit which recites the title, the patem number and, sometimes, the issue date for each patent. Generally, the license will cover all of the claims in the referenced patents; however, the license gram may be limired only to those claims necessary for the licensee to perform its obligations or satisfy its own commercialization requirements. The license agreement should also include all patent applications pending at the time of the granting of the license and, in some instances, future patent applications relating to other facers of the licensed technology. This latter component of the patent rights may be appropriate for inclusion if it con· sists of technology which is originally licensed to the Licensee as know-how. The definition of patent rights shouJd encom·

pass all rights covered by a pending patent application if a patent issues from such

application. Since, in the United States, a parent application is maintained in confidence: by the U.S. Patent and Trademark Office until a patent issues,3 the license agreement should permit disclosure of the

pending applicarion co the lice:nscc and gram the licensee a license

use the know-

how described in the application. In the of tr.ldemarks, the license agreement should carefully define the goods

or services covered by the agreement and

with which the trademarks may be used. 'Where a trademark is used and registered for differem categories of produces or services,

the agreement should specilY whether the license applies co some or all of those uses

and should expressly reserve the righr CO use, and license ochers to use. the mark in connection with other products or services. 4 If textual or graphic materials constitute or provide a significant aspect of the tech-

nology being transferred, a grant of rights [0 copyrights will usually be included in the license agreemem. Copyrights will also be a parr of any software license since copyright law proteccs many of the integral compo-

or nonexclusive. If it is exclusive, the license agreement should clearly state whether or not the right to commercialize the licensed technology precludes competition from the

agree in advance to subscitute an unknown third parry for the licensee. An exception to the nonassignment provision is sometimes allowed in circumstances where the owner-

licensor as well as any other party. The scope

ship of the licensee has changed.

of the exclusive license may be restricted by limiting its duration, the field of use for the licensed technology, or the marketing area

Improv~m~ntJ. During the term of a license agreement, either the licensor or the licensee may make improvements to the licensed technology. Improvements are generally defined as cerrain modifications, enhancements or changes to the )icensed

for product sales. Continued exclusivity may also depend upon the lice:nscc's due diligence: in meeting certain performance goals

(see the Due Diligence section of this article). SubliumN and i1SJignm~ntI. A licensor may authorize a licensee ro gram to third parties all or a portion of the licensee's rights to use the licensed technology. Absent such an express authorization. the lkensee has no right to sublicense or assign the technology to others. 6 Sublicensing may be appropriate where the licensor and licensee have agreed that products based upon the licensed technology will be marketed, manufactured or

sold through third parties. On the other hand, since an assignment of a license constitutes a more fundamental change in the original business relationship, nonassignmcnt clauses are common in license agreements. Indeed, a licensor will be reluctant to

technology. Such changes normaIfy do nor alter [he identiry of [he invention and. where patentS are involved, may be specifically limited to modifications which, if unlicensed, would infringe one or more claims of the patents included in the licensed patent rights'? These minor improvemencs or enhancementS are often licensed to the licensee for lirtle or no additional consideration. Occasionally, the licensee is granted rights in the improvements developed by the licensee under a grant-back provision. However, grant-back provisions require careful drafting so as not to run afoul of the an [i-trust laws. 8

Territory. The geographical area in which the licensee is authorized

make lise of [he

nents of the software package - although software patents are becoming more and more common, particularly those relating to the Internet. 5 If copyrighcs are included in the license, it is advisable [Q reference such

copyrighted work by listing the tide of the work, the name of the author. a brief description of the subject matter and, if reg-

THE LAW FIRM OF LEDBETTER. COGBILL. ARNOLD & HARRiSON, LLP IS PLEASED TO ANNOUNCE

istered with the U.S. Copyright Office, the registration number. Trade secrets or "know-how" is onen licensed in conjunction with patents. Such confidential and proprietary information may be essential in order for the licensee fully to commercializ.e the licensed technol-

ogy. Indeed, many pa<ent lice:nses will also include a mechanism to identify and license all trade secrets of the licensor necessary for

the licensee to fulfill the purposes of the license. Also, the licensor may have chosen not to or was unable to obtain parent protection for certain aspects of the technology, but substantial value may nonetheless exist in the trade secrets. To address these possibilities, the granting clause of the license agreement might include a transfer of all technical information needed for the licensee to make, use and sell the products embodying the licensed technology. Exclusiv~ or nonaclllJiv~ lium~. As mentioned previously, a license may be exclusive

It CHRIS PARKS HAS JOINED THE FIRM AS AN ASSOCIATE

Charles R. Ledberrer ]. Michael Cogbill

R. Ray Fulmer, II Rebecca D. Harrabaugh

James A. Arnold, II

Virginia C. Trammell

Ronald D. Harrison

Daniel A. 5rewarr

E. Diane Graham

R. Ch ris Parks

622 PARKER AVENUE POST OFFICE BOX 185 FORT SMITH. ARKANSAS 72902-0185 (501) 782-7294 I'll. Ii .11. I/Ililirr me TIe Irkmlll,IMW

licensed technology should be specifically to the licensor, presumably on the basis that described. The marketing and commercial- the licensee has completed ilS obligation to ization plans of both parties as well as the commercialize the technology and the licennature of the legal tights which will be cov- sor has recovered its development costs. Periodic royalty payments may be ered by the license agreement will be relevant Factors in determining territory. In replaced Ot supplemented by a simple fixed some cases, especially where there are multi- amount, payable once upon execution of ple licenses, there will be a specific alloca- the license agreement or in installments over tion of territory to a specific licensee. In the term of the license. Such lump sum other cases, it will be sufficient simply to payments may be appropriate in instances natc the territory as "the world" even where (I) the technology has a telatively though applications for patents or trade- short lifespan; (2) the licensor wants to marks may have been filed only in certain recover quickly the cOStS of developing the countries. Such a designation takes into licensed technology; or (3) the licensor consideration any [mufe expansion of sales wi hes to provide an incentive for the or distribution of the licensed rechnology licensee to commercialize the technology. Accounting and paymmr proad,,"s. The imo other countries and also where an license agreement should provide a means essential component of the technology is for determining and verifying the compenprocccted as a trade secret. CompfflJllfion. There are nearly as many sation owed to the licensor by the licensee. ways m structure the compensation for a Among the most common provisions are technology license as there are forms of the following: (I) a statement of the number of paytechnology to protect. The type of commenlS and the dates on which such pensation may vary widely with the terms of payments will be made and imposing the particular transaction. Such rypes include: a fixed payment; a royalty calculata penalty for any late payments; ed as a percentage of the licensee's sales or (2) designation of the currency in which payments will be made and, if applicincome derived from the licensed technoloable, the authority by which currengy; or a fixed payment upon execution of cy conversions will be made; the agteement followed by a petiodic payment of royalties. 9 (3) a requirement that the licensee provide tegular statements ro the licenIf the compensation is based upon a royalty percentage of "net sales". as is common SOt setting fotth the method ofcalculating royalty payments; and in many licensing transactions, that term (4) a requirement that the licensee keep must be clearly defined. A standard definicomplete and accurate records of all tion consists of the gross sales, royalties or transactions involving the licensed fees received by the licensee for product technology and that the licensee sales, whether invoiced or nOt, less the following: returns and allowances acrually allow the licensor or the licensor's independent auditor to examine such granted; packing, insurance, freight out, records (usually during normal busitaxes or excise duties imposed on the transaction (if separately invoiced); and wholeness hours upon reasonable notice to saler and cash discOUlHS. IO the licensee and limited to once or The licensor often wants assurances that twice each year during the tetm of the licensing arrangement will enable it to the license) with the cost of such recover research and development costs examination being borne by the associated with the licensed technology. In licensee if the records indicate a sigsuch instances, the licensee may be required nificant underpayment of royalties. I I to pay the licensor a specified minimum Dut diligtnct. The license agreement royalty amount, usually on an annual basis, shouJd impose certain performance requireduring the license term regardless of ments on me licensee for continuacion of whether royalties have actually been earned. the license. At the very minimum, the If the licensee fails to make the minimum license shouJd contain a covenant by the royalty payments, the licensor may termi- licensee to use its "best efforts" to commernate the agreement or sue for damages. On cialize the licensed technology in a manner the other hand, the licensee may seek to agreed upon by the parties. In the case of an limit its obligation to make royalty pay- exclusive license, failure to meet a particuJar ments to the licensor. In that regard, the performance milestone might result in the parties may agree to a "cap" on royalties paid conversion of such a license to a nonexclu-

18 fir ,Irklllil LIWW

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sive one or a complete termination of the entire license. These "milestones" might consist of the development of a prototype of the licensed technology by a specified date or obtaining approval from the appropriate regulatory authority for the manufacture and sale of a ptoduct based on the licensed technology. Exclusivity might also be conditioned upon the licensee's expenditure of a minimum amount of research and development funds or the receipt of a threshold level of investment capital. Of course, however, the licensee should be allowed to use reasonable business judgment and practices to exploit the licensed technology and not be required [Q meet unreasonable commercial standards. Pro/wion of licmstd uchllology. The license agreement should contain provisions which obligate both parties to cooperate to protect the licensed technology from infringement or, in the case of trade secrets and technical information, misappropriation by third parties. If the agreement includes staturory technology rights (patents, trademarks or copyrightsL the procedures should be clear for establishing and maintaining the righlS in the United States and in each foreign jurisdiction where the licensed rights are to be commercialized. ill particular, the license agreement should specifY which party will be tesponsible fot filing the patent, trademark or copyright application and paying the COSls associated with such filings. A risk inherent in any technology-based relationship is that the licensed technology may be legally challenged by third parties or there may be a need to institute an action against infringers. In that regard, both the licensor and the licensee usually agree to notify the other of possible infringement of the licensed rights and of any pending or threatened infringement claims by third parties. The parties normally will agree upon which party will have the tight to institute and control any litigation, how the costs and expenses of litigation will be allocated berween the parties. and how any money judgments will be distributed. When a thitd party files suit either challenging the validity of the licensed tights or accusing the licensee andlor licensor of inftinging the thitd party's intellectual ptOperty rights, there should be a similar understanding regarding the defense of such an action. Confidentiality. The licensor will want to insure that any trade secret information

contained in me licensed technology is maintained as confidential by the licensee and all authorized sublicensees. Thus, [he licensor of a trade secret will usually require me licensee to assure mat (I) imernal use of me trade secrets will be limited to those employees with a "need to know";(2) employees with access to the trade secrets will, either as a matter of contract or law, be bound to maintain me information in confidence; and (3) reasonable sreps will be taken to insure that the trade secrets are not misappropriated by third parties. Representations and wll"anties. There are certain types of representations and warranties which are relatively unique to technology license agreements. For example, the licensee often seeks assurances that: (I) me licensed technology does not infringe any legal rights of third parties; (2) the licensor is the sole owner of the licensed technology which is free and clear of any encumbrances; (3) the licensor is free to enter into the license agreement and has the right, power and authority to grant the licensee the rights contained therein; and (4) me licensed technology is not invalid or unenforceable. The above provisions are usually the subject of intense negotiations berween the licensor and the licensee. The licensor may be particularly resistant to an agreement to warrant that the licensed technology is noninfringing. However, such resistance may depend upon me legal nature of [he [echnology rights granted. Copyrights and trade secrets aU can be independently created without infringing upon the rights of any prior users. Thus, a representation covering such licensed rights would only have to stipulate that the licensor has not copied, or otherwise obtained by improper means, the licensed technologies and that such technologies were developed mtough me lawful and independent efforts of the licensor. Patents. however, present a riskier scenario for the licensor. This is because a thirdparty patent owner can bring a viable infringement action even if the alleged infringer created the technology independently and without reference to the third parry's work. Product liability. A patent licensor who is nOt also a manufacturer of the licensed technology is probably at minimal risk for liability from product liability claims. 12 It is nev-

ertheless prudent to require that the licensee maintajn adequate liability insurance coverage with respect to products manufactured using the licensed technology. For the trademark licensor, such protection should be mandatory since control over the nature and quality of goods sold bearing [he licensed trademark is essential to a valid trademark license. Indeed, inadequate quality control may result in a loss of trademark rights. 13 Such quality control, however. increases the licensee's exposure to the risk of a direct ptoduc[ liability claim." The risk may be further minimized by requiring the licensee to indemnify the licensor against the licensee's negligence or failure to meet reasonable standards of manufacturing and production. and unnination. In all license agreements, it is important to establish the anticipated life of the agreement and the procedures for terminating the agreement either before or at the end of its normal term. For a patent license, the term should generally extend until the last of the patent rights expire. In the case of trade secrets, the term is typically fixed at five, ten or fifteen years (the longer terms where patents are also licensed). The agreemenr should furmer state any options the licensee has either to renew or to extend the agreement and should specifically set forth how these options may be exercised. The types of termination provisions common to commercial transactions generally (such as the right to terminate upon bankruptcy, insolvency or a material breach of the agreement) should be included in the license agreement. In addition, both parties may have the right to terminate or modify the agreement upon the occurrence of certain even£s, such as the licensee's failure to commercialize the technology in the product or market area designated in the license or the licensee's desire to forego further expenditures necessary to commercialize the technology. MisuLlan~ous provisions. Other provisions which are customary in commercial transactions should also be included. such as governing law, dispute resolution and notices. Additionally, because certain transfers of technology may constitute an export of technical data, a clause specifically requiring the licensee to comply with the United States export regulations is advisable. I)

urm

licensing agreement can be substantial. A poorly drafted license may poison the potential of a mutually beneficial and longterm business relationship between me parties. This article was imended to provide an introduction and guide [Q technology license agreements and, hopefully, help me business lawyer make decisions which lessen those risks. (0

ENDNOTFS I. Suo e.g.• Phillip Morris tJ. Brown &- Williatm, 641 ESupp. 1438 (M.D. Ga. 1986). 2. See. e.g., Lemelson Medical. Education 6Research FounMtion L.R tJ. Intel Corp., 1999 WL 81394 (D. Ariz. Aug. 18, 1999). 3. 35 U.S.C.A. § 122 (1984). 4. Su Epstein, Michael A. & Frank L. Politano, Drafting License Agreements 275 (1992

Supp.). 5. Suo e.g., StIIU! Street Bank & Trust Co. v. Signature Financial Group Inc., 149 F.3d 1368 (Fed. Civ. 1998); "Trying to Issue Bener Net Patents," 16 No.3 Computer L. Strntegist 8; and U.s. Patent and Trndemark Office, Examination Guidelines for Computer-related Inventions (Feb. 1996). 6. S.e Rock-Ola Mjg. Corp. v. Fi/bm Mjg. Co.,

168 E2d 919 (8m Cir.), U.S. 892 (1948).

cec[.

denied, 335

7. Brian G. Brunsvold & Dennis P. O'Reilley, Drafting Parent License Agreements § 9.00 (4[h ed. 1998). 8. Su 1995 Antitrust Guidelines for the Licensing of IntellectuaJ Property, adopted. on April 6, 1995. 9. Su Epstein et aJ., at 279. 10. This language or a variation thereof is the definition for "net sales" used by the University of Arkansas in many of its patent licensing agrec=ments. 11. Su Epstein et aI., af 279-280. 12. In my research, I have yet to find a single case in which a patent Licensor, who is not a manufacturer of the licensed technology, has been held liable for product liability claims. 13. S.e Stamfie/d v. O,bo,"e Indm., 52 E3d 867 (IO[h Cir. 1995), em. denied, 516 U.S. 920 (1995). 14. See, e.g., Gizzi v. Texaco Inc., 437 F.2d 308 (3rd Cir. 1971), em. dmied, 404 U.S. 829 (I 971); but su Ditri v. Coldwell Bankers lInidenrial Affiliate', 954 E2d 869 (3rd Cir. 1992). 15. The export regulations may be found at 15 C.ER. Pans 768-799.

CONCLUSION The economic risks to a licensor or licensee of technology that are inherent in a

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I By Tim A. Cheatham INTRODUcnON The law of unfair competition is very broad, diverse and ever expanding. This anide 3ncmprs to provide a brief primer and roaclmap to the law of unfujr competition in Arkansas.' BACKGROUND Protection from unfair competition originated [0 prevem ''the grievous deceit of the people" by the sale of inferior goods. Unfair competition actions began as actions for deceit and thus, entered into the body of common law. Equiry, however. heard such cases to protect plaintiffs' trademarks. not to protect the public from deceit. Equity gradually merged with cl1e common law, giving rise co the doctrine of "passing off" in England and "unfair competition" in the United States. The modern law of unfair competition thus has as its roots the doctrines of "passing off" and "misappropriation". The basic principle is that no one should be permitced to sell his goods as those of another. "[T]he manuFacturer of particular goods is entitled [0 me reputation they have acquired. and the public is entided co the means of distinguishing between ,hose and other goods; and pcocection is accorded against unfair dealing, whecher there be a technieal trademark or not, The essence of the wrong coosins in the sale of the goods of one manufacturer or vendor for those of anomer."2

About the Author lim Cheatham practices with the firm of Barber, McCaskill, Jones & Hale, P.A. in Little Rock, Arkansas. His practice focuses primarily on litigation and intellectual property. Mr. Cheatham is also a registered patent anomey.

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Today the equitable remedy dominates and the legal acrion has become obsolete. Therefore, all actions for unfair competition today are equicable in nature) The general rule of unfair competition is "a course of dealing which leads, or is likely (0 lead, consumers inca believing that the goods or services of one supplier are those of another". 4 Arkansas law is in accord with this general ru1e. 5 In H~,,~r v, Parkhili,6 the court stated the rule as "[uJnfa.ir competition begins where imitation results in the deception of the cuscomers of the party complaining",7 Thus for unfair competition co exist, there are two requisites: (1) imitation or simuJation of a produce (2) ,hat is likely to result in confusion to the public. S

IMITATION A manumcturer is free to copy exactly unprotected articles of another manumcturer, unless he "palms off" the goods as being made by the original manumccurer. 9 Further, the "copy" may be sold and aceualIy "confu~" me public as to its source. but as long as the original is nOt protected and the "copier" does not misrepresent the source of his copies. there has been no legal wrong. 10 In H""r v. Parkhill, \I the parries owned and operated rival hotels in Eureka Springs the Crescenr and ,he Basin Park. The plaintiff advercised extensively, distributing folders portraying the city as a vacation paradise. The defendanr copied the plaintiff's folders, changed only by the substitution of a picture of the Basin Park Hotel in place of that of the Crescent, The court found that the defendant had engaged in unfair competition but indicated that "the appropriation of another's advertising matter or method is not of itself unfair competition, although it may become such where it induces or may

induce the public co suppose that in dealing with the appropriator they are dealing with or obtaining the product or services of the originator" ,12 Therefore, imitation alone is not unfair competition, It is only when "imitation results in the deception of the customers of the party complaining"l} that unfair competition resuJts. I " CF Simmons M~dicin~ Co. v. Simmons l5 involved the sale of "Dr. MA. Simmon's Liver Medicine", The defendant in the case copied the plainriff's packaging. 16 The plaintiff's medicine was distinguished by a package bearing a picture of a bust with Dr, Simmon's signature across it; the defendant's package also bore a piceure of a bust, but with the signature "M.A, Simmons, Jr," across it, In addition, the defendant had copied, in subsramial par" the plainriff's directions for use of the product. The court "had no hesitancy in finding thac the liters clearly escablish{ed] that the medicines of the defendant constituted an unfair and ungenerous competition; that they were so dressed by him wim the intent to deceive the public and had at least [deceived] the ignorant class of purchasers .. , to believe they were purchasing [the] complainant's medici nes. "17 The court in this early case relied clearly on imication of the plaintifrs product and packaging in a manner calculated to confuse the public in finding unfair competition on the part of the defendanr. The court relied heavily on the face that many of the plaintiff's customers were illiterate. and ro them, the packages were indistinguishable. Imitation likely to confuse the public as to the source of origin of the goods was the key to a finding of unfair competition. The use of a competitor's container has been found to amount to unfair competition. In Prest-O-Liu Co. v. H~idm,18 the

defendant was enjoined from further saJe of the plaintiff's refilled bottles without first "permanently obliterating" the plainriff's name. The plaintiff manuhctured and sold tanks of acetylene gas used to power automobile headlights. The plaintiff's name and trademark were well-known to the public in this regard. The defendant began gathering the plaintiff", used, empty tanks, refilling them and sel1ing them without covering rhe plaintiff's name on the tanks. The court ordered the defendanc to obliterate the plaintiff's name and to replace it with his own so as to avoid confusion of the public as to the source of the gas. It is clear from the case, however, that use of the plaintiff's discarded container was permissible as long as sufficient steps were taken to avoid confusion of the public. 19

CONFUSION In order for confusion to exist, there must be competition. For example, a manufacturer of golf balls labeled "Brand X" is not in competition with a poultry producer who labels his packaged chickens "Brand X". The general rule is that there could be no infringemenr in this hypothetical situation because there is no actual competition between the (\vo products due to the dissimilarity of the goods. 2o The same would hold true if twO manuhcturers of golf balls labeled their balls "Brand X" but were so separated geographically that no competition existed be{\veen the two. Direct market comperirion can be lacking either geographically or by dissimilarity of goods; if either is lacking, confusion docs nor exist. 21 However, the strict rule requiring both direcr competition geographically and in the class of goods has been relaxed recently.22 The trend is CO allow dilution of business good will ro suffice in place of direct market competition. 23 For example, Ark. Code Ann. § 4-71-113 (1987) provides for injunctive relief for dilution of a trademark or a common law trade name. "Dilution" is based on the norion thar, although two parties are not in actual competidon, the public may nonetheless be confused as to the source of goods. 24 When direct market competition is lacking, either geographically or in class of goods, the plaintiff must establish "confusion of source" to suPPOrt a claim for unfair competition. 25 The factors to be considered in suPPOrt of such a claim are: (1) the degree of similarity in appearance, sound and meaning; (2) the intent of the defendants in adapting and using the plaintiff's tcrm or

matk; and (3) the degree of care likely to be exercised by purchasers. 26 "It is the total effect produced by the designation in the mind of the ordjnary purchaser, exercising due care in the market place .... The whole background of the case musr be considered."27 In cases of direcr market competition, confusion of the source of goods may be presumed through similariry of the goods. If actual competition is not shown, the plaintiff may still proceed by showing thar "confusion of the source" of goods is likely, using the above factors. Even though a mark or name is nor a registered trademark, or is not capable of becoming a valid trademark, unfair competition will still enjoin the use of the same or similar mack to prevent "passing off" of goods. 28 For protection to lie, however, the name must be distinctive and nor merely descriptive. 29 For example, in Save-A-Stop v. Sav-A-Stop,30 both panies were engaged in the wholesale selling of goods to grocery stores in North-Central Arkansas. The coun stared that "due to the similarity of names, [this case] borders on the class of cases wherein injunction would lie"31 however, injunctive relief was denied because the names were found to be descriptive. Generally, "one man cannor appropriate as his mark the usual words in the common language which would be used to describe the service rendered."32 This general rule applies as well to common or generic names}3 However, if through long and exclusive use and advertising, a name, mark or symbol becomes so associated in the public mind wirh one manufacturer's goods or services that it serves to identify them exclusively, then such name or symbol has acquired a secondary meaning and is entitled ro protection. Equity will protecr those marks that

have acquired a secondary meaning even though they are generic or descriptive. l4 In King Pharr Canning Op"atiom v. Pharr Canning Co.,35 the court found that a man's name, "King Pharr", had acquired secondary meaning, based on long and exclusive usc by the plaintiff. Since the name had been used to identify the plaintiff's goods exclusively for forry-five years, the court granted an injuncrion prohibiting the defendant form using the word "Pharr" in labeling its goods. Therefore, though generally generic, common or descriptive names aren't protected, they can be protected if they are found ro have acquired secondary meaning through long and exclusive association with a product or service.

REMEDIES Injunctive Relief A preliminary injunction will be granted to prevent the defendant from continuing alJeged unfair comperition if the plaintiff can establish a likelihood of success on the merits at a preliminary hearing. 36 At the hearing, the plaintiff must convince the court that the defendant's conduct, through imitation and confusion of the public, is such that the plaintiff is suffering harm from the defendant's actions, and that the plaintiff is likely to succeed on the merits at trial. If the plaintiff can meet this burden, a preliminary injunction can properly issue, ordering the defendant to stop his unfair activities until a trial may be held. If the plaintiff prevails on the merits at trial, a permanent injunction may be properly issued ordering the defendant to stop engaging in the complained-of conduct in the future}7 The permanent injuncrion "should be broad enough to protect plaintiff in its legitimate business and good will, but should not be

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aggressive or unduly burdensome to the defendant. "38 The courr, therefore, has broad powers in fashioning an injunction.39

Damages An action may be maintained for damages simulraneously with an action for an injunction in some jurisdictions,40 and Arkansas seems to allow this practice:·11 Damages have been allowed for the amount of actual damages suffered;12 lost profits,43 and the amount of the defendant's profits. 44 Some courtS have also allowed

awards of attorney's fees in exceptional cases, usually those involving deliberate acts. 45 Punitive damages have, likewise, been allowed in extraordinary circumstances usually in cases involving fraud or other willful conduct. 46

ENDNOTES CONCLUSION

1. h should be nored that this paper is limited

Unfair competition is a broad and illdefined area that is constantly expanding and increasing in both use and importance. Closely connected with the laws of copyright and trademark, unfair competition is

in scope ro unfair competition as it developed from the equirable principles of "passing off" and "misappropriation". This paper does not attempt to cover the much broader area of unfair practice, though unfair competition and unfuir practice are ofren used synonymously. 2. J. Calimalde, Trad~marks and Unfair Compm'tion, p-271 (I970)(quoting Elgin

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179 U.S. 665, 674 (1950». 3. Schechter, The Rational Basis of Tradmlark Prouction, 40 Harv.L.Rev. 813 (I 927).

4. Southwestern Bell H/~phol1e CO. IJ. Natiollwide Indepmdmt Directory S~rIJiu, Inc., 371 F. Supp. 900 (WD. Ark. 1974)(c;,;ng Haflooes Sw Milliflg Co. v. Metcalf 240 U.s. 403 (1916»; See also Seo'" Up Co. v. Cheer Up Sales of St. LOllis, 148 F,2d 909 (8th Cir. 1945).

5. SouthWNurn Bell, supra nOte 4. 6. 114 F, Supp. 665 (WD. Ark. 1953).

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7. Id. at 670. 8. Southw~st Indus. Products, Inc. IJ. E:u~ Stone ClItte,Mfg. Co., 157 F, Supp. 208 (W.o. Ark. 1957); Heua, supra note 6. 9. Compco Corp. IJ. Day-Britt Lighting, IIIC., 376 U.S. 234 (1964).

10. Sears, Roebuck & Co. v. Stiffil Co., 376 U.S. 225 (1964); G. Ricordi & Co. IJ.Hllmdler, 194 F.2d 914 (2d Cir. 1952)(not unmir competi~ tion for the defendant ro publish a book which was subsranrially an exacr copy of rhe plaintiff's book afrer copyrighr had expired on rhe plaimiff's book). II. 114 F, Supp. 665 (W.O. Ark. 1953). 12. !d. at 670. 13. Imematiollal Hearing Co. v. Oliuer Oil Gas

Burner & Machine Co., 288 F. 708 (8th Cir. PAUL D. MIXON, Ph.D., P.E. o Doctorate in Engineering o Over 13 Years Engineering Experience o Experienced Expert Witness

1923).

14. Set Southwmem Bell, SlIpra note 4; S01flhw~st Indus. Products, mpra note 8; &skay Art Gallesies 0. Gi/obs, 205 Ark. 1157, 172 S.W2d 924 (1943), 15.81 F, 163 (F..D. Ark. 1897).

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16. \Xlhen a manufacturer has adopred a particular design, dress, or combinarion of fearures resulring in a singular appearance of his goods, rhe design is known as rhe manufac~ rurer's "trade dress." Trade dress is entitled to protection if its copying (ends ro mislead rhe

public. ~(!, t,g.. Tmck Eqtlipmmt Servia Co. " Fm,lwifCorp., 536 E2d 1210 (8th Cir. 1976)(distinctive, non-functional design of a

semi-trailer); Elgin National Watch, supra note 2 (name Elgin is geographical name and

cannot be a trademark).

17. CF. Simmons Medicine Co.

II. Simmons, 81 F. 163,173 (E.o. Ark. 1897). 18.219 E 845 (8th Cir. 1915). 19. However, if the tanks themselves were suffi~ ciemly well known and unique by design, they, may be protected by the docrrine of "secondary meaning", discussed more fully

;'1f1t• 20. Su Shopper's Fair ofArknnsllJ. Inc, v. Sanders Co" 207 E Supp. 718 (W.o. Ark. 1962). 21. /d.; see aJso, Sunbeam Fllm;turt Corp. v. 5,mb,am Corp., 191 E2d 141 (9th Cir. 195 I). 22. Gmeral Fi,zana LOtln Co. /1. Cmeral Loan Co., 163 E2d 709 (8th Cir. 1947). 23. Shopper's Fair, wpm nOtc 20; see also Sweet Sixteen Co. /I. Sweet "16" Shop, Inc" 15 F.2d 920 (8th Cir. 1926).

28. King Pharr Canning CO. II. Pbarr Canning Co., 85 E Supp. 150 (W:O. Ark. 1949). 29.8,,1/;11111. Flilbrig"t, 287 Ark. 1,695 S.W.2d 830 (1985). 30.230 Ark. 319, 322 S.W.2d 454 (1959). 31. Id. at 324. 32. Su Lib"ty Mutua/Ins. CO. IJ. Liberty 1m. Co. ofT",as, 185 E Supp. 895 (E.o. Ark. 1960); SOlilhWNtem Bell, mpra norc 4. 33. Liberty Mutual, mpra nOte 32; Benrficial LOdll Corp. IJ. Personal Loan &- Finana Corp., 100 ESupp. 883 (E.o. Ark.1951); King

246 (E.D.Pa. 1980). 43. Aalba-Dmt, fllc. LJ. Certified Allty ProduCfJ. I"c., 203 U.S.PQ. 326 (Cal. 1979). 44. Maltina Corp. LJ. Can'} BOllling Co.• Inc., 205 U.S.PQ. 489 (5th Cir. 1980). 45. See Metric 6- Multistltl1dard Components Corp. v. Melrid. Inc., 635 F.2d 710 (8rh Or. 1980); Tmnsgo, Inc. v. Ajac lransmission Paris Corp., 751 F.2d 1040 (9th Cir. 1985). 46. Freed Oil Co. v. Quaker State Oil Refilling Corp., 419 F. Supp. 479 (D.C. Pa. 1976).

Pbnrr, supra . 34.85 E Supp. 150 (w.D. A<k. 1949). 35./d. 36. Mayb,IIh" CO. II. Nox,II Corp., 643 E Supp. 294 (E.D. Ark. 1986). 37. Shopper's Fair, supra norc 20; Doumrowner Corp. V. Commonwealth &curj/i~ Corp., 243 Ark. 122,419 S.W2d 126 (1967). 38. IlIpra note 32. 39. Su Somhwmern Bell. supra nOte 4; Dodd v.

FoTt Smith Special School Dis/. No. 100, 666 E Supp. 1278 (WD. Ark. 1987); Plastier

24. BrolU" 6- Bigelow" B6- B Pm Co., 191 E2d

RrS!arch & Development Corp.

939 (8th Cir.1951).

11.

Nonnnn,

243 Ark. 780, 422 S. W2d 121 (1967).

25. Sbopp~r's Fair, mpra notc 20. 26. !d. (quoting Standard Oil CO. IJ. Standard Oil Co., 252 E2d 65 (lOth Cir. 1958). 27.1rl.

40. Libmy Oil Corp.

II.

Crow/ry, M. 6- Co., 270

Mich. 187,258 .W 241 (1935). 41. Su SoutbW(!t Indus. Products, supra note 8. 42. DomeD, Inc. v. Casprr Corp., 205 U.S.PQ.

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EVERYTHING YOU EVER WANTED TO KNOW ABOUT COPYRIGHTS (ALMOST) BUT NEVER BOTHERED TO ASK By Dennis B. Haase PROLOGUE In a world where Y2K doom sayers dm me horizon like a swarm of locusts, there is still good news for creative people who hope to profit from their creadviry. Like the rock of Gibralter in the path of a maelstrom, the law and practice of copyright remains relatively steadfast and constant, yct flexible enough ro embrace ever changing technolo-

gy. Unless, of course, neither yourself. nor any of your diems are in rhe least creative,

rhe following compendium should be of imeresr in assisting to recognize copyright issues that may materially efrecc your client's business. while coincidently enhancing your practice. The hallmark of a sliccessful practice. in the author's view, is [he ability co recognize a problem and know where (0 look for a solution. This subject is so extensive that it would be impossible, given the constraints of time and space, to provide an in depth analysis of copyrights. Nothing, therefore, in this material is intended to teach the reader how {O practice copyright law, but rather to create an awareness of its existence and an appreciation of its intrinsic value in this highly competitive business environment.

THE GENESIS OF COPYRIGHT IS THE CO STITUTIO . Tht C01lK'tSS shall havt Powtr ... to promou /Ilt pro[;"ss ofsci~1lce and ust/i" Arts by stcuringfor limiud limN to Au/hors ... J

IrT-==--=-lT1I Dennis B. Haase is a sh3re路 holder of Calhoun and Haase. He has extensive experience in all ph3scs of imeileclU31 property.

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The law of copyright has its genesis in the Constitmion. the founding fathers having appreciated that if this fledgling country was to grow and prosper, it would be necessary to provide a vehicle whereby creative people could benefit from their creativity and, in so doing, benefit society as a whole. Thus, as in the case of the patent law, the country, in 1790, entered inco a constitutionally sanctioned bargain with its people which. in its simplest form, says ... mat we will extend to you, Mr.lMs. Author, Artist, Musician, Actor, and even yOll Mr.lMs. Computer nerd, a limited monopoly to, in this instance, reproduce, distribute, publish, transfer and create derivative works based on your original work. 2

EVERYONE IS TOUCHED, IN SOME WAY, BY THE LAW OF COPYRIGHT.

JUST WHAT IS A COPYRIGHT? A person has a vision and it is recreated on canvas or paper or film, or in clay, or marble, or it is performed by song and/or dance, and ir may even become a series of

"Os" and "Is", sometimes referred to as a binary code. The poine is that the idea becomes fixed as a mngible expression of that idea. In the event thar anybody is overwhelmed by the term "creative", let it be understood that [Q creatc means, in essence, to bring into being and while some imagination and novelty is required, it is minimal. A work which is "original" with the crc-

ame and which the creator has "fixed in some tangible form" so that it can he perceived, read, viewed, heard or tOllched by others, is a work which is entitled to copyright protection.3

Whether you are starting your business, THE BEAUlY OF COPYRIGHTS or in a growth mode, or well established, or IS THAT THEY JUST HAPPEN. representing such a person, a working Despite this narion's natural abhorrence knowledge of the world of copyrights is a of monopolies, the Constitution nnpoUlU~d tool which will, at some point, stand you in Congress to give creative folks a limiud good stead. The law of copyright is, in some monopoly in [he form of an exclusive righr to cases, the only means of securing prOtection reproduce their works in tangible form for such things as wrirings, artistic endeav- and, having been so empowered, Congress ors, designs, audio and visual arts, and, to did, and UK call it copyright protection. some extent, computer programs. If your The beauty of copyright protection is that it client's business is such that at its core is the affIXes to an original work at the time of its creative works of one or more persons whose creation, and the creator need do nothing efforts you are using, or intend ro use, ro else in order to claim rights in and to rhat build your fmure, a working knowledge of work. copyrights is asm/inl. Indeed, in roday's competitive world, the fitilure to take . COPYRIGHTS OUTUVE advantage of the constitutional right to pro- THE AUTHOR. tecr and nurture your proprietary rights is There are several rules relating ro the tal1tamoul1t to throwing away a virtual duration of a copyright, depending upon monopoly. which can last a lifetime and whether or nor the work was created before beyond. Smarr business tOday actively seeks or after January I, 1978, or whether the to build a portfolio of intellectual properwork is a work for hire or for a myriad of ties, which are no less assets than cash, other reasons. 4 inventory and real property, although they Thus, for anonymous and pseudonymous works and works made for hire, as ro have some attributes of personal property.

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which a differene term of protection is prescribed, for works created on or after January I, 1978, the currene Act, having recendy been amended by the Sonny Bono Copyright Extension Act, accords a term of staturory copyright beginning at the work's creation and enduring for the life of the author plus 70 years after his/her death - an offense. indeed to [hose of you [ha< hold <he rule agajnst perpetuities inviolate. Other amendments to the current Act have left its durational scheme largely unchanged. A minor exception arises under the Architectural Works Copyright PrOtection Act with respect solely to architecrural works unconsrructed as of December I. 1990 and embodied in unpublished plans. In addition. and distinct from statumry copyright. variant terms apply to [he mi",' righ rs added by <he Visual Anisrs Righrs Ac< of 1990.

TO SECURE YOUR RIGHTS, THERE ARE RULES. As is the case in most creamres of stature, the Copyright Law5 is an aggregation of definitions comprising an assemblage of words in otherwise common usage. which, in the hands of Congress, rakes on a mysterious and sometimes unexpected meaning. Some terms and rules that you will need in your copyright vocabulary include: "ORIGINAL WORK OF AUTHORSHIP" and "DlNGIOLE MEDIUM OF EXPRESSION".

COPYRIGHT PROTECTION SUBSISTS IN "ORIGINAL WORKS OF AUTHORSHIP." While it is a requiremene that a work, to be the subject of a copyright, mUSt he original, of significance to the entrepreneur is tha[ "ORIGI AL" does NOT mean "first' as it does, for example, in patene parlance only original. Thus, twO great minds in differene pans of the universe may, independendy, have the identical revelation that, as to them. is original, and, if other requjrements are met, they would both be entided to copyright protection. There is a requirement that there be some novelty. but the standards are minimaJ. A WORK MUST ALSO BE FlXED IN A TANGIBLE MEDIUM OF EXPRESSION. The next major consideration is that in order for "works of authorship" to be eligible for statumry copyright. rhey must be "fixed in any tangible medium of expression, now known or Illter d~vel足 oped, from which they can be perceived, reproduced, or otherwise communicated, either direcdy or with the aid of a machine or device."6 Fixation in a tangible form is not merely a statutory formality that must be met in order to qualify for a copyright. it is also a constitutional necessity. That is, unless a work is reduced to some tangible form in order that it might be perceived, reproduced or otherwise communicated either direccly or by machine or device. It cannot be regarded 35 3 "writing", for example, within

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the meaning of the constitutional clause authoriz.ing federal copyright protection.

EXPRESSIONS ARE PROTECTED, BUT IDEAS ARE NOT. Copyright protection may be claimed only in the "expression" of a work of authorship and not in its "concept or idea"} This fundamental distinction, arguably required by <he freedom of speech guaramee of [he First Amendment, constitutes not so much a limitation on the copyrightability of works, as it is a measure of the degree of similarity that must exist berween a copyrightable work and an unauthorized copy in order to constitute the latter an infringement - a subject addressed hereinafter. Thus. if a given "idea, procedure. or process" is reduced to written form, this will constitute a protectable work of authorship, so as to preclude the unlicensed copying of "'the expression" of the thought process, even if it otherwise constitutes an unprorcctable "idea".

Thereftre. although Section I02(b) denies that copyright may "extend to" an "idea, procedure, process, ~te. ': as contained in a given work, it does not deny copyright to a work m~rely b~calls~ that work consists ofan "id~a> procedun, process, ~te':

WHAT KINDS OF WORKS ARE PROTECTED? Copyright protection attaches to an exhaustive variety of creative efforts - not all of which involve an assemblage of words or pictures. In addition to literary works. which are obvious, works which are derived (derivative works) from literary works are aJso protected, 35 are compilations, such as phone books. by way of example. Additionally. collecrive works, such as newspapers and periodicals and the nowfamiliar computer programs, are protected as well. s News biographies and scientific treatises, which are generally an aggregation of Facts, may be protectable by virtue of their arrangement, organization or their manner of presentation - although the factS themselves can not be protected. It is to be remembered that one cannot capture, by way of copyright or otherwise, material which is already in the public domain. It will b~ appnciaud thnl a copyright resid~s only ill t!u actual contribution oftlu authorwhether il is in lh~ literary work or in some arrang(mem or presentation th~reo.t or per~

haps both.

CAN I USE SOMEONE ELSE'S WORK? The answer is a firm maybe, .. While nor every circumstance calls for the creation of a work, almost every business is inclined to adapt works, or portions of works, [Q their own use - be it for advertising. promotional or some other purpose. Ofren there is no consideration given to rhe prospect that the adopted work, or portion

paraphrase of rhe Golden Rule: "Take not from others to such an extent and in such a manner that you would be resentful if they so took from you." By the way, a recently constructed web· site can help in identifying copyright propriemrs. 11

thereof, is the properry of anmher.

MUSIC AND THE COMPULSORY LICENSE

THE DOCTRINE OF FAIR USE

In the music business, a compulsory license is available through the Library of Congress for those who wish to perform musical works or otherwise reproduce them. 12 Perhaps one of the hot buttons in copy· right law at this time involves the pirating and digital reproduction of video and musi· cal works, and under certain circumstances, such pirating may be punishable as a crime under 17 U.S.c. § 506.

There are provisions for the limited use of otherwise protected works with impunity referred [Q as fair use. 9 Strictly speaking, Section 107 does nor anempr to define "fair use", Rather, it lists "the factors to be considered" for the purpose of "determining whether the lise made of a work in any panicular case is a fair lise." It does not, and does not purport (0, provide a rule that may automatically be applied in deciding whether any particular use is "fair". Section 107. in it pregnant parts, states: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use). scholarship, or research, is not an infringement of copyright..." The Supreme Court has created another form of fair use called parody. In a 1994 case. the Supreme Court found that a parody of the musical composition "Pretty Woman" constituted "criticism and comment" and was, thus, fair use. Campbell v. Acuff-Rose Music I11C. IO It will be appreciated that fair use is to be determined by a consideration of several relevant facrors and among other elements entering inca the determination of the issue, are the exrenr and relative value of copyrighted material and the effect upon the distribution of objects of the original work. Whether a particular use of a copyrighted article, without permission of the owner, is a fair use depends upon the circumsrances of the particular case, and the comt will look to the nature and objects of the selections made, the quantity and value of material used, and the degree in which the use may prejudice the sale, diminish the profits or supersede the objects of the original work. Fair use is to be determined by a consideration of all the evidence in the case. It may be that no more precise guide can be stated than Joseph McDonald's clever

I PAID FOR IT. SO CLEARLY IT IS MINE...ISN'T IT? LOGIC AND THE DOCTRINE OF WORKS FOR HIRE. Although it is not uncommon for many believe that they are not creative, it is really a perception of degree, since every origi· nal thought has some degree of creativity. With the explosion of the Internet commerce, an entire new area of business has emerged. and even in Arkansas, there are several web site designers plying their wares to business. There is a logical assumption by most folks that if you hire an anist to pai lH a picrure or a photographer to take a phoroto

graph, or if you hire your ad agency to do an ad or create a logo for you, that you own the rights ro rhat work ..... STAY TUNED!!! Not that anyone particularly cares. for purposes of this exercise, about the 1909 Act, but for purposes of defining a historical base. at one time if one hired someone to create a work on their behalf, they were emicled to file an appLic.uion for copyright, and they would be deemed to be the owner thereof Since the 1976 Act, which did not become effective until 1978, the premise, which is cenainly logical, has been changed considerably. Ofgeneral interest is the fact that the case that defined the concept of work for hire in the Supreme Coun of the United Sates was Community for Crentive NOllviolt!11Ct! v.

Reid. 13 It is vital that both you and your clients understand this issue because many of you will go our and have various creative agencies do work for you. For those of you that have hired the creation of a web page, or plan to do so any time soon, beware. Be mindful of the fact that, in the absence of a specific prohibition to the conrrary, these agencies may be the owners of the copyrights and their creation - although most certainly you would have a right to use that The Eighth which was created for you. Circuit has recently adopted the reasoning in the Supreme Court's CCNY decision. 14 The Supreme Court decided, under the 1976 Act, that a work is a work for hire under essentially twO distinct circumstances. First, if the work is created by a regular employee and secondly. if, by contract, the

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COPYRIGHTS CAN BE, AND OffEN ARE, INFRINGED. Copyright infringement consrituccs the unauthorized exercise of the rights reserved exclusively to the copyright holder. As in the case of all intellectual property. there are those who, whether by intent or inadvertence. trample upon the property rights of others, and copyrights are no exception. Old wives tales aside, in order to infringe a copyrighted work, there mUSt be aeus! and substantial similarity between the copyrighted and infringing work. 15 Infringemem need nO[ be intentional although the two criteria for determining whether or nOt infringement exists are access, meaning infringer had to have access to the copyrighted work l and the aforesaid substantial similarity. While the law allows for the possibiliry that infringement was inadverrent, if one has access and substantial similarity is found it is difficult to imagine an infringement which is inadvertent. In addition to injunctive reliefl6 against future infringemenr and the impounding of infringing works and evenrual destruction thereofl l ? damages may be either actual or statutory. Actual damages include lost profits and statutOry damages range between $500 per infringement up to $\ 00,000 per infringement. IS Anorneysl fees in exceptional cases are also allowed. 19 Some infringements l e.g., piracy, may constitute a crime. 2o

doubtless exist for the foreseeable future. It is hoped that it will perm.it the reader to recognize the potential existence of copyright issues - together with a road map with which to find one1s way to potential solutions.•

ENDNOTES I. Art. I, §8, Clause 8. U.S. Constitution.

2. 3. 4. 5. 6. 7. 8.

17 U.S.c. § I06. 17 U.S.c. § I 02. \7 U.S.c. §§302-304. Tide 17 U.S.c.; 37 C.ER. 200 er seq. 17 U.S.c. §102(a). 17 U.S.c. § I 02(b). 17 U.S.c. §IOI Definitions.

9. 17 U.S.c. §107. 10. 510 U.S. §569. II. wwwcopyright com.

12. 17 U.5.c. §115. 13.490 U.S. §730. 14. Kirk v. Hart", 51 USPQ2 1853, 188 F3d 1005. t 5. 17 U.s.c. 501; Sony v. Universal Studios, 464 U.S. 417; Hartman v. Hallmark Cards. Inc., 833 E2d 117. 16.17 U.S.c. §502. 17.17 U.S.c. §503. 18. 17 U.S.c. §504. 19. 17 U.S.c. §505. 20. 17 U.S.c. §506.

WHAT'S NEW ON THE HORIWN? Congress passed, and the Presidenr recendy signed, the Digital Millennium Copyright Act, which focused on copyright problems which are pervasive on the Internet as e-commerce conrinues to grow. That Act was, and is, inrended to regulate e-commerce in digital recordings and, coincidendy, provide a safe harbor for Internet service providers l or ISPs as they have become known. There have been numerous lawsuits charging that an ISP that allows an infringemenr to take place through the services provided by it is equally liable, and one of the purposes of the Act is ro severely limit and, indeed, provide a safe harbor for such lSPs.

IN SUMMARY The foregoing is but a glimpse of the law of copyright as it exists today, and as it will

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THE

T OF PATENT LAW

on Everyday Practice by Joe D. Calhoun

In this, the 21st cemury, patents will remain the harbinger of welcome technological advancements for society. Heightened consumer and client awareness of patenring will almost certainly require many attorneys, especially those engaged in general practice. to augment their knowledge in this area of growing importance. Periodic updating may also be warranted because, although the foundations of patent law have remained relatively constant, patent law evolves JUSt as the technology it chronicles. Patems were accorded Constitutional statuS from the very founding of our coumry, wherein Congress was empowered to "promote the Progress of Science and useful Arts, by securing for limited Times to...Inventors the exclusive Right to their respective Writings and Discoveries."1 The stawtory basis for patenting is currently found in 35 Â§Â§ 101 et seq.; section )0 1 provides that whoever "invems or discovers any new and useful process, machine, manufacture, or composition of marrer, or any new and useful improvement thereof, may obtain a patent therefor." The United States Patent and Trademark Office (PTa) issued its first patent on June 29. )790, for an invention improving the spinning and stretching of cotron fibers for textiles. As of the submission of this article,

u.s.c.

Joe D. Calhoun is a Registered Patent Arcorney with Calhoun & Haase in Little Rock, Arkansas.

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the mOSt recem patem issued by the PTO was number 5,974.584 for a system and method for improving the quality of received digital voice communication signaJs. The most recent statistics readily available' reveal that the PTO accepted 219,453 utility patent applications in 1997. up from the 173,619 utility applications filed in 1993. The PTO issued 122,977 utility patents in 1997. Few attorneys regularly have clients come to the office and specificaJly request advice concerning the possible benefits of patenting or the detriments arising from the failure to have legal rights to technology being deployed. Yet client circumstances may give rise to professionaJ duties owed to the client, and the general practitioner may be the first and only advisor available to timely ascertain the possibility of patent law issnes. It is more likely that the general practitioner will, for example, encounter patenrrelated issues in situations involving the transfer of patent rights. These situations might include the transfer of assets in a divorce, bankruptcy or the sale ofa business. No special registration or license is required of counsel in such matters, unlike the prosecution of patent applications before the PTa wherein only registered patent attorneys or agents may lawfully represent inventors. Since non-patent counsel often function as the initial legal contact for the invencor or the invemor's employer in technology related matters, it is therefore crucial for attorneys to maintain sufficient familiarity with the basics of patem law to enable him or her to satisfactorily discharge professional duties to the client. The iment of this article is to provide non-patem counseJ, especially attorneys in general practice, with an example of how

some fundamemaJ issues of patent law may arise in everyday law practice, thereby giving rise [0 professional duties. Hopefully some of the basics of pacem law will be memorably presented as well. The primary scope of this article will include defining an "invention", outlining the statutory requirements of patentability, distinguishing invenrorship from ownership, and illustrating how ownership of patent rights may impact everyday law practice. Conversely, the law of rrade secrets is outside the scope of this anjcle, and despite the employment context of the following case srudy, the standard avenues available through that body of law will not be considered in this article.

CASE FACTS Envision that one of your clients owns a business. Universal Implement Corp.â&#x20AC;˘ that has recently tested a computer program written by the company comptroller (Ms. Programmor) for manufacturing a new version of a product developed by Universal Implement's plant manager (Mr. Makesit). The software directs a computer to control the new process whereby the company manufactures an "ergonomic" hand-held implement, the Tufted Excisor. Irs novel configuration allows a user CO better grasp and use the product, and the pattern of rufts on the exterior is especially attractive to potentiaJ purchasers. Universal Implement was once a thriving business, bur fierce competition has eroded its market share in recem years. Gambling its future viability on this ergonomic product, the company has essentially exhausted its resources in developing the novel manufacruring process and product design. In a stunning setback however, Mr. Makesit has recently left Universal

Implemem's employ and staned rounding up investors to form his own company to manufacture what is believed to be essenrialIy the same implement. And despite knowing the precarious financial position of Universal Implemenr, Ms. Pr6grammor is demanding a hefty pay increase to dissuade her from accepting a similar offer soon ro be finalized with Me. Makesit's fledgling Investor group. This is not a bar exam question chocked full of issue-provoking facts; this is a fairly common scenario posing questions having substamial impact on your client's business immediately - in the near future and the long term. Of immediate concern, Universal Implement's president has asked you whether it can prevent Mr. Makesit from hiring Ms. Programmor; she oversees all of the company's accounting functions, and she is indispensable in the preparation of the company's income tax returns which are due shortly. Universal Implement aJso wants to know whether it can prevent Mr. Makesit from opening a competing business. Important to its long term success, can Universal Implement prevent Mr. Makesit from making and selling the new product using the new process or prevenr him from arming a competitor to do the same? Nthough no enforceable patenr rights arise until a patent is issued, sometimes the mere pendency of a patent application may influence the conduct of ochers enough to effectively confer practical benefits to the party mOSt likely to be the holder of imminenr patenr rights. fu illustrated in this case study, Universal Implement's claim ro exclusive ownership of the Tufted Excisor and its method of manufacture may appear suffiro dissuade Ms. ciently credible Programmor from leaving your client's employ and prevent Me. Makesit from obtaining stan-up capital for his new venture. Any patent that issues to Universal Implement may likewise prevent Mr. Makesit's company or competitors from commercializing the technology in the long run.

DEFINING THE INVENTION(S) Even though no patenr has been applied for (or even thought abom), patent law may hold the key for crafting strategies to shore up the viability of your client; imponantly, patent law might provide Universal Implement with sufficient leverage to obtain desirable practical results possibly nOt

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achievable using other legal principles. Do you feel comfonable advising your c1ienr at this time? If not, read on. The primary issue mOSt drastically influencing Universal Implement's strategy revolves around the oft-commingled concepts of: (I) invtnrorrhip of the technology in question; and (2) technology own~rship. Determining those requires you to first define the "invemion" to be patented. Both a noun and a verb, "invention" is often a continuing process possibly yielding several patentably distinct advancements en route to what is often considered "the" invention. ]n statutory terms, the invention must be a new and useful product, method or composition of matter (product or organism). The term "invention" also includes an improvement made ro a pre-existing invention. You should precisely determine each aspect or Facet of the discovery that conHitutes an advancemem or improvement. In this particular case, the technology in question is a product having an ergonomic configuration and tufted exterior, together with a computerized method of making that product, each of which may qualify separarely for patent protection.

PATENTABILITY REQUIREMENTS Only discoveries that are novel, and not merely obvious modifications of known technology, qualify for patent protection) Each invenrion's novelty and non-obviousness are determined in relation to the "prior an", which is essentially the state-of-the-art in the field of the discovery and in arguably related fields. This requires a search of patents, at a minimum, and possibly scientific literature and other sources believed to comain technology comparable to the invention in issue. An invention is novel if the particular elements or steps making up the technological advance do not appear in some similar thing (or process) that preexisted the invention. However, novelty does not require that each individual part be previously unknown; in many instances, a new combination of known elements has sufficient novelty to be patentable, as does an Improvemenr to a prevIOUS II1vennon. Under the given Facts, the novelty of the ergonomic configuration is assumed, as is the computer-governed method of manufacture. An invention may still be unpatentable if, although no single thing (or process) con~ tains the novel e1ement(s), the technological advance would have been obvious to some-

one of ordinary skill in the field after reading or viewing several pre-existing things (or processes) that collectively contain the novel e1emem(s). Since the novelty and non-obviousness analyses often gauge subtle legal and technological differences between a discovery and the prior art, the aid of experienced patem counsel is highly recommended.

OWNERSHIP DISTINGUISHED FROM INVENTORSHIP The proper identification of all inventors has significance to both the patenting of an invention and to subsequent dealings involving it. Federal law requires each patent application to idemify all inventors and be supported by an oath signed by all inventors. 4 There are procedures for filing an application naming an inventor that does not wish ro cooperate with the patenting process, and such procedures may be useful in this case if either Mr. Makesit or Ms. Programmor do not wish ro cooperate. After defining what each invention is, you must idemify the respective inventor(s) for each version of the invention intended ro be included in the patem application. Anybody who contributed materially and substantively ro the conception or development of the invention, or to reducing the concept to practice, might be an invenror whose participarion in the patent application is necessary. This does not include someone who merely implements another's ideas though. Co-inventor status may be achieved via communication (collaboration) between co-invemors, leading to a conrribution ultimately embodied in a version of the invention claimed in the patent application. In the instant case, Mr. Makesit may arguably be the sole inventor of the Tufted Excisor product. With respect to the computer program governing the manufacturing process, both Mr. Makesit and Ms. Programmor are arguably the co-inventors. Subsequenr dealings involving the invention are usually subject ro the control of the owner, if different from the inventor(s). fu a general rule, any individual, such as Mr. Makesit or Ms. Programmor, is presumed ro own the patent rights in an invention of which he or she is an inventor or joinr inventor, even though that invention was conceived and reduced ro practice during the course of employment. On the other hand, an employer, such as Universal Implement, will own the rights to an employee's patenrable invenrion if the employee was initially hired or later directed

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co solve a specific problem, or to otherwise exercise inventive faculties in a particular area of the employer's business. S Absent an express contract concerning ownership of an invention, the employee will own patent rights if the employee is only generally hired or directed to make improvemencs in the employer's business. 6 Under the facts presented, Universal Implement is likely the sole owner of both the Tufted Excisor and its computer-governed manufacturing method, regardless of whether either was invented solely by Mr. Makesit or jointly by Ms. Pr6grammor and him.

STRATEGY FOR OBTAINING PRACTICAL BENEFITS A patent grants patent holders the right CO prro~nt oth~rs from making, using or selling the invention, and such exclusionary rights often effectively confer a monopoly on the patented technology. The patent holder, either the inventor{s) or an assignee, possesses all of the rights inherent in property ownership such as the ability co transfer (assign or license) and encumber the technology. In the instant case, one strategy might be for Universal Implement to: (a) demand that Mr. Makesit either acknowledge Universal Implement's exclusive ownership of the product and method of making it or accept service of process for a declaratory judgment action; (b) fde one or more patent applications naming Me. Makesit and Ms. Pr6grammor as inventors and the company as the owner, or (c) make certain that the patent application(s) and any litigation are properly disclosed to potential investors. Universal Implement's legitimate ownership claims are calculated to persuade Ms. Programmor and Mr. Makesit's invescors that there are grave risks in following Mr. Makesit into his new vemure. Most employees are hesitant to leave an established work position to gamble on a start-up company, and potential investors are usually extremely reluctant to invest in a start-up embroiled in significant litigation concerning the very core of the start-up's business. Utility patents protect the utilitarian or functional aspects of the invention rather than purely ornamental features of the invention. Universal Implement should consider filing a utility patem application within the Statutory deadline of one (1) year after the Tufred Excisor was first offered for

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sale or otherwise made public. A utility patent will expire on the 20th anniversary of the application filing date, unless an earlier demise results from failure to pay periodic maintenance fees when due.? However, although a properly worded utiliry patent may provide a wide scope of protection for the invention, it may take well over a year to obtain the patent. Universal lmplement should, therefore, consider filing an application for a design patent protecting the arrangement of tufts on the exterior of the Tufted Excisor. Design patents protect the purely ornamental features ofan invention for a period of fourteen (14) years from the filing date of the application. These patents typically provide a much narrower scope of legal protection, but they are also less expensive to apply for, and the patent often issues in less than a year. Universal Implement should therefore file a design patent application within the statutory deadline of six (6) months after the Tufted Excisor was first offered for sale or otherwise made public. Hopefully Universal Implement's ownership claims will sufficiently cloud the title to the technology and prevent Mr. Makesit from securing Ms. Programmor's expertise and crucial investor capital. In a worst case scenario where Universal Implement is determined to have no ownership interest in the Tufted Excisor technology, the so-called "shop rights" doctrine probably gives Universal Implement a non-exclusive, royalty-free, non-transferrable license to make and sell the Tufted Excisor in the ordinary course of its business. Despite a lack of ownership of patent rights, an employer may have rights to an invention where the employee used work time, personnel, equipment, materials or other assets to conceive or reduce the invention to practice. 8 After the initial dust has settled, it would

be a good time to suggesr that Universal lmplement's contracts with employees be reviewed. Since technological advances are becoming the currency of business competition, distinguishing one competitor from another when many other factors are equal, companies are more likely to include provisions expressly addressing ownership of employee inventions in addition to the standard confidentiality and non-competition provisions commonly found in employmenr agreements. As indicated in the beginning of this article, the importance of patenting will continue to increase in the minds of consumers and clients. Although some aspects of patent law are esoteric, there is a large body of patent law that is available for all attorneys to practice - requiring no special license. In any event, all attorneys should strive to maintain sufficient knowledge of patent law basics to, at a minimum, recognize the existence of issues giving rise to professional duties to clients.•

ENDNOTES 1. Article I., § 8, clause 8 of the Constitution of the United States. 2. WWWUSpto.goy. 3. 35 U.S.c. §§ 102 and 103. 4. 35 U.S.c. §§ 115 and 116. 5. Standard Parts Co. v. hck, 264 U.S. 52, 44

S.Ct. 239, 68 L.Ed. 560 (1924). 6. Datu" 11. Dutbtr \.W:zrch Cast Manufacturing Co., 149 U.S. 315 (1893). 7. 35 U.S.c. § 41. 8. McClurg v. KingJland, 42 U.S. 202 (1843); Hapgood v. H<witt, 119 U.S. 226 (1886); Hapgoodv. H<witt, 119 US. 226 (1886).

NEED ASSISTANCE WITH APPEALS? .:.

State and Fedetal Appeals

.:.

Formet Arkansas Supteme Court Law Clerk

.:.

Wtiting Sample and References Available CAROUNE L WINNINGHAM

Brazil, Adlong & Osment, PLC 913 Oak Street Conway, AR 72032 (501) 327-4457

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CHOOSING THE BEST METHOD OF PROTECTING COMPUTER SOFTWARE One Size Does Not Fit All By Charles Dougherty These days, yOll don't have to be in the business of creating computer software to worry about sofrware protection. Many companies have in-house software specificaJly designed for their business operations. Others have stock software that was customized for their needs. Most every company has confidential customer or financial information locked away inside a computer somewhere in the office. How to protect that computer sofrware, and the valuable information it contains, is thus an issue that touches virtually every business. But the method of protection that best fits a particular piece of software depends greatly upon the rype of software to be protected, the owner's business and the environment in which the software is used. Choosing the wrong method of protection can, in some cases, cause the sofrware owner to forfeit the type of protection it most needs. After outlining the three mOSt important methods of protecting computer software, I will illustrate the trade-offs berw-een them with a few examples.

COPYRlGHTS The U.S. Copyright Office has granted copyright registrations for computer software since the 1960s. AJthough prompt copyright registration may be advantageous

Dougherry is a licensed patent attorney who practices in the Intellectual Property Practice Group at the Little Rock Law Firm of Wright, Lindsey & Jennings LLP.

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when seeking damages in an infringement suit, registration is nOt a prerequisite for copyright protection; instead, copyright protection springs into being as soon as the sofrware is "fixed in a tangible medium of expression."] In other words, as soon as a computer program is typed into the computer, copyright prOtection exists. Neither failure to register with the Copyright Office nor failure to provide a proper copyright notice can destroy the copyright thus created. While copyright protection is easy to obtain, it is also quite narrow in scope. A copyright protects the particular expression of an idea, not the idea itself.2 Thus a software developer who borrows the idea behind a particular program, bur does not copy the expressive elements of that program, will avoid copyright infringement liability. Purely functional elements of a program, which can be expressed in only one meaningful way, are also unprotectible. For example, in one case, the menu structure of a popular spreadsheet program was found to be insufficiently expressive to qualify for copyright protection) This allowed a competing manufacturer to copy the menu structure verbatim into its product. In addition, copyright protection only extends to the actual copying of a program. If a software developer independently derives a similar or even identical program, no copyright infringemenr has occurred. Because it is usually impossible to prove direct copying, a copyright plaintiff need only prove that an accused infringer had access to the copyrighted work and that the works are substantially similar. This has led to the use of "clean rooms" in which teams of programmers attempt to develop a program to compete with a competitor's software while being carefully isolated from the

actual code of the program they wish to emulate. The various elements of a computer program mayor may not be protectible by copyright, depending upon whether they are original and expressive. Certainly copyright proteC(ion may exist for a computer program's source code. Source code is the form in which a programmer rypes a program inro the computer. Depending upon the programming language used, source code may be generally understandable even by non-programmers (old COBOL programs fit inro this category) or may be quite cryptic (modern C/C++ and Java programs are good examples here). Before a program may be used, it muSt be translated from source code inro object code. Computer programs known as compilers, interpteters and assemblers perform this task. An object-code program listing will consist of nothing more than a series of numbers and is not readily understandable by humans. JUSt as for source code, copyright protection plainly extends to object code; this is, of course, the form in which virrually every commercial software program is distributed. Computer programs - in particular computer games - often comain graphics, displays or characters that are an inregral and important part of the program. These elements may not be visible by simply reading the source code but instead are seen only when the program is executed. Like source code; however, these program elements are protected by copyright, JUSt as they would be protected if appearing in a separate audiovisual work. The tough question is whether copyright protection extends to "non-literal" elements of a computer program. Most of the effort involved in software design is not spent in writing individuaJ lines of code; instead,

developers spend the bulk of their time designing the functional, input and output requirements for each logical element of the software. Most complex software is logically divisible into a number of components each of which are fluther divisible into smaller components, and so on. Only when all of these elementS and sub-elements are fully specified is coding begun. These logical (or non-literal) elements mayor may not be discernible; however, from the execution of the program, or even from a review of the source code, this makes copyright infringement analysis particularly difficult. The mOSt widely adopted test for determining whether non-literal program elements are protectible is the abstraction-filtration-comparison test. 4 Under this test, the court first dissects the StruCture of the program and isolates each level of abstraction. Thus the coun must attempt to distill from the source code the logical e1emencs and sub-elementS of the program. At the highest level of abstraction are the main or tOp-level e1emencs of the program, while at the lowest level is the code itself. At each level of abstraction, the court then filters out the unprotectible portions - such as public domain material and material that is purely functional. Finally, the court compares the remaining material to the corresponding elements of the accused program to determine whether copyright infringemenc has occurred. This test is unavoidably subjective, and thus, it is particularly difficult to predict the outcome of litigation over a copyright infringement claim involving non-literal program e1emencs. While copyright protection remains important for software owners and developers, it is a relatively narrow form of protection with imponanr limitations and exceptions. As a result, software owners have turned increasingly to other forms of protection to augment the protection they are automatically afforded under the copyright law.

PATENTS The federal courts have long held that abstract ideas and mathematical algorithms, standing alone, are not patentable inventions. Included in these categories are inventions that consist only of the "mental steps" required to perform a certain function. Since any computer program can be described as a series of steps to perform a certain function, software inventions were once uniformly rejected as non patentable

subject marrero Over the years, however, the courts have gradually chipped away at this rule, finding, for example. that softwarerelated inventions that incorporate a tangible machine,S or that create tangible inpur or output during a software-controlled process, are in fact patentable. 6 The most recent coun decisions have continued this trend, so that today, most any sofrwarerelated invenrion can be claimed in such a way that it is patentable subject matter} Like any other patent holder, the owner of a software patent has the right to exclude others from making, using, selling or offering for sale the patented invention. 8 It does not marrer whether the infringer independently created the software; indeed, even if the infringer had never even heard of the patent owner or the patented invention, the second invention may still infringe. Since the scope of a sofnvare patent is dictated by the patent's claims, rather than by the software code itself, a patent may afford far broader protection than a copyright. Although patenr protection can be broad, it is much more difficult to obtain, and much easier to lose, than copyright protection. Patent protection arises only after a patent has been granted by the U.S. Patent and Trademark Office. Given the delays caused by the current dearth of examiners qualified to review sofnvare-related inventions, a software inventor will likely wait a minimum of nvo years for a patent or, in many cases, significantly longer. The standards for novelty and unobviousness that a software invention must meet to be patentable are much higher than the simple standard of originality required for copyright protection. In addition, the failure to file a patent application in a timeJy manner may prevent the inventor from ever obtaining patem protection. 9 Failure to disclose information relevant to the patentability of the software invention, failure to list the correct inventors, and a whole host of other bases exist for invalidating a patem. One often-troubling aspect of patent protectjon for many software inventors is the disclosure requirement. To receive a patent, the applicant must disclose the invention sufficiently so that one skilled in the relevant art (in this case, sofnvare design) could duplicate the invention without undue experimenration. 1O In addition, the inventor must disclose the "best mode" of practicing the invention; in other words, if the invention can be implemented in various ways, the inventor cannot keep secret that

one he or she believes to be besc. lI In effect, one cannot both keep the invention secret and obtain a patent. By conrrast, due to the flexibility of the Copyright Office's rules for accepting software deposits, it is generally possible to obtain a sofnvare copyright registration while keeping secret much of the program's design, content and method of operation. Once a patent is issued, any competitor is free to obtain a copy of the patent and thereby attempt to "design around" the patent's claims. In many ways, patent protection is the opposite of copyright protection. While its scope is potentially broad, it is difficult to obtain, easy to forfeit and requires the software owner to make significant public disclosures concerning the function and operation of its software. The choice of pursuing a patent for a software invention should only be made after careful consideration of these limitations.

TRADE SECRETS Unlike patents and copyrights, trade secrets are protected under state law. The Arkansas Trade Secret ACt 12 is based on a uniform act that has been adopted by most states. Under the Act, a trade secret is defined as information that derives economic value from not being generally known and is the subject of reasonable efforts to protect its secrecy. 13 This may include, for example, formulas embedded in sofnvare, customer data, company bidding or business practices, coding techniques or routines, and even material that would otherwise be patentable. Unlike copyright and patent protection, a trade secret may theoretically last forever. The primary limitation of trade secret protection is that the protection ends once the owner fails to take steps reasonably calculated to keep the information secret. This severely limits the value of trade secret protection for commercially distributed software, since once such software is distributed publicly, it is, of course, no longer secret. Even those elements of computer software that are not easily viewed by simply loading and running the program, but that may be uncovered by reverse engineering. are generally not subject to trade secret protection once the program is distributed. The problem of reverse engineering can be countered (if not entirely remedied) through the careful use of licenses. If a user purchasing a license for the software agrees not ro disassemble, decompile or otherwise

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reverse engineer the software, then the extraction of information from the program in this manner may thus be actionable under contract law. Consumer-marketed software today is often distributed with "shrink-wrap" license agreements - according [Q the terms of which, the user's mere opening of the software constitutes an agreement with the Ijcense terms. Similarly, software downloaded over the Internet may require the execution of a "click-wrap" license; in this case, the user clicks on an "okay" button or the like [Q agree to the license termS. Courts have generally found shrink-wrap license agreements to be enforceable, and they may thus be an effective complement to trade secret protection. 15 The desirability of trade secret protection muSt be evaluated very early in the software development process. Failure ro do so may lead to forfeiture of trade secret protection possibly through filings related to copyright and patent protection. If careful consideration is given [Q this problem at an early stage, however, trade secret protection can often be made compatible with copyright registration, although enjoying both patem protection and trade secret protection for a software invention is often not possible.

CHOOSING THE BEST FORM OF PROTECTION Since the copyright, patent and trade secret laws protect software in different ways, they often provide overlapping protection. On the other hand, the choice of one form of prOtection sometimes means the forfeit of another. A few examples will serve to illustrate this process. Suppose that a baseball card publisher develops a computer program designed to inventory baseball card collections. The software will be distributed free of charge at the publisher's Internet web site in an effort to increase public interest in baseball card collecting. Suppose further that the programming techniques used in writing the software are standard in the industry. The software code itself will be subject ro copyright protection, so a competiror could not simply copy and redistribute the program. A competiror could, however, write a program that performed the same function, so long as no expressive elements were copied. It would be open [Q debate whether a competiror could copy the "look and feel" of the program; this wouJd likely involve non-literal program elements. Since the program

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comains no novel programming methods or e1emems, patent protection will not be available. Finally, since the program will be distributed publicly, trade secret protection will be problematic. The use of appropriate language in a "click-wrap" license, however, may help to protect the developer if a competiror attempts to reverse engineer the program. Next, consider a pizza restaurant chain that has developed a computer program to plot the fastest possible route between each Store locarion and a particular customer. If Ihis method of computing routes is novel and nonobvious compared [Q the methods used in the past, the software may well be amenable to patent protection. A patent may provide the pizza restaurant with broad protection and might also be the basis for lucrative licensing arrangements with others in the delivery business - such as railroads or trucking companies. But to secure a patent will also mean that the novel method embodied in the software would become public knowledge. Nthough the use of this method by others would be patent infringement, it may be difficulr to determine whether anyone is using the same method. Aho. since a patent has a limited life, the technique would become public domain after the patent expires. If, on the other hand, trade secret protection is chosen, the pizza restaurant muSt be very careful to guard the secrecy of the protected delivery method. This may nOt be difficult, however, since the method will be buried within the code of the computer program which should not be readily available to the public or even to mOSt employees. Reverse engineering is also not as important a concern here, since the software will not be distributed outside the company. Next consider a software developer who writes a space exploration game for use on home computers. The game includes numerous video and sound clips through which the user explores various planers and interacts with computer-generated aliens. Copyright protection is probably the developer's best bet here. Unless the game engine itself is novel and nonobvious, patent protection is unavailable. The trade secret law will nOt protect the characters and other expressive elements of the program since the program is publicly djsrribured. Copyright protection, however, would extend (Q the alien characters, their dialogue with the player, the original artwork and even the story line for the game itself.

Finally, consider a software engineering firm that has developed a novel method for sending digital information "packets" rapidly over a computer network. This software will not be marketed as a stand-alone product but instead, as an enhancement to network-based products of other companies. Thjs method may be a good candidate for a patent. Copyright protection will extend only to the developer's particular implementation of the method, not ro all possible implementations. Trade secret protection will be difficult ro maintain since the software will be widely distributed, and it may be difficult to secure the appropriate license agreements with the third-party end users. A patent, however, may give the developer broad monopoly rights through which it may exploit its invention. fu can be seen from the examples above, it is vitaJ to consider the particular circumstances of each software owner, and the nature of the software to be protected, to determine the best method ro proteer the software owner's interests. Only by knowing the trade-offs involved with each choice, can a software owner make an informed decision concernmg the best fit for protecting its software. 0)

ENDNOTES I. 17 U.S.. § 102(a). 2 17 US.c. § 102(b). 3. Su Loms Dev. Corp. v. Borland Im'l, 49 F.3d 807 (I Sf C1r. 1995), afJ'd by an eqnally dividd conrt, 516 U.S. 233 (1996). Bn"u Miul, Inc. v. Iqul, Inc., 124 F.3d 1366 (10th C;,

1997) (rejecling the "'method of operation" test). 4. Su Computer Assoc. Int'l. v. Altai, 982 F.2d 693 (2d Ci, 1992). 5. Su, e.g., In " Alappat, 33 F.3d 1526 (Fed.

Cir. 1994) (finding patemable claims directed to an ami-aliasing algorithm implemenred in an oscilloscope). 6. Su, e.g., In re Die"r, 602 F.2d 982 (C.C.P.A. 1979), affd sub nom., Diamond v. Dit'hr, 450 U.S. 175 (1981). 7. See Stale Strut Bank 6- Trust Co. v. Signaturt Financial Grollp Inc., 149 F.3d 1368, art. denied, 119 S. Cr. 851 (I 999). 8. 35 u.s.c. § 27I(a). 9. Se<35 U.s.c. § 102(b). 10.35 U.S.c. § 112, a I. 11. /d. 12. A,k. Code Ann. §§ 4-75-601 to -607. 13. kk. Code Ann. § 4-75-601(4). 14. Su, e.g., !'roeD, I"c. v. Zeidmbe'K' 86 F.3d 1447 (7th Ci,. 1996).

Helping Students Read - Everyone's a Winner by Baxter Sharp Chair, Young Lawyers Section ,,\V!hat makes for a successful

VV'

project? Is it helping others? Is it involving members of the bar? Is it helping the image of our profession? Thanks to Mark Hodge, the YLS has a project that accomplishes all of this and more!

Mark is a new member of the YLS Executive

Committee

representing

Central Arkansas. When we were discussing projects. he indicated he had a project he wanted to tackle - rather than adopt an existing project or one someone else had though[ of. Mark's project centered around helping elementary school students with theif reading. He coordinated with Mi[chell Elemencary in the Li[cle Rock Public School District to provide tutoring [Q second and third graders. Then

approached

numerous

Pulaski

CounÂŁ)' young lawers to generate a volunteer base and set up training classes for these volunteers. Over 55 young lawyers and paralegals responded CO Mark's request for volunteers. According co Mark. this reaction is one of the biggest successes of the program. "The Young Lawyers' Section has been very impressed with the response received from individuals willing co volunteer their time for this program." Mark says. "The faculey and scaff a[ Mitchell Elementary are very appreciative of our effons. They have explained that the tucoring nOt only helps with the students' reading but also improves their self-confidence." In this project, each reading tucoring

session takes approximately 20 minutes and and includes the volunteer listening to the student read twO short books. discussing the books with the student and assisting the student in writing a sentence about one of the books. Andy Caldwell of Pine Bluff heard about the project. and now he's working on getting a similar project started in his community. "This project is an excellent oPPOrtunity to make a difference in children's lives and also a way co restore the community's faith in our profession," Andy says. "This is also an excellent opportunity for interaction among colleagues." The project is pan of the "Success For All" tutoring project. What an appropriate name, for surely, this is a success for all involved.-o-

Illlllk UI'\ il'lI Business and Commercial Litigation in Federal Court A Publication Review by Judge William R. Wilson, Jr., U.S. District Court - Eastern District of Arkansas

ey, Podnah, you wanna' li[igace business and commercial cases in federal coun? If so. you better go out and get yourself Busin~ss and Commercial Litigation in hdn-al Court ed. Rober< L. Haig - Wes[ GrouplAmerican Bar Association. Or, to be more in step with modern practice. get the necessary material to project this on your Ouija board (a/k1a compucer). This six-volume set covers the waterfront - from [he basics (jurisdiccion, draf[ing [he complaint, etc.) to what is. for most of us, <he esoceric (e.g., enforcemem or judgments, theft of business opportunities). A real bonus is a wide variety of excellent jury instructions, many of which cover areas not generally covered by most pattern jury instruction books. It is one thing to file a diversity action bottomed upon a car wreck between citizens of different states. It is quite another to

advise a client - who has been sued in ~ court - whether this is an ERISA action, whether federal courtS have exclusive or concurrent jurisdiction. whether attorney's fees are available. and the like. Even if you have more than passing acquaintance with ERISA, this work will be invaluable in focusing your attention on the important points in most commercial litigation of the ramifications in this area (it does not purport to give an in-depth treatment of the ramifications of ERISA provisions). I found a chapter on jury selection, standing alone. to be worth the price of admission. Mos< lawyers (and, I expee[, mos< judges) are no[ incima[ely familiar with the law which determines "the composition of the venire". The early part of this chapter carefully outlines the requirements ror challenges under "The Jury Selec[ion Act", and to the venire selection plan estab-

lished under <he Ace ([he old time "challenge to the array" is discussed, as is the effec[ of [he Ac[ upon [his eype of challenge). Practical pointers for voir dirt are included. This is virtually a "must" for young trial lawyers, and I suspect that most veterans of the trial bar would profit a great deal by reading this chapter. Incidentally, it will, in my opinion. be very valuable for those who engage in any eype of trial practice in federal court. I don't know how many Arkansas lawyers handle international litigation, but, as our globe shrinks in this electronic age, I suspee[ <ha[ a goodly number are handling, or will handle, <hese cases. lf so, <his work will guide them well. The chapter covering this subject is written by Former Secretary of State Warren Christopher and his colleague Continued on Page 39

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The Judicial Disciplinary AClions are wrillen and provided by the Judicial Discipline and Disabilily Commissioll.

Honorable OUy Neal Little Rock, Arkansas Advisory Opinion 99-08

October 5, 1999 In your request for an opinion dated September I, 1999. you stated that you were: a sitting judge on the Arkansas Coun of AppeaJs, and that you intend to seek election to that court in the year 2000. YOll have proposed sending selected residentS of the district that elects you to the Colin of Appeals. a certain lener anached co your request. We gather from your request and that letter, that you would plan to send it in the near future. The letter you have proposed purports CO be informational only in order to inform the voters that there are two positions open, and that you and the Honorable Mauzy Pittman are not opponents. This le((er comes very close to being a political le((er, but since its primary purpose seems to be to inform the voters that there are two positions from this district, we have determined that ir does nor fall within the prohibited political activiry addressed in Canon 5. See Arkansas Judicial Ethics Advisory Commi((ee Advisory Opinion #95-04. Our Committee does recommend mat you omit me names of deceased members of your family from the le((erhead, and that your quotation on your letterhead, "Influence Shared Is Influence Expanded" be deleted.

Book Review Continued from Page 37 Lewis B. Kimmelman. In Fact, the mength of the se, Aows from the numerous luminaries selected as authors for the various subjectS. I know some of these authors personally and know mos, of them by reputation. They are outstanding practicing lawyers, professors and judges. Editor-inChief Robe" L. Hague, a dis<inguished membe, of the New Yo,k City Bar, is [Q be heartily commended for supervising the production of such a superb six-volume set. Lawyers who litigate commercial cases in federal court - and those who plan to - would be wise [Q keep this dandy work ar hand. If there is any doubt about the potential value of these books [Q ,he li,iga,ing lawye" I sugges, ,har he/she hie himself/herself over to the library or crank up the Ouija board, and I'm satisfied beyond peradventure thar my enthusiasm will nor be found unwarranted.~

Judge Lee Munson Little Rock, Arkansas September 23, 1999 The A,kansas Judicial Discipline and Disability Commission today announced that a letter of admonishment was issued to Judge Lee Munson of the Municipal Court, Linle Rock, Arkansas on Sep,embe, 23, 1999. On June 9, 1999, Judge Lee Munson was arrested for driving while intoxicated (D. WI.) on 1-430 in Li,cle Rock, Arkansas. His blood alcohol content at the time was .192. Judge Munson was arraigned on July 27, 1999, and pu<suanr to his plea, was found guilty of D.WI. Judge W. Q, Hall Huntsville, Arkansas The A,kansas Judicial Discipline and Disability Commission today announced that a letter of admonishmenr was issued to Hunrsville Municipal Cou" Judge W. Q Hall for ex-parte communications prior to presiding in a Small Claims case. During the court proceedings of this case, Judge Hall displayed conduct inconsistent with the high standards essential in preserving the integrity and impartiality of the judiciary. The Commission found ,ha< Judge W Q. Hall had in engaged in ex-parte communications in a Small Claims case, First ational Bank of HuntsVille v. Mary Stone, by going to the bank and reviewing the bank's records without the defendant being present. During this court proceeding at which neither the plainriff nor defendant appea,ed, Judge Hall be<a<ed ,he husband of the defendant by swearing and yelling. La'e<, Judge Hall enre<ed judgmem on behalf of ,he plainriff. This conduc, was found to be in violation of the Code of Judicial Conduce Judge John Norman Harkey The Arkansas Judicial Discipline and Disability Commission tOday announced that a letter of informal resolution was issued to Circuit/Chancery Court Judge John orman Harkey fo, advising ,he local

law enforcement personnel as to the validity and the appropriateness of their serving outof-country court orders. The judge now realizes it was not prudent to so advise local law enforcement officials. He has pledged to refrain from such actions in the future. Local law enforcement personnel will be referred to the judge issuing the order or the prosecuting attorney's office. The Commission found that Judge Harkey's conduct might have been a cause for discipline. Judge Jim Bob Steel Pike County, Arkansas The Arkansas Judicial Discipline and Disability Commission today announced that a reprimand was issued to Municipal Com, Judge Jim Bob S,eel fo, willfully w,i,ing an insufficient check in the amount of $5,000 to a car dealership. Restitution to the car dealership was not made until a felony arrest warrant had been issued for Judge S,eel. Judge Jim Bob Steel was arrested on a felony hot check warrant. It was alleged that Judge S,eel had w,i"en a $5,000 check [Q a car dealership, in full knowledge tha< the,e were insufficient funds for payment. Judge Steel was comacted by the car dealership as [Q ,he lack of funds for paymenr of ,he check. The judge did no, provide full 'es<iturion on the check at this time, and a felony warrant for insufficient funds was requested and granted. Judge Steel was arrested on this warram. During his court proceedings, Judge S,eel pled 010 Contendere to a reduced unclassified misdemeanor charge. The judge was sentenced under Act 346 which allows for an expungemem within one (1) year of a probated semence. Judge Steel made full restitution in this matter and paid all associated court COSts.

Following Judge Steel's arrest and prior to his court hearing, the respondent judge recused himself from presiding over all criminal cases umil the ourcome of the criminal charges that were pending against him. Judge Steel resumed presiding over criminal cases during the week of July 19, 1999.

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JAMES W. MCELHANEY THE KEYs TO EFFECfIVE T!uAL ADvOCACY

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has an active practice as a trial strategy consuhant. "Professor McElhaney is, quite simply, Americas foremost lecturer and author on trial practice and litigation tactics and strategy. He is brilliant, funny and mesmerizing... G<rald G. Paul, Esq., Flemming, Zulack 6Williamson, LLp, New York City

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Teacher Jim McElhaney is the foremost teacher. writer, and speaker on Trial Techniques in North America. He is me Joseph Hostecler Professor of Pe'"'"----""T"1 Trial Practice and Advocacy at Case Western University School of Law-one of the Nation's first chairs in Trial Advocacy. McElhancy is a platform spellbinder-a gifted speaker who has given more than 450 seminars, speeches. and workshops on Evidence, Procedure, and Trial Practice in everyone of the United States and throughom Canada-to rave reviews. Writer Jim McElhaney is the most widdy read author on trial techniques in the United States. • Every month he talks to more than 450,000 lawyers and judges about evidence, procedure. and winning trial techniques in his award-winning column, "Litigation"-the most popular feacure in the American Bar Association Journal since its inception in 1987. • McElhaney also writes the immensely popular "Trial Notebook" column in Litigation Journal. • He is the author of three highly acclaimed books: Effective Litigation (West Pub. Co. Course Book). McElhan~y's Trial otebook (ABA 3d ed., 1994) - the ABA's all-time bestseller. McElhaney's Liril>"rion (ABA, 1995).

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The lAwyer Disciplinary Actions are written and provided by the Supreme Court of Arkansas' Committee PETITION TO SURRENDER UCENSE David Marion Clark Damascus, AR Septembc:r 16, 1999 Anorney D;J;vid Marion Clark, Route 2, Box 23, ID 179034, hu been permanently barrc:d from engaging in the unlicensed practice: of law in this State for violation of the Arbnw Modd Rules of Professional Conduct. On the recommendation of the Arkansu Supreme Court Committee on Professional Conduct, the Arbnsu Supreme CoUrt accepted the surrender of the law lice:nse of David Marion Clark on Septe:mber 16, 1999. The: surrender is effective immediatdy. Attorney auk's Petition to Surrender was based upon violations of Modd Rules 1.3, IA(a), 1.4(b), 1.5{a), 1.16(d), 8A{c) and 8A(d) of the Arkaruu Modd Rules of Professional Conduct. The Petilion and attached exhibits on file with the Clerk of the Arkansas Supreme Court, demonstrate these violacions. Damascus, White County, Arkansas, Arkansas Bar

NOTICE OF SUSPENSION OF UCENSE TImothy D. W'dliam. Conway,AR Septe:mber 17, 1999 TImothy D. Williams, Arkansas Bu JD 175140, an attorney previously practicing law primarily in Conway, Faulkner County, Arkansu, had four formal complainu considered by the Comminee on Professional Conduct on September 17, 1999. It was the decision of Ihe Committee that a disbarment action be filed agairut Mr. Williams as a result of the conduct contained in the above referencc:d formal complaints. Pursuant to the provisions of Sections 7E(3){a) and 8B(l)(a) of the Procedures, an interim .uspension of Mr. Williams' privilege to practice: law under the authotity of his Arkansu law lice:nse shall be imposed. It is therefor ORDERED that TIMOTHY D. WIlliAMS be, and herdy is, SUSPENDED from the practice of law with· in this jurisdiction immediately upon the filing of the Order with the: Oerk of the Arkansas Supreme CoUrt. Rid<y A,hlock Conway, AR October 06, 1999 The formal charges of milCOnduct upon which this Order is based arose from the complaint of Michelle: Millsap. Ms. Millnp was in need of a bankruptcy attOrney in February, 1997, when she saw the adve:rtiscme:nt of Ricky Ashlock, an anorney whose office was located in Conway, Arkansas. Ms. Millsap mel with Mr. Ashlock and hired him to represent he:r in a bankruptcy action. Ms. Millsap agreed to pay Mr. Ashlock $575.00 and paid the amount in full over a period of time. Mr. Ashlock informed her that he would contact her when a <bte for the meeting of creditors wu sel. Ms. Millsap never heard from Mr. Ashlock thelnher. No bankruptcy petition was filed. Over a period of ~en months, Ms. Millsap attempted to reach Mr. Ashlock by telephon~ and by cenified mail. Mr. Ashlock signed for the certified mail but failed to communicate with Ms. Millsap. Mr, Ashlock was served with a copy of the Formal Complaint by certified mail, restriCted delivery, on May 13, 1999, pursuant to Section 5E, Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures), u revised January 15, 1998. Mr. Ashlock failed to respond to the Complaint in a timdy manner. His hilure to respond timely 10 the Complaint constitutes admission of the factual allegations contained in the Complaint pur· suant to Section 51(4) of the Procedures. Upon colUideration of the formal complaint and the: Arkansas Modd Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Ashlock's conduct violated Model Rule 1.3

The IrklDllS LaMJer I'il.li 11'0. 1/lI'iiter 2800

whl"n he f.Liled to file a bankruptcy petition on behalf of Ms. Millsap or otherwise act in ,a manner evidencing reasonable diligence and promptness in reprt5Cnting a elient. Model Rule 1.3 requires that a lawyer act with reuonabl~ diligence: and promptness in representing a client. 2. That Mr. Ashlock's conduct violated Model Rule 1.4(a) whe:n he f.Liled to communicate with Ms. Millsap in regard to her bankruptcy mailer despite her numerous artempts to com· municate with him. Modd Rule 1A(a) requires that a lawyer keep a client reasonably informed about the statuS of a mailer and promptly comply with reasonable request for information. 3. That Mr. Ashlock's conduct violated Model Rule 8A(d) ....hen he hiled to file a bankruptcy petition on Ms. Millsap's behalf which resulted in unnecessary delay in her legal matter. Modd Rule 8A(d) requires that a lawyer nOt engage in conduct that is prejudicial to the administration of justice. WHEREFORE, it is the deci5ion and order of the Arkansas Supreme CoUrt Committee on Professional Conduct that RICKY ASHLOCK, Arkansas Bar ID 194124, be, and hereby is.. SUSPENDED for a period of three: (3) months for his conduct in this matter. Said suspension shall become effective as of the <bte of filing this Order. In addition, Mr. AshJock is fined, u a separate sanction pursuant [0 Sections 51{3) and M(2) of the Procedures, the sum of $250.00 for his failure to respond to the Complaint. Robert FulJe:r Meunr:r S<u<y. AR October , 1999 The formal charges of misconduct upon which this Order i. bued arose from the complaint of Kenne:th Konopiruki. In July, 1998, Mr. Konopinski retained Robert Fuller Meum, an anorney primarily practicing in Searcy, White County, Mansu for $150.00 for Mr. Meurer to file for an expungement of a criminal conviction. Mr. Meurer took no action. In Novembc:r, 1998, Mr. Konopinski retained Mr. Meurer to represent Mt. Konopinski in a real property dispute. Mr. Konopinski paid $1,200 of the $2,000 requested by Mr. Meurer. No action was taken by Mr. Meurer. Prior to filing his complainl, Mr. Konopinski had anempred to contact Mr. Meu~r by telephone since December, 1998, without success. On March 24, 1999, Mr. Konopinski sent Mr. Meurer a certi· fied lettet to communicate: with Mr. Meurer. The letter was returned to Mr. Konopinski, -unclaimed". Mr. Meurer was personally scrved with a copy of the Formal Complaint, pursuant to Section 5E, Procedures of the Arkansu Sup~me Coun Regulating Professional Conduct of Attorneys at Law (procedures), u rmsed January 15, 1998. Mr. Meurer failed to respond to the Complaint. His failure to respond timdy to the Complaint constitutes admission of the hcmal allegations contained in the Complaint pursuant to Sc:etion 51(4) of the Procedures. Upon consideration the formal complaint, the attorney's failure to respond, and the Arkansas Model Rules on Professional Conduct herein, the Committee on Professional Conduct finds: 1. That Mr. Meurer's conduct violated Model Rule 1.1, when, in July, 1998, h~ was ret:ained by Mr. Konopiruki by verbal agretment for $150.00 to represent him in the expungement of I criminal record and failed to take any action; and when, in November, 1998, he was again retained by Mr. Konopinski to represent him in a real property dispute for which the anorney received 60% of the requeued fee in advance and failed to take action. Model Rule 1.1 requires, in pertinent part, that a lawyer provide competent representation to a client, including the thoroughness reasonably necc:ssary for the representation. 2. That Mr. Meurer's conduct violated Model Rule 1.3 when, in July, 1998, he: was retained by Mr. Konopin5ki for $150.00 to represent him in the expungcmem of a criminal record and hiled to take any aaion; and when, in November, 1998, he was again retained by Mr. Konopinili to represent him in a real property dispute for which the attorney received 60% of the requested fee in advance and failed to take action. Model Rule 1.3 requires that a lawyer act with reasonable dili·

011

Professional Conduct.

gence: and promptness in representing a client. 3. That Mr. Meurer's conduct violated Rule 1A(a) of the Arbnm Modd Rules of Professional Conduct, whe:n, despite: nume:rous atte:mpts by Mr. Konopinski 10 COnlllct Mr. Meure:r by tdephone, the client was unable to communicate with Mr. Meurer; and when, on March 24, 1999, Mr. Konopiruki sent Mr. Meurer a certified letter to communicate with Mr. Meurer and the letter was remrn 10 Mr. Konopinski, ·unclaimed~. Modd Rule IA(a) requires that a lawyer keep a client reasonably informed about Ihe statUS of a mailer and promptly com· ply with reasonable requests for information. WHE.REFORE, it is the decision and order of the: Arbnsas Supreme Court Committee on Professional Conduct that ROBE.RT FUllER MEURER, Arkansas Bar JD 185108, be. and hereby is, SUSPENDED for TWO YEARS for his conduct in this maner. The: suspension Iihall become effective as of the date of the filing of this Order with the Clerk of the: Arbnsas Supreme Court. Robert Fuller Meuru S<u<y, AR October 22, 1999 The formal charges of misconduct upon which this Orde:r is bued arose from the complaint of Deborah Mosley. Ms. Mosley rt.Wned Robert Fuller Meurer, an attOrney primarily practicing in Searq, White County, Arkansas to appeal the White County Chancery judge's adverse decision rendcmi Jun~ 24,1997, regarding the custody of her children. Ms. Mosley paid Mr. Meurer $3,500.00. On July 7, 1997, Mr. Meurer timely filed the notice: of appeal with the White County Circuit Oerk. Ms. Mosley subsequently atte:mpted to contact Mr. Meurer on the status of her appeal with lircle success. Ms. Mosley was once rold by Mr. Meurer that he:r appeal was pending in the Arkansas Coun of Appeals. Later, Ms. Mosley phoned Les Steen, Clerk of the Arkansas Court ofAppeals, and discoverc:d no appeal was filed. As of March 23, 1999, no appeal hu been filed. Mr. Meurer was personally served with a copy of the Formal Complaint, pursuant to Section 5E, Procc:dures of the Arkansas Supreme Court Regula[ing Professional Conduct of Attorneys at Law (Procedures), u revised January 15, 1998. Mr. Meurer failed to respond to the Complaint. His failure to respond timdy to the: Complaint constitutes admission of the factual a1lev-tions contained in the Complaint pursuant to Section 51(4) of the Procedures. Upon consideration of the: formal complaint, the hilure to file: a response herein and the Arkansas Modd Rules of Professional ConduCl, the Committee on Profeuional Conduct finds: 1. Thai Mr. Meurer's conduct violated Rule 1.3 when he accepted a $3,500 retainer to appeal his cliem's case of an adverse child cw[ody decision by the White County Chancery Judge and then did nOt appeal th~ decision. Other than filing the norice of appeal, Mr. Meurer took no funher action, i.e. ordering the transcript, lodging the transcript and filing the nc:eeswy briefs or motions to perfect Ms. Mosley's appeal. Modd Rule 1.3 requires that a la~r act with reasonable dili· gence: and prompmeu in representing a client. 2. That Mr. Meurer's conduct violated Rule 8A(d) of the Arkansas Modd Rules of Professional ConduCi when he failed to perfect and file the appeal of his client, Ms. Mosley. His fail· ute effectively denied her right to appeal the adverse child cwtody decision of the White County Chancery CoUrt. Modd Rule: 8A(d) States that it is professional misconduct for a lawyer to env-gc in conduct that is prejudicial to the administt1ltion of justice:. WHEREFORE, it is the: decision and order of the Arkansas Supreme Court Committee on Professional Conduct that ROBERT FULLER MEURER, Arkansas Bar JD 185108, be, and hereby is, SUSPENDED for ONE YEAR for his conduct in this matter. The suspension shall become effective as of the date of the filing of this Order with the Clerk of the Arkansas Supreme Coun. Funher, pursuant to Sections 51(1) and 8A(2) of the Procedures of the Arkansas Supreme Coun Regulating Professional Conduct ofAnorneys at Law, it is the decision and

til\\ ~l·'· IIisl'iplinill'~ order of the Commincc that Mr. Meurer be. and hereby is, fined in the amount of 5250. The fine is imposed as a sc:par.He sanction for Mr. Meurer's failure to tClipond to the complaint. Tunothy D. Williams Cooway,AR October II, 1999 The formal charges of misconduct upon which this Order is ba.sed uose OUt of information provided by Lawrence Delp, a fonner clienl ofTImothy D. Williams, a lawyer practicing in Conway, and information derived from a compilation of the trust accoUnt records of Mr. WLlIia.rns from April 1997 through the end of February 1998. On April 17, 1997, Mr. Delp forwarded to Mr. Williams a cashier's check in the amount of $3,000. The funds were sem to Mr. WiUiams so that he could remit them to Capital One to sc:nIe a deln owed by Mr. Ddp. Mr. Ddp undemood from Mr. Williams that a .sctdement had hccn f'Cl.ched during his negotiations with an agent for Capital One to rrouce the debt owed to a total amount of 53,000. Mr. Williams does not dispute that he represented Mr. Ddp but he advises that me time period of representation was not just a few months, as asserted by Mr. Delp, but ramer lasted from MIfdl, 1995, through May, 1997. In addition to the S3,000 sent to Mr. Williams during April of 1997, Mr. Delp also remilled to Mr. Williams a check in the amount of SSOO for paymenl of his attorney's fees in the matter. Shortly after the money W2I rcmilled to Mr. Williams, Mr. Ddp learned from agents of Capital One that no one from their organization had hccn able to get in louch with Mr. Williams. Mr. Delp contacted Mr. Williams on numerous occa.sioru after paying the funds to him and was repeatedly advised that Capital One would not cooperate with his anempts to compromise. The rrw:t accounl records demonstr.lte that the S3,000 wall removcd from the account by Mr. Williams on May I, 1997. Mr. Delp was not aware of this &Ct. Mr. Williams did assert that Mr. Delp agreed to the $3,000 being used for payment of his feu if Capital One did not agree to me sc:nIement offer. There is no documentation to establish that there was such an agrttmenl between Mr. Williams and Mr. Delp, and Mr. Delp denies the same. Aher severa.! months, Mr. Williams quit responding to Mr. Ddp's telephone calls and messages. Mr. Delp even wrote Mr. Williams on numerous ocx:ouions but Mr. Williams did not respond to the correspondence either. Finally during September of 1997, Mr. Ddp was able to reach Mr. Williams by telephone. Mr. Delp was upset at the lack of action :lJld communication with Mr. Williams :lJld advi.scd h.im of the same. Mr. Williams assurro Mr. Delp that he would handle the sitw.tion within the n(:l:t Wttit. That was the last communication that Mr. Delp had with Mr. Williams despile repeated attempts to contaCt him. During Augwt of 1998, Mr. Delp learned that Capital One had a judgment enterro agairut them. Mr. Delp knew nothing of Capital One even pursuing legal action against him. Mr. Williams had nC\'Cr advised him ofthis fact. Mr. Williams docs not address this marcer in response to the Committct. Upon consideration of the formal complaint, the response thereto:lJld the Arkansas Model Rules of Professional Conduct, the Commincc on Professional Conduct finds: I. That Mr. Williams violated Modd Rule 1.3 because during the emire time of his representation of Mr. Delp in connection with the debl owed to Capital One, he F.ailed to lake any timely action on Mr. Delp's behalf. Model Rule 1.3 requireJ thaI a lawyer act with reasonable diligence and promptness in representing a c1iem. 2. That Mr. Williams violated Model Rule 1.4(a) since, despite Mr. Delp's repeated requests for information concerning Ihe natus of payment to Capital One, he failed to provide any information to Mr. Delp in that regan:!. Modd Rule lo4(a) requires thaI a lawyer keep a client reasonably infonned aboUI the Jl2!W of a maner and promptly comply with reasonabk requests for information. 3. That Mr. Williams violated Model Rule 1.I5(a), to wit: (I) Although the funds Mr. Ddp scnt to him were for payment to Capital One, he deposited the funds and then wrote check 10232 to himsdfin the same amount of those funds 1C\'e:n days bIer with the memo line on the check denoting "LD."; and (2)

\l't inns

Since the funds provided by Mr. Delp to him for payment to Capital One ....ere ncvtt paid to Capital One, the minimum balance in his trun account should have hccn, al all times following deposit, 53,000 or above; however, from Dcc:cmber 9, 1997, through February 28, 1998, the balance in his trUSI account was below $3,000. Model Rule 1.15(a) requires. in pertinent pan, that all lawyers hold property of clients or thin:! pcrsoru that is in a lawyer's possession in connection with a representation separate from the la.wyer'. own property, with fund. ofa client being deposited :lJld maintained in one or more identifiable rrw:t accounts in the state where the lawyer's office is sit~,<d.

4. That Mr. WillWns violated Modd Rule 1.15(b) when he did not notify the agent for Capital One of his receipt of the funds; when he F.ailed to promptly deliver the funds to Capital One for scttlement of Mr. Delp's outstanding account after rccciving them. from Mr. Delp; when he failed (0 return the funds which Mr. Ddp enuusted to him for payment to Capital One despite Mr. Delp's numerow requests that he return the funds since they had not been delivered to Capital One; and, when he f7.iled to provide :lJl accounting of the funds to Mr. Delp after his several requests for such an accounting. Modd Rule I.lS(b) requires, in pertinent pan, that upon receiving funds in which a client or third penon has an interest. a lawyer promptly notify the client or third person; promptly deliver to the client or third person any funds or other property that the client or third penon is entitled to receive; and, upon request by the client promptly render a full accounting regarding such property. 5. That Mr. Willianu violated Model Rule 1.16(d) by fail· ing to return the $3,000 entrusted 10 him mer he was notified by Mr. Ddp that his representation of Mr. Delp in the matter with Capital One was lerminated. Modd Rule 1.I6(d) requires, in pertinent part, that upon tctmination of represen· tation, a bwyer taU Steps to the extent reasonably practicable to protect the dient's interests, such as surrendering property to which the client is entitled. 6. That Mr. Willianu' conduct involved dishonest and deceit in violation of Model Rule 8.4(c) by his continued actions in leading Mr. Ddp to believe that he had the funds entrusted to him and that he was continuing to try to settle mitten with Capital One. Model Rule BA(c) requires, in pertinent pan, that a lawyer nOt engage in conduct involving dishonesty or dccciL 7. That Mr. Willianu' failure to act on Mr. Ddp's beha1fin scalemen! of his account with Capital One, resulting in Capital One obtaining a judgment against him which appears on his credit reportS and has complicated his attempts to purchase property for his family, violated Model Rule 8.4(d), which requires that a lawyer not engage in conduct that is prejudicial to the administration of jWlice. WHEREFOR£, it is the decision :lJld on:!er of the AzkansaJI Supreme Courl Committee on Professional Conduct that TIMOTHY D. WlWAMS, Arkansas Bu 10 1175140, be, :lJld hereby is, SUSPENDED for a period of one (I) year for his conduct in this maner. The swpension shall become dfectivc as of the date of the filing of this Order.

)anuuy, 1998, from an agent of the insurance company that it was unable to contaCt Mr. Hall abo. ~u. Parks: finally hirro another lawyer to assist her in her legal marcer but she was unable to provide her new lawyer with certain rdated documentation because Mr. Hall did not return those documenu to Ms. Parks after his services were terminated. Mr. Hall was served with a copy of the Formal Complaint by certified mail on March 3, 1999, pursuant to Section SE. Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures), as revised january IS, 1998. Mr. Hall failed to respond to the Complaint. His failure 10 respond timely to the Complaint constirutes 2dmission ofthe F.acrual allegations contained in the Complaint pursuant to Section 51(4) of the Procedures. Upon colUideration of the formal complaint and the Azlwws Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Mr. Hall's conduct violated Modd Rule 1.3 by failing to act on behalf of Ms. Pula in a diligent and prompt maner after being retained to represent her in her personal injury matter. Modd Rule 1.3 requires tim a lawyer act with reasonable diligence and promptness in representing adient. 2. That Mr. Hall's conduct violated Model Rule 1.4(a) when, despite numerow wls made by Ms. Parks and her F.ather on her behalf, he failed to comply with their requesu for information concerning what actions he had taken on her behalf in her personal injury matter. Model Rules 1.4(a) requires that a lawyer keep a client reasonably informed about the StilUS of a man:cr and promptly comply with reasonable requesu for information. 3. That MI. Hall's conduct violated Model Rule 1.5(c) since he agreed to represent Ms. Parks based upon a contingent fee agrcc.ment but failed to place the agreement in writing. Model Rule 1.5(c) requireJ, in peronent pan, that a contingent Fee agreement be in writing. 4. That Mr. Hall violated Model Rule 1.16(d) by failing to surrender to Ms. Parks or her F.ather, on her behalf, after his representation of her was terminated, the property to which she was entitled that he wall provided by her. Model Rule 1.16(d) requires, in pertinent put, that upon termination of representation, a lawyer uh Stcps to the extent reasonably practicable to protect the client's interests, such as surrendering papen and property to which the client is entitled. WHEREFORE, it is the decision and order of the Arkanw Supreme Coun Commirccc on Profcs.lional Conduct that TIMOTHY M. HALL, Arkansas Bu 10196043, be, and here-

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Expert Witness NOTICE OF REPRIMANDS TImothy M. Hall Hunuville, AR August 10, 1999 The formal charges of misconduct, upon which this Order is based, arose from the Complaint of San.h Mac Pub. Ms. Parks hirro TImothy M. Hall, an attorney practicing in Hurutville, to punue a claim for pttlOnal injuries as a result of an accident in which she was involved. The agreed upon fcc was for Mr. Hall to receive 25% of:lJlY recovery over 52,000. Mr. Hall did not place the agreement in wrinc.n form although il was contingent in nature. Initially, Mr. Hall made $Orne dforu on behalf of Ms. Puks. In july of 1997, four months after he was hired, Mr. Hall informed Ms. Parks thai no one from the insurance company would return his telephone call•. The con\'Crution wherein Mr. Hall provided dUll information to Ms. Hall was the wt time that she W2$ able to spealr with Mr. Hall despite numerow anempu. Ms. Parks learned in

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til\\ )1'1' by if, REPRIMANDED for his conduct in this matter. Further, pursuant 10 Sections 51( I) and 8A(2) ofthe Procedures of the Arkansas Supreme Court Regulating Professional Conduct ofAttorneys at Law, it if me decision and order of the Committee mat Mr. Hall be, and hereby if, fined in the amount of1500. The fine if imposed as a separate sanction for Mr. Hall's failure: to respond to me complaint. Said fine to be remitted to the Executive Direaor wimin twenty (20) days of the filing of this Order. Floyd Alford Healy Little Rock, AR September 8, 1999 The formal charges of misconduct upon which this Order is ~ arose: out of information referred 10 the Committee by Honorable Mary Davies Scon, United States Bankruplcy Judge. The informalion penained to Floyd Haly's representation of Raymond Williamson in the bankruptcy maner involving another of Mr. Healy's clienu, Eliubeth Daugherty, me debtor, now deceascd. On Dc:ccmber 2, 1998, Judge Scott enlered an Order finding that Mr. Healy, an attorney practicing in Little Rock, and his client, Mr. Wiliiamson, engaged in condua involving an egregious abuse: of the procedures provided in the Federal Rules of Bankruptcy Procedure. Mr. Healy's actions in the bank路 ruptcy mattel actually began in 1993 when he filed a Chapter 7 bankruptcy petition on behalf of Ms. Daugherty. A few months later, Mr. Healy also filed a bankruptcy petition for VanLee Corporation, which was owned and operated by Ms. Daugherty and Mr. Williamson, who represented at that time thai he had the authoriry 10 file the bankruplcy as the only offi路 cer and shareholder of the corporation. Judge SCOtt set forth the b.ackground induding me condua of Mr. Haly which led to entry of the Order, dated December 2, 1998, and imposition of sanctions. The event which u1timardy led to entry of the Order was Mr. Healy's filing of a Motion to Take a Rule 2004 Examination of Dale Swesc:y, nephew of me deceased debtor. At the hearing on the subsequent Motion to Quash the subpoena of Mr. Swesc:y, Judge Scon asked Mr. Healy for a basis for the examinalion since he did not represent a creditor of the bankrupt estate and had not filed a motion 10 pursue asselS in me stead of the trustee. Judge Scott described Mr. Healy's stalemenu as feeble a1truisms in an attempt to provide a basis for seeking to locate amu. Mr. Haly was unable to state for whom he wished to locate assetS. Ultimatdy, Judge Scon's finding was that Mr. Healy's motion had little 10 do with the b.ankruptcy case and instead was being pursued to gain information for a Iawsuil unmated to the bankruptcy matter and to pursue some form of personal vendetta against Mr. Swesey and the remainder of his family, who were owed a substimial debt by Ms. Daugherty. During the course: of the bankruptcy proccc:ding, Mr. Swesey provided valuable information 10 the uustee in connection with conduct which involved concaling of amlS by Ms. Daugherty. In addition to his ongoing assistance to the bankruptcy UUSlee, Mr. Swc:sc:y had filed a lawsuit, on behalf of his bther, againsl Mr. Williamson and the corpor;tion owned and operated jointly by Ms. Daugherty and Mr. Williamson seeking to collect the debt owed to his parcnu. The lawsuit was uhimate:Iy dismiued because of the cosu involved in pursuing it. Also during April, 1995, there was a hearing concerning discharge of the debtor in Ms. Daugherty's bankruplcy wherein Mr. Swesc:y's testimony provided the basis for denial of the discharge. DwingAugwt, 1997, Mr. Healy filed a lawsuit againsl Mr. Swc:scy on behalf of Mr. Williamson. The complaint filed by Mr. Haly alleged that Mr. Swc:sc:y's 1994 lawsuil was an abuse of process and a malicious prosecution - based on the theory that Mr. Williamson was never rc:a.Uy involved in operating the corporation, Van Lee. This was despite the faa that, in rhe bankruptcy proceeding filed by Mr. Haly on behalf of Van Lee corporalion, Mr. Williamson had bc:c:n lisled as me sole shareholder and operatOr of Van Lee. Mr. Healy admitted filing the lawsuit on behalf of Mr. Williamson, but aplains that he did not allege that Mr. Wtlliamson was not involved in the operation of the corporation, bUI rather, he alleged that Mr. Williamson had not used me corporated entity as an innru-

Ue IrkulIl LIWler Vltli ~I. IlWilter 1000

lIisl'illlinill') \l't inns

mennlity of wrongdoing. Mer being put on notice that sanctions under Rule II, Arkansas Rules of Civil Procedure, would be: pursued, Mr. Healy sought an Order of Dismi.ssal in the law. suit. Mr. Healy explains that it was after discussions with an attOrney for Mr. Swesc:y that the decision was made, mutually, to dismiss me lawsuit filed on behalf of Mr. Williamson, without prejudice. At mal point in October, 1997, Mr. Healy became am-re, or should have bc:c:n aware, of his cliem's improper motives in pursuing lc:gal action against Mr. Swesc:y. According to Mr. Haly, his client continued to insist mal there were useu being held by Mr. Swcsey and his family. Mr. Healy advised his client to take mc:sc: matters up wim the trustee involved in me bankruptcy case. When Mr. Williamson was unable 10 obtain the information that he was seeking from the trUStee, Mr. Haly contacted me trustee on behalf of Mr. Williamson. The bankruptcy trustee filed a final repon and account in the bankruptcy matter which Mr. Healy had filed on behalf of Ms. Daugherty. The repon was filed almost two yean after te Iut of the adversary prottedings to collect ilSSCts had concluded. No objection to the final repon was filed, and ordinarily, the bankruptcy matter would have: bc:cn closed. However, Mr. Healy and his client, Mr. Williamson, filed a motion together for a Rule 2004 examination of MI. Swc:sy's sister, Eliubeth Turney. According to Mr. Healy, it was the bmkrupt<:y trustee ""ho suggested the possibility of taking a Rule 2004 examination of the person that Mr. Williamson thOUghl might be: holding various hidden assets. However, the questions posed during the examination had very little connection wim the deblot's a!SCts. Less than len (l0) days after that examination, Mr. Healy filed his Motion 10 condua a Rule 2004 exammalion of Mr. Swcsey. It was at the conclusion of the hearing to quash Mr. Swesey's subpoena that Judge Scon imposed the sanctions againsl Mr. Healy and his client, Mr. Williamson, jointly and scvcrally. The sanctions totalled S 13,000. Mr. Healy voluntarily paid me sanctions, himself, to me anorney for Mr. Swesc:y, Mr. Swesey md the bankruptcy UWtc:cs. Mr. Healy offered to the Commiuee that he did nOt fed his condua in thc:sc: marn:rs was unreasonable nor did he intend for his conduct to unreasonably multiply any prottedinFfl before Judge Scon. Fumer, he explains that he did not intend to use the Rule 2004 examination to furmer a personal vendetra but implemented its use only after receiving the suggestion from a truStee of the bankruptcy COUrt. In addition, MI. Healy contends that he had no sp芦ifie intenl to harus the Swesey F.unily by any of his actions undertaken on behalf of his dienl. Although he did not intend to violate any of the Model Rules of Professional Condua, Mr. Hc:aly docs accept responsibiliry fol assisting his client in what he now knows to be an -endless crusade~ on Mr. Williamson's behalf to discover asseu of the escue. Upon consideration of the formal complaint, the response rhueto, and rhe Arkansas Model Rules of Professional Conduct, the Committ~ on Professional Conduct finds: I. That Mr. Haly's conduct violated Model Rule 3.1, when he filed a Motion for Examination of Dale Swc:sey in the bankruptcy procc:c:ding pending before Judge Scott without a valid basis for pursuing such an examination; when he unreasonably and vaatiowly multiplied proccc:dinFfl in the bankruptcy matter pending before Judge Scott; and when he filed a civli complaint against Mr. Swesey on behalfof Mr. Williamson a1ltging abuse of process and maliciow prosecution e~n though there was no betual basis for such allegations. Modd Ru!e 3.1 requires, in pertinent pan, mat a lawyer not bring a proceeding, or assen or controvc:n an issue therein, unless there is a basis for doing so that is not Frivolous. 2. Thai Mr. Haly violated Model Rule 3.3(a)(l) when he filed a complaint in 1997 on behalf of Mr. Williamson against Dale Swcsey alleging that he had engaged in an abuse of process and malicious prosecution which was based on a assertion that Mr. Williamson was not involved in me operation of Van Lee despile the bet that the lawyer reprc:semed Van Lee in iu bankroplCY case wherein it was stated that Mr. Williamson had the aUUloriry to file the bankrutpcy case as he was the only officer andsha.rc:holder of Van Lee. Mood Rule 3.3(a)(I) requires, in pertinent pan, thal a lawyer not knowingly make a blsc State:ment of material bct 10 a uibunal. 3. That Mr. Healy violated Model Rule 3.4(e) by using the

Rule 2004 enmination for his own personal vendeua, and the vendetti of his dient, against Mr. Swaq inslc:::;ld of in !Urlherance of the bankrupl<:y procttding and by engaging in actions which were found by Hononble Mary Davies Scott to constiIUle an abuse of the bankrupl<:y rules and procedures. Modd Rule 3.4(c) requires that a lawyer not knowingly disobq an obligation under me rules of a tribunal excq>1 for an open re!Usal based on an amnion that no valid obligation exists. 4. That Mr. Haly's conduct violated Modd Rule 4.4 when he underlook a Rule 2004 examinuion of Eliubeth Turney almough mere was no purpose in furtherance of me bankruplcy protteding for doing so and when he filed a motion seeking to conduct a Rule 2004 Examination of Dale Swesey for the improper purpose of harusing the Swcsey /imily. Modd Rule 4.4 requires, in pertinent pan, that in representing a client, a lawyer nOI use meaN that have no subsl2Juiai purpose other man 10 embarrass, delay or burden a mird person. 5. That Mr. Healy's conduct violated Modd Rule 8.4(d), to wit: (i) his conduct caused the bankruptcy protteding of In Re: Eliubeth Daugheny to remain open when ordinarily it would have bc:cn closed since the trustee had filed the final ~n and account; (ii) the filing ofMotions sc:dcing Rule 2004 examinations required me bankruptcy coun to expend additional time and dfon which Omerwlse would nOI have bttn necessary; and (iii) the timely and orderly administration and resolution of lnnkruptcy matters pending before Judge Scon were delayed by his abuse of bankruptcy procedures. Model Rule 8.4(d) requires mal a lawyt:r nOt engage in conduct mal is prejudicial to me administr.nion of justice. WHEREFORE, it is me decision and order ofthe Arkansas Supreme Coun Comminee on Professional Conduct that FLOYD ALFORD HEALY, Arkanw Br ID '86086, be, and hereby is, REPRIMANDED for his conduct in this matter.

Su.san K. GlllTen Fort Smith, AR September 14,

The formal charges of misconduct upon which this Order is bascd arose: from the complaints of Dennis L Dodd and the Honorable Van Gearheac, Mountain Home Municipal Coun Judge. Susan K. Garrett, an attorney whose: office was located in Fon Smith, Arkansas, was employed to reprc:sent Mr. Dodd in criminal prottedings in Mountain Home Municipa.1 CoUrt, Baxter County Circuit Court, and Taney County, Missouri. Ms. GUIttt and Mr. Dodd enlered into a fee agreement wherein Mr. Dodd agrc:c:d to pay Ms. Garrett 17,500.00 Ms. Garren entered. her appearance in Mr. Dodd's matter in Mountain Home Municipal CoUrt on Dc:芦:mber 7, 1997. Trial was set in the matter for March 10, 1998. Mr. Dodd appeared before me Coun on March 10, 1998, but Ms. Garlttt Failed to appear. Mr. Dodd informed the CoWt that he had bttn unable to contaa Ms. Garrett sino:: his arraignment in the matter. The trial was then continued to April 7, 1998, and Ms. Garrett was so nolified by letter from Judge Gearhart requesting that she inform me CoUrt why she did not appear on March 10. Ms. Garrett failed to respond to me Coun's requesr and failed to appear in coun on April 7. Mr. Dodd also had charges pending in Baxter County Circuit Coun. Mr. Dodd appc:arcd in Ba.ner County Circuit Coun on the date scheduled, but Ms. Garren did nOI. An entry of appearano:: was entered on Dc:cc:mber 18, 1997, by Ms. Garrett with the Baxter County Circuit Coun Oerk. No !Urther activity appc:arcd to have: occurred according to records maintained by the Baxter County Circuit Coun Clerk. Ms. Garrett faiJ.ed to appear at subscquenl heacings, and other counsel was then employed by Mr. Dodd. Ms. Garren responded 10 the formal complaint and stated that Mr. Dodd had contacted her about possible representation regarding the pending charges. Ms. Garrc:u Stated that &he required payment of a $7,500.00 retainer before she would visit with Mr. Dodd and admined that the payment was made in IWO inSlailmenu, 15,500.00 on OCtOhc:r 31, 1997, and 12,500.00 approrimately two weeks later. Mr. Dodd met with Ms. Garren on November 12, 1997, and during the mc:e:ting, Ms. Garrett suggested to Mr. Dodd mat he not discharge the attorney who was representing him al the time in a separate pending matter. Ms. Garren Stated that she would monitor the

Lm )PI' lIisl'illliniln \l't inns crimirul cases as they progressed. Reg:mling the.' Missouri

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lI:r, Ms. G:lTIttt entered an apparamr on Mr. Dodd's behalf and obtained the assisWlCC' of a Missouri anorney, Clifford Crouch. Mr. Crouch, thercaftl.'r, made.' all.appc:annca without Ms. Garren's presC'n« in the.' Missouri manc:r. Ms. Garrett autttcd WI her employment by Mr. Dodd was for the.' purpose of a.ssociaung with his counsd in all mattc:rs in Arkansu and 10 employ courucl for Mr. Dodd on ill manns in Missouri. Upon coruidc:r:uion of formal. complaint, resporuc therelo, and the Arkansas Modd Rules of ProFessional CondUCt. the Committn: on Professional Conduct finds: l. ThaI Ms. Garren's conduct violated Modd Rule 1.3 wMn she failed to akc: any action on her dinu's bdWf in his criminal case in the Municipal Coun of Mounnin Home, Arbnsas. following her cony of ap~ in the mauer, and

me.'

when she.' railed to

any action on bdWfofhc:r client in his

criminal casc in Butet County Circuit Coun following htl emry ofappearance in the mauer. Modd Rule 1.3 requires thai a Lawyer act with reasonable diligence and prompmcss in represC'nting a clic:nt. 2. Th21 Ms. Garren's conduct violated Modd Rule IA(a) when she failed 10 keep Mr. Dodd informed of the starw of his criminal maners. Modd Rule I A(a) requires mat a lawyer keep a client rnsonably informed aboul the Stllrw of a matter and promptly comply with reasonable requests for informacion. 3. That Ms. Garren's conduct violated Modd Rule 3A(e) when she violated the obligation to appear on behalf of her client, Dennis Dodd, on March 10, 1998, in the Mountain Home Municipal CoUrt; when she failed (0 respond to a reqUC5t by the Honorable Van Gearhart to c:xpl...un why she failed to appear before the CoUrt on March I 0, 1998~ and when she violated the obligation (0 appear on behalf of her client, Dennis Dodd, on April 7, 1998, in the Mount...un Home Munieipal Court. Model Rule 3A(c) requires, In pertinent part, that a lawyer not knowingly disobey an obligation under the rulcs of a tribunal. 4, That Ms, Garrett's conduct violated Modd Rule 8.4(d) by her failure (0 appear on the date and at the time SCt by the Mountain Home Municipal Court, which resulted in dday of the orderly and timdy resolution of matters before the Coun. Modd Rule 8A(d) Stlltes that a lawyer shall not engage: in conduct that is prejudicial to the administration of justice. WHEREFOR£, it is the decision and order of the Arkansas Supreme Court CommittC': on Professional Conduct that SUSAN K. GARRElT, Arkansas Bar 10 196122, be, and hereby is, REPRIMANDED for her conduct in this mautt. VirgioJa J. Kinkead Little Rock, AR Sq.tembcr 14, 1999 The formal charges of misconduct upon which this Order is based arose: from tnc complaints of Jeannine Mathis and Carol Counts. M.$. Mathis and. Ms.. Counts an: sisters-in·law of Virginia J. KinKnd, an attorney formerly of Link Rock, Arkansas. In 1986, Harrold Kinlu:ad obl2irKd propm)' from a panition action involving his brothen and sisters. In 1987, Harrold Kinkead, the f.ather of Ms. MadUs, ,...ts. Counts and Ms. Kinkead's husband, rUed suit against his brothers and sisten to obtain accc:ss to his property obuined in the: 1986 partition action. The anomey for Harrold Kinkead was Virginia J. Kinkead. Complaint.'l' wc:rc brought into the matter as thirdperty dcfcndant.'l'. The partition maner ended in 1989 with the granting ofa directed verdict in f.avor of the brothers and sisters of Harrold Kinkead. In 1993, Harrold Kinkead died. Under temu of his will, Robert Kinkead, Virginia's husband, was disinherited. Virginia Kinkead filed an Affidavit to Claim Against the Estate of Harrold Kinkead for the scrvices rendered in the 1987 partition action in which she represented Harrold Kinkead. During the pendency of Harrold Kinkead's probate maner, Virginia Kinkead filcd a quiet title action on behalf of her and her husband and against the Esute, Ms. Mathis and Ms. Count.'l'. Robert and Virginia Kinkead alleged in the Petition to Quiet Tide that they had demonstrated adverse: possession to IWO acres of property that Harrold Kinkead obtained in 1986. The twO acres to which Mr. and Mrs. Kinkead alleged adverse possession was the same property in which Ms. Kinkead had represented Harrold Kinkead in his efforts to

obtain in his b.wsuit filtd in 1987 and concludtd in 1989. In the probate maner, a hearing was hdd on Ms. Kinkead's claim for SCrvK:cs n::ndered in the: 1987 litigation. Following the hearing. the Probate Court enrered an Order finding mat Ms. Kinkead had failed to sustain her burden of proof in cstablishing an employment contnct and imposed smttions in the amount of $750.00 in attorney's fees and COSts in the amount of $ 162.33. Ms. Kindcad appealed the maner to the Arkansas Court of Appc:a1s where the Probate Coum findings wen:: affirmed but the imposition ofsanctions wen:: reversed. M.$. Kinkead responded to the disciplinary complaint and stated that she and her husband, Robert, purchased IWO acres of propcny adjacent to Harrold Kinkead's property foUowing the senlemem of her father-in-Iaw's partition action in 1986. No cascment was provided in the dc:c:d to the propm)' of Robert and Virginia for Harrold to aca:ss his property acros.s theirs. A road was constructed on property adjoining the property belonging to Harrold Kinkead and Robert and Virginia Kinkead. The owners of the adjoining tract constructed a fence which denied Harrold access to the road. M.$. Kinkead stated that Harrold did not want to access his property through her and her husband's property as they had made improvcmenu to their property. Harrold Kinkead asked Ms. Kinkead to approaeh the property owners who had constructed the road and reqUCSt permission 10 access his property via the road. That reqUCSt was denied. According to Ms. Kinkead, Harrold was informcd that there was a potential conflict as any apposing partics would argue that access should be obt...uned over her and her husMnd's property. M~. Kinkead stated that she preferred that Harrold access his property through the newly constructed road but she did not undertake the representation of Harrold Kinkead to prevent him from suing her and her husband for access to his property. According to Ms. Kinkead, whether she was claiming adverse possession of the property had no bearing on her representation of Harrold Kinkead and did not materially limit her representation of him. Regarding the allegalion (hat she and her husband were a.sscning an adverse possession claim while at the same time representing Ms. Mathis and Ms. Counts as third-parry defendants in the panition action, Ms. Kinkead stated that the third-JWtY complaint did not concern the rwo acres to which she and her husMnd wen:: asserting on their cl...um but instead involved a CrossIndemnity and Further Assunnce Agrcc:ment which was signed in a prior panition aerion. Ms. Kinkead Stated thac she and her hwband had the same interests in the maner as M.$. Mathis and Ms. Counts and it would have been almost impouiblc to settle that casc in a diffen::nt manner for each third-party defendant. Upon consiclcr-nion of the formal complaint, the response thereto, and the Arkansas Modd Rulcs of Professional Conduct, the Committee: on Professional Conduct finds: I. That M.$. Kinkead's conduct violued Modd Ruk 1.7(b) when.she: represented Harrold Kinkead, hc:r f.ather-in-Iaw, in an aerion involving a tract of propm)' in which she: and. her husband were simultaneously asserting an advcrsc possession claim against her f.ather-in-Iaw; and when die rcprcscnttd Ms. Mathis and Ms. Counts as third-party defendants in an action involv-

ing the:ir interest in the property in which she and her husband wen:: asserting a claim ofadverse possession. Model Rule 1.7(b) requirc:s, in pertinent pan, mat a lawyc:r shaU not n::present a client if chc rcpresentlltion of mat client may be marerially limited by the lawyer's own interests, unless the: lawyer rnsonably believe5 the representation will not be advcrsdy affected and the cliem consents after consultation. WH EREFOR£, it is the decision and order of the Arkansas Supn::me CoUll Committee: on Professional Conduct mat VIRGINIA J. KINKEAD, Arkansas Bar ID 183100, be, and here:by is, REPRIMANDED for her conduct in chis matter. Reginald SheltoD McCullough Lime Rock, AR Septe:mber 17. 1999 The formal charges of misconduct arose from the Arkansas Supn::me Court case of Antonio Aytn Il. Su" of MA'IWU, CR97-368. Reginald Shelton McCullough, an attOrney practicing law in Little: Rock, Arkansas, was held in contempt of the Supreme Court of Arkansas for his conduct in the appellate procttding. The Contempt Order was based upon Mr. McCullough's failure to file his client's brief on or before the final cuension date of March 25, 1998. On April I, 1997, Mr. McCullough filed the tnnscript with the Arkansas Supreme Court Clerk in case number CR97368 on behalf of his client, Antonio Ayers. When the appeal process began, Mr. McCullough had an associate, Gail Anderson, who was assisting him in Mr. Ayets' appc:aJ and was responsible for briefing the case for appeal. On May 9,1997, Mr. McCullough filed a Motion for Extension of Time to File Brief which was granted by the Court giving Mr. McCullough until June 25,1997, (0 file Ihe brief. Mr. McCullough did not do 50. A second Motion for Extension of Time was filed on June 24, 1997. Nine days later, Mr. McCullough requested a third extension of time in which to file his client's brief. After receiving Ihrcc. atensions, Mr. McCullough filed a brief on be:half of his client on Septe:mber II, 1997. Mr. McCullough explained that the extensions were required primarily due to length of the record and the natun:: of the charge. Thereafter, on Septembc:r 29, 1997, a Motion was filed on behalf of the state requcsting that Mr. McCullough be dirrctc:d to comply with the requirements of Supreme CoUrt Rule 4-3(h). The requCSt was made: bc:cause the abstl1lct of the record Mr. McCullough presemed in me brief was deficient. The Coun granted the: Motion and a new briefing schedule was delivered advising that the deadline for the: filing of Mr. McCuUough's corrected brief in compliance with Rule 4-3(h) was November 15,1997. Mr. McCullough did not men mat deadline:. On February 4, 1998, eighty one (81) days after the corrected abstract and brief wen:: to be: flied, the Oen: of the Supn::me CoUrt wrore to Mr. McCuUough to inquin:: as to the statuS of the corrected brief. According to Mr_ McCullough, the fxt that the ab.'l'tl1lct was deficient was not broughr to his attention until his rccc:ipt ofl.c:slie Stccn's correspondence dattd February 4, 1998. Whcthc:r Ms. Anderson, the associate responsibk for

Accountant/Economic Analysis oBusiness Valuations oPersonal Injury Damage Analysis oDivorce (Property & Child Support Issues)

Court-Appointed Richard L. Schwartz Certified Public Accountant Certified Business Appraiser Certified Fraud Examiner

Regular Court Appearances 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 Phone: (501) 221-9900 Fax: (501) 221-9292

email: schwartz@busvalu.com

fol, li 10, I/lfiller 2000

till' )'(11' mis appc.u, was awuc of the: dc:ficic:m abstract is not something Mr. McCullough knows. By the: time: he: learned of the: deficient abstract, Ms. Anderson had departed his firm. Mr. McCullough respond<,;d by filing a Motion for Further Extension on February 17, 1998. The exlcnsion was requested so that Mr. McCullough could collect the: file and other materiaL; thai would be nerocd to addras the ddlciencies of the abstract. The request was for an extension until March 6,

1998, hut ins[~d of filing a brief on March 6, 1998, Mr. McCullough filed another Motion for Extension cflime to file the: carcreted brief. The MOlion was granted. In the Per Curiam granting the Motion, the Court directed that March 25, 1998, was me final (ncosion date. Mr. McCullough did not file the brief on or lxforc: March 25,1998. During much of the time: period covering this appeal, Mr. McCullough averred that he was dealing with certain personal and health related issues which caused some of the delay in this maner. Based on Mr. McCullough's f.Lilure to file the brief, the show cause order was issued. Mr. McCullough appeared at the hearing on May 14, 1998, and entered a plea of guilty to contempt. After Mr. McCullough entered his plea of guilty, he was fined $250. Mr. McCullough explained to the Comminee that he has a new uOfCounsel Associate~ who deals only with matters of appeal and handling "paper overflow~. It is Mr. McCullough's belief that the new associate and the new procedures implemented in his office will cause the matters complained of herein not to occur again. Upon consideration of the formal complaint, the response thereto, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. McCullough's conduci violated Model Rule 1.3, by failing to submit any brief on his client's behalf from May 9,1997, until Septcmber II, 1997; by failing to takc any aaion in his client's appdlate proceeding from Seplember 11, 1997, umil February 7,1998; by failing to file a brief in compliance with Rule 4-3(h) of the Rules of the Supreme Coun on or before November 15, 1997; by f.Liling to file a corrected brief on March 6, 1998; by f.Liling to file Ihe corrected brief on or before the final extension dare of March 25, 1998; and by failing to file his client's brief until May 6, 1998. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in represeming a client. 2. That Mr. McCullough's condua violated Model Rule 3A(c), by submitting a brief and abstnct on behalf of his client which failed to comply with the obligations of Rule 4-3(h) of the Supreme Court Rules; by failing to comply with me Supreme Court'S instruction to file a corrected brief in compli路 ance with 4-3(h) on or before November 15, 1997; and by failing to comply with the Supreme Court's Order of a final extension until Ma.rclt 25. 1998, 10 file his client's brief. Model Rule 3.4(c) requires, in pertinent pan, dlat a lawyer not knowingly disobey an obligalion under the rules of the tribunal. 3. That Mr. McCullough's conduci violated Model Rule B.4(d), to wit: (i) HiJ f.Lilure to comply with Rule 4-3(h) of the Rules of the Supreme Courl crealed the necessity of the Court to consider and rule on a Motion reque!iting that he be required to so comply; (ii) His fiUlure to initially comply with Rule 43(h) necessitated a new briefing schedule be prepared to allow Mr. McCullough 10 eomply with the Rule; (iii) The Supreme Court was required to schedule and conduct a show causc hearing becaUlie of Mr. McCullough's f:tjlure to hccd the order of final extension; (iv) The orderly and timely administration and resolution of appellate proceedings were delayed by his failure to timely file a corrected brief complying with Rule 4-3(h); and (v) The Court was required to expend additional time and effon which would nOt have been necessary except for his failure to file any brief on his cliem's behalf umil SeptCInbcr 11, 1997, and his failure to rimely file a corrected brief complying with Rule 4-3(h). Model Rule 8A(d) requires that a lawyer not engage in conduct that is prejudicial {Q the adminiSlration of jUlitice. WHEREFORE, it is the decision and ordet of the Arkansas Supreme Coun Comminee on Professional Conduct that REGINALD SHELTON MCCULLOUGH, Arkansas Bar ID #85102, be, and hereby is, REPRlMANDED for his Conduct in this maner.

The ,lrkaom I,awjer

fol, 3i 10, I/lfioler 2000

IIisriplillill) ,\l't inns

Reginald ShdlQn McCullough Little Rock, AR ScplC:mbcr 17, 1999 The formal charges of misconduct upon which the Order is based arose out of informarion rcferr~d [Q the Committee by Honorable Henry Woods, Unired States Districi Judge, Eastern District ofArhn$a.s. The information pertained to Reginald S. McCullough's representation of the plainriffs. Rickie and Mary Jones, in a civil proceeding in Judge Woods' Coun. Reginald S. McCullough is an attorn~y practicing law in Liul~ Rock, Arkan$a.s. On December 27, 1996, Mr. McCullough commenced a lawsuit on behalf of Mr. and Mrs. Jones. Six defendants were named in the lawsuit: Steak-Out Franchisc, Inc.; Karlonda Henderson; Officer Brandford; Officer McDonald; Detective Goecke; and the Ciry of Linle Rock. Mr. McCullough n~~r causcd Karlonda Henderson to be served with the Complainl so she was dismissed out of the lawsuit. In May, 1997, Judge Woods caused a Scheduling Order to bc filed in the lawsuil. Thereafter, Steak-Out Franchisc filed a Motion for Summary Judgment to which Mr. McCullough did not re!ipond. That resulted in an Order being entered granting the Motion. Counsel for th~ remaining d~fendants, Anthony W. Black. filed and scrved discovery pleadings on Septembet 29. 1997. Mr. McCullough did not timely respond to these requests nor did he ever requesl an extension of time in which to respond. Mr. McCullough main rained that he was unable [Q respond because he was unable [Q obrain the nceded information from his clients. Mr. Black also informed Mr. McCullough that he wamed to deposc Mr. McCullough's clients. Since no date could be agreed upon between Mr. McCullough and Mr. Black, a Notice of Deposition was filtd by Mr, Black sctting the de?Q" sitions for October 16, 1997. Mr. McCullough desired [Q have th~ d~positions rescheduled but did nOI provide Mr. Black with wriuen confirmation of a date cenain for rescheduling, and so the depositions remained scheduled for October 16. 1997. N~ither Mr. McCullough nor his cli~nlS appeared for the depositions at the designated time and place. Mr. McCullough explained that they were not presem because they beli~ed the depositions had been rescheduled. Beause of the failure to appear for the depositions at the designated time and place, a Morion for Sanctions was filed by the d~fendants. On the same day he filed the Marion for Sanctions, Mr. Black also filed a second Notice of Deposition. Bec:tusc of the impending depositions, Mr. Black nceded the responded to th~ discovery requestS and advised Mr. McCullough of the same. Only partial re!iponsa were tendered by Mr. McCullough. No compl~t~ responses were ever fil~d. As a result of the failure. a Motion to Compel was filed. The Motion to Compel was referred to Magistrate Judge Jerry w. Cavanaugh for disposirion. Judge Cavanaugh only had the Motion to consider when making his decision becausc Mr. McCullough did not respond. Th~ Order entered by Judge Cavanaugh required that Mr. McCullough's clienu provide th~ requested information on or before December 7, 1997. There was no compliance with Judge Cavanaugh's Order. Based upon the lack of compliance, a second Motion for Sanctions was filed. No re!iponsc to this Motion was filed either. Sanctions were assessed as a re!iult of both MOlions. Payment of the ordered monetary sanctions was not made. so a hearing was scheduled for January 6, 1998. During the hearing Mr. McCullough acknowledged his lack of responsiveness in the case. Mr. McCullough also offered several faCtors to demonstrate mitigation. Mr. McCullough affirmatively staled at the hearing th:u he was caking positive sleps to remedy his situation. Following th~ show cause hearing. Judge Cavanaugh's decision. among other things, referred this marter to the Arkansas Supreme Couf[ Commitlee 011 Professional Conduct. As he explained to Judge Cavanaugh and to the Committee, Mr. McCullough asserts thar during this period of time, he had many personal and professional issue!i to deal with and, therefore, did nor have the ability, time and money to fully address the case. Consequently, and with the agreement of his clients, the lawsuit was nonsuited. Upon consideration of the formal complaint, the response thereto, and the Arkansas Model Rules of Prof~ssional Conduct, the Committee on Professional Conduct finds: I. Thai Mr. McCullough's conduct violated Mtxlel Rule

1.1 when he failed to comply with the Scheduling Order filed by Judge Woods; when he failed to respond to the Morion for Sanctions filed October 20, 1997; when he failed ro thoroughly respond to the Interrogatories propounded to his clients on September 29, 1997; wh~n he failed to respond on behalfof his clients 10 the Requests for Production, the Motion to Compel filed November 10, 1997, and th~ Motion for Sanctions filed December 10, 1997; and when he failed (Q comply with Judge Cavanaugh's Order. Model Rule 1.1 requires, in pertinent part, that a lawyer provide competent representation to a client, including th~ tholOughm:ss and preparation reasonably necessary for the represent:ltion. 2. That Mr. McCullough's conduct violated Model Rule 1.2(a) since his clients, Rickie and Mary Jone!i, desired 10 pursue all r~medies available to them in the federal litigation but he failed to rake any action 10 actively pursue those remedies aft~r th~ filing of th~ Scheduling Ord~r by Judge Woods on May 12, 1997. Model Rule 1.2(a) requires, in pertinent pan, that a lawyer abide by a client's decisions concerning the objectives of represc:ntation and consult with the diem as to the means by which they arc to be pursued. 3. That Mr. McCullough violated Model Rule 1.3 by failing to respond to the Morion for Summary Judgmem filed by Sreak-Out Franchise, Inc.; by failing to cause scparate defendant KarlonJa Henderson to be timely scrved with the complaint; by failing to dilig~ntly and promptly provide complete responses on behalf of his cliem to interrogatories propounded to them; by failing to respond to Request for Production propounded to his c1iems; by waiting ulllil the day before scheduled depositions to file a Motion to Quash the depositions; by failing to respond to the Motion for Sanctions filed October 20, 1997; by failing to appear for scheduled d~positions; by failing to respond to me Modon to Compel; and by failing to respond to th~ Morion for Sanctions filed on Decembcr 10, 1997. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a c1iem. 4. That Mr. McCullough's conduCI violared Model Rule 3.4(c) when he did not comply with the Scheduling Order; when he did not comply with Rule 4(m) of th~ Federal Rules of Civil Procedure resulting in Karlonda Henderson being dismissed as a defendam in the litigation; and by not complying with Judge Cavanaugh's Order compelling respon~ to the discovery requests. Mtxlc1 Rule 3.4(c) requited that a lawyer nor knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an asscrtion mat no valid obligation exists. 5. That Mr. McCullough's conduct violated Modd Rille 3.4(dl in that he failed to fully 2nd completely respond to the Interrogatories propounded to him as counscl for the plaimiffi, and he failed to provide any responsc to the Request for Production of Documents. Model Rul~ 3.4(d) requires, in pertinem part, that a lawyer not, in pretrial procedure, fail (Q make reasonably diligent effon 10 comply with a legally proper discovery request by an opposing parry. 6. That Mr. McCullough's conduct violated Model Rule 8A(d) to wit: (I) his failure to cause Karlonda Henderson to be scrved with the complaint resu.lted in her bcing dismissed from the lawsuit; (ii) his failure to respond to defense counsel's Interrogatories and Request for Production of Documenu resulted in me filing of a Motion to Compel and a MOlion for Sanctions, both of which had to be ruled upon by the Court; (iii) the orderly and timely administration and resolution of proccc:dings in federal coun were delayed by his failure to timely rake rnj,uired action on behalf of his clients; and (iv) his failure to rake rnj,uircd action on behalf of his clients and also his dilatory practices required Judge Woods and Judge Cavanaugh to ex~nd additional time and efforr on the proceeding which would nOl have been necessary otherwise. Model Rule 8A(d) tnj,uires rhat a lawyer not engage in COndUCI that is prejudicial to the administration of justice. Further, the Committcc finding goo<.l cause therefor and believing that a probationary period would be an appropriate condirion of the disciplinary sanction while at the same time serving the I~gitimat~ int~resu of the profession, Mr. McCullough and his clients, caused me Comminee's staff to consult with Mr. McCullough and his counscl as contemplated by Section 7E(7), Procedure!i of the Arkansas Supreme CoUrt R~gu[ating Professional Conduct of Attorneys at Law

(Procedures). Mr. McCullough's consent to probation and the conditions theteof arc evidenced by his signalUrt' appearing in the Rapondent's Consent 10 Probation and Conditions of Probation appcndro to Ihis Order and made a part hereof by «f=n~.

WHEREFORE, il is the decision and order of the Arhnsas Supreme CoUrt Commintt on Professional Conduct tholt REGINALD SHELTON MCCUlLOUGH, Arbnsas Bar ID 185102, be, and hereby is, REPRIMANDED for his conduct in this matter. Funher. pursuant to Section 7E(7) of the Proc«lures, Ihe Comminee, with Ihe wnnen consenl of Mr. McCullough. places him on probation for a period of one (I) year. The imposition of probnion is being utilized concurmuIy with imposition of the rrprimand. Mr. McCullough is therefon: ordered, as a probationary condition of his reprimand, to obtain the agrecmcnt of another lawyer. acceptable 10 the Committee, 10 supervise. monitor and iISIlist him as n-quimi to fulfill the condilions of probation. The probationary condilions directro by the Comminee and SCI OUt in the anachro Consent to Probation and Conditions of Probation shall be effective, and the probation.ary term shall commence on Ihe due of the filing of this Order.

Ray Eugene Hartenstein LilLie: Rock and Conw:ay, AR September 21,1999 The formal charges of misconduct upon which this Order is based arose from the complaint of Odes D. lolben. Roay E. Hartenstein. an anomey practicing law primarily in Little Rock and Conway. was employed to represent Mr. Tolbert in POSIconviction proceedings. On October 4, 1996. Mr. Tolbert was convicted at a jury lrial of four counts of violating ~riOU5 provisions of the Arkansas Criminal Code and rcceivro an aggregate sentenCe of 600 months imprisonmem. Mr. Tolbert desired to appeal his conviction and sente.nce but the attorney who represented him al trial, Frank Shaw, advised him that he would not rt'presem him on appeal. Based upon Mr. Shaw's suggestion, Mr. Tolbert contaCled Mr. Hartenstein who agreed to represent him in pur· suit of his appeal. Following entry of the Judgment and Commitment Order, Mr. Shaw was rt'licved and Mr. Tolben filro a pro se Norice of Appeal Mr. Tolbert's f.unily paid Mr. Hartenslein's fee. During January of 1997, Mr. Hartenstein filro an Affidavit in Suppo" of RLquest 10 Proceed In Forma Pauperis which Mr. Tolbcn had complctro at Mr. Hartenstein's requesl. Shortly after filing the affidJ.vit. Mr. HartctUtein filed a Motion for Extension of lime 10 File Transcripl which was grant«l Ihe same dJ.y it was filro. The $ute of Arbnsas was requirtd to pay the Court Ikponer for Ihe lranscripl after the Circuil Judge ememi an Order declaring Mr. Tolbcn indigent. Wh~n preparation of the transcript was complete, Mr. Hartenstein Iodgcd the with the Supreme Coun Ocrk. Mr. Tolben bc:licvc:d at Ihis time mat Mr. Hartenslein was pursuing his appcal. The day after Mr. Tolbcn's brief ~ due, a Motion 10 Dismiss Appeal was filed by Mr. Hartenstein. The MOlion advised the Coun that afier n:viewing the lnJUCripl, a determi· nation had been made to initially seck rt'lief pursuant 10 Rule 37 of the Arkansas Rules of Criminal Procedure ralher than by appcal. Mr. Tolbc:rt did not IC'CCivc a copy of the MOlion until after it was filrd. Although he was uncern.in about dismissing Ihe appeal, he went along with Mr. Hartenslein's advice. Afier the Motion 10 Dismiss was filro, Mr. Tolbc:rt was unsuccessful in his anempu to communicate with Mr. Hartenstein. Mr. Hartenstein explainn:l Ihat since MI. Tolbert ~ required to call collect, he was unaware if he had callro because his answering service and/or mC$$;lge machine will not accept collect calls and will not disclose who is trying to call. The lawyer does not mention whether he had regula!" office hours during which incoming telephone calls arc Iake.n by him or office staff. Mr. Hartenstein also Stated that he sJ>Cnt more time explaining circumStances oflhe case with Mr. Tolbert than any other dient he can recall in the past few yeaTS. However, Mr. 'Iolbcrt did not learn that Mr. HartcnSlein had not f11ed a Petition for Rule 37 relief until late September or early October 1997. According to Mr. Hartenstein, he was neve.r hired to pUTSue Rule 37 rt'lief only to investigate poSI-eon·

K'COro

viction remroies available to Mr. Tolbc:n. On Octobc:r 7, 1997, Mr. Tolbert allempled 10 have his appeal rt'instaled. The Supreme Court deniro the MOlion because of the length of lime that had passed since the appeal was dismissed. Mr. Tolben also pursucd a pro se n-qUCSt for Rule 37 relief afier he lamed lhat Mr. Hartenstein had nOI done so. His n-quest was denied on the bas.is mat il was untimdy. Upon consideration of the formal complaint. the responk Ihcrc:ro and the Arkansas Modd Rules of Professional Conduct. the Committee on Professional Conduct finds: I. That Mr. Hanenstein's conduct violat«l Modd Rule 1.4(a), when he ceased to communiClte with Mr. Tolbc:n about the srarus of his matter and failed to respond 10 Mr. Tolbc:n's anemprs to obain information from him afier he obtained the dismissal of Mr. Tolbcn's appc:al on July 7. 1997. Model Rule 1.4(a) requires tholl a Ia~ shal1 keep a diem I'Q5Onably informro about tM status of a maner and promptly comply with I'Q5Onablc requests for informacion. 2. Thai when Mr. Hartenstein did nOI aplain 10 Mr. Tolbert within sixty (60) days following dismis.sa1 of the appeal tholt he would nOt be pursuing posl<onviction n:lief on Mr. Tolbert's behalf he effectively deni«l the client the opponunity 10 make a decision concerning whether lo.seck othet counselor to proccro pro se, he violat«l Modd Rule 1.4(b). Modd Rule 1.4(b) n-quires thai a lawyer shall explain a maner to Ihe atent reasonably necC$$;lry to permit the diem to make informed decisions regarding the represenration. 3. That Mr. Hartenstein's conduct violated Modd Rille 1.16(d) when he made the decision 10 terminale. his representation of Mr. Tolbert and then f:.tiled to give him reasonable nOlice of the same and failed to allow him any time for employmem of other counsd 10 pursue any post<onviction remedies for him. Model Rule 1.16(d) requires, in pertinent part, that upon termination of rt'presentation. an altomey shall rake: steps to Ihe cxtent reasonably practicable to protect the diem's interestS. such as giving reasonable notice to me diem and allowing for time for employmenl of other counsel. 4. That Mr. Hartenstein violat«l Modd Rule 8.4(c) when he advised his client, Mr. Tolbert, and the Suprt'me Coun thai he was dismissing Mr. Tolbert's appeal 10 Sttk relief pursuant to Rule 37 rather than by appeal and failed 10 pursue such relief. Model Rule 8.4(c) Slates, in peninent pan. that a lawyer shall not engage in conduct involving misrrpresenlacion. 5. That Mr. Hartenstein's conduct violaled Model Rule 8.4(d) since the lotality of his action and inaction in the legal manc:r caused Mr. Tolbert to be withoul any available appellate review of his conviction as .....d l as 10 be without any post-o>n· viction review of trial counsel's representation of him. Modd Rule 8.4(d) states thai a la~ shal1 not engage in conduct that is prejudicial to the administration of justice. WHEREFORE, il is the decision and order ofthe Arbnsas Supreme CoUrt Commitl~ on Professional Conduct thai RAY EUGENE HARTENSTElN, Arbmas Bar 10 m061. bc:, and hereby is. REPRIMANDED for his conduct in this maner. Evelyn Hill Mounu..inbaug, AR October 28, 1999

The formal charges of misconduct upon which this Order is based. arose from the Complaint of Ralph Pressley. Mr. Pres.sky, a truck driver residing in Michigan. rcccivcd a craffic ticket in Fon Wayne, Indiana during April, 1998. Shortly after he rcccivro Ihe ticket, Mr. PlCS5ley saw an advertisement for Evelyn I. Hill, an anotn()' pr.lClieing in Mountainburg, Arkansas. The language of Ihe advertisement lro Mr. Pressl(), to beliC\o'e tlul Ms. Hill could represent him in any state. The advertisemenl did nOI rt'flect that Ms. Hill is only licensed to practice law in Arkansas. In addition. the advertisement advised that traffic tickets could be kept off a person's driving record nationwide. Ms. Hill admits that her adve.rtisemem did not TeAecl that she is lice:nsed only to pTllclice in Arkansas and avers to the Commincc Ihat she .....iII add a notation indicating this faCt. She ~lso admits that the h.nguage could create an expectation th~t she was able 10 keep driving tickets off driving records nation· wide. In milig~tion. slle explains that she never realitcd thai this inlerpreration could be given to the language until she rcccivro the Complaint in this matter.

AfieT Kring the advertisement, Mr. Pra.sl()' call«l Ms. Hill's office to discuss his traffic ticket and to discuss whether Ms. Hill amId rrprcscnl him. Mr. Prc:W()' ~ nOI able 10 speak direct· ly with Ms. Hill, inslead he spoke with Tony. who ~ identified as Ms. Hill's husband. Tonyadvi5cd mal Ms. Hill would rrprcscnt Mr. Prrssley on this maner for a fee of $295. Mr. Pressley promptly sem the funds to Ms. Hill. All of Mr. Pressley's questions about his legal nu.ner were answered by non-bW}V5 in Ms. Hill's ofha. never by Ms. Hill. ~ time mat Mr. Prcul()' spoke with anyone in Ms. Hill's office, he was iISIlUred that someone would be in court to represem him in Fon '\(fayne. T"'lo dJ.ys bcfort' (he schedul«l court appnrance, Mr. Pressley again called Ms. Hill's office to be certain that someone would be wim him in Coun. At mat time. Mr. Pressley was given me name of an auorncy in Fort Wayne to contact about his lraffle lidet and COUrt ap~ce. Mr. Pras.l()' was rt'luc· tant to do SO since he had paid an anomey's fee 10 Ms. Hill for rrprescntation. Ho....-ever. upon me advice ofTony. Mr. PlCS5ley did all me orner attorney who advised him that he would need an additional fee to represent him in mis mauer. Mr. Pressley imm«lialely contact«l Ms. Hill's office and again spoke with Tony. Tony told Mr. Pressley nOl to worry because someone would be thert' to rt'prescnt him the next day in Fort Wayne. However. no one was there with him. On me morning ofcourt. thert' was a mC$$;lge at me Clerk's office from Ms. Hill's office sraff advising Mr. Pressley to change his plea to guilty and ask for Ihe deferred program. Mr. Pressley's request for the deferred program was deni«l by the Court. After his request was denied. Mr. Pressley attempted to comact Ms. Hill but he was unable 10 do so. Once again, he was compelled to speak with Tony who advised him thaI Ms. Hill would pay Mr. Pressley's fine for him. However, there was nothing that could be done about the pointS which had been added to Mr. Pressley's driving rt'cord by the Judge. Ms. Hill admiu tim her husband, Tony Hill. overstepped his role and offercd advice to a diem that should have only come from an anorney. She has notifiro het emire Staff that it is imperative that no legal advice be given by any of them. In fact, it has become office policy th.at any time a dient wishes 10 speak with an anomey tlul the client is immediately transferred to her. Upon consideration of Ihe formal complain!. the response theretO and the Arkansas Modd Rules of Prokuional Conduct, the Comminee on Professional Conduct finds: I. That Ms. Hill's conduct violated Modd Rule IA(b) since neither she, nor the safT of her office, C'o'er c:xpLainro to Mr. PlCS5ky Ihal she .....a s not licrnsed to pr.act:ice law in Indiana, thereby denying him the opportunity [0 scde. counsel who ~ Hcensed in Indiana. Mood Rule 1.4(b) requires mal a b~ explain a nu.ner to the extent I'Q5Onably nccasary 10 permit tnc cliem to make informed decisions rq;arding the rrprc:scnr:uion. 2. Thai Ms. HiII's conduct violatro Modd Rule 5.5(b) when she allowed a penon identified as Tony and purponrd to be her husband, bUI who does not appear to hold an Arkansas la..... license. to provide Mr. PlCS5ley legal advice in connection with his kgal maner and to respond 10 all questions that Mr. Pressky had concerning his legal nu.ner in .....hich she was enuuuro. Modd Rule 5.5(b) lCtJuires that a lawyer not assist a penon who is nOI a member of the bar in the performance of activity thai conuilUles the unaUlhoriud practice of law. 3. That Ms. HiU's conduct violarro Modd Rule 7.I(a) in thai her advertisement, upon which Mr. Pressley based his decision to hirt' her. omiuro me fact that she was nOI licensed 10 pf1lCtice law in each state. Modd Rule 7.1 (a) lCtJuires. in perti. nent part. Ihal a Iawyet not make a false statemem or misleading communication about the lawyet or me lawyer's services and provides that a communication is false or misleading if it omits a faCt nccC$$;lry 10 make the St-atement considerro as a whole nOI materially misleading. 4. That Ms. Hill's conduct violated Modd Rule 7.I(b) since her advertisemem creales the expectalion thai she is able to keep traffic tickets off of anyone's driving record nationwide. Model Rule 7.1(bl requires. in pertinem part, that a lawyer not make a false or misleading stalement about the lawyer or the lawyer's services and provides that a communication is false or mislead· ing if it is likely to creale an unjustifiro expectation aboul the results that the lawyer can achieve. WHEREFORE. il is the decision and order of the Arkansas

I'el.li ,Ie. 1III'inirr ~OOO

Th! lrkmas LallIer

til\\ ~(ll' lIisriplinill'~ \1'1 inns Supreme Coun Committee: on jlrofessionaJ Conduct that EVELYN I. HIll., Arkansas Bar ID 172099, be, and hereby is, REPRIMANDED for her conduct in this matter.

Thomu LcwU Travis Little Rock. AR October IS. 1999 The formal chargo of misconduct upon which this Order is based arose OUt of inform;uion provided by David

ChriStopher Hughes, a former client of Thomas Ltwis Travis, an anoency practicing in Little Rock. During Octobcr 1995,

Mr. Hughes filed a pro sc complaint in federal COUrt against the City of Little: Rock. Sometime: thc:reafm, Mr. Mr. Travis to represent him in the legal matter. fee: agreement was entered into whereby Mr. m::c:ive 40% of any amount m:ovc:red for Mr.

Hugha hired A contingent Travis would HUghC5. The:

agreement also required that Mr. Hughes pay Mr. Travis $500 COStS. Mr. Hughes paid the: amount 10 Mr. Tr.lvis as requeued. Mr. Travis filed an Amended Complaint for Mr. Hughes immcdi:udy following his employment. Mr. Travis also ClusW

for

all of the defendants to be served with the Amended Complaint. A Scheduling Order in the maner was filed of record on November 27, 1996, and served on all counsel of rcwrd, induding Mr. Travis, by the Clerk of the Coun. Pursuant to the Scheduling Order, all discovery was required to be completed no later m= April 14, 1997, and me Pmrial Information Shcct from both sides was to be filed no later man May 27, 1997. Mr. Travis did nOI ClUSC Mr. Hughes' Prcuial Information Sheet 10 be filed as required. Mr. Travis admits nOt timely filing me Prttrial Information Sheet but asserts mat he did nOI do so after determining Ihat funher action in me Ia~uit mighl be sanctionable because he believed me matter to be frivolow. As a result of Mr. Travis' failure, counsel for the City of Little Rock filed a MOlion to prevenl any witnesses of Mr. Hughes from testifying in me trial. The day after thill Motion was filed, Mr. Travis filed a MOlion for Continu=ce which was denied. The Motion to exdude witnesses was granted. As a result of the Order granting that Motion, Mr. Travis filed a Motion for Volunury Non-Suit. When me Jud~ entered rhe Order granting me Motion for Voluntary Non-suit, several conditions were imposed upon any subsequent re-filing. If the action was re-filed, Mr. Hughes would have ro pay the COSts incurred prior to the non-suit and the exclusion of =y wirnesses remained in effect. Mr. Travis acknowledges that the failure to file the Pre-Trial Information Shcct was the reason for Ihe entry of the Order exduding any additional wimesses other than Mr. Hughes in his lawsuil. However, according to Mr. Travis, there were no other wimesses to testify. A week before the Order granting the Non-suil was enlered of record, Mr. Travis pn::sc:nled Mr. Hughes with an Agreemem of Assurance. The Agreement was prepared by Mr. Travis and assured Mr. Hughes that he would not withdraw from represeming him in Ihis legal maner againsl the City of Liltle Rock. It is undisputed that Mr. Travis ncvcr oplained to Mr. Hughes that waiving his ability to withdraw as counsel could nOl be effeaivdy waived. Funher, il is admitted that at no time did Mr. Travis explain to Mr. Hughes thai there were many factors that could give rise to his inability to re-file the case. Seven (7) months after Mr. Travis signed the Agrccmem ofAssurance, he sent Mr. Hughes a leuer advising that he could no longer represent Mr. Hughes. Mr. Hughes was unable to locale another attorney to represent him in me five (5) months that he had remaining in which to re-file his lawsuit because of Ihe conditions imposed in the Order granting the voluntary non-suit. Upon consideration of the formal complaint, the response therelo, and the Arkansu Modd Rules of Professional Conduct, the Commillcc on Professional Conduct finds: I. That Mr. Travis violated Model Rule 1.1 when he failed to exhibil the requisite thoroughness in his represenl:l.[ion of Mr. Hughes in that he failed to prepare and file the prelrial information shec:1 on or before May 27, 1997, as required by the Scheduling Order. Model Ru[e 1.1 requires, in pertinent pan, that a lawyer provide compelent repn::scnration to a diem, induding the thoroughness and preparation reasonably ne<:C$sary for the representation. 2. That the conduct of Mr. Travis violated Model Rule 1.3

Tbe ,lrkllllJ LIMIer

I'll. Ii !o. l/lI"illrr 2000

when he failed to timely file the pretrial informalion shcct and when he failed to re-file Mr. Hughes' Cluse ofaction despite his Uliurance 10 Mr. Hughes that he would do so. Model Rule 1.3 requires mat a lawyer act with reasonable diligence and promptness in rcpn::scnring a diem. 3. That Mr. Travis violated Model Rule 1.4(b) in thill he failed to explain [0 Mr. Hughes when he execUted the Agn::c:mem of Assurance that there were many factors which could pn::vem him from effectively waiving his ability to withdraw. Model Rule 1.4(b) requires that a lawyer explain a matler ro the otem reasonably necessary (0 permit the diem to make informed decisions reg:uding the representation. 4. That when Mr. Travis failed lO comply with the deadlines and requirements of the Scheduling Order which was entered in Mr. Hughes' case. he violated Mood Rule 3ACc), which requires mat a lawyer not knowingly disobey an obligation under the rules of a uibunal except for an open refusal based on an assertion rhat no valid obligarion exists. 5. That Mr. Travis violared Modd Rule 8.4(e) when he assured Mr. Hughes thai he would waive his ability to withdraw from his case and would re-file his case within one (I) year. Modd Rule 8.4(c) requires. in pertinent pan, that a lawyer not engage in conduci involving dishonesty and misrepn::scnration. 6. That Mr. Travis violated Modd Rule 8A(d) because his failure to comply with rhe Scheduling Order thereby caused :1/1 Order to be entered preventing any witnesses from being able to restify on Mr. Hughes' behalf which resulted in Ihe loss of Mr. Hughes' ability to pursue his daims against the City of Little Rock. Modd Rule 8.4(d) requires Ihar a lawyer not mgage in conduct thai is prejudicial ro the adminiSIr~tion of justice. WHEREFORE, il is the decision and order ofthe Arkanw Supreme Courl Committcr on Professional Conduct that THOMAS LEWlSTRAVlS, Arkansas Bar ID 195029, be, and hereby is, REPRIMANDED for his conduct in this matter. NOTICE Of' CAUTION Stephen L Gershner Little Rock, AR September 8, 1999 The formal charges of misconduct upon which this Order is based Hose from information broughl 10 the Commincr's mention. Stephen L Gershner, an anomcy practicing law in Lirtle Rock, Arkansas under the firm narne of-Davidson Law Firm, Lrd.路, placed an advertisement on the interner which Sl:I.red, in pertinent pan, ~Davidson Law Firm, Ltd. is an aggressive law firm with specialized pn.ctice areas in commercial law. corporate law, bankruptcy, real estare Jaw and litigaOon.- The Arkansas Supreme Coun has not approved a plan of spccialiution in any of the areas lined. Mr. Gershner admitted rhar to the allegation of the Complaint but offered Ihalthe violoIIion w.as nOI intentional and was corn::cted upon rccc:ipt ofthe Complaint from the Comminec:. Upon consideration of the forma.1 complaint, Ihe response thereto, and the ArkanSi15 Modd Rules of Professional Conduct, the Commiuec: on Professional Conduct finds: I. That the Sratement MDavidson Law Firm, Lid.. is an aggressive law firm with specialized practice areas in commercial law, corporare law, bankruptcy, real estate law and IitigatiOlt vialites Model Rule 7A(c), which requires, in peninem part. that a lawyer not Slate or imply thar ml" lawyer is a specialist except when he or she has bec:n n::cogniud. as a specialist under the Arkansas Plan of Spccialiulion approved by the Arkansas Supreme Court. WHEREFORE. it is thl" decision and order of the Aoonw Supreme Coun Committcc on Professional Conduci that STEPHEN L GERSHNER, Arkansas Ihr 10 678059, be, and hereby is, CAlfflONED for his conduct in this maner. Claude W. Jenkins DeWitt, AR Augusl 12, 1999 The formal charges of misconducr arose from the Complaint of Annie S. Kinler. Daude jenkins, Anomey at Law, DeWin, Arkansas, was employed to represent Ms. Kittler

to defend her in a foreclosure action. On the advice of Mr. Jenkins, Ms. Kittler purchased two postal money orders lotaling $1,100 which were made payable 10 the foreclosing pany. The money orders were then given 10 Mr. jenkins to forward to the foreclosing pany. The foreclosing pany refused to accept the money orders and they remained with Mr. Jl"nkins. On October 2, 1997, a Decree of Foreclosure was entered againsr Ms. Kittler. On October 10, 1997, a petilion for cuslody of Ihe parties minor child was filed against Ms. Kirner by her estranged husband, TR. Kirtler. The anomey of record for Mr. Kittler was Claude Jenkins. Mr. Jenkins wrote Ms. Kittler on OClOber 23, 1997, and informed her thar a date for sale on the foreclosed property had not bec:n set but that he would notify her when it was sel. On December 3, 1997, Mr. Jenkins filed a petition in the custody maner on Mr. Kittler's behalf wherein he Stated mat he had twO money orders in the amount of $1100.00 in his possession and that Mr. Kittler was claiming $1,000 of the $1,100 as his own monies. On January 28, 1998, me Coun g~ted Mr. Kittler the sum of $1 ,000. Ms. Kittler ncvcr consented to Mr. Jenkin's representation of her hwband against her in the custody mauer. Mr. Jenkins admitted thar he represented Ms. Kiuler in the foreclosure maner. Although Mr. And Ms. Kirtler were sepatated, Mr. Kirtler tried to :wist Ms. Kirtler in foreclosure proceeding and, according to Ms. Kittler, he loaned his tsttanged wife $1,000 in an anempl 10 settle rhe marrer. Negotiations berwec:n the panies were unsuocasful, and a trial was held wherein the CoUrt ruled against Ms. Kirner. Mr. Jenkins asserted mat Mr. Kiuler was never made a party 10 the aClion bUI did participate in trial preparation. Sometime after the trial in August, 1997, Ms. Kittler Stated thar me was moving 10 Arizona. and lold Mr. Jenkins that his services were no longer nec:ded. No mention was made of the money orders, and they remained in Ms. Killier's file. In early October, 1997, Mr. Kittler came to Mr. jenkins and expressed extreme concern for his child's safety. Mr. jenkins assened rhat he no longl"r represented Ms. Kittler. Mr. Jenkins had no contact with Ms. Kittler until November, 1998, when she ClUed him and demanded the rerum of the money orders. Mr. Jenkins searched his file and found them rhere. Around the time of Ms. Kittler's relephone call, Mr. Kiltler made demand for $1,000 of the $1,100. As he was undear as 10 whom to pay, he then filed the petirion requesling the chancery court ro direct him who to pay. Mr. Jenkins assened that the issues in the Kittler's maner were nor related 10 the issues in the foreclosure case. Upon consideration of the fonnal complaint. the response theretO, and the Arkansas Rules of Professional Conduct. the Committee on Professional Conduct finds: I. That Mr. Jenkins represented Annie Kiuler in a foreclosure suir wherein she gave him $1,100 to cure arrearages and, while the $ 1,100 remained in his possession and represent:nion of Ms. Kittler eonlinued, he agn::cd 10 represent Ms. Kittler's hwbmd in a custody maner wherein the ownership of the $1,100 in Mr. Jenkin's possession became an issue. Mr. Jenkins' conduct violated Model Rule 1.7(b) which requires rhar a lawyer nOI represenl a c1iem if Ihe repn::scnTation of thar c1iem may be marerial.ly limiled by the lawyer's responsibilities to another diem unless: (I) the lawyer re;uonably believes the representation will not adversely affCCl the relationship with the other client; and (ii) each client consents wer consultalion. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that CLAUDE W. JENKINS, Arkansas Bar ID '65025, be, and hereby is, CAlJrlONED for his Conduct in this marrero G.B. "Bing" Colvin MonticeUo, AR September 2, 1m The formal charges of misconduct arose from the Arkanw Supreme CoUrt case of Kf'JIin WifliamJ v. Srau ofAl'ltansa.s, CR 99-399. G.B. MBing" Colvin, an artomey ptacticing law in Monticello, flied .2 NOlice of Appeal on behalf of Mr. Williams on July 15, 1998. However, he did 1\0t tender the record by the d.2re it was due. january 25, 1999. Bcouse the rcwrd was tendetcd [ate, Mr. Colvin was required to file a Motion for Rule on the Derk adlnitting F.tuh for the imimely filing. Mr. Colvin admits thai the misrake was his because he failed 10 place Mr.

till') II" Willianu's appcal on his scheduling records of pending appeals. Had the: appcal been placed on the schedule, Mr. Colvin is SUit' thai the transcript ....,ould have: been finished in a timely &shion because: he: would have: advised the: Coun Rq>onc:r of the: impending ducs. He: is abo sure that the: J"C'Cord would haw: been timely filed but for his failure: to follow his routine: scheduling procedure. Mt. Colvin immediately filed his Motion for Rule: on the: Ckrk whe:n he: was advised of the: error made: conurning the: date: it w;u to be filed. Upon conside:ration of the: fornul complaint, the response thereto, and the Arkansu Model Rules of Professional Conduce, the Committtt on Profc::ssional Conduct finds: I. That Mr. Colvin's conduct violated Model Rule 1.3 by f.Liling to timely file his die:m; record on appcal with the Arkansas Supreme Coun C1etk. Model Rules 1.3 requires that a la~r act with rc:uonable di1i~nu and promptness in rqJreseming a diem. 2. That Mr. Colvin's conduct violated Modd Rule 8A(d) to wit: (i) the timdy and ordeny administration and resolution of appellate procc:c:d.ings were ddayed by his failure 10 timely file the rcc:ord on appeal on behalfof his dient, Kevin Williams; and, (ii) his failure to timdy file the J"C'Cord with the Arkansas Supreme: Coun Clerk in the appellate: mane:r involving his client, Kevin Williams, resulted in the Coun having to expend additional time and effort which would not have been n«essary Otherwise. Modd Rule 8A(d) requires that a lawyer not engage in conduct that is prejudicial to the administration of justice. WHEREFORE. it is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct that G.B. ~BING" COLVIN, Arkansas Bar 1D #66014, be, and hereby is, CAUTIONED for his conduct in this maner. David W; Talley, Jr. Magnolia, AR September 2, 1999 The formal charges of misconduct upon which this Order is based arose OUt of information referred to the Committtt by Honorable Larry W Chandler. The information pertained to David W. Talley's reprc::sc:ntation of Michelle Adams in the divorce: case of MielNik Adams v. WilJUzm AMms, Columbia County Chance:ry No. £-98-57-3. Mr. Tillcy is an attorney practicing in Magnolia, Arkansas. On Dece:mber 3, 1998, a hearing was held before Judge Chandler on a Motion for Citation which Mr. Talley filed on behalf of Ms. Adams. Mr. Tallcy and his dient .....ere present at the hearing. along with Mr. Adams and his attorney, Ronny J. B.c:1I. The hearing's purpose: w;u to de:tennine what constitured a reuonable rime for possc::ssion of a pickup since: the ternu of the Property Settlement Agrttment drafted by Mr. Talky, or an employa- of his, IDted only that Mr. Adarru was to pIOYide Ms. Adams with the pickup for a reuonable time. During the: hearing. both Ms.. Adarru and Mr. Adams tcsti· fied. Mr. Adams tcstified tlu.t when he and his a-wife first began negotiations concerning the Propcrty Settlement Agreement, all disawions were with William '"BU5tc:r'" Guthrie, .....ho is employed in Mr. Tallcy's office:. The disawions took place in Mr. Tallcy; office and appear to haw: occurred during the summer months of 1998. Mr. Adams nnOCI spoke: with Mr. Tallcy. AccOl'ding to Mr. Adams, all of the convers:;ltions that he and his ex-wife had, which occurred in Mr. Tallcy; offiu, took place: with Mr. Guthrie. The intent of the parties w;u discussc:d with Mr. Guthrie not Mr. Talley. Ms. Adams, the client of Mr. Talley, confirmed her a-husband's testimony. She also explained that Mr. Talley W:I.5 not involved in any of the disctwions about the Property Settlement Agrecment. Mr. Tallcy docs nOt deny that disctwions took place: between Mr. Guthrie, Ms. Adams and Mr. Adams; he merely disputes the date that any discussions may have: takc:.n piau. According to Mr. Talley, the discussions would have taken place at some point before February 9, 1998. Mr. Talley's dient advises that, in her opinion, she never received any legal advice from Mr. Guthrie: and that she knew he was nOt her attorney but rather that Mr. Tatlc:.y was her alforney. It is Mr. Talley's assertion that all of Mr. Guthrie's work was that of a scrivener only. The: rcc:ords of the Committc:c on Professional Conduct

llisripliUiIl') \('t inns

rdlect that William '"Buster- Guthrie was onu a lice:nsed attOrney in Arltansas, but he surrendered his lice:rnc to practice: law during 1983. Mr. Guthrie's surrender w;u tcodered and accc:pted based upon his guilty pica to five (5) counts of Then of Property and one felony count of Theft by Ra;:c::iving. Mr. Guthrie has never been teadmitted to the Bar of Arkansas. Ew:n though Mr. Guthrie is prohibited from have direct contact with Mr. TaIJc:y's clients, Mr. Talley allowed him to haw: direct. COntact with Michelle Adams in connection with her property settlc:mcot agreement in her divorce pl'OCC'Cding. Upon considc:r:uion of the formal complaint, the: respornc thereto, and the ArkalUU Modd Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Talky violated Modd Rule 5.5(b) by allowing Mr. Guthrie to consult with Michelle Adams :and Williams Adams about the ternu of the property settlement agreement, thereby assisting Mr. Guthrie in the unauthorized practice of law. Model Rule 5.5(b) requires that a lawyct nOt assist a person who is not a member of the bar in the pcrformance: of activity that constitutes the unauthorized practice: of law. 2. That Mr. Talley violated Section 7J(3)(c) of the Ptocedures of the Arkansas Supreme Coun Regulating Profe:s.sionaJ Conduct of Attorneys at Law, as revised January 15, 1998, ('"Procedures'"), incorpor.l.lcd into the Arkansas Modd Rules pursuant to Section 1E(6) of the Procedures, when he allowed Mr. Guthrie to have diJ"C'Ct contact with his client, Michdle Adams, in connection with her property settlement agreement in her divortt procc:c:ding. Scction 7J(3)(c) of the Procedures requires, in pertinent part, that in instances where a former lawyer is employed in a law firm, the employed former lawyer shall have no direct contaCt with any client. WHEREFORE, it is the dc:ci~ion and order of the Arkansas Suprt:me CoUrt Committee on Professional Conduct that DAViD W. TALLEY, JR., Arkan~as Bar JD #82155, be, and hereby is, CAUTIONED for his conduct in this mmer. Charles Darwin "Skip" Daviwon Litlle Rock, AR September 8, 1999 The formal charges of misconduct upon which this Order is bued arose from information brought to the Commintt's mention. Charles Darwin "Skip· Davidson, an attorncy practieing law in Little Rock, Arbnsas under the firm name of "Davidson Law Firm, Ltd.·, placed an advertisement on the inte:rnc:r which nated, in pertinent part, '"Davidson Law Firm, Ltd. is an aggtaSivc: law firm with spc:ewizcd practice: areas in commercial law, corporate law, bankruptcy, teal estate bw and litigation: The Arkansas Supreme Coun has not approved a plan of spc:cia.l.ization in any of the areas lisun Mr. Davidson admitted that to the: allegation of the Complaint but offered that the violation w;u not intemion:al and w;u corrected upon rc:aipt of the Complaint from the: Committee. Upon consideration of the formal complaint, the response: thereto, and the Atkansas Modd Rulcs of Professional Conduce, the Committee on Professional Conduct finds: I. That the Statement '"Davidson Law Firm, Ltd., is an aggrasiV{' law firm with specialized practice areas in commercial law, corporate law, bankruptcy, teal estate: law and litigation· violates Modd Rule 7.4(c). Model Rule 7A(e) requires, in peninent pan, that a la~r not state or imply that the Ia~l is a specialist c:xcc:pt when he or she has been recognized as a specialist under the: Arkansas Plan of Spc:ci:alization approved by the Arkansas Supreme Court. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committc:c on ProfCS5ion:al Conduct that CHARLES DARWIN '"SKJP" DAVIDSON, Arkansas &r ID 173026, lx, and hc:rc:by is, CAlJflONED for his conduct in this matter.

Brandon L Clark Litlle Rock., AR September 8, 1999 The formal charges of misconduct upon which this Order is based arose: from information brought to the Comminee's attcotion. Brandon L Clark, an anomey practicing law in Link Rock, Arkansas undl:r the firm name of '"Davidson Law Firm, Ltd.'", placed an advenisc:ment on the imernc:r which stated, in peninent pan, '"Davidson Law Firm, Ltd. is an aggressive law firm with specialized practice: areas in commerci:al law, corporate law, bankrupt'}', teal estate law and litigation.· The Arkansas Supreme Court has not approved a plan of specialization in any of the atcas listed. Mt. Clark admitted that to the a1leg:uion of the Complaint but offered that the violation w;u not intentional:and w;u corrected upon receipr ofthe Complaint from the Committee. Upon constderation of the form:al complaint, the response: thereto, and the Arkansas Modd Rules of Professional Conduct, the Committtt on Profcssional Conduct finds: I. That the statement '"Davidson Law Firm, Ltd., is an aggressive law firm with specialized practice arc:.s in commercial law, corporate law, bankrupt'}', real estate law and litigation'" violates Modd Rule: 7A(c) which requires, in pertinent part, that a lawyer nOt nate: or imply that the lawyer is a specialist exce:pt when he or she has been recogniu:d as a specialist under the Arkansas Plan of Specialization approved by the Arkansas Supreme CoUrt. WHEREFORE, it is the deci~ion and ordet of the Arkansas Supreme CoUrt Committtt on Professional Conduct that BRANDON L. CLARK, Arkansas B.a.r ID #88084, be, and hereby is, CAtrrlONED for his conduct in thi~ matter. Den'til Keith Blackman Jonesboro. AR October 28, 1999 The formal charges of misconduct upon which this Order is based arose from the complaint ofCarolyn Cox. Den:r.il Keith Blackman, an attOrncy primarily practicing in Jonesboro, Cntighcad County, Arkansas w;u employed by Carolyn Cox to reprc:sc:nt her in a Workers' Compensation mattet. Ms. Cox w;u successful at the administrative: law judge level, but the Workers' Compensation Commission issued an advetse: ruling on review of her case. Mr. Blackman told Ms. Cox that he would appeal that decision to the Arkansas Court of Appeals. He timely filed the notice: of appeal and ordered the transcript. The Workers' Compensation Clerk informed Mr. Blackman that the transcript w;u prc:parc:d and rc:ad.y to be lodged with the Arkansas Coun of Appeals Cletk. The final my to lodge the transcript w;u Dccc:mber 27, 1996. Mr. Blackman admitted that he did not take possession of the transcript and Iodgc it. Despite the f.&ct that Ms. Cox attempted to conract Mr. Blackman on numerous occasions during the preceding fi\oc mOnths., Mr. Blackman did not te:U Ms. Cox until February, 1997, that he did OOt lodgt' the transcript and lost her appeal righu. For his response Mt. Blackman Stated that during the time he w;u aware that the tl1Ulscript w;u ready to be lodged he .....u TCCO\ocring from knee surgc:ry, involved with his wife's treatmem for C:l1tcet and the Christmas holidays ....ocre: upon him. There .....ere only four days available for him to go to Little Rock from Jonesboro to lodge the transcript. Upon consideration the formal complaint, response herein, and the Arkansas Modd Rules of Professional Conduct, the Commintt on Professional Conduct finds: I. That Mr. Blackman's conduct violated Rule 1.3 of the Arkansas Modd Rules of Professional Conduct when he agreed to appeal his client's Workets' Compensation to the Arkansas Court of Appeals and then did not timely lodge the trolnscript, de~pite sufficient notice that the transcript was prepared and ready 10 be: lodged. Model Rule 1.3 rc:.quirc:s that a lawyer act with reasonable diligence: and promptness in representing a c1ienl. 2. That Mr. Blackman's conduct violated Rule 1.4(a) of the Arkansas Model Rules of Professional Conduct when he failed to notify his c1iem, Ms. Cox, that he did not pursue her appeal.

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til\\ )111' Modd Rule 1.4(a) T«juires that a lawyer keep a client reasonably informed about the SlalUS of a matter and prompcly comply with rosonable requcsu for informalion. WHEREFORE. it is the: decision and orJer of the Arbnsas Supreme: Coun Committee on Professional Conduct that

DENZIL KEITH BLACKMAN, Arkansas Bar '67042, be, and hereby is, CAUTIONED for his conduct in this mauer.

Kenneth G.

B~nridgc

liol Springs, AR

October 28, 1999 The formal charges of misconduct upon which this Order is based arose from the complaint of Craig Baumgartner. Kenneth Breckenridge, ;m anorncy practicing law in Hot Springs, was employrd to repre5Cnt Mr. Baumg:mner in a matter involving misrepresentations made 10 Mr. Baumgartner by the Kllers of a mOld and rcst.:lur,ml. Mr. Brcdu:nridge also agreed [0 represent Mr. Baumgartner in a breach of a lease agreement concerning the fC:l;{:iur,ml.

In November, 1997. Mr. B~umg:lrIner mel wilh Mr. Breckenridge to disaus me maners. The :U1orncy agrttd to reprcscnl Mr. Baum~flner in both m~tters and stated lhal me f~ for his services would be $2,500.00, and ming fees would tot"I $200.00. Mr. Baum~flncr stated that he could nOI come up wilh the emire .$2,500.00 at the time, bUl could pay Ihe .$200 filing f~s. Mr. Bm:kenridge discussed wi,h Mr. Baum~rtner Ihe possibility of recovery of lhe $2,500.00 anorney's fees from me procttds of Ihe Iawsuiu that he WQuld pursue. Mr. Br«kenridge admiu mal he discussed recovery of Ihe anorney's fce:s but denied advising or agreeing to Kprescnt Mr. Baumgartner on a contingency Insis. Following me m~ting wilh Mr. Breckenridge, Mr. Baumganner returned home, diseuss«l the matler wim his wife, and a check in the amount of $200.00 wa.s sent 10 Mr. Breckenridge on November 13, 1997. Mr. Breckenridge acknowledged receipt of the check by lener and made it dear thai his fee W:lS $2,500. Mr. Baumgartner responded to the Jetter from Mr. Breckenridge with a leller where he S[;lted mat he was unable 10 come up with $2,500.00 and would understand if he could not proceed. Mr. Baumgartner did nOl receive a response 10 the leuer. Anomer lener wa.s sent to Mr. Breckenridge where Mr. Baumgartner asked Mr. Breckenridge what he planned 10 do and. ifhe chose to not procttd ro mum me $200.00 in ming ftts which had been sent to him. In January, 1998. Mr. lhumgartner received a copy of a complaint med on his behalf regarding the breach of ,he lease agreement for me restaur:tlll and a bill for the filing fee. Mr. Baumg:utner paid the filing fcc. Mr. Breckenridge began settlement negotiations with lhe opposing party's morney. and a tentative settlement of the case for $539.90 was reached. Mr. Breckenridge S[;ltes that he discussed the matter wilh Mr. B~umganner, and he agreed 10 the settlement. According to Mr. Breckenridge, the opposing party wa.s 10 then send a check directly to Mr. Baumganner. While Mr. lhumgartner denied the discussion. he stated lhal he received a check from the opposing party in me 2mount of$535.9O. Mr. Baumgartner c:alled Mr. Breckenridge's office upon receipt of the check and wa.s advised to send the check to his office. The check wa.s then fOrW:Irded 10 Mr. Breckenridge. Trial wa.s inilially set for April 7, 1998, but was postponed to July 7.1998. Mr. Baumgartner placed lelephone calls to Mr. Breckenridge's office throughout June, 1998, seeking information about his legal matters. but no c:alis were remrned. According to Mr. Baumgartner, Mr. Br«kenridge did call on July 6, 1998, and suggesled thai he settle for me $539.90. Mr. Baumgartner refused to senle for me $535.90, and Mr. Breckenridge informed Mr. Baumgarmer that the lrial would be postponed to Sqnembu, 1998. Mr. lhumganner Staled that he placed calls 10 Mr. Breckenridge in July, 1998. hut did not receive any returned c:alls. Mr. lhumgatlner sent a lener daled Augusl 20, 1998.10 Mr. Breckenridge relieving him of his duties as his allorney. Mr. Baumgartner wished to obtain a copy of his file from Mr. Breckenridge and placed c:alls to Mr. Breckenridge's office but no calls were returned. Mr. Breckenridge admiu that he wa.s eOlllaeted by Mr. Baumgartner about obtaining his file. According to him. Mr. Baumganner was advised that copies of anything out of his file would be provided hut that wa.s nOl necessary as he had bttn provided with copies of ~rything dur-

iO TIl, ,Irkum LiWler

1'01. Ii No. Illfioler 2000

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ing the course: of the representation. In November, 1998, Mr. Baumgartner. through the assistance of anomer attOrney, wa.s able 10 receive his file. According 10 Mr. Baumgartner, located in his file wa.s an Order of Dismissal dated September 3. 1998. and the check Mr. Baumganner received in February, 1998. from the opposing party. No complaint wa.s ever filed in Ihe maner involving Ihe misKprescnlalion made by Ihe sellers of the mOlel and restaur:tnt. Mr. Baumgartner has not received the $200.00 paid for the filing fce:s despite demand. Mr. Breckenridge assertS that because Mr. Baumganner wa.s unable to r:tise $2,500 for represcnta,ion, he agreed to charge him lhe $200 10 represent Mr. Baumganner in the breach of lease maller. Mr. Baumganner denied the agreement co which Mr. Breckenridge referred. Upon conside1'lltion of the fonnal compl.aim. the response herein and the Arbnsas Mode Rules of Professional Conduct, the Committcc on Professional Conduct finds: I. That Mr. Breckenridge's conduct violaled Model Rule 1.2(a) when he wa.s informed by Mr. Baumgartner that he did nOl wish 10 .settle a case for me amounl offered and then a.Ilowcd the case 10 be dismissed based upon Ihe seulement. Model Rule 1.2(a) requires that a lawyer abide by a client's dccisions concerning the objectives of representation, subjea 10 par:tgr:tphs (c), (d) and (e), and shall consult wilh the client as to Ute means by which they are to be pursued. A lawyer shall abide by a client's decision whemer to accept an offer of settlement of a matter. In a criminal case, lhe lawyer shall abide by the dient's decision, alter consultation wim the lawyer, as to a plea to be entered. whether to W:live jury trial and whelher the client will testify. 2. That Mr. Breckenridge's conduet violaled Model Rule 1.3 when he failed 10 file a complaim on behalf of Mr. Baumgartner even though he was employed to do so. Model Rule 1.3 requires thai a lawyer act with reasonable diligence and promptness in reprcscming a diem. 3. That Mr. Brcckenridge's conduCI violated Model Rule 1.4(a) when he failed to respond to the numerous requesu for irtformation made by Mr. Baumgartner. Model Rule 1.4(a) requires Ihal a lawyer keep a dient reasonably informed about the StatUS of ~ maner and promptly comply with reuonable trljuesu for infonnation. 4. That Mr. Breckenridge's conduct violated Model Rule 1.I6(d) when, following the termination of his employment by Mr. Baumgartner, he failed to timely sum::nder any documenu belonging to Mr. Baumgartner and refund any fees that were nOl cuned. Wl-fEREFORE. it is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct that KENNETH GERALD BRECKENRIDGE, Arkansas Ihr lD h84015, be, and hereby is, CAlJIlONED for his Conduci in this matter. RoiK" Fuller Meurer ~,AR

OdoiKr 22, 1999 The: formal char~ of misconduct arose from Ihe Arkansas Supreme Coun case of Ttrry Frim I.t Slim ofA'*"nJ4J, CR 990519. Roben Fuller Meurer, an anorney pt:leticing law in Searcy, f:Jiled to timely file a NOlice of Appeal after the Judgment and Commilment Order W:lS emered of record in Mr. Frim' trial coun proceeding. The Notice of Appeal wa.s actually filed prior to the filing of me Judgment in Mr. Fritts' c.se and thereafter Mr. Meurer failed to file an effective NOIice of Appeal. A5 a resuh of mis failure. Mr. Meurer wa.s required 10 file a Motion for Rule on lhe Clerk. The Supreme Court of Arkansas gr:tnted Mr. Meurer's Motion for Rule on the Clerk and referred Ihe matter 10 Ihe Committee on Professional Conduct. Mr. Meurer wa.s personally served wilh a copy of the Formal Complaint, pursuant to Section 5E, Procedures of the Arkansas Supreme Coun Ikgulating Professional Condue! of Attorneys:Jt Law (Procedures), as revised January 15, 1998. Mr. Meur!"r f.liled to respond to the Complaint. His hillire to respond timely to Ihe Complaint COnstilutes admission of lhe hcmal allegalions cont:linro in Ihe Complaint pursuant to Seaion 51(4) of the Procedures. Upon consider:tdon of Ihe formal complaint, the anorney's

failure to respond, and the Arkansas Model Rules of Professional Conduct. the Commincc on Professional Conduct finds: I. That Mr. Meurer's conduct violated Model Rule 1.3 when he failed to timely file a Notice of Appeal after me Judgme:nt and Commitment Order wa.s e:ntered of record in Mr. Fritu' lrial cout! proceeding. Model Rule 1.3 requires Ihat a lawyer ae! wilh reasonable diligence and promptnt'$$ in representing adient. 2. That Mr. Meurer's conduct violaled Model Rule 8.4(d) to wit: (i) The timely and orderly adminiSIr:ttion and resolution of appellate proceedings were delayed by his failure to timely file a Notice ofAppeal on behalf of his client, Te:rry Fritu, after entry of his Judgment and Commitment Order; and (ii) His failure: to timely file a Notice of Appeal on behalf of his dient, Terry Fritu. after entry of the Judgment and Commitment Order, resulted in Ihe Courl having to expend addiliorW time and dfon which would not have bttn necessary otherwise. Model Rule 8.4(d) requires that a Lawyer not ens:-ge in condue! that is prejudicial to the administr:tlion of justice. WHEREFORE, il is Ihe decision and orde:r of the Arbnsas Supreme Coun Committ~ on Professional Conduct th:Jt ROBERT FUllER MEURER. Arkansas Bar ID 185108, be, and herehy is, CAUTIONED for his condue! in this maner. Jeanne Anne Whitmire Van Buren, AR October 28, 1999 The formal charges of miscondUe! upon which this Order

is based arose from the Complaint of Jacqueline Camel. Ms. Camel, a resident of Oklahoma, hired. Janne Anne Whilmire. an anorney pr:tcticing in Van Buren, 10 pursue a personal injury lawsuit for her in connecrion with injuries she suffered at me Red Roper Oub in Nlrt Smith, Arkansas. M.s. Whitmire acknowledges th~t she wa.s hired to represent Ms. Camel. She wa.s hired during 1993. shortly after the incident giving rise fO Ms. Camel's injuries. Ms. Whitmire did not file a lawsuit on Ms. Camel's behalf until November, 1995. Il is not disputed lhat the following month, the defendant in me: lawsuit filed InterrogalOries which were to be answc::red by Ms. Camel. Shortly thereafler. Ms. Whilmire forwarded me Interrogatories 10 Ms. Camel. As instructed, Ms. Camel completed handwritten responses and sent them hack 10 Ms. Whilmire's office:. Ms. Whitmire did not send the typed responses to Ms. Camel for verificnion until August, 1996. Although Ms. Camel promptly signed the: dOC\lm~nu and returned them to Ms. Whitmire, she did nOI file lhem with the Coun uJ\lil November, 1996, and then only after a Motion to Compel was filed by the opposing parry. Ms. Whitmire aplaitls that the: f~ilute: to timely file responSt'$ to discovery wa.s heause Ms. Camel F.tiled to submit sufficient responses. From December, 1996 through November, 1997, Ms. Camel received no information about her lawsuit from Ms. Whitmire. In November. 1997, Ms. Camel was able 10 meet with Ms. Whitmire 10 diJ. cuss me impending jury lrial. According to the complainant, Ms. Whitmire :Jdvised Ms. Camel for the firsl time thai she needed 10 rake deposilions in me matter and thai it wa.s Ms. Camel's responsibility to pay for the eosl of the deposilions or to find another anorney who would advance the cosu associated with taking the depositions. In addition, Ms. Camel wa.s notified that she could postpone the nlaller for a period of lime. It is Ms. Whitmire's rccollection that she and Ms. Camel had discus.sed Ms. Camel's oplions on various occasions prior to Ihe November meeling. Ms. Camel wa.s unsure what 10 do and decided to speak with her attorney in Oklahoma. She requested that the :Jttorncy speak wilh Ms. Whitmire. His allempLS 10 do so were unsuccessful. Shortly after her mening wim Ms. Whitmire, Ms. Camel received a notice in Ihe mail thal the jury Itial had been continued umil June I, 1998. Ekcause of this notice. Ms. Camel believed that Ms. Whilmire had decided 10 remain on her case and continue 10 reprCSCnt her, even though she had inferred that she would nOI be able to unless Ms. Camel sent her the funds for t:lking the depositions discus.sed in Iheir November m~ting. From January. 1998 rhrough May, 1998, Ms. Camel allempted to COnt:ld Ms. Whitmire on numerow occasions, hut Ms. Whitmire did nOI respond to the messages and rcquesu for information. Finally.

tim ~H Ilisl'iplinill'~ \1'1 inns

Spl'l'ial \III1'I't isin~ Sliit ion

in May, 1998, Ms. Camel's OkbhollU allQrnq machnl Ms. \Vhitmi~. Although Ms. Whilmire assured him WI she would contaCt Ms. Camel, she did flOl do so. Since M.s. Camel was unable 10 rach Ms. Whitmire. she submintd a grievance

Get in Step, Get Online

10 ,he Executive Director's office. 11 was during the rrvKw and cvalu.uion process in connc:et.ion wirh Ms. Camd's grievance WI sll< bmcd fmm the staff that her lawsuil had been dis-

missed on January 27. 1998, on the: ddrndant's Motion for Involunary OUm.iml. lkre is no dOCUIllCnt:uion 10 demon5tr.l1C' thai Ms. Whjlmire C'VC:r advised Ms. Camd of this f.ta or dUI she: h2d n'a apb.i~ to Ms.. Camel Uut there were time limitalioru associated with Orders of Dismissal gnIltcd without prejudice. Ms. Camel was not inforrnM by Ms. Whitmire dut wanly tad onC' ynr from the dare of dismissal 10 fe-file her lawsuit. Ms. Whiunire disputes this f.u:t and ~rt$ WI the Motion for Involuntary Dismissal was discussed wilh Ms. Camel, and since Ms. Camel did not m<lke :I. specific objection 10 the dismi.w.l. she 3,Mumro thaI Ms.. Camel had concurred in the decision 10 allow an Order of Dismissal 10 be entered. Upon consider-uian of uu: formal complainl, di~ rnponsc: and th~ Arkansu Model Rules of Professional Conducl, th~ Commincc on Profc:ssiona.! ConduCl finds: I. That Ms. Whitmi~ violated Model Rul~ 1.3 wh~n sh~ &iled [0 timely fil~ Ms. Camel's raponsa 10 di~ Int~rrogalOries propounded by th~ defendam in di~ lawsuil filed on beha.!f of Ms. Camel. Model Rul~ 1.3 requirc:s diat a la~r aCl with r~ sonable diligence and promptnc:ss in representing a client. 2. Thai Ms. Whitmire's conduCl violated Model Rul~ 1.4(a) when she &iled to keep Ms. Camel advised of the StatuS of her legal matter after sh~ was hired ro r~presl:nt Ms. Camel; wh~n she failed to nOlify Ms. Camel that her lawsuit had been dismissed on January 27, 1998; and when, despite Ms. Camel's numerous Ielephone calls 10 her requesting inform:l.lion about her lega.! matter, she &iled to relurn her calls and comply with her requesLS for information. Model Rul~ 1.4(a) requil"d that a lawyer keep a dient reasonably informed about the sl3ms of a matter and promptly comply with reasonable requesu for information. 3. That Ms. 'Whitmire's conduCI violued Model Rule 1.4(b) when she &iled to advise Ms. Camel WI her lawsuit had been dismissed and that she h2d only one ye.tJ from the dale of dismissallO rdile her lawsuit. Model Rule 1.4(b) requil"d that a la.~r otplain a matter to die ottem reasonably necessary 10 permil the dienl to make: informed dmsions rq;:anling the ~ resc:mation. WHEREFORE, it is die dnision and order of the Arhnsas Supreme CoU" Commillet on Professional Condua that JEANNE ANNE WHITMIRE, Arhnsas Bat ID 183005, be, and herdJy is. CAUTlONED for her oonduCl in this nuner. Ih~r~IO,

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The ArkamdS Bar Association and the Information Network ofArkamdS (INA), manager ofArkamdS' official web site, have formed a partnership that will allow Association members to interact with the Association via the Intenzet.

Are you online? If nOt, maybe you should be. The State of Arkansas web site is the gateway to information every attorney can use. Many free online services are available to the attorneys

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71x bifOmUltUm Network ofArhmsas is apublic iu,trummtality oftlx State ofATka",,,,. INA operates Ulukr tlx autiJOrily ofArkansas eotk § 2527-101 d. seq. wit" tlx statutory mpollsibility of assisting the stalL ;n aploring and improving dtimland business access to public ilifonnation. Our goals illClude txpmuliug the base of""" wlJO cau access public illjomuuion as wtO as increasing the a/ltoltllt OIul availability ofpublic illjimllOtiolt and tra1lSacti01lS with the State of Arkansas, Please visit httJdlwww.statt.ar.uslabouti1lll.html for more infomUltion. For questio1lS concerning any ofthe infon1llltioll in this artide please contllCt info@ark.org.

Vol. II Ill. I/lIiller 1008

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Tbr IrkmISI,IIl)rr

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\ Spllriill Thiln~s 10 illI or Ihll I!19!1 Lou Accurso Christie Gumer Adams Glen路Peter Ahlers

Dan Alexander MikeAm~

Owen Anderson Philip S. Anderson Frank Are)' III Judge Gary M. Arnold Judge Ricl=d S. Arnold Riehm! B. Atkinson Joyce Bmd1ey Babin Chuck D. Barlow Lonnie R. Beard Senator Mike Beebe

Paul B. Benham, Je. Allen W Bird II Donald E. B~hop TIm Boe Judge David B. Bogard Raymond E. Bomhoft Ted Bomer, Jr. Cueris L Bowman Jamie Boyd Lowell D. Boynton Frank Bozzo Judge Ellen B. Brnndey Max Beandey Danid W Bremer William C. Bridgfonh Howml W Brill

Jeff Broadwater Judge MiehadJ. Brown Justice Roben L Brown Chauncey Brummer

John Brummett Judge David Bumar William Jackson Bun n Judge Thomas E Bu" Joe D. Calhoun III Clurles R. Camp Howml G. CampbdI Kimbeely M. Canova Thomas M. Carpenter Phillip Carrou Douglas M. Carson Rq>. Jo Ellen Carson Mark S. Carter Paula). Casey Robe" M. Ceaeley, Je. Blake K. Champ~n Saetdrn W Che"}' Eua Tom Clark Carolyn J. Clegg Kimberly E eoa" Tamra Cochran Pat Jackson Compton Roben C. Compeon Geegg A Coeke Barry E. CopM Kevin A. Crass

Marco Crespi Thomas A Daily Patti Davidson John A. "Zan" Davis rv John Gary Da~ Rdxa:a J. Denison Terri A DeSio John MA DiPippa Philip E. Dixon Allen C. Dobson Winslow Drummond Davis Duey Paul E Dumas John Dzienkowski William A Eckert III Geoegia K. Elrod Bruce Engstrom

Seephen En(;'uom David Epseein Audeey R. Evans Janet Aaccus Judge Victor A Fleming

Judge John E Fumee Lea Ellen FowIee David Freeze Susan Fricke Donna S. Galehus Allan Gates

Wm. David Gay Iva NeU Gibbons John P. Gill W Dene Gieehd Morton Girelman Jimmy Givens Judge Thomas A. Glaze Charles W Goldnee KadlyW Goss Ken Gould G<egory B. Geaham ~ceS.Gmy

Joseph W Geegory Judge WendeU L Griffen William M. Griffin ill Russdl A Gumer Ikpresentarive Rita Hale Barbara Halsey Donis B. Hamilton Frank S. HarMn MdvaHarmon Jeffeey S. Harrelson Martha M. Harriman Senator Morril Harriman Steven L Harris William D. Haughe Bmd L Hendricks Judy S. Henry Joseph Hickey Janie Hipp David A Hodges, Je. Henry Hodges Den~ R. Hoggard

\1'~i1nsils

/lill' \ssoriill ion I'U: SPllil~III'S &1'l'ogTilm 1'lilnUlll's

Alice Holcomb Richard E. Holiman Leon Holmes Bill R. HoUoway Tunodly N. Holdloff Roben E. Hornberger Riehm! L Huff Eugene Hunt Nonnan J. Hyne Justice Annabelle C. Imber Judge Gary IslxU James Ralph Jackson Jim Jackson Sruan Jackson Jill R. Jacoway Larry Jegley Judge John E. Jennin(;, Te"}' C. Jenson Gary D. Jiles Lynda M. Johnson Paulette Locke Johnson Judge Edward P. Jones Je"}' C. Jones Mchad R. Jones Robe" Shepherd Jones Stephen W. Jones Jim LJ~an Allan Kanner George Karpoff Judge Edwin A Kenan A). Kelly Hal Joseph Keenp Mike Kerensky TIm Kizer Leslie Klinefelter Kamerine Kores H. Bakee Kurrus Edward Lambe" John Unde Roben Laurence Chris Lawson &unuel E. Ledbetter John C. LesseI Mara Leverett AlIyson Lewis Wilma B. Liebman John G. Lile UI Judge John R. Linebeegee James H. Longino Jeff). Look Edwin L l.owdlee, Je. Rq>. Rdxcea L Lynn Philip K. Lyon Diane S. Mackey Joe E. Madden, Je. Nancy Mahlee

Sen:nor David MaJone Seephen A Marcum D. Price MarshaU, Je. Everette L Marrin William A Marrin

Mary Beeh Matdlews Nancy Bellhouse May Sidney H. McCoUum Kathleen McComber Bobby McDaniel Dan McDonald Janie W Mcfarlin Elizabeth M. McGce Marcia Mcivor Phyllis M. McKenzie Phillip H. McMadl Judge Margaret B. Meads Arthur Miller Lance R Miller M;ehad W MieeheU Judge James G. Mu<on Sandrn B. MoU Judge James M. Moody Harry Truman Moore Michael S. Moore Charles A Moegan Rosalind M. Mouser Allan J. Mueller Charles T. Mulvey, Je. Cynehia E. Nance Robe" L Neighbo" Justice David Newbern Maq;:uee M. Newton W Robe" Nu<on, Je. N. M. "Mac" Nonon,Jr. Alan J. Nussbawn Debby Thetfoed Nye Thomas J. O'Brien Charles C. Owen UnceOwens Roben Palmer Ellen Pansky Anne S. Parker Glenn Pasvogel G. Alan Perkins Kathryn B. Peekins Samuel A Perreni Shane Peery Terry Perry Pete Petroski E. Lamar Perrus John V. Phelps Judge Grisham A. Phillips Susie Pointer Jeff Poner Troy A Price Thomas A Prince Mchad). r..k Ricl=d Quiggle Barbara J. Rand Brian H. Ratcliff Barbam Raueh Linda Reid Charles W Reynolds Ricl=d Roderick Gill A Rage"

James M. Rage" Mark A Rage" Steven O. Rosen Robe" A. RusseU, Je. Kadlryn Sampson Charles E. Scharlau Pete Schauf Isaac A Seon, Jr. Doug SeilZ Te"}' Seligmann Robe" S. Sharee Judge Bobby E. Shepheed Scotty Shively Cheryl Shuffield Charles N. S;mkins Harold H. Simpson II Edward M. Siaugh"e H. Mayo Smim Rodney K. Smidl Cong. Vietor E Snyder Jim D. Speaes James P. SeanzeU Amy Lee Stewart Jean Stockburgee Robin Strickland Gary L SuU;van KeUy S. Te")' John Theis Floyd M. Thomas, Je. Representative Ted Thomas MichaeiTIgar Tab Turner Paul D. WaddeU Ralph W WaddeU John C. Wade Jack Wagonee UI DanyeUe J. Walkee Eddie H. Walkee, Je. Ralph M. Washingeon John J. Waoons Steven A Weiler Chris Weiser W. Eric West Craig Westbrook Frederick S. Wea.eI Bud B. Whetstone Chad White Roben W White Dale Kenyon Williams Renee S. Williams Judge William R. Wl!son,Je. E1ana C. WiUs John C. Wunee UI Carolyn B. Widleespoon Todd Wooten WulWn E. Wrighe William J. Wynne John C. WyviU H. Lawrence Yancey

ral.li ,10. I/I\路i.ler 2000 1Ie !rkUIll LIKIer il

In lIrmOl'iilnJ Max Howell Max Howell. of Jacksonville. who served in the Arkansas Senate for 42 years. died Friday. Ocrober 15.1999. Ar the height of his political career, Howell was one of the most powerful men in Arkansas state governmem. He was elected to the state House of Representatives in 1946 and served two terms, then he was elected to the state Senate in 1950. He retired from the Senate in 1992. He worked closely with and advised each Arkansas governor from the term of Ben Laney ro rhar of Bill Climon. He was a particularly active and effective state senator and his career was filled with the adoption of progressive legislation. Legislation sponsored by Howell reformed the State Hospital and was instrumental in creating a modern system of providing mental health treatment. He led the way in prorecring the rights of patients and people who are institutionalized. He took pride in sponsoring the first version of the Arkansas Freedom of Information Act in 1947. when he was a freshman member of the state House of Representatives. The FOI law is an important rool in protecting the rights of taxpayers because it guarantees the rights of citizens to observe meetings of public bodies and to inspect the records and financial transactions of government entities. Howell took an active role in preserving the Old State House in downtown Little Rock, which is now considered a historical landmark. Howell sponsored legislation creating the current University of Arkansas ar Lircle Rock and rhe Law School ar UALR. He was also a major force behind the construction of the University of Arkansas for Medical Sciences at its Markham Street location. His work was crucial in the formation of the Juvenile Justice System. He was chairman of the Senate Judiciary Committee for 20 years, and therefore, was a major inAuence in the writing of Arkansas laws and in structuring the criminal and civil court system. Howell's legislation helped create and

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maintain the adult probation system. relieving overcrowded conditions in state prison umts. Howell was a member, vice-chairman and eventually, chairman of the Joint Budget Committee for 30 years, was vice-chairman of the Senate Rules Committee for 24 years, was chairman of the Senate Efficiency Committee for 26 years, was a member of the Senate Committee on Insurance and Commerce, was Senate Chairman of the Joint Committee on Children and Yourh. He was Presidem Pro Tempore of the Senate in rhe 64rh General Assembly. from 1963 ro 1964. In 1953. he becanle a member of the Legislative Council and served on it until his retirement. In the private sector, Howell was a partner in the Little Rock law firm now known as Howell, Trice and Hope. He was also a farmer. Howell graduared from Lirde Rock Senior High School and Litde Rock Law School. He passed the bar in 1939. He joined the Army on Dec. 8. 1941. and served in rhe Army Judge Advocare General UAG) section. His active duty ended in 1946. He then served for more than 30 years in the Arkansas National Guard, retiring as a Lieutenant General. He is survived by his wife, Inez Donham Howell. two sisters, Carmelira Gifford of Three Rivers, Calif., and Ruth Swanson of Knoxville, Tenn.; a brother, F.J. Howell of Litcle Rock; his children. Max Howell Jr. of Orlando, Fla., Patricia Howell Tate of aples. Fla.â&#x20AC;˘ Rachel Howell of Jacksonville. Bill Howell of Beebe. Kauina Weyland of Jacksonville. and Don Howell of Helena; six grandchildren, four great-grandchildren, and a host of nieces, nephews and loved ones.

State Representative Rita Hale State Representative (District 33). Rita Hale. died Sunday. Seprember 19. 1999 in Lirde Rock. Her death. at 55. was due to a stroke-related condition. Many of her political colleagues, including

Governor Mike Huckabee. spoke Hale's praises. Huckabee and Hale had borh lived in Pine Bluff, and their acquaintance dated back almoSt 20 years. Huckabee ordered all state flags be flown at half-mast on Wednesday. Seprember 22. 1999. in honor of Hale.

Vice chair of the House Judiciary Committee, Hale was a noted champion of

crime victims' rights.

She was also well-

known for the progress she made for women in the workplace and in the Legislature. She worked hard on children's issues as evi-

denced by her position as chair of the subcomminee on juvenile justice and child sup-

pore. Hale was projecr director of rhe Assaulr Victim Service Program in Jefferson Counry prior [Q becoming deputy prosecuting attorney in Pine Bluff. Her work with the Assauh Victim Service Program allowed her to aid victims of assault and to implement a high-profile community educational program aimed at rape prevention and increasing rape convictions. She also liked co take action in the area of abused children and spousal abuse. From 1990 umil 1995. Hale held the posirion of full-rime chief depury prosecuting attorney in Garland County. Hale entered private practice in September of 1995 while still serving as depury prosecutor. In January, 1997, she emered private practice full time and assumed office as state represemative for District 33. John Tucker Jernigan John Tucker Jernigan. age 83 of Lircle Rock. rerired chancery judge. died Thursday. October 28. 1999. Judge Jernigan was a lifelong resident of Lircle Rock. son of rhe lare W. J. and Lucile Tucker Jernigan. A graduare of rhe Universiry of Arkansas ar Fayetteville, Judge Jernigan received his law degree from the university in 1939. His legal career began in rhe legal division of the State Revenue Department where he served as assistant city artorney for Little Rock and engaged in privare practice. Immediately before entering the armed services. he was employed in the Land Division of the War Department to negotiate an acqujsition of land for Camp hafFee near Ft. Smith. After entering the Army, he was selected

III U('lIIol'jalll to attend officers training school at Ft.

Benning, GA. Judge Jernigan was later sent to Europe with the 44th Division and was seriously wounded in action. He recovered from ills injuries and was assigned to the Judge Advocate General's office and worked in me United States Army Claims team throughout France. Judge Jernigan returned home in late 1945 as a captain, a decorated war hero and a very lucky man - only 12 of his 200-man company survived. Judge Jernigan then served as attorney for me State Claims Commission, later becoming executive secretary and special referee of the Workmen's Compensation Commission where he served until 1951. At that time, he became a deputy prosecuting attorney for Pulaski County and later served as chief deputy. He also served three terms in the office of prosecuting attorney. He was later elected Second Division Chancery Judge and served in that office until his retirement in 1984. He is survived by his wife of 55 years, Margaret Weir Jernigan; four daughters, Margaret Elizabeth Jernigan of Little Rock; Martha Ann Pirtman of Hartieville, Mary McCormick of Fayetteville; Ellen Ginnaven of Alexander; and one brother, Jay; and five grandchildren. Lawrence S. Morgan Lawrence S. Morgan, 82, of Fort Smith died September 4, 1999, in Fort Smith. He was a retired oil and gas attorney and a retired first lieutenant in the U.S. Army. He was a member of First United Methodist Church, where he was a Sunday school teacher for 35 years and was a graduate of the University of Arkansas School of Law. He is survived by his wife, Mary; two daughters, Katherine M. Sullivan of Helena and Laura Morgan of Fon Smith; and [wo srepdaughters, May Joann Boswell of Kinsron, N.C., and Patty Richard of Birmingham, Ala.; five grandchildren and a great-grandchild.

Richard C. Butler, Sr. Richard C. Burler, Sr. of Little Rock, died in September. He attended Linle Rock Junior College and graduated from the University of Arkansas in 1931. He was awarded doctorate of laws degrees from Hendrix College in 1981 and the University

of Arkansas at Little Rock in 1986. He entered the law profession in 1933, was licensed to practice before the U.S. Supreme Court and retired from the firm of House, Holmes, Butler and Jewell in 1963 when he became president of Commercial National Bank and later chairman of the board. He was a member of the American and Arkansas Bar Associations and represented the Little Rock School Board during the 1957 desegregation case. He served as captain in the Army Air Corps during World War II, receiving the Bronze Star Medal for service in the ChinaBurma-India Theatre. Mr. Butler served as president of the Greater Little Rock Chamber of Commerce and as a member of Fifry-for-the-Furure. He developed Treasure Hill Subdivision and donated land to the city for Butler Park on Rodney Parham Road. He was a founder of the United Methodist Foundation of Arkansas and a major donor of the Gertrude Remmel Butler Child Development Center of the First United Methodisr Church of Litrle Rock, the Boy Scout Camp at Damascus, the Butler Arboretum at Wildwood Park for the Performing Arts, the Butler Center for Arkansas Srudies at the Little Rock Public Library and the future Alumni Building at the University of Arkansas at Little Rock. As a horticulrurist, he was regional Vice President of the American lris Society and Master Gardener. He was well-known as a grower of daffodils and hybridizer of day Iiilies and irises. He was a member of the Kiwanis Club of Litrle Rock, the Chancellor's Circle ar UAMS, the XV Club, the Union League Club of Chicago and the Country Club of Little Rock. He served as chairman of both the boards of trustees and stewards at First Methodisr Church, Litrle Rock. He is survived by his wife, Gertrude Remmel Butler; son, Richard C. Butler, Jr.; nieces, Kitty Fuess Clement and Marguerite Fuess Sidner of Houston, Texas, and Kathryn Winn Eoff and nephew, James Buchana Winn III of Wimberley, Texas; also brothers-in-law Augustus C. Remmel Jr. And Roland Rowe Remmel and sister-inlaw Carrie Remmel Dickinson.

Charles A. Beasley, Jr. Charles A. Beasley, Jr.â&#x20AC;˘ 81, of Fort Smith, died Sarurday, September II, 1999, in Fort Smidt. He was a retired senior vice presidem and trust officer of First National Bank. Prior co his employment at First National, he practiced law as an assistant United States attorney and in private practice. He was an active member of First

United Methodist Church, a member of the Noon Exchange Club, a 33rd Degree Scottish Rite Mason, a 50-year member of Sebastian Lodge. Amrir3 Grotto and Scottish Rite. He was a Navy veteran of World War II. He his survived by his wife, Mary Frances; three sons, Charles Beasley III of Newport, N.C., Robert B. Beasley of Broken Arrow, Okla., and John R. Beasley of Fort Smith; onc sister, Brooksie Walker of Houston; nine grandchildren. Charles IV. Robert] r., Aaron, Jared, Matthew and Brian Beasley, Jennifer Faino, Sarah Kathryn Beasley and Stacey Callahan; and twO greargrandchildren, Samantha and Chrisropher Beasley. Nancy Geraldine Murphy Nancy Geraldine Murphy, 83, a lifelong Pine Bluff resident died in August. She was a loyal and devoted 50-year employee of the Ramsay, Bridgforth, Harrelson and Starling law firm and its predecessors in name. She was highly regarded as a legal secretary, being recognized as such by members of the Bar and by her secretarial associates.

TIl' Arkansas Bar Foundation acknowkdg~s with gratqul appreciation th~ "uipt ofmnnorial gifts and scholanhip contn"butionJ givm in m~mory 0/ th~ following individuals from September 1. 1999 tbrough Deumba 7. 1999"

IN Ml:MORY m- WILLIAM A. ECKERT, JR. ADEQ Staff IN MEMORY OF MAX HOWELL

Cyril Hollingswonh

IN Ml:MORY OF ELBERT S. JOHNSON Jack C. Deacon IN MEMORY OF MRS. IVAN QUAITLEBAUM

Judge William R. Wilson, Jr. and Calhi Compton

I'll. Ii 10. 1/1IÂˇiller 2000

ne ArkllllJ LIWllr

Law Office Technology, Continued from Page 9

6. 7.

programs will send the reply [Q all list members. Users must change the 'To:" line in the e路mail message when replying only to an individual. A vendor-neutra.!, med.ium路neutra.! citation form to paragraph numbered opinions would eliminate this problem. When the Ubrarians began posting opinions on the Internet, the original syllabus w:lS replaced with the new table of contents. However, after receiving severa.! requests for retention of the information in the syllabus, the procedure was changed. In addition to the announcement of the opinions, each syllabus contains per curiam orders, motions submined and submissions. This is the only electronic source for this information, and it is indexed in the search engine. It is available directly at hmrllrouns.state.3["-Slol2injQrnJQpm.ain hgn The opinions are separated into the fall and spring terms of coun each year to make them more manageable. Prior [Q May 20, 1998, the librarians were not able to cQnveniently convert the opinions from WordPerfect to HTML, so they are available only in ASCI I or WordPerfect formats. OpiniQns added since that time have been converted to HTML format. AlthQugh the conversion results are generally very good, users may notice some Qddities in the display of the HTML version. This is probably attributable to the fact that the opinions are authored in Corel WordPerfect 8 format and convened. to WQrdPerfect 5.1 before mer are convened

to HTML. 9. The ZIP file was primarily intended as a convenience fQr the legal publishers as a simple way to dQwnlQad all the QpiniQns at once. The WordPerfect 5.1 fiJes are CQmpressed using PKZip sQftware. The software [Q decompress the files is available on the Internet at htcp'll www I2kwarc com. 10. This is the method u.s芦! by many publishers to permit pinpoint pualld citatiQns. The starring point of each parallel page is indicated by a "star" or .. page number. 11. The Information Network of Arkansas, a quasi-state agency supported by subscription fees, added the search engine. I A is responsible fQr hosting many of the Arkansas state agency web sites, including the official State Qf Arkansas home page at httl2路llwww stat<; ar us and the Arkansas Bar Association home page at h([~r"www ark-

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12. Su, Jacqueline S. Wright & Timothy N. HolthQff, A Ytar on tht Wlb: A Rtport on tht Arkansas judiciary Homt Pagt, ARK. UWYER, Summer 1997. at 6. 13. Attorneys should be aware that this wQrk has been dQne with no additional financial suppOrt. Tht Arkansas Judiciary Homt Pagt was not created tQ compete with more comprehensive legal research tools. Instead. the primacy purpose is to provide access to the Qpinions and other court informatiQn as quickly and inexpensively as possible. Neither the Reporter of Decisions nor [he Supreme Court Library has sufficient fiscal Qr human resources to maintain a comprehensive Imernet-based legal research tool. evenheless, both recogniu: the importance of making this informatiQn freely available to the public. 14. The full-text search cannot be SQ limited because QnJy published Qpinions are available in full-tex[ on (he web site. 15. The <AND> and <OR> operators n~ nor be enclosed in the angle brackets (0), but the <NOT> and <NEAR> operators must. 16. Select the "Hinu" link next to the full-text

search box.

Beverly Rehabilitation, the contract therapy subsidiary of the narion's largest POStacme provider, seeks a Senior Director/VP of Compliance. Position in the requires experience developmenrlimplemematjon of compliance programs in a health care environm<nt. Qualified applicants will have a degreellicensure in Law, Therapy or Nursing. Send resume to: Melissa Primm, B<verly Enterprises, 1000 B<v<rly Way, Ft. Smith, AR 72919; Fax 501201-1201. EOE m/f/dlv.

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17. Supreme Court civil docket numbers wualIy begin with a twQ digit number specifying the year the case was filed followed by a hyphen [hen a number indicating (he sequence in which the case was filed, e.g. 97-1234 fot the 1,234th <:as< fila! in 1997. Docket numbers fQr criminal cases in the same CQurt are immedia(dy preceded by (he letters "CR", e.g. CR97-1234. Similarly, Court of Appeals civil docket numbers begin with "CA" then the numbers. Criminal d""ota! by "CACR" then the numbers. Employment Security DivisiQn cases start with "E" fQIIQwed by the numbers. Inconsistency in indexing occurs when spaces are inadvertently emered between letters and numbers. For example, "CACR98-1234" is correctly entered, but"CA CR 98-1234" is incorrectlyentered. A successful docket number search may require searches for incorrectly entered docket numbers. 18. .'AoS[ legal publishers experience delays ranging from one day to more than one week in getting Arkansas cases into their e1ecuonic databases.

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