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3路9609路1/1路00 [0613821

VOLUME 35, NUMBER 2 PUBLISHER

Arkansas Bar AssocWtion Phone:(501)3~

on en s

Fax: (SOl) 375-4901 Website: www.arkbar.com E-Mail: cmoring@arkbar.com

EDITOR

Connie Moring

Features

GRAPHJC DESIGN Sora lAndis EDITORIAL BOARD David H. Williams, Chair Wiley A. Branton Thomas M. Carpenter Jacqueline J. Cravens Morton Gitelman James C. Graves Lucinda McDaniel Thomas H. McGowan Jacqueline S. Wright

omCERS President Louis B. (Ducky) Jones, Jr. President-Elect Ron O. H;urison lmmediate Past President Robert M. Cearley, Jr. Secretary -Treasu.rer H. MUITaY Claycomb Executive Council Chair Christopher Barrier Parliamentarian Marie-Bemude Miller Young Lawyers Section Chair Baxter Sharp Executive Director Don Hollingsworth Associate Executive Director Judith Gray

Estate Planning, An Opportuni[)' to Map the Future for an Elderl Client

by Raymond Bornhoft

12

Protecting the Vulnerable Elder Consumer

by james DePriest

18

Consent to Medical Treatment: The Right to Have Peace of Mind

by Elizabeth Andreoli

On tile Cover. Elderly Couple Holding Hands by Dan Yaccanno

24

My Patient Alice Elder Law: An Ethical Analysis

by Robert L. Barrow. jG, MD, FCLM

35

Informal Caregivers of an Aging Adult

by judy Hoelzema

36

EXEClITIVE COUNCIL

William M. Clark, Jr. F. Thomas Curry

Usury in Arkansas: Millennial Pre-Emptions

Thomas A. Daily Kay West Forrest Lance B. Ga mer Dave Wisdom Harrod Knox 8. Kinney Edwin N. McClure Lance R. Miller Michael W. Mitchell Charles C. Owen Brian H. Ratcliff James D. Sprott Danny Thrailkill R. Scott Zuerker

by W Christopher Barrier andjohn 0. Moore

EXEClITIVE COUNCIL L1AJSON MEMBERS AJice Holcomb Bradley D. Jesson Harry Truman Moore Judge David B. Bogard Carolyn B. Witherspoon

AMENDMENT 3 THE JUDICIAL ARTICLE

2

PRESIDENT'S REPORT,

3 5

EXECUTIVE

Frequently Asked Questions by Louis B. "Bucky" Jones, Jr. DIRECTOR'S REPORT, by Don HoliingslVorth

MEMBER BENEFITS

by COllnie Moring OFFICE TECHNOLOGY, by N. "Mac" Nortoll. Jr.

A LJITLE GOOD LAW

EWS,

6 8 9

Book Review: Conumpt of Court

by Harry Truman Moore 1M ArkAnsaS Un.vyn(USI'S546-040) is pubiished quarterly by the Arkansas Bar As5odation. Periodicals postage paid at Uttle Rock. Arkansas. POSTMASTER: send address change! to The ArkllnS4S LAwyn-, 400 West Markham, Uttle Rock, Arkansas 72201. Subscription price to non-members

42

10

CLE CALENDAR

15

YOUNG LAWYERS SECTION REPORT

of the Arkansas Bar Association 525.00 per year. Any opinion expressed herein is that of the author, and not necesurily that of the Arkansas Bar Association or The AnaJl$ll$ l.JI~. Contributions to The AnllnSQs Lilwyer are welcome and should be sent in two copies to EDITOR,

JUDICIAL D,SCIPLINARY ACTIONS

37 39

JUDICIAL ADVISORY OPINIONS

40

LAWYER D,SCIPLINARY ACTIONS

44

The Anans.u LAwyer, 400 West Markham. Utile Rock, Arkansas 72201. AU inquiries regarding advertising should besent to Editor, 11uAnA"SQs Lawyeral theabm--e Mldre!18. Copyright 200J, Arkansas Bar Association. All rights

ARKANSAS BAR ASSOCIATION SUSTAINING MEMBERS

57

IN MEMORIAM

58 60

~"'.

CLASSIFIED ADVERTISING/INDEX TO ADVERTISERS

AMENDMENT 3 THE JUDICIAL ARTICLE Frequently Asked Questions* 1.

QUESTION: What is the origin ofour present trial court system? ANSWER: Separate courts of chancery developed in England from as early as the 13th century as a way for the King to exert his influence with his subjects. These courts reached the height of their power in the 16th and 17th centuries during the time that the legal systems in the American colonies were being developed. It is ironic that when the first chancery court in Arkansas appeared in 1855, the English chancery courts were being abolished. Arkansas expanded its separate chancery courts as most other States were merging chancery into courtS of law.

2.

QUESTION: Why is the merger ofcourts oflaw and equity needed' ANSWER: Arkansas is one of only three states which maintain chancery courts and the only remaining state which still has a strict division of law and equiry in the trial courts of general jurisdiction. This strict division creates problems in several ways. The problem of jurisdiction is always present. Our system requires that a case be reversed on appeal if it was heard in the wrong trial court, even when it is unclear whether a specific case belongs in chancery or circuit coun. These "technical" reversals cOSt Arkansas litigants large amounts of time and money.

3.

QUESTION: Why do we have to amend the constitution to combine law and equity' Can't the changes be made by

legislation? ANSWER: Under our current constitution, it may be technically possible to abolish chancery courts by legislative action. Because such a change will have a major impact upon our court structure, however, constitutional change is more appropriate. In addition, any change made legislatively could be changed again by a subsequent legislature. A constitutional change will provide stabiliry to Arkansas' judicial struCture. A change in the constitution will also Iimir the number of constitutional challenges which would result should the change be attempted legislatively. Clearly. the other changes in Amendment 3 do require a change in the Arkansas Constitution.

4.

QUESTION: Will we still have the ability to haveJudges specialize in particular kinds of cases SItch as criminal, Juvenile and domestic?

ANSWER: Yes, it would be expected that mOSt judicial districts would create divisions into which cases would be assigned. Such divisions would be similar to those currently existing in the larger judicial districts, such as criminal, civil, chancery, probate and juvenile. Individual districts or counties within districts would be able to create such separate divisions as they are deemed appropriate. 5.

QUESTION: Does the proposal affect the number oftrial courtJudges around the state or the boundaries ofjudicial districts? ANSWER: No, this remains a decision of the General Assembly.

• This column is part two of fout. Watch for more Frequently Asked Questions regarding Amendment 3 in upcoming issues of The Arkansas Lawyer.

1'I'I'sidl lli \ UI1PIII't l

We Have Persisted, Prepared, Shown Pride and Demonstrated Professionalism the Four "Ps"! by Louis B. "Bucky" Jones, Jr.

me

for your vote of confidence. Our I02nd Annual Meeting, fearuring Morris Dees, founding Director of the Southern Poverty Law Center; ChiefJustice Thomas Zlacker of rhe Arirona Supreme Coun; trial 3cwrney, Ron Modey, of Charlesron, South Carolina - a key player in

this much needed reform in our lifetimes. Polls and focus groups have shown that if the vorers understand the proposal, they are in favor of it. It is the job, the responsibiJity, the duty of every one of us to get involved in this campaign and do what we do best be advocates for positive changes in our judicial system. This is a "good government" issue. Who better than lawyers and judges, who deal with and work in the system daily, to explain to the voters,

the tobacco setdemenr; Governor Mike

John Q. Public, why we should change the

Huckabee; The Capitol Sreps from Washington D.C.; and rhe eare Brothers Band. has something for everyone. The meeting will offer relevant yet diverse CLE programs, lots of food, fun, entertainment

present system and how mat system would be improved by voting for Amendment 3! If it's going to happen, ie's up to us. There will be many opportunities for each of us to get involved in this campaign. Let's not let this opportunity to demonstrate pride and professionalism and to bring about positive change slip by.

I can state confidently

changes in OUf Association's governance was most encouraging and gratifying_ It demonstrated great interest in and suppon

that we have all "persisted"

for the work of the Association. Thank you

(some would say survived), and we have worked hard to

" " f ior our annuaI prepare meeting which will showcase the "pride" we have in our profession and the "professionalism" we strive for individually and collectively,

as well as speakers who will educate and inspire us to be the "best we can be" whether we "toil" in private practice, on the bench. in business, education or government practice. Don't miss our! Be a parr of rhis wonderful tradition of work and play rhar highlights both rhe pride in our

Annual Meeting rhree and a half monrhs

profession as well as the professionalism for which we strive. Annual Meeting Commirtee Chair, Mick Crawford, and Associate Executive Director, Judith Gray, have spent endless hours planning. coordjnating. tweaking and fine tuning this meeting to be our best ever. Make plans

away. I can state confidently that we have all

now ro attend. You'll be glad you did.

n my first column in this space: last summer, I Stated. that my theme for the year would be "Pride, Professionalism, Persistence and Preparation" - the four Ps! As this column is written in early March for publication in April with our I02nd

I

November 8, 2000 will be tOO late. You'll be

reading and hearing much more about the campaign as we prepare for the annual meeting and the election. But don't wait to be asked. Talk to your family, friends,

colleagues, civic clubs, church and school groups abour Amendment 3. Call rhe Bar Center for more information. Check our web site (www.arkbar.com) and publications. Be informed. Be involved. This is our issue and if we are successful, it will be because we met the challenge.

"persisted" (some would say survived), and

A major focus of the Association for

Finally, I wanr to rhank you all for

we have worked hard to "prepare" for our annual meeting which will showcase the "pride" we have in our profession and the "professionalism" we strive for individually

many years (ren to thirty, depending on

allowing me the privilege to serve our Association as President this year. I look forward to the remaining months of my term, the best ever Annual Meeting, and a

and collectively.

In my last column, we reviewed many efforts of committees, task forces and individuals doing great work for our Association on issues that affect us all. The overwhelming approval by our members of

who's counting) has been the effon to updare the Judicial Article of our 1874 state

constitution. Thanks to the cooperative efforts of many of our members from the bench as well as the bar, rhe 1999 General Assembly referred proposed Amendment 3 to the voters in this year's November general election. This represents the best and perhaps the only oppormniry to achieve

resounding win (with your help) for

Amendment 3 in November. Keep the faith and remember the four Ps - Pride Professionalism, Persistence and Preparation!*

fol.l~

No. !/Spril! 2080

The ,Irlmas La~lrr

1

[\1'1' II' ill'

II i1'1'1' I01' 's ItI' Pili"

It's Now or Never - November 7, 2000 by Don Hollingsworth e-mail: dhollingsworth@arkbar.com From April 2000 uncil November 2000 seems like a long rime. However, if members of the Arkansas Bar Association are co be successful in passing Amendment 3 - the new Judicial Article for the Arkansas Consticution - it is time co roll up our sleeves and get to work. After several unsuccessful attempts at this judicial reform over three decades, the voters of Arkansas finally have the opportunity co pass a Judicial Article which is noc encumbered with other issues as it previously was as pan of a proposed, emire new constitution. This opportunity will not come again for many. many years. One reason is the tremendous resources and compromises required to bring a final product to the legal community. Another is the difficulty in "gaining" one of the three spors which the Arkansas General Assembly has to refer constitutional amendments [0 the voters. One may remember that a judicial article almost identical to Amendment 3 was a part of the last two constitutions referred to the vOters by constitmional conventions held in 1970 and 1980. Both of these constitutions failed at the polls. It is extremely unlikely that the vocers will approve a new conscitution in the foreseeable future because of itS complexity and the number of hoc button issues that would surface again. We are fortunate that the Amendment 3 Committee organized last year. It is developing a plan which will direct the campaign for passage of the amendment. The successful implementation of that plan wiU need our volunteer participation In a variety of ways. The following are some examples: 1. Educate your family, friends and coworkers about Amendment 3.

2. Serve on the local Amendment 3 Committee for your county. 3. Make a presentation to a local civic club. 4. Send postcards to friends next fa.lI. 5. Place Amendment 3 literature waiting room or lobby.

In

your

6. Make a donation to the Amendment 3 Committee. Early research has provided important guidance to the Amendment 3 Committee. It has shown that once Arkansans understand the changes included in the proposed new judicial article, they are supportive of it. But they have to be sold on the need for change. The opinions that mean the most to voters when deciding how to voce on Amendment 3 are those oflocallawyers and judges they know and respect. Speak up on the need for and the benefits of Amendmenr 3. Three of the major provisions are liSted below. A. Merger of Law and Equity. Arkansas is the last state with a strict division of law and equity. It is an outrage that parties and attorneys are noc always certain their case has been filed in the right trial couer. Amendment 3 will still allow judges to specialize in certain types of cases. B. Election of Judges on a Non-Partisan Basis. There should be no appearance of partisanship when someone appears before a judge. Arkansas is only one of seven states where a judge must run as a member of a political party. C. Referees and Masters. Amendment 3 authorizes the use of referees and masters

by the circuit and district couers and saves money by reducing the need for new judgeships. Attorneys and judges across Arkansas have never been so unified on a matter this important and far-reaching. In the spring of 1998 our Association held a membership referendum on the Judicial Article. and 85% voted in favor of it. The Arkansas Judicial Council and our House of Delegates overwhelmingly adopted the Judicial Article. Over 500 attorneys and judges had direct involvement in the development of the current proposal and/or irs passage by the General Assembly in 1999. which placed it on the November 2000 genetal election ballot. If you have nm yet volunteered for the campaign. just send me a fax (501-3754901) or e-mail (dhollingsworth@...kb.... com). We will gladly pass your name along to the Amendmenr 3 Committee. More information on the campaign will be presented at the June Annual Meeting of our Association. So. let's roll up our sleeves and go to work!.;.

Ethics Advisory Opinion. Advisory Opinion 2000-0 I has been issued by our Professional Ethics and Grievance Committee. The subject deals with anorney involvement with Land Title Companies. A copy of the opinion is on our web site www.arkbarcom under "New & Nmeworthy".

The POWER of

Publications FREE to Members Take advantage of a series offee publications o/fired by the Association. Your clients will be impressed with their quality and grateful La JOU for providing them.

ARKANSAS SENIOR CITIZENS HANDBOOK designed to answer basic questions abem Social Securiry, Medicaid, Wills and Esmre Planning, Guardianship. etc. ARKANSAS CAREGIVERS HANDBOOK wrinen to help your clients as they underrake the roll of caregiver for parents or ocher loved ones. UPDATED CONSUMER LAW HANDBOOK a reference guide for Arkansans who have questions about their rights in some very common situations. • SMALL CLAIMS COURT BOOKLET shows YOllr client, whose dispure and damages are less than $5,000, how co take necessary steps co file a claim.

• ARKANSAS VETERANS' HANDBOOK provides information about VA enridemenrs and services available. To order, call (501) 375-4606 or (800) 609-5668 or e-mail dgerrald@arkbar.com.

Visit \AlWw.arkbar.com to view or

download some of these publications.

The ,Irkansis !,llIler

lnl.li lIn. VSpring 2000

ANNUAL MEMBERSHIP DIRECTORY Your single source for all Arkansas Bar Association Members' mailing/email addresses and phone/fax numbers - listed both aJphabetica1ly and geographically. Also. listings for House of Delegates. Executive Council, Sections and Committees.

other fee publications include: The NewsBulletin The Arkansas Lawyer Legislative Summary From the Hill • Guide to Arkansas Statute ofLimitations • The Arkansas Law Review The UALR Law Review

For More Information on these member benefits, Visit www.arkbar.com or Call 800-609-5668 or 501-375-4606

Your Membership arkansasfindalawyer N~ onlin~

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for Associacion members only. Review the directory by going to www3.rkbar.coID. • Provides Associalion members a cost.-df'ectivc:. new soura= of cli(:nts with an accurate Up-tO-

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Members receive a special discoum - Ten practice handbooks on CD-ROM from WIS and in print and disk from the Arkansas Bar Association.

Online legal research from Lex:is-Nexis is discounted for members. Call

To order, call Diane at the Association at 501-375-4606 for prim or disk versions or call WIS at 1-800-364-2512 for the CD· ROM version.

The cornerStone of an up-to-date information and skills. The Arkansas Bar Association provides the most comprehensive statewide CLE program, and members pay reduced milion!

ext. 1178.

Improving the Legal System

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The Arkansas Bar Association has historically worked to secure adequate funding of the court system, [Q revise outdated laws, and to provide needed legal information to the public.

UPS gives Arkansas Bar arrorney's professionalism is

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Advisory Ethics Opinions The Arkansas Bar Association is the best opportuniry in Arkansas for attorney interaction through the Association's public service projects. seedons, and committees. The Annual Meeting of the Association each June is 3rccnded by 1,000 Arkansas anorneys and hundreds of family members.

The MBNA Platinum Plus MasterCard includes a card wi th the Arkansas Bar Association logo, no annual fee. miles plus option, a low APR and travel services. all 800-847-7378 for an application.

Its nOt always black and whire. In the practice of law, there's a lot of gray. Your Association's Professional Ethics and Grievance Committee can help. Within specific guidelines. the Commirree will issue an opinion on the member's proposed conduct. There is an administrative charge of $50.

You are well represemed on legislative issues affecting the profession and the legal sysrem.

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\'01. l~ Xo. VSpriog tODD

The ,Irkmill LallIer

7

WE HAVE A WINNER! By Connie Moring

THE ARKANSAS BAR AsSOCIATION

is proud to offer the

"BEST OF CLE" June 26-30, 2000 UALR School of Law Little Rock, Arkansas oin us for a unique forum in which we showcase Arkansas' most outstanding CLE presentations from our most popular 1999 programs. Because we are well aware that lawyers need to keep abreast of a wide variety of legal issues, we are offering 30 hours of CLE programming. The program will be presented by a highly qualified group of speakers who have made significant contributions to the continuing legal education of the bar during 1999.

j

Watch the Arkansas Bar Association web site for more details -

www.arkbar.com 8 TIe lrklllil u~Jtr

III Ii XI. lIS,riq ~IIO

"He Loves Me... or" can be described as dead serious, moving, shocking, even graphic. Now thc 25-minure piece on prevention of dating violence. sporrs another description: AWARD WI 1 G. The Arkansas Bar Association Youm Education Comminee and member, Marcia Barnes. are seeing the fruits of their With loving intensity. Marcia labor. produced the video. and now her "baby" is coming home with prestigious national and international honors. "'He Loves Me... or" won a Bronze World Medal in the Community Seevice category at the 1999 Television Programming and Promotion Competition held in New York. It also won the American Women in Radio and Television's Gracie Allen Award in the Local/Markets 26+ Documentaryl30 minutes or less category. This award was also presented in ew York. And last, hue certainly not least, "He Loves Me... Not" won the Silver CINDY Award in the category of CulruraJ. Ethnic and Women's Issues during the 41 st Annual Imernational Cinema in Industry Competition. Our of nearly 3, 100 entries, me piece placed in me top 15% of all programming emeted. 'Receiving the ew York Film Festival award was quire exciting," Marcia says. "I was on me same stage with the producers of 'Elmo in Grouchland' and 'The Sopranos'. This award gives tremendous credibility to me Arkansas Bar Association and will ease the way to obtaining grants and airing future video projects." "He Loves Me... Nor" premiered on the Arkansas Educational Television Network (AETN) in May, 1999, as part of a live call-in show focusing on dating and relationship violence prevention. It features a compelling series of interviews with women who have experience dealing with relationship violence. The video rakes a serious look at abusive dating relationships and is designed to speak directly to teens who may be experiencing

Marcia Barnes, producer of "He Loves Me... Noe", accepts the New York Festivals award - one of three national awards the piece has won to date. a similar situation. The aim is to show young men and women how the issues of control and power govern these kinds of relationships. Most of us would agree: It is so important that young people understand the difference between a healthy relationship involving love and an abusive relationship involving control. The line isn't always so easy to draw, and too often, the warning signs are not addressed until it is tOO late. Hopefully, me young people who view uHe Loves Me... Not" wiU walk away with a better sense of where to draw the line and how to identify "red flags" that signify dating violence. The Arkansas Bar Association was responsible for underwriting the airing of "He Loves Me... Not" on AETN as well as providing free copies of the video to all Arkansas public schools. The production of the video was funded by granrs from the Arkansas IOLTA Foundation and the Arkansas Bar Foundation. Marcia Barnes, producer of the piece, is a member of the Arkansas Bar Association Youth Education Committee and a parmer in the law firm of Mitchell, Blackstock and Barnes in Little Rock. Marcia is also a former Arkansas public school teacher who has co-written two education videos including one on divorce. Copies of me video are available ro me general public by calling AET 's Membership Division at 800-662-2386. Congratulations to Marcia and the Youth Education Committee and thank you for a job so very well done!.,

ELECTRONIC FILING

Tired ofAbstracting the Record? by N. "Mac" Norton, Jr.

"\V!ha< do the Third Judicial District W Coun of Shawnee County, Kansas http://www.shawneecourt.org, the U.S. District Court for the District of New

Mexico http://www.nmcoUTt.fed.us. the Arizona Coun of Appeals httl';llal'llWo.ct.state.az.us/ef and the Supreme Court of ouh Carolina httl':llwww.ncal'dlatecoutts.O!:g1 main nsf have in common with only a few ocher courts in the United. States? The future. Each of these coucts accept at least some filing of pleadings, motions or briefs electronically - from computer to courthouse at a keystroke. with no paper. Though all of these programs are serious, nO[ all of them are new. Delaware Superior CourtS, for example, have been using CLA (Complex Litigation Automated Docketing) since 1991 (Q eliminate mountains of paper in merger and takeover cases. On a more recent note, as of October I. 1999. all newly filed civil actions in the U.S. District Court for the Western District of Missouri will be subject to electronic filing httl':/lecf.mowd.uscoutts.govl graphics/now.pdf, continuing that court'S participation in a federal electronic filing project involving nine courts for me last three years, following amendments of applicable federal procedures (e.g.• Rule 5. FRCP) to permit e1eeuonic filing. These programs are also diverse in their c:xtem of availability (sc:lected cases or docket-wide), their software requirements (Portable Document Format (PDF) or randard Generalized Markup Language ( GML). ASCII or something dse). and their degrees of user-friendliness (Pointand-dick or more cuscomized interfaces involving more data enrry). Each in its own way, however, is an indicator of the general direction in which litigation filing and case file maintenance in Arkansas' judicial system must go, sooner or later. Filing pleadings and papers by c:Iectronic media has the obvious advantages of more speed and less space than filing on paper. advantages which should have mvorable economics as well. As the North Carolina

Supreme Court puts it: "Electronic filing allows attorneys to submit their documents to be filed, such as petitions, briefs, and responses, through an electronic medium rather than a paper medium. This reduces costs to all parries involved, including me taxpayers and the attorneys." htIj!:/lwww.ncal'ellatecourts.otg/ m l.nsf There certainly should be COSt savings in c:Iecrronic filing. but whether they are dinributed equally between lawyers and diems, on one hand, and courts and taxpayers, on another, is not so dear. TheoreticaJly, lawyers and clients save by eliminating output steps in the lawyer's office, such as printing, phmocopying, and mailing or delivering a document for paper filing. Less obviously. but perhaps more importantly, courts and taxpayers can save by eliminating input steps in the clerk's office, especially if the electronic document bears some identifying code that coordinates with the court's case management computer system, allowing the document CO go from your desktop to the c1erk's file to PACER. say. automatically. Courts can also save personnel time on file organization and document retrieval - and because an electronic file can be accessed by several people simultaneously, the problem of the misplaced or out-of-place files could be reduced. And of course, there are reduced storage space requirements, even if documents mUSt eventually be placed on microfiche for archival purposes. (The Administrative Office of United States Courts has quite a few articles and notes on the subject at its website, http;//www.uscourts.gov: and for a view of the AOe's proposed technical standards with some imerpolated critical commems, see htll.:/lwww.hyperlaw.coml a ell.htm. Lawyers, however, use litigation documents in difFerem places and ways, and probably more often and more intensively than courts, and lawyers create

many more of them than courts. Every law firm that has a significant investment in computers can appreciate the irony of the term "paperless office". It will not be the legal profession that makes paper obsolete.! Arguably. Lawyer X will save paper by serving a morion electronically on opposing counsel Y and Z, by moving the cost of producing the paper copy both will want from his printer to theirs. But that savings will be reversed when they respond and Lawyer X prints a copy of each response. And of course. when Judge A says he'd like a paper copy of your motion, who anlOng us would suggest he print it himself? Nevertheless, these are quibbles. Electronic filing will not cost lawyers more, may cost them less, and will COSt courtS less. Lawyers benefit from convenience, improved documenr management, improved court administration, and 24hour-a-day filing. In Arkansas, moreover, a peculiar additional benefit would be available from electronic filing: No more abstracting the record. Our Supreme Coun's Rule 42(a)(6) requires tbat an appellant's brief conrain "an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision". The Court takes this rule very seriously. A deficient abstract can be fata! to an appeal. In Re £Stat< of Bntmky. 323 Ark. 431. 914 S.W2d 735 (1996), or to an individual argument, Corton v. Missollri Pacific R.R.• 315 Ark. 5. 865 S.W2d 635 (1993). or costly if supplemented by the appellee. Hooker v. Dure Credit Services. 62 Ark. App. 392. 971 S.W.2d 267 (1998). The reason for the abstracting requirement is eminently practical: The seven Justices cannor all examine one paper record at the same time, as the Court has Law Office Technology Continued on page 60

101. Ii No. l/S,ril! 1000

The lrklllll La~lrr

arkansasfindalawyer.com

Contempt of Court: The Turn-ofthe-Century Lynching that Launched 100 lears ofFederalism

Check into it! arkansasfindala"O'er.com was designed as an easy-to-use directory to help the public cut through the Interne< clutter when locating an atrorney.

by Mark Curriden and Leroy Phillips, Jr. (Faber and Faber) A Publication Review by Harry Truman Moore

T

Prospects can search for you by city, county, narne and over 50 areas of practice. Become a pan of the only on-line directory composed solely of Arkansas Bar Association members. It's just another way your Arkansas Bar Association is working to serve you! To register for arkansasflndalawyer.com, contact Barbara Tarkington at 501-375-4606,800-609-5668 or btarkington@arkbar.com.

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awyers have trouble leaving their work .Lac the office. 0( only do they often carry their files home, bur when it comes time for recreation. they often rum to books, television shows and movies on

legal themes. Why else, when lawyers gather socially, do you always hear conversations about the latest books by such writers as John Grisham, Scon Turow and Grif Stockley. Conumpt ofCourt is nO[ legal fiction. It is based on an ugly. and herecofore relatively unknown, actual case. The book relates the stOry of Ed Johnson, a rwemy-rwo year old AfricanAmerican who was arrested in 1906 for the rape of a young white woman. The case was investigated by Chattanooga Sheriff Joseph Shipp, a former Confederate officer, who was in the midst of a highly contested campaign for re-election which had been made more difficult for the incumbem due co a series of unsolved alleged attacks by black men on white women. Despite a trial where the victim could nO[ positively identify her anacker, where some of the witnesses were paid. where jurors berated witnesses who did not suppOrt the Sheriff's StOry, all with the approval of the presiding Judge, Ed Johnson was convicted of rape and scmenced to die. The story would have ended there had it not been for Noah Parden and Styles Hutchins, t'\vo courageous black attorneys who believed that the practice of law was a "calling" from God. Johnson's coun appoimed attorneys had abandoned him, Parden and Hutchins wem forward with the appeal. When they had exhausted all of their state court remedies, they filed a desperate petition before the United States Supreme Court to stay Johnson's execution. Such an action was unheard of. First,

no black lawyers had ever argued a case before the United States Supreme Court. Previous appeals to the court ro simply seek the reversal of wrongful convictions of black defendants had generally failed. More importandy, no precedem had established the authority of the United States Supreme Coun to imervene in state criminal matters. Parden traveled to Washingron, waited patiently a1J day long, and was given an audience with Justice John M. Harlan. Harlan, in his rypicaJly brusque manner, gave him ten minutes of his time. While Parden felt the meeting had gone well, it was not umil his train delivered him back co Chattanooga that he learned that the upreme Court had stayed Johnson's execution. The decision outraged some citizens of Chattanooga. They decided to delY the court'S "interference" by organizing a lynch mob that dragged Johnson from his cell, beat him, then hanged him from a bridge over the Tennessee River. Sheriff Shipp did nothing to Stop the mob. If anything, he assisted irs effons. The members of the Supreme Coun were obviowly agitated by this affront to their authoriry. A federal investigation was instituted, which lead to comempt of court charges being filed agains< the Sheriff and certain members of the lynch mob. They were ultimately convicted of contempt. This well researched and well written story was complied by Mark Curriden, a legal affairs writer for the Dallas Morning News, and Chattanooga anorney. Leroy Phillips, Jr. Phillips first encountered Uniud SldUS v. Shipp in 1968, and was astonished that the case was virtually unknown. Since the operative evems had been spawned in Book Review Continued on page 59

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ESTATE PLANNING, AN OPPORTUNITY TO

MAP THE

FUTURE

FOR AN ELDERLY CLIENT â&#x20AC;˘ by Raymond Bornhoft â&#x20AC;˘

It is essential that the lawyer who is planning and drafting an estate plan for an elderly client discuss with his client/ the issues ofliving longer and the necessary legal documentation for management and conservation ofthe person's property during the remainder ofhis life as well as death.

L\

careful examination of the change in

I"'l.popularion suucrure evidences an ever-increasing need for estate planning by the eJderly population in Arkansas. Nor only are there more older people in lilC State of Arkansas, bur aJso, as a whole, they are living longer. With the increased longevicy of our elderly citizens, an analogous corresponding change has occurred in the legal advice and documentation of the Arkansas lawyer. HiscoricaIly, me primary concern of the client and lawyer in estate planning was simple. Each wanted to make sure the client's assets were ultimately distributed ro the dient's beneficiaries. Furmer, if the c1iem was married with minor children, the lawyer would make sure that the client named a guardian in each Will for the decedent's children. The lawyer's entire work product consisted of having his diem execute a Will and the file was closed. In today's law office, me la\vyer must not only prepare a legal document or alternative plan for distributing adient's estate at death, bur also provide a plan for management of that person's health care decisions and financial affairs during his or her older years. It is essential that the lawyer who is planning and drafting an escate plan for an elderly client discuss wim his c1ient l the issues of living longer and the necessary legal documentation for management and conservation of the person's property during the remainder of

his life as well as dearh.

About the Author Raymond E. Bornhofr is rhe principal attorney of Bornhoft Law Firm,

I'L.L.c. with offices in Lirde Rock and Faycneville. Arkansas where he practices in the areas of taxation,

business law, estare planning and probare.

I~

The ,Irkansas I,lliler

fnl.l~

No. !/Spring 1000

THE ELDERLY CLIENT INTERVIEW AND THEIR CONCERNS A typical meeting with an elderly client will usually flesh out the common problems that all older citizens foresee in

their future. If rhe elderly client has executed a Will, he will probably have it (or a copy) with him when he attends the initial conference. When reviewing the Will, counsel will note that the instrument was executed when the cliem and his

spouse were starting our and the children were minors. Also, while reviewing the Will, the client will often tell counsel that the purpose for executing the Will was ro make sure everything was in order for the

kids in case borh he and his wife died. After asking a number of questions, counsel will have ascertained that the client's family environment, station in life, concerns and goals have dramatically changed since first having execured the Will. For example, the children are now adults and your client is probably a full-time grandparent. Your client's quality of life has changed with his advancing age. Often this means that he or his spouse is managing a chronic health problem with medication and that problem is not curable. Financially, the client's resources will have changed since execution of his Will. After having worked for his entire life, he may have an investment portfolio, two checking accounts (ours and hers), savings accounts, an unwritten promise to pay, and retirement plan assets along with a home. In regard to the unwritten promise to pay, one of the adult (not necessarily mature) children quite often owes your c1iem money. The client realizes that if he wishes to remain married, collection proceedings are nor an option. Each asset, with the exception of the child's promise, now has a value greater than the original price of the home he and his spouse started OUt with when they were first married. It is during the estate planning conference with the elderly, that the c1iem will often express his concerns of growing older. Some of the more common concerns of the older client are as foHows: I. As I grow older, how can my financial resources be managed without the need for a guardianship in the event of my incapaci ry? 2. Who is the proper person or institution to manage my financial resources when I am unable to handle my own affairs? 3. I need to make sure that our financial

resources are available to my SUrvlvlllg spouse so that her accustomed standard ofliving continues after my death with as little interruption as possible. 4. Can an estate pla.n be prepared which is effective for managing my financial resources during my lifetime and resolve the possibility of incapacity? 5. At my death, can the last expenses be paid and the remaining assets be distributed to my family in a relatively quick manner? ESTATE PLAN BASICS There are a number of options a lawyer may turn to in trying to resolve the concerns of the elderly client while mapping oue an estate plan. The basic escate planning documents a lawyer should always consider using in an older client's estate plan are a Durable Power of Anorney, Living Will and Power of Attorney for Health Care, Last Will and Testament and Revocable Trust (also known as a "living truSt"). Estate planners often refer to these four legal documents as the "estate plan basics". For counsel who has elderly dients, it is essential that he understand the purpose of each document and how each instrument works in conjunction with the other in his client's estate plan. By understanding the purpose of each document, counsel may be able to provide a comprehensive estate plan which answers the client's dispositive intent while also providing him with a plan for the management of his medical and financial decisions should he suffer from incapacity. As discussed earlier in this article, one of the common concerns of an elderly dient is how can the financial resources be managed without the need for a guardianship in the event of incapacity. In Arkansas, there are only two (2) legal alternatives to a guardianship proceeding which allow an individual to turn over his affairs to another individual or organization for management: (1) A Durable Power of Anorney;' and (2) A Revocable Trust. In short, a "Durable Power of Attorney" is a general power of attorney whidl remains valid if the Principal should become incompetent after its execution. The document should contain the following language: "This power of attorney shall not be aJfecred by my subsequenr disabiJiry or incapacity and shall be a durable power of attorney within the meaning of and in accordance with Act 659 of the 1981 Genetal Assembly of the State of Arkansas,

codified at Ark. Code Ann. ยง 28-68-20 I et seq. (I987), as now or hereafter amended". This language distinguishes the instrument from a general power of atrorney. Ir is essential that the language be presenr so the Principal can designate an attorney-in-fact ro make decisions and act for the Principal if he becomes incapacitated at some later date. With advance planning, the execueion of a Durable Power of Attorney may allow your subsequently incapacitated c1iem to never need to have a Court appointed legal guardian. Generally, there are twO varieties of Durable Powers of Anorney. These two designations are commonly referred to as "immediate" and "springing" Durable Powers of Attorney. The latter variation of the instrumem does not take effect until the Principal is incompetent {the documem shouJd explain how incapacity is to be determined; for example, certification by (wo physicians or upon the occurrence of a specific evenr stated in the power e.g. hospitalization, placement in a nursing home). The "immediate" durable power of attorney is effective upon execution. Even if a client executes and funds a Revocable Trust there are several reasons why your client should execute a Durable Power of Anorney. Such a procedure would allow for the attorney-in-fact to work in conjunction with a Revocable Trust on behalf of the client. Lawyers who are working in the estate planning area must know that certain property rights exist which cannot be transferred to a Revocable Trust while the diem is alive. An example is an Individual Retirement Plan (IRA). Counsel must recognize the lRA ownership restriction and plan accordingly for incapacity. With the IRA owned outside of the Revocable Trust, the attorney-i n-fact for the incapacitated client would be able manage the investments inside the IRA as well as take out any required distributions on his behalf and uansfer it to the trust. For this reason alone, counsel should have his elderly diem execuee one of the variations of the Durable Power of Attorney. Revocable Trusts have recently become popular estate planning tools. Lately, the Revocable Trust has been advocated to the public as not only a Will substitute bue also as a solution for management of assets in case of incapacity. In my experience, I have found that with older clients, the Revocable Trust often fits the current legal needs of my client as well as his concerns with respect to

the future. On the other hand, it may be that by using aJrernative forms of disposition (pay on death) similar benefits can be attained by the client withour actually having to incur the COSt in setting up a Revocable Trust. If the truSt is revocable, its creation is disregarded for federal tax purposes.3 Upon death, the instrument usually becomes irrevocable and a separate taxable entity. Suffice it to say that Revocable Trusts have been used as integral parts of sophisticated estate tax and financial arrangements for wealthy individuals for centuries. 4 The lawyer and client should understand the essence of a trust is the separation of legal title and equitable interest. That separation can play a substantial role in estate planning. The situation in which the person intended to benefit from an interest in property is unable ro manage the property because of age or some other disability immediately comes to mind. The use of a funded Revocable Trust may appeal to the elderly client who is: (i) a surviving spouse who is inexperienced in investment management; or (ii) realizes that at some future time he or she may be unavailable, incompetent or just toO old to handle financial matters. Most often, it is the latter in that the client is capable of presently serving as uustee, but is concerned about his future ability to handle his financial matters. Under these circumstances, the Revocable Trust may be exactly what the client needs in that it can be drafted to allow for competent professional management of the elderly client's property at a future date when he is incapable or unwilling to manage the assets personally. The declaration may also avoid some of the disruption that can otherwise result from the older client's loss of competency. For example, if your client is the sale or CO-trustee initially and should he become unable or unwilling to manage the corpus, his duries automatically shifr to a successor or Co-trustee. Since the Revocable Trust shouJd be designed to provide competent management of the trust property as soon as the client can no longer provide for himself, one of the most critical provisions of the instrumem is the change of control mechanism by which the older c1iem (settlor) is removed from the management of his own assets and the successor trustee is inserted. The management of the Revocable Trust should change from the settlor to the successor trustee, or trustees, upon the earliest to

\,,1. Ii ,10. VSpriD! 2000

The ,Irkmall,aw!er

II

occur of (i) thc senior's death; (ii) incapacity; or (iii) resignation. Of these. the senior's incapacity is often the most delicate mauer (Q handle, since it is undesirable (0 require a formal hearing on capacity. Nor only are you trying (0 avoid any type of hearing in first place. bur you may cause

me

the court to seize ongoing supervisory authority with respect [0 the [fUS[ property. Usually the scnlor's incapacity is determined under the trust insrrumenr by the receipt of certification from two or more licensed physicians (one of them being the settlor's personal physician), that they have examined the settlor and they have concluded mat the senior is no longer able to handle his own affairs. Other alternatives for determining that the senIor can no longer continue co serve may include: (i) the unanimous vote of a committee consisting of the settlor's doctor, spouse and family members; or (ii) a certification by [WO or more of the adult beneficiaries of the trust that the senior is no longer capable of acting as trustee. 5 It is usually advisable to provide a mechanism by which the settlor may also regain control over the trust assets. Typically this involves either a repeating of the prior determinative test with a contrary result, or a judicial determination that the settlor has regained capacity. In addition to solving incapacity problems, another reason counsel may advise the elderly dient to execute and fund a Revocable Trust is that its assets are distributed without going through the court probate process. In other words, the Revocable Trust is used as a Will substitute. Properry held by a decedent in a Revocable Trust is nor part of the probate estate and is not therefore subject to administrative procedures affecting probate property.

Having heard one or morc "horror" stories about probate. many clients are committed to avoiding the probate process. 6 While many of these reports are based on misunderstandings resulting from a brcakdown in communication between lawyer and client, there is little that can bc done to reassurc dients who hold these beliefs. A situation in which probatc should be advantageously avoided involves the elderly client who owns property in more than one state. Such property may be subject to ancillary administration upon the client's death. 7 Ancillary administration is almost always an expensive and cumbersomc prospect and may be avoided by having the assets held outside of the domiciliary state in a funded Revocable Trust. By using the Revocable Trust instead of a Will the client also avoids the public nature of probate. Revocable trust tcrms arc nOt automatically made part of the public record as Wills are after the testator's death. a However, unless the trusr is funded before death, the value of its assets received from the settlor's probate estatc will be a matter of record in the probate court. As an estate planning tool, the Revocable Trust used in conjunction with a Durable Power of Anorney may be an answer to the common concerns of the elderly population. First, each document provides an alternative to the need for a guardianship proceeding in the event of incapacity. Second, it gives the elderly client an opportunity to name the . . . . same person or IIlstltlltlon as attorney-lIlfuct and successor trustee to manage his financial resources when the client is incapable of making a rational investment decision. Third, the trUSt can be drafted to ensure that the couple's financial resources arc available to the surviving. Finally, the

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Revocable Trust can be drafted so that the successor trustee may quickly pay the decedent's last expenses and distribute the remaining assets ro the client's family. Other cnate plan documents counsel wiU use when planning the estate of an dderly client is a Will and a Living Will and Power of Anorney for Health Care. When counsel finds that a Revocable Trust should be used in the estate plan of the elderly cliem the Will should take the form of a "pour-over" Will. That is, upon the death of the Testator the Will leaves all of the assets of the decedent to his Revocable Trust. Counsel and client must understand that a Will is needed even if a decision has been made to execute and fund a Revocable Trust. Even though the Revocable Trust is the primary document for disrributing the assets of the client at deam, elderly clients grow older and often buy assets in their own name after execution of the Revocable Trust. The pourover \Vill allows for that asset to cventually be transferred into the trust and have it administered under a common plan. When a Will pours assets over into a Revocable Trust, the provisions in the two instruments relating to the payment of debts, expenses and taxes should be carefully coordinated. The problems that can arise from failure to coordinate the two documents are well illustrated by case law throughout the country.9 If after meeting with the older client. counsel has determined that a Revocable Trust is not necessary. a Durable Power of Attorney and Will should be drafted and subsequently executed. Even if the assets pass ours ide of probate by alternative means such as a designated beneficiary statement, a Will should be used just in case the diem somehow comes into ownership of an asset of value. The Will should be drafted according to the dient's dispositive imention so that if an asset comes into the client's ownership it will be disposed according to your diem's plan. One valid reason counsel may advise the elderly client to use a Will and not a Revocable Trust is to force the assets of the c1iem to go through the probate process so that the existing body oflega! precedent can be used for the benefit of the client. A second reason for using a Will over a Revocable Trust is that the assets making up the c1iem's probate estate may not exceed fifry thousand dollars in value. Thus. the probate estate will be considered a small estate and qualify for distribution without administration. 10 A final reason the

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lawyer may be convinced that a \'{fj]J is adequate for the elder client is that after looking at the cost of setting up a Revocable Trust, the client believes he will forego the expense, and the kids can have everything after going through probate. The final document that counsel should be able to discuss with the elderly client is the Living Will and Power of AttOrney for Health Care. GeneraJly, this document allows a person to designate a person who will make medical treatment decisions for your c1jent if he is incapacitated. Further, the instrument may be drafted to instruct the doctor or hospital to withhold life sustaining procedures if the person is suffering from a terminal illness and is being kepr alive soldy by artificial life support systems. Counsel should inform the client that by executing the Living Will he is relieving the doctors, nurses and other health care professionals/providers from liability for following a validly executed directive. JOINT OWNERSHIP OPTIONS FOR DISTRIBUTING THE ELDERLY CLIENT'S ESTATE Estate planning counsel may want to consider using joint ownership options for djstributing the older client's assets rather than the estate plan basics. If the older client is married or, in the alternative, is a widower with one child, these ownership options may work. Please be aware that each option only disposes of the c1iem's interest at death. The joint ownership forum does not solve incapacity problems that may arise in the future. Further, by naming a child as a joint owner of an asset it really means coownership. The most common forms of joint ownership are "Tenants by Entirety" and "Joint Tenants with right of Survivorship". In the case of a married couple, all assers titled in their joint names are presumed to be owned as Tenants in Common. The effect of such an ownership designation is that upon the death of the first spouse, the property passes by operation of law to the surviving spouse. This form of ownership may answer the dispositive intent of the first decedent spouse. However, it does not answer the dispositive intent of the surviving spouse. Further planning will be necessary after the death of the first decedent spouse. For the widower with one child, counsel may want to use the ownership form known as Joint Tenants with Right of Survivorship

to dispose of the client's assets. Under this form of joint ownership, upon the death of the first decedent owner, the property passes to the surviving owner by operation of law. However, after discussing the benefitS versus disadvantages of having a joint account with a child, the elder client may not want to use this form of ownership for distribmion of his assets. Three distinct disadvantages must be understood by the client. First, Counsel must inform the elderly client that his asset will be subject to litigation when a child is sued. Second, if the child should become incapacitated the asset cannot be sold unless a valid Durable Power of Attorney has been executed by the child or an appointment of a guardian for the child has been made through a guardianship proceeding. Finally, even if the first twO never happen, for your client to sell the asset the child must consent to the sale. Counsel should discuss with the older client alternatives to joint ownership of accounts. A little-known non-testamentary form for distributing a decedent's investmenr assets at death is the "Transfer on death" statement for invesunent accountS (also known as a TOO account). The TOO account is similar to and works much like a designated beneficiary form for life insurance proceeds. Basically, the client owns the investment accoum in his own name but upon death the statement directs its disposition. This is a much better alternative than joint ownership with a child in that your client avoids the disadvantages of such ownership but retains its advantage of disposition at death. To resolve the inopacity issue, have the client execute a Durable Power of Attorney naming the child as the attorney-in-fact. Another non-testamentary form for distributing a decedent's assets at death is the "Pay on Death" account at banks (also known as a POD account). Again, the POD account is similar to and works much like a designated beneficiary form in life insurance. Basically, the client owns the checking account in his own name bur upon death the account is paid to the named person. Again, this is a much better alternative than joint ownership with a child in that your cliem avoids the disadvantages of joint ownership over a checking account but retains its advantage of disposition at death. Finally, to resolve the incapacity issue have the client execute a Durable Power of Attorney naming the child as the anorneyin-fact.

CO CLUSION The elderly population in Arkansas is continuing to grow as a whole and living longer. With an understanding of the concerns of our elder citizens, the Arkansas lawyer can assist them in mapping out resolutions to their legitimate worries about their future. By having a thorough knowledge of estate planning, counsel may now be able to provide an estate plan wherein neither the elderly citizen nor the assets making up his estate are ever under the jurisdiction of a coun proceeding. Endnotes 1. Refcrences to gender are always made in this article. Please don't take it personally. 2. See A.CA. 28-68-201 3. The income of a revocable trust is raxed to me grantor under Code Sections 676 and 677. If the grantor retains the power to revoke the trwt, it will nOl be a completed gift, and the trWt property will be included in her gross estate al death if the trwt continues to be in existence at her deam. I.R.C §§ 2038. 2511; Treas. Reg. § 25.2511-2. 4. It is bcyond the scope of this Article to discuss the estatc tax ramifications as to whemer a Will or a Revocable Trust should be used in the elderly client's esrate plan. 5. See CanrwelJ, "Adjudication - Avoidance wim the Living Trust," I Real Prop., Prob. & Tr. J. 373 (1966); Schlesinger. ·Seven Case Histories of Revocable TrustS," 5 U. Miami Est. PI. Inst. Sec. 6. See Moore, ''The Advantagc of Probate," 10 U. Miami Est. PI. Inst. §400 (1976). See also Blanmachr, "The Master Living Trust", 23rd U.Miami Est. PI. InS(. Chap. 17 (1989), for a discussion of how to use a revocable trUSt (0 effect premonem planning and to "correct" potentially defective djspositive provisions (e.g., those relating to the marital or charitable deduction) beforc the grantor's death. 7. See A.CA. 28-42-10 1 et. Seq. 8. See A.CA. 28-1-108. 9. Sce In " Pickmll. 14 Kan. App. 2d 375. 791 P.2d 41 (1990). Roe Esr.• 169 Mich. Ap. 733. 426 N.W. 2d 797 (1988). Fry Est., 188 111. App. 3d. 336. 544 .E.2d 109 (1989). 10. SeeA. A.28-41-101.

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CODE OF ARKANSAS RULES A complete, up-to-date, and reliable edition of the administrative rules and regulations of Arkansas is now available. It will fill a major gap in your libraries and will make research and c1ientrepresentation in regulated areas of the law easier and less frustrating than ever before. Weil Publishing Company, a specialty publisher of state administrative codes since 1986, is pleased to announce the publication of the CODE OF ARKANSAS RULES. It joins twelve other administrative codes on the Weil publication list. With the assistance of Arkansas government agencies and law Librarians, Weil has collected and published complete rules of the myriad agencies, boards and commissions of the state in 17 loose-leaf volumes and approximately 17 thousand pages. As you know, these rules increasingly impact all areas of life and business. The statutes no longer give you the entire picture .. This is an authoritative edition, compiled from official sources, using the classification scheme adopted by the Secretary of State, and subject to rigorous quality control. The CODE OF ARKANSAS RULES will be updated every month with new replacement pages containing new and amended rules. You can archive the replaced pages to create a record of the state of the law at a given time. Your research will be facilitated by detailed tables of contents, and three thorough indexes, which enable you to search by subject, agency (or rule number) and statutory authority. Your initial purchase price includes the first eleven months of updates. After that, you can subscribe to updates on an annual basis. It is also possible to subscribe to individual volumes. We are pleased to have made this contribution to legal research. For further information, please telephone us at (800) 877 - WErL or e-mail us at info@weilnet.com. Weil Publishing Co., Inc. P.O. Box 1990 Augusta, Maine 04332-1990 Fax: 207-621-0069

PROTECTING THE VULNERABLE ELDER. CONSUMER â&#x20AC;˘ by James DePriest¡

Consumer studies have offered a variety of reasons why elder consumers are more vulnerable to unfair and deceptive trade practices. The relative lack of knowledge regarding the product or services being offered is just one. In addition, the AARP survey concluded that elder consumers are more trusting, less wary and less cynical about the businesses which solicit their trade. TOday's elder consumers were raised in an era which predated the Internet, telemarketing and the pervasive use ofmass mailing.

James DePriest is Sr. Assistant Attorney General with the Office of the Attorney General in Little Rock, Arkansas. His practice focuses on consumer law.

18 Ue lrkllw LIlI}er

fll.li NI.1/S,rilf 11M

INTRODUCTION Harry Dixon2 is an 86-year-old retired professional and has lived alone since his wift did Un yMrr ago. H, takts cart! ofhims'/f and pays his bills on tim,. Rtctntly his

doughur, who lives out ofstate, visiud Harry and she found his home crammed with magazines, books, ''coikctible'' trinkets and scores of unoptned CDs and VHS tapes. Harry has no CD play" and no VCR. Harry' dought" ftund that during th, past year he had writtm many more checks than usual with most ofthese checks going to a variety of swupstakes promours. Harry SOOts all ofth, mail h, gtts from swetpstakts companies. His daughter cOllllud nearly 100 fWeepstakes solicitations reuived from one fWupstakes company alone in the past year. Reviewing his canulled checks, shefound that h, had spmt mort lhan $28,000 with lhat company in the past two years, often writing more than one check on a single day. All told, he has spent his entire lift savings of over $60,000 chasing swetpstakts prius.

H

arry is not incompetem. With the exception of his response to sweepstakes solicitations, he remains capable of taking care of himself and his financial affairs. He is nOt a candidate for a guardianship of his person or his estate. He is not a candidate for even a limited guardianship. Harry is a victim of a carefully orchestrated and highly refined scheme eo drain his bank accoum. And although the predaeory sweepstakes promoters also find victims among those under 60, a disproportionate percemage of those taken in by these sweepstakes promotions are elder consumers. So. Harry is also a vicdm of his generation. And it is not JUSt sweepstakes schemes to which the elder consumer is more vulnerable. Elder consumers are more vulnerable to a wide variety of consumer schemes directed at them by the phone, direct mail, broadcast media, and even door-eo-door.

SCOPE The purpose of this anicle is to provide the Arkansas practitioner with an overview of some tools available eo address consumer fraud directed at elder consumers. Several related subjects. each deserving of its own in-depth analysis. are not covered. The issue of guardianship, mentioned above, is one. In addition. the article is not imended to provide an in-depth analysis of each statute which may be referenced below. This is a wake up call. References to resources providing a more comprehensive treatmem of some of these issues are provided.

THE VULNERABLE ELDER CONSUMER Like any group. elder consumers are diverse. Some are savvy. others credulous. However. as a group. elder consumers are more vulnerable to consumer fraud than younger consumers.3 In 1993, and again in 1999, the American Association of Retired Persons (AARP) conducted surveys comparing consumer behavior. experience and attitudes by age groups. 4 Based on their responses eo the survey. consumers were assigned a vulnerability index. S Elder consumers6 are disproportionately overrepresemed among consumers most vulnerable to unfair or deceptive business practices'? Twenty-one percent of consumers age 75 and older rated highly vulnerable on the index. compared with eleven percem in the 65 eo 74 age bracket. and only six percent of consumers under

65. 8 At the other end of the spectrum, older consumers are disproportionately underrepresemed. Only five percem of consumers over 75 ranked among the group assigned a low vulnerability index. Consumers under 65 were three times as likely (fifteen percent of the sample) ro obtain this savvy consumer designation. 9 One defense available co consumers is a working knowledge of the business.

product or service mat is being offered ro them. Recognizing that fraudulent investment schemes are among the most financially disasuous for consumers, AARP surveyed consumer knowledge of the investment business. While most consumers lacked detailed knowledge of invesunent practices (rwelve percent of younger consumers were deemed knowledgeable as compared co only six percenr of consumers over 65),10 more than one in four older consumers (rwenty-six percent) displayed Iirtle or no knowledge of financial maners compared with fifteen percent of consumers under 65. 11

Edward Chand"'l2 is a retiredfirmer. He had heard about the Y2K problem but did not know much mo" than it had som~thing to do with computers. a rubjeet about which he had no knowledge. One phone call changed all of that. Jo~ Jones of Millennium Investm~ntsI3 told Edward that th~ compuur at Edward's bank would crash and Edward would lose the money in his checking account. According to joe, the only safe pLzee to keep Edward; money through th, Nro; Yeoar was to invest it in gold coins. Edward was skeptical at first. so Joe off"ed to check out Edward's bank to stt if it was Y2K compliant. Joe jurt nttded the name of the bank and the number of Edward; checking account. Edwardfelt safe giving this infonnation as long as h~ did not wriu Joe a check. Edward wa.r wrong. joe took $7.000 from Edward's bank account with a bank drafe and disappeared Consumer srudies have offered a variety of reasons why elder consumers are more vulnerable to unfair and deceptive trade practices. The relative lack of knowledge regarding the product or services being offered is just one. In addition, the AARP survey concluded that elder consumers are more trusting, less wary and less cynical about the businesses which solicit their trade. 14 Today's elder consumers were raised in an era which predated the Internet, telemarketing and the pervasive use of mass mailing. Although consumer frauds and scams were nor unknown in that era, most consumer transactions were conducted facero-face with merchants in the community. Any merchant engaging in sharp business practices could not reasonably expect to escape the consequences of such actions for long. Elder consumers are particularly handicapped in dealing with telemarketing. Many elder consumers feel that it is impolite to hang up on callers,15 even

telemarketers pitching goods or services the consumer neither wants nor needs. As most elder consumers spend more time at home each day than younger consumers, mey tend to receive more telemarketing calls. Since the response rate of elder consumers ro telemarketed pitches is higher than average, and since telemarketing companies tend ro refine their calling lisrs by shasing lists of responsive consumers, many elder consumers find themselves in a spiraling vortex of relemarketed offers. The same is true of mass direct marketing by mail. Even if the promoter does nOt target elder consumers with the initial mailing, the use of systems to refine mailing lists based upon response rates rends to guarantee that the vulnerable elder consumer will be subject to ever-increasing mailings and thus ever-increasing opporcuniries to be taken. Harry Dixon found himself in just such a situation where he was eventually receiving scores of sweepstakes solicitations each month. Finally, many elder consumers, especiaUy those who live alone, respond to telemarketing out of loneliness. Some telemarketing companies train their callers to exploit the loneliness of elder consumers to gain their trust and take their money. The FBI estimates that, at any given time, there are thousands of fraudulent or deceptive telemarketing operations in the business of bilking hundreds of thousands of consumers. 16 Up to forty billion dollars per year IS lost to fraudulent te1emarkeri ng. J 7 THE LEGISLATIVE RESPONSE AND TOOLS FOR THE PRIVATE PRACTITIONER Although the legislative response to consumer scams has been, by its inherent nature, one step behind the consumer scams, a wide variety of federal and state legislation is aimed at preventing consumer fraud, especially that directed at the elder consumer. In Arkansas, consumer protection finds its broadest treatment in the Arkansas Deceptive Trade Practices Act (DTPA).18 The DTPA prohibits a variety of listed practices,19 and in anticipation of unbounded imagination of those who devise deceptive trade practices, it also prohibits any other deceptive trade practices. 2o The DTPA provides for injunctive,21 restitutionary22 and damage relief2 3 in response to violations. Additionally, violators are subject to the

imposition of substantial civil penalties. 24 Unfortunately, for more than rwenty years since its initial enactment in 197 J, the DTPA did nOt provide an express private right of action. The burden of enforcement was borne solely by the Attorney General. 25 Opportunities for the private litigant were limited. 26 Arkansas was one of only rwo states (Iowa the orner) which provided no express private right of action. 2? 1r was the experience of enduring fraudulent consumer schemes directed at elder consumers which turned the tide in favor of granting consumers the right to pursue their tormentors in court under the DTPA. In 1993. the General Assembly amended the DTPA nor only ro provide elder consumers a private right of action but also to provide that consumer frauds affecting elder consumers would be subject to enhanced civil penalties. Though nearly last in granting its consumers this important private right of acrion, Arkansas became one of the first states to adopt an enhanced penalty statute. 2S Practitioners representing elder consumers are well advised to become acquainted with this private right of act.ion. It covers any practice prohibited by the DTPA and committed against an elder or disabled person. 29 It is not necessary to show that the violator targeted elder consumers, although targeting is a factor to be taken into account in the imposition of the civil penalty)O An aggrieved elder consumer is entitled to recover actual damages and punitive damages where appropriate)l In addition, a successful consumer is entitled to an award of attorney's fees.3 2 The private practitioner should not underestimate the scope of the DTPA. It is remedial legislation entitled to a broad and liberal construction. 33 AJthough interpretive case law in Arkansas is scarce, similar statutes (with long-standing private rights of action) have drawn considerable and uniformly broad judicial construction.34 And although the title of the Arkansas chapter remains "Deceptive Trade Pracrices", the DTPA was amended ro also prohibit unconscionable trade practices.3 5 FinaUy, in 1999, a private right of acrion was extended to all consumers. 36 The extension to consumers of a private right of action under the DTPA is even broader and more significant when one considers that numerous consumer-related Arkansas statutes provide that a violation of that statute is a per se violation of the

til. 15 ND. l/Spril! lOOO

Ue '\rkllsas LIWW

II

A PARTICULARLY PERNICIOUS SCHEME - HOME EQUITY SKIMMING Willie Mac jackson51 is a 73-year-old widow. Slu bas no inv~stm~ms. Slu owns no car. Her sok income is $435 p~r month in SociaL S~cttrity and SupplementaL Security mcom~. What she do~s hav~ is h~r hOlts~. motUst though it is. free and c/~ar of any mortgag~. Sh~ hIlS /iv~d in this n~ighborhood fOr 45 years alld raised her family h",. Wi"i~ Ma~ wisha sh~ could g~t som~ work don~ on ha hous~. Th~ roof !Laks and thos~ old windows ar~ drafty. It would b~ niet to r~p/aet th~ gas spaet heaurs with ctlltraL heat. and cmtraL air would r~aL/y h~/p with h~r asthma. But Wi/li~ Ma~ is not familiar with any locaL banks (she hIlS no bank accoum). and they ar~ not famiLiar with Jur. On~ day the an~r to her problems appears at ha door. Hom~ improv~mmt contractor Lmer johnson52 has 1I0ticed hno plight and he lan Julp. He has contacts in th~ hom~ mortgage indusITy. According to Urur, in addition to hom~ r~pairs. h~ can arrange to payoff her $200 ill back toxes and that $/,500 bill which the hospital had writtCII off as ullcolkctible. Lester will handk all the pap~rwork; she jltst needs to sign th~ many documents h~ p"S~nlS to hn. H~'" nHn giv~ ~r a rid~ 10 tlu offic~ of th~ mortgag~ company and thm to tb~ bank to cash Ih~ check. If Willie Mac had counsel to advise her prior to signing for th~ /olin. sh~ would haw /earn~d that closing costs on th~ Loan. including Il substantiaL mortgage broker fee. aecotimed fOr $8,000 of the $30,000 10011.

DTPA.37 Included are Statutes regulating advance fee loans,38 rent-to-own transactions,39 auto brokering,40 salvage rirles for cars,41 odometer rollbacks,42 sweepS[akes promotions,43 home solicitation sales,44 and price gouging. 45

THE 1999 LEGISLATIVE SESSIONPRNACY AND SECURITY FOR ELDER CONSUMERS Addressing issues of concern to elder consumers was a recurrent theme in the 1999 General Assembly. Recei"ing the most notoriety was the Arkansas Consumer Telephone Privacy Act. 46 This is commonly called the "Do Not Call" srarute. A1rhough primarily motivared by an interesr in protecting consumers' privacy by e1iminacing nuisance telemarkering calls,47 the Act should, by reducing overall telemarketing, reduce telemarketing fraud. It wiU be particularly effective if me most vulnerable consumers sign up for its protection. As of the date of [his writing, over 8,000 Arkansas consumers have signed up. Some consumers use caller identification systems to screen [heir calls, parcicularly unwanted calls from relemarketers. Such telemarketers are now prohibited from blocking their caller identiry." Of particular interest to seniors, the General Assembly has now banned the use of courier pickups by telemarketers49 and has banned the use of bank drafts by te!emarketers, unless [he bank draft is preceded by written authorization from rhe consumer. 50

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Also,

sh~ just Its~d ha hom~ to

UClIrt

paJm~n1

of a $/.500 hospital bill which had bun wrium 0ffby the hospital and the colkesion of

which was ba~d by the statuU oflimitations. L~sta doctor~d ha appLication to show $800 p~r month incom~ from a part-time job which sh~ do~s not have. Th~ fictitiolts job was ltsed to justifj the $225 per month note which will now c/aim n~ar/y two-thirds of Jur momh/y income. Only $20.000 ofthe $30,000 loan

wrot to home improvnnmts and

tha~

run"(

overpriced by a factor oftwo. Her loan will be

sold two or thrt~ tima and within a fnu J~ars will /os~ h~r hom~ to a company sh~ has

sh~

never heard ofand the neighborhood will lose Willie Mac. For many elder consumers, especially in the low income community, home equity is that consumer's only substantial asset. 53 This asset has become a prime target for predacory home equiry lenders. Although home improvement schemes have been known for decades, me past rwemy years has witnessed a dramatic increase in home equity skimming. 54 Rising real estate values coupled with substantial deregulation of the lending industry (including preemption of State usury laws) created an environment fertile for me growth of the predacory lending industry. The number of residemial foreclosures has increased in the United States by three hundred percent since 1980.55 Willie Mae Jackson's experiences highlight only a few of the many methods of equity stripping. On investigating an elder c1iem's complaint regarding an improvident home equilY loan, the private practitioner should also be attuned to such techniques as mongage broker kickbacks,% unrealistic balloon payment terms. 57 credit insurance packing,58 loan Hipping,59 non-amorcizing loans/)() high loan-to-value loan5,61 spurious open end credit,62 refinancing low-rate existing mortgages.63 and padded closing COSts. 64 Each of these devices has been attacked as violative of the Federal Truth In Lending Act (TlLA)65 or as an unfair or deceptive trade practice. 66 The purpose ofTILA has been primarily to provide consumers with understandable disclosures of me material terms of credit transactions,67 thus allowing consumers to effectively shop for me best credit terms available. However, for many elder consumers, especially low income elder consumers like Willie Mae Jackson who have little experience with or access to J traditional credit sources, the disclosure

provisions of TJLA have proved ineffective in proteccing these consumers from predatory lenders.

Even though the TILA

provides for the right of rescission in transactions where the lender takes a security incerest in the consumer's primary residence. 68 most low-income consumers do not have the opportunity to shop around for credit during the three-day rescission period. Most elder consumers, placing their trust in the home improvemenr contract or mortgage broker, would not take advantage of the tescission period even if it were clearly disclosed to them. In order to protect these consumers, It will be necessary to substantively prohibit predatOry lending practices. Disclosures are not sufficient. In

1994.

enacting

library of consumer protection manuals.n The issues which I have mentioned only by reference above are examined in depth in these manuals.7 8 Strategies to address the situations faced by Harry, Edward and Willie Mae can be found there. But strategies require implementation, and that implementation requires you. Endnotes I. The term "elder" is subject to

definitions.

Home

Owners

Protection Act (HOEPA).69

Equity

2.

HOEPA

requires separate and more direct disclosures with regard to certain high-interest rate or high-fee home equity loans.

HOEPA also

prohibits a limited range of substantive practices like negative amortization.70 otably, HOEPA also prohibits a pattern or practice of extending credit where there's no reasonable expectation that the borrower

3.

will be able to repay.71 Although the private practitioner is well advised to consider claims arising under HOEPA, on a broader scale, the Act has not stemmed the tide of predatOry home equity skimming.72

4.

5. 6.

CONCLUSION AND RESOURCES Although

the

plight

of the

elder

consumer has received considerable attention on both the state and federal levels in recem years, elder consumers remain a primary target for predatory con artists of every stripe. The private bar can help. Many of your elder cliencs have been your cliencs for years. After the elder consumer's immediate family, you are in the best position to heed the warning signs of consumer fraud 73 and act aggressively to protect the interests of elder consumers in your community. Consumer law resources are available to both you and your clients. First, may I humbly recommend the Office of the

Attorney General, Consumer Protection Division,74 The Federal Trade Commission provides a tremendous amounc of consumer protection information on its website.75 Several national elder and consumer protection organizations provide ready access to consumer law information,76 The ational Consumer Law Center publishes a

variOUS

under me

enhanced penalties section of me Arkansas Deceptive Trade Practices Act, an "elder

Congress amended TILA by

the

For example,

7. 8. 9. 10. I J. 12. 13. 14.

person" is a person who is 60 years of age or older. fu"k. Code Ann. 4-88-201 (a). Thar is the working definition for the Office of the Anomey General and chis article. Harry Dixon, and all of me orner consumers and other persons identified anecdotally in this article, are fictitious. The remainder of the information wimin the anecdotes is not fictitious. In each case, the information provided represents a composite of facts drawn direcdy from complaints received by me Consumer Protection Division of the Office of the Attorney General. American Association of Retired Persons Survey - umsum" &havior. Expaimctf, and Attitudes: A Comparison By Agt' Groups Id. Id. Id. UnJess otherwise noted, me AARP report defined "elder consumers" as persons 65 and older, and "younger consumers" as persons 18 to 64. Id. Id. Id. Id. Id. See EndnOte No.2. See Endnote No.2. American Association of Retired Persons Survey - Consum" &havior, Expmmces, and

Atrirudrs: A Comparison By Agl' Groups 15. National Consumers League. "They Can't Hang Up". help for elderly people targered by

fraud. 16. Id. 17. Report from the National Consumers League [0 me U.S. Department ofJustice concerning telemarketing and internee fraud, January 10, 2000. 18. fu"k. Code. Ann. ยง 4-88-101ll&j. 19. Ank. Code. Ann. ยง 4-88-107. 108. 109. 110 20. fu"k. Code. Ann. ยง 4-88-107 (a)(IO) 21. fu"k. Code. Ann. ยง 4-88-113 (a)( I) 22. fu"k. Code. Ann. ยง 4-88-113 (a)(2)

23. Id. 24. fu"k. Code. Ann. ยง 4-88-113 (a)(3) 25. fu"k. Code. Ann. ยง 4-88-113 (a) 26. See e.g., &rMey Pump Co. " lIred - joseph Land Co.โ€ข 279 Ark. 384. 653 S.W.2d 128 (I 983). See also, National Consumer Law Center, Unfair and Deceptive Acts and Prneti= (4th Ed. 1997) Sec. 7.2. 2? National Consumer Law Center, Unfair and Deceptive Acts and Practices (4m Ed. 1997), Sec.7.2. 28. Ank. Code. Ann. ยง 4-88-201ll&j. 29. Id. 30. fu"k. Code. Ann. ยง 4-88-203 (2) 3 J. fu"k. Code. Ann. ยง 4-88-204 32. Id. 33. Scare v. R & A Investment Co., 336 Ark. 289, 385 S.W.2d 299 (1999) 34. National Consumer uw Center, Unfair and Deceptive Acts and Practices (4th Ed. 1997) Sec. 2.1 and 8.1 35. 1993 Ank. Acts 587 36. 1999 fu"k. Acts 990 37. SeveraJ of the statutes provide an express private right of action; however, an additional action for violation of the DTPA may provide a private litigant wim more flexibility, additional remedjes, and me broad and liberaJ construction available for actions brought pursuant to the DTPA. 38. fu"k. Code. Ann. ยง 23-39-405 (a) 39. Ark. Code. Ann. ยง 4-92-105 (b) 40. fu"k. Code. Ann. ยง 4-100-102 (a) 41. fu"k. Code. Ann. ยง 27-14-2304 (c) 42. fu"k. Code. Ann. ยง 4-90-203 (a) 43. fu"k. Code. Ann. ยง 4-102-103 (b) 44. Ark. Code. Ann. ยง 4-89-106 (a) 45. fu"k. Code. Ann. ยง 4-88-304 (a) 46. 1999 fu"k. Acts 1465 47. Id., Section 1. 48. 1999 fu"k. Acts 1361 49. 1999 fuk. Acts 566 50. 1999 Ank. Acts 1512 51. See Endnote No.2. 52. See Endnote No.2. 53. National Consumer Law Center, written commenrs to Senate Special Commince on Aging, &;jyicy Predators' Stripping. Flipping, and Packing Their Way to Profir. Fifty.six percent of lowยทincome elder consumers are home owners. 54. Id. 55. Id. 56. On occasion the mortgage broker may receive compensation in addition to that which is listed in the mongage dosing disclosures. 57. MoS[ elder home owners are on flXed mcomes. Few have any reasonable expectation of meeting a balloon payment. fol.l~

MI. !/Spril~ !DOO

r~e

Irkns3ll,3Kler

!I

58. The pu.rchase of credit insurance by me consumer (eimer credit life or credit disabiliry) is almost always a bad idea. h tends (0 be subst:rntiaUy overpriced and me preda(ory lender is often receiving a commission on me sale. 59. Offering refinancing (0 a distressed borrower with a new round of overpriced dosing cos[s. 60. Where, even after years of payrnen(S, me borrower will owe more man the original loan. 61. Where the amount of the loan substantially exceeds me vaJue of me home owner's equity,

for years to come the home owner can be effectively prohjbited from selling me home and may not be able (0 protect: possession of the home in a bankruptcy. 62. Here me predatory lender can avoid the more thorough =dit diIcIosur<s r«juim:! by TILA

10

refinancing of an existing low·r.ue mortgage

as a condition of me home equity loan, mus obtaining a fim lien on me home. It is nOt untypicaJ for me home owner's APR to double when this occurs.

announce that

MICHAEL w: LANGLEY

Paragould, Arkansas 72451-0726

I PAUL D. MIXO

Fax: 870/239-2780

,Ph.D, P.E.

II

ELECTRICAL ACCIDENT INVESTIGATION • Reconstruction and Analysis • Property and Equipment Damage • Personal Injury or Death

PAUL D. MIXON, Ph.D. P.E. o Doctorate in Engineering o Over 13 Years Engineering Experience o Experienced Expert Witness

Dr. Paul Mixon P.O. Box 3338 Slate University, AR 72467 (870)-972-2088 E·mail: pmixon@navajo.astate.edu

discussion of TlLA rescission rights, see National Consumer Law Center, Trum In Lending (3d Ed. 1995). Chapter 6.

69. 15 U.5.c. Section 1639 70. 15 U.5.c. Sa:tion 1639 (I) 71. 15 U.s.c. Sa:tion 1639 (h) 72. ational Consumer Law Cr:mer, wrinen to

the Senate Special

Commin~

the Little Rock calling area. Private praC[itioners are encouraged to call us directly witll meir consumer law ques(ions a( 6826150. AJso, visit our web site at wwwag st:lte.ar us

75. wwwficgov 76. AARP's websi(e is wwwaarp org; the

ELECTRICAL ENGINEERING CONSULTANT

Contact:

Praaices (4th Ed. 1997) 67. National Consumer Law Cr:nrer, Tium In Lending (3d Ed. 1995), Section 1.2. 68. 15 U.S.c. Seet;on 1635; For an in-depth

fraud 74. The Anomey General maimains a consumer hodine at (800) 482-8982, or 682-2341 in

120 I West Court Street - P.O. Box 726

T

a[ional Consumer Law unrer. Unfair and Decep[ive Acts and

on Aging, EquitY Predators- S[ril?l?ing, Ail2ping. and Packing Th(jr W'l)' to Profit 73. acional Consumers League, "They Can't Hang Up.· help for elderly people wgeted by

RAY A. GOODWIN HARRY TRUMAN MOORE ROGER U. COLBERT BRAD BROADAWAY ANGELA BOWDEN GRAY MICHAEL w: LANGLEY

January I, 2000

65. 15 U.5.c. Sa:tion 1601 et seq.: See gcner.illy, ational Consum~ Law Cr:mer, Trum In Lending (3d Ed. 1995).

comments

has become a partner of the firm.

Tel: 870/239-2225

services are often much higher man charges for similar services in rradi(ional mongage (ransactions.

66. Stt generally,

ror dosed end =dit.

63. The predarory lender may require the

GOODWIN, MOORE, COLBERT & BROADAWAY, L.L.P. Attorneys at Law are pleased

64. Charges for typical settlemem

National Consumer's League web site is www.fraud.org; me ational Consumer Law Center's web si(e is wwwcoWiumedawoq:;. 77. The NCLC Library is (he defini(ive SO~ for consumer law research. NCLC publishes consumer law manuals on the following subjects: Consumu Ballkruptcy lAw ami PmcJic~, Fair D~bt Co"~ctiOIl, Fair Crt!dit RrpOrtillg, Unfair and D«~p(;,~ Am alld ?ramus, Th~ Cost of Crt!dit: IUgulation alld &gaIOJil//mgts, Crrdit DiscrimifUuion, Truth /11 Lmding, Consum~r Class Acrions: A

PramaJl Litigation Cuw. Sakr of Goods and Sn-vict1, &possmions, Odomnu lAw, and umsum" lAw Pkadinr;. 78. See Endnote o. T1 for a list of me manuals.

Amendment 3 on November 7, 2000

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CONSENT TO MEDICAL TREATMENT: THE RIGHT TO HAVE PEACE OF MIND â&#x20AC;˘ by Elizabeth Andreoli¡

In Arkansas, patients are afforded the right to refuse consent to medical treatment under ARTIPUA and the common law, with its constitutional underpinnings. A weUconceived advance directive that accurately reflects clients' wishes should contribute to their peace ofmind about future health care.

Elizabeth Andreoli pracdces with the law firm of Mitchell, Williams, Selig, Gates & Woodyard in Little Rock, Arkansas where she focuses primarily on health-care related corporate and administrative law. She is also a member of the Arkansas Bar Association Health Law Committee.

A dvances

in medical technology over

.f\.me years have incroduced a host of erhica.l, theological, medical and legal

questions.

The modern practice of

meclicine, with its advanced technology and pharmaceutical discoveries, makes possible a longer life even in the presence of catastrophic and devastating illnesses. The social consequence of modern technology is that seriously ill people often live in an n involuntary "limbo , usually in an inscirution, waiting [0 die. In response [0 these developmems, Congress and state legislatures have enacted laws [0 protect the right of self determination and personal au[Onomy in medical settings, and patients and their estates are suing providers for failure to honor the patients' treatment wishes. The first suit in Arkansas, in which a health-care provider failed to honor a patient's advance directive, is now in litigation. I In this case, cardio-pulmonary resuscitation, intubation and a nasogastric tube were administered to a patienr in cardiac and respiratory arrest. The patient was given these life-sustaining treatmentS in violation of his wishes as expressed in his advance directive and by his health-care proxy. The Complaint urges theories of negligence, battery and viola cion of the Arkansas Righrs for the Terminally III and Permanently Unconscious Act ("ARTlPUA"). This case poinrs to a need to re-examine patients' rights [0 refuse medical treatment and to consider how patien tS can best ensure their treatment decisions are followed. In Arkansas, patients are afforded the right to refuse consent to medical treatment under ARTIPUA and the common law with its constitutional underpinnings. After defining "advance directive", this article discusses each of these legal bases and methods for ensuring patients' wishes are followed.

ADVANCE DIRECTIVES An "advance directive" is a written instruction to health-care providers describing patients' desires for medical care, including the right to accept or refuse medical or surgical treatment, when they are incompetent to make their wishes known. It includes living wills or durable powers of attorney for health care. 2 In addicion, advance directives serve to guide health-care providers and patients' families in deciding the treatment patients would want were they able to communicate their intent. Advance directives are most useful when they include instruccions about the types of treatment the patient does or does not want under specific circumstances, and also include an appointment of a surrogate decision-maker to act on the patient's behalf should the patient become incompetenr. The surrogate decisionmaker is a person, usually a trusted friend or family member, who should know the patient's treatmem choices and who directs the course of treatment according to the pa.rient's wishes and in the patient's best interest. Combining the instruction directive with a surrogate appointment serves to alert the decision-maker of the patient's wishes and also allows the decision-maker to consider treatment options that were not available when the advance directive was executed that might have influenced the patient's future decision. COMMON LAW BASIS The right to refuse medical treatment, even life-sustaining treatment, was derived from the common law of battery and consem. In medical intervention cases, the courts have long recognized the right of a person to have comrol over his own body, including choices for medical treatmenr.3 The Arkansas Legislature has recognized the common-law right to consent to treatment for oneself and has aJso given

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staturory authority to others to give consent for those persons unable to consent for themselves. 4 Thus, incompetent persons have the same common-law right of selfdetermination as competent persons. Under the common law and Arkansas statutory law, the right to refuse treatment is derivative of the right to consent to ueatment. 5 Even life-saving treatment may be refused absent some compelling state interest. Arkansas identified some compelling state interescs when it legislated that courts may override a refusaJ of consent by a person empowered to do so. The Consent to Treatment Statute provides that when an emergency exists, the couns may override an authorized person's refusal of consent if the patient is (a) a pregnant woman in the last trimester of pregnancy; (b) a "person of insufficient age or mental capacity to understand and appreciate the nature of the proposed ... treatment and the probable consequences of refusal of the rreatment"; or (c) a parem of a minor child when the court finds the "life or health of the parem is essential to the child's financial support or physical or emarional wcll-being".6 While rhe General Assembly does nor explicidy identify protected state interests, the statute's preamble allows it is acting for "the good of all". A constiturional right to refuse treatment comes from a long line of United States Supreme Court decisions finding a privacy or liberty interest in highly personal choices.7 In rt QuinlanS is the senrinel state coun decision addressing a person's right to

refuse medical treatment for reasons unrelated to religious beliefs. In Quinlan, the court considered whether a person in a chronic persistent vegetative state had a constitutional right to refuse life-support devices when the devices offered no hope of eventual recovery.9 The Supreme Court of New Jersey found a constitutionally protected fundamental right to privacy in the refusaJ of medical treatment. IO The next major case. Cntzan v. DirtClor, Missouri D.partmmt ofH.alth.' , considered wherher a proxy could order rhe wirhdrawal of hydrarion and feeding equipmem on behalf of a person who was in a comatose state. The United States Supreme Coun found a liberty, rather than a privacy, interest in the constitutional right to refuse medical treatment and would allow withdrawal of hydration and feeding upon clear and convincing evidence of the patient's wishes. These cases are founded on the basic notions of human dignity and self determination.

THE ARKANSAS RIGHTS FOR THE TERMINALLY ILL AND PERMANENTLY UNCONSCIOUS

ACT In 1990, Congress enacted the Patients' Self-Determination Act as parr of the Omnibus Reconciliation Act. 12 The Act requires health-care institurions l3 receiving funds from Medicare or Medicaid to inform patients about their rights to execute advance directives (living wills) and control lheir own health care under state law, and to provide patients the opportunity to execute

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an advance directive on admission to the institution. The stature also requires healthcare institutions to give patients a written explanation of the institutions' policies concerning these rights, to document in the patient's medical record whether the patient has signed an advance directive. and ifso, to file a copy of it in the patient's medical record. Institutions thar fail to comply with these terms are subject to losing their Medicare and Medicaid funding. In 1987. Arkansas enacted rhe Righrs of the Terminally III or P~rmanently Unconscious Acr ("ARTIPUA "j." This An replaced the "Death with Dignity" statute, enacred ren years earlier. ARTIPUA provides that adults may execute advance directives governing the withholding or withdrawal of life-sustaining l > treatment should they become terminally ilJl6 or permanently unconscious. I? If the patient is pregnant, however, her right to forgo lifesustaining treatment is abridged to the extent that her fetus could develop to the point of live birth with continued lifesustaining treatment. Whereas only "qualified patients" 18 are covered by ARTIPUA. those patients who are not "qualified" may still refuse medical treatment under common-law and statutory informed consent law. 19 The advance directive becomes effective when the attending physician and a second physician certify in writing that the patient has a terminal condition or is permanently unconscious. Even though physicians seem to be obligated under the statute co continue to provide nutrition and hydration,20 a patient's advance directive that includes the withholding of nutrition and hydration, or a similar decision by a proxy. would mosr likdy be enforced in court under constitutional and caseprecedent arguments. 21 Patiencs may revoke their direccives at any time. either in writing or orally, without consideration of their mental or physical condition. 22 The revocation is effective when communicated [0 any health-care provider by the patient or a witness to the revocation. The provider must record the revocation in the patient's medical record. Physician will nor be civilly or criminally liable when acting within "reasonable medical standards" or for carrying our tile directive without knowledge of a revocation. 23

On the other hand, anyone who willfully fails to document the declaration, fails to

carry out its terms or to transfer the patient, fails to record the determination of terminal condition or permanent unconsciousness, or inrerferes in any way with the directive of another person, is guilcy of a Class A misdemeanor. 24 A Class A misdemeanor is punishable by a fine not exceeding $1,000 and/or a sentence not exceeding one year in jail. 25 In addition to fines and confinement, health-care providers may lose their Medicare and Medicaid certification. While it permits the withdrawal of lifesustaining treatment for qualified patients, which may have the affect of hastening death, ARTIPUA has express provisions condemning eumanasia, mercy killing or assisted suicide. Both federal and state law make clear mat advance-directive legisladon cannot be construed as condoning assisted suicide or emhanasia. 26 Under Arkansas law, "assisted suicide" means a provider performs a medical procedure or "willfully" prescribes a medication for the express purpose of assisting patients to end their lives. 2? A provider who participates in an assisted suicide may be punished by a fine not exceeding $10,000 and/or imprisonment for a term of mree to ten years. 2S Physicians and institutional providers are nOt required to comply with a patient's directive if to do so would violate the providers' ethical beliefs.2'} If this is the case, the provider is obligated to inform the patient immediately and to transfer the patienr, as promptly as practicable, to another physician or institutional provider. 30

require a court determination. Under the common law, or when the operative advance directive or durable power of attorney for health care does not indicare the patient's wishes, surrogate decisionmakers have a dury to determine what the patient would have wanted under the doctrine of substituted judgment. Lifesupport may be withdrawn if there is some trustworthy evidence mat the patient would have refused the treatment if able to communicate his wishes)3 If there is no reliable: evidence of the incompetent patient's wish, the decision-maker applies the "best interests" test, under which the net burdens of the patient's life with the: treatment should clearly outweigh the benefits that the patient derives from life, if the surrogate is to deny or withdraw creatment.}4

Arkansas Rights ofthe Terminally III and P"",anently Unconscious Act Under ARTI PUA, if the patient is inc.,pacitatcd 35 at the time of admission and does not have an advance directive or has not appointed an agent for health-care decisions, the health-care provider may give advance directive information to the pat.ient's family.36 Once the patient has regained capaciry, however, the provider must give this information to the patient directly)? When the patient has not acted, ARTIPUA gives "statutory" surrogate decision-makers the aurhoriry to execute and carry out advance directives on behalf of minors or incapacitated adults without the necessicy of a court hearing. ARTI PUA prioritizes the list of these surrogates in order of decision-making authority.38 Until this past legislative session, an inconsistency existed between the authority given a guardian in ART! PUA and the

SURROGATE DECISIO -MAKERS The law is clear mat even incapacitated persons have the right to consenr [0 treatment through agents authorized to act on the patient's behalf. This section describes whom me law empowers co act on the patients behalf. Common LAw Family members generally have the authoriry to consent to treatment on behalf of the incapacitated patient. Arkansas' Consent to Treatment Statute grants this authoriry when the padent is "of unsound mind".31 The meaning of "of unsound mind" is the "inability to perceive all relevant faCtS related to one's condition and proposed treatment so as to make an intelligent decision based thereonl.]"32 Used in this context, "incapacity" does not

guardian's aurhority in the Guardians Stature. Under ARTI PUA, guardians may execute advance directives on behalf of their wards and may direct the withholding of life-sustaining treatment. The Guardians Statute contains a provision requiring guardians to obtain a court order directing the withholding of life-sustaining treatment from their wards)9 To correct this inconsistency, the General Assembly amended the Guardians Statute in 1999. 40 Guardians may now consent to the withholding of life-sustaining treatment for their wards without prior court approval so long as the guardians execute an advance directive consistent with ARTIPUA. Impliedly, guardians still must obtain court orders to remove life-sustaining treatment when their wards have not been certified terminally ill or permanently unconscious, although this is far from clear when the guardian is also a family member acting under common lawaurhoriry.

Durable Power ofAttorney for Healt" Care In 1999, the General Assembly enacted the "Durable Power of Anomey for Health are Act"41 because it was uncertain whether the existing durable power of attorney statute applied to health-care decisions. 42 This Act authorizes principals to appoint agents, through a durable power of attorney instrument, to assume medical treatment decision-making should the principal become incapacitated. The agent appointed under this instrument has priority decision-making authoriry, even over other persons otherwise permitted by law to consent for surgical or medical treatment or procedures.'U The insuument muSt be in Writing, signed by the principal or someone who is

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acting at the direction of the principal and in the principal's presence, and arrested to and signed in the presence of twO or more witnesses who are at least eighteen years of age. The dumble power of anomey for health care does not include the authority to refuse life-sustaining [reatrnem unJess the instrumem specifically gives this authority or is used in conjunction with an advance directive that specifies the patiem's medical treatmem decisions. This Act does not invalidate health-care agencies executed prior to its effective dare. Patients' treatment wishes can be advocared by certain surrogate decisionmakers, including agents acting under a durable power of arrorney for health care, health-care proxies identified in advance directives, or family members. The degree of discretion the decision-maker possesses is determined by the patient's previous planning. The next sections offer suggestions on drafting and enforcing advance directives. PREPARING THE ADVANCE DIRECTIVE Recently, the family of an incompetem resident in a nursing home requested removal of the resident's gastrostomy tube. The residenr had an advance directive, drafted in accordance with ARTIPUA, ,hat instructed removal of life support, including a feeding cube. should the resident become terminally ill or permanently unconscious. The resident's physician was not yet prepared to certify terminal illness. The Arkansas Depanment of Humans Services Office of Long Care informed the nursing home that removal of the gastrostomy tube in this situation would constitute a violation of the requirements for participation on [he Medicare and Medicaid programs, subjecting the nursing home to sanctions and even termination of irs provider agrecmems. In rhis particular case, the advance directive was nor operative because [WO physicians had nor certified terminal illness. The advance directive, therefore, was not enforceable. Yet me residem retained me common law right to refuse treatmem - a right ,he family could assert when the resident became incompetent. The nursing home and the resident's physician were legally bound to follow the family's wishes, subject to the substituted judgmenr or best10 terest tests. Probably the most common

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misunderstanding clients have with advance directives is the eveO( that makes the directive operative. Advance directives based on ARTIPUA only become opem'ive when twO physicians certify that the patient is terminally ill or permanently unconscious. Some c1iems find ARTJPUA tOO restrictive and wish to have binding instructions - not only when they are terminally ill or permanently unconscious, but also in the event they become chronically debilitated, for example, through dementia, stroke, cancer or autoimmune deficiency syndrome. The following case is illustrative. On July 18, 1994, Robert Wright was admitted to Johns Hopkins Hospital suffering from AJDs and complaining of fever, a worsening cough, poor appetite, diarrhea and acute renal failure:4-4 On July 20, he received a blood transfusion to increase his circulating blood volume. Immedia(e1y after receiving the transfusion, Mr. Wright suffered a cardiac arrest. Cardiopulmonary resuscitation was administered, he was intubated, and breathing and circularion were restored. Mr. Wright's mother subsequently requested that his breathing rube be removed and that he receive comfort care only. He was extubated and died ten days after his cardiac arrest. Mr. Wright had executed a Living Will which directed that "life-sustaining procedures be withheld or withdrawn in the event that rwo physicians (a) certify Wright to be in a terminal condition as a result of any incurable injury, disease or illness; and (b) determine that Wright's deam is imminent and will occur whether or not life-sustaining procedures that would only serve to prolong the dying process were utilized. "-45 Mr. Wright had also executed a durable power of attorney for health care naming his mother as agent

in the event that two physicians certify that Mr. Wright was incapable of making certain decisions. After his death, Mr. Wright's mother filed suit again$[ the hospital, alleging negligence, wrongful death, battery and lack of informed consent. The Maryland appellate courr affirmed the circuit court'S judgment which concluded that Mr. Wright was not in a terminal condirion nor were the defendants required to delay resuscitation in an emergency, even for a few minutes, to obtain the agent's consent or to seek formal certification of Mr. Wright's pre-arrest medical condition as might warrant a decision not to resuscitate. The court'S refusal ro grant relief was based, in part, on the common law "implied consent" when there is a medical emergency and the agent is not readily available. 46 If Mr. Wright had intended the withholding of life-sustaining treatments under these faCts, his advance directive could have contained a statement refusing life-sustaining treatment in the event of a serious debilitating condition under authority of the common law. This is a "nonstaturory directive" in which clients make clear that rhey are relying on constitutional and common law rather than, or in addition to, ARTJPUA. To ensure mat this nonstatutory directive is enforceable, it should be formalized according to statUtory law requirementS, especially if it comains ARTIPUA language or a dumble power of anorney for health care. Advance directives may contain a durable power of attorney for health care.-47 A durable power of anomey for health care may be preferable to the appointment of a health-care proxy because the client can delegate greater decision-making aurhoriry to the agent under a durable power of attorney. It is better to combine the power of attorney with the advance directive in one

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documem rather than creacing separate documems. If two documents are created, a court attempting to interpret the client's wishes might have difficulty reading the documents together or hold that the !atercreated document supercedes the earlier document. 48 It is also a good idea to appoint alternate agents should the primary appointee be unable or unwilling to serve. The agents should know me c1iem's healthcare wishes and should promise to direct care according to those wishes. In any case. the directive should contain a statement that the instructions for medical treatment are intended to bind any eventual decisionmaker. An advance directjve may be divided into five parts: preamble, appointment of a surrogate decision-maker, personal values related to dignity and the dying process, substantive instructions. and signatures and attestations. Each part is discussed below.

Preamble The preamble introduces the purpose of the document and may include statements about liability for either following or disregarding the directive. The model preamble below makes clear that this is a nonstatutOry directive, relying on the constitutional and common law. 49 There may come a time when I am

unable, due (0 mental incapacity, to make my own health-care decisions. In order to provide the guidance and authority needed to make decisions on my behalf: I, [c1iem], being of sound mind, hereby declare my instructions and wishes for future health care. This advance directive for health care shall take effect in the event I become unable to make my own health-care decisions, as determined by the physician who has primary responsibility for my care and my designated [agemJproxylrepresentative]. These directions express my legal right, under constitutional and common law, to refuse treatment. Therefore, I expect my family, doctors and everyone concerned with my care to regard themselves as legally and morally bound to act in accordance with my wishes, and in so doing, to be free of any legal liability for having followed by directions. If client intends a statutory directive, pursuant to ARTIPUA, or a common-law directive tim includes ARTIPUA, then me preamble may be modified to reflect that Intention.

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Appointment ofa Surrogate Decision Maker 1n me appointment section, the client identifies, by name, address, and telephone number, a trustworthy person and alternates to act on her behalf In addition to delegating authority for health-care decisions. the client may also choose to delegate other responsibilities, such as authority to obtain all medical records, request an autopsy, donate organs and body tissues. to litigate in the event the directive is not followed, and [0 issue burial instructions. 50 Values The client may wish to incorporate a section describing her values or attitudes towards medical intervention and the dying process. Value statements may be useful as interpretive guides to the client's specific instructions. 51 For example, the client might say, "1 value maintaining my mental and intellectual capacities and direct decisions about my future medjcal care to take into account severe impairment of mental function. n Substantive blStru€tI.·ons An instruction may read. "I direct the continued administration of all possible medical ueatment to prolong life to the greatest extent possible without regard to condition. chance of recovery or expense. "52 Most often, however, the instructions will define health conditions under which medical treatment is to be discontinued or withheld and the specific types of treatments the client does not wish (0 have. 1. Decide whether to employ spetific detailed instructions, generalized instructions or a combination ofboth. Whether the client should choose specific detailed instructions laying our various medical scenarios or more generalized instructions depends on the degree of discretion and trust she wishes to place with the decision-maker. There is a potential downside to either choice. With specific detailed instructions, there will be gaps unforeseen situations the client did nOt consider. On the other hand, generalized instructions may be vague and ambiguous. Either situation may be remedied by including value statements that reflect what the client would have chosen if able to do so. lt may also be remedied by an instruction to consider the client's "best interests" combined with a definition. A "best

Arkansas JOLTA

Foundation 1 15810.' ~ STATE.\1E. 'T

The Foundation's mission is to increase access to justice byfunding programs which target low-income populations, that are currently un- or under-served, and by encoumging projects tllat improve the

1999

Annual Report

administration ofjustice. Of particular interest are proposals from: <4'Legal Services Programs, <4'U1W Schools for Scholarships, and <4'Other programs for special projects tha t further the Foundation's mission.

IOLTA

I\II Rf'T 0\ !.I\I\ I R" Tnt'T I(COl \1'

Volunteer Attorneys Assist Clients "For The Good"

IOLTA Grantee Wins 11

~"He Loves Me... Not," a video about higJ two national awards. The video won the 1999 Bron Television Programming and Promotion Contest Community Service Programs. The second awa Television's Gracie Allen Award. This award was tary/30Minutesor Less category. "He Loves Me.. Committee of the Arkansas Bar Association and Arkansas IOLTA Foundation. The video targets high school students, abuse awareness and prevention. Ti,e film, whid graphic scenes of violent relationsllips, including who was beaten to death by her boyfriend and ala her dating relationship with aformer boyfriend. I project coordinator and the video's prodncer. Ski Rock, was the director and editor. Ms. Barnes' sal and played the original musical score for the film The Bronze World Medal was presente behalf of the Youth Education Committee of the 2000, in New York City. The Gracie Allen Awar New York.

The following legal matters were handled for free by attorneys in private practice who volunteered their legal services to pro bono (meaning 'for the good") programs in their communities. While the cases are real, the , names are fictitious to protect dient identity.

~Jane

was dying of a terminal disease. She was desperate to provide a home for her 16 year-old daughter, 'Beth, before she died. A cousin was willing to become the girl's guardian. An attorney for Volunteers of the Center for Arkansas Legal Service (VOCALS) accepted this case knowing the time constraints. The attorlley immediately met with the client and herfamily, andfiled apetition for guardianship. Unfortunately, fane died before the guardianship was granted. But she died with the knowledge that the guardianship was in progress and tlwt Beth would have a home.

~'Betty

sought legal assistance from Legal Services ofNortheast Arkansas (LSNEA) for a divorce. Her husband had left her for another woman. The parties had a minor child, 'Sandy. LSNEA referred Betty to a volunteer attorney for the Eql/al Access to fustice Panel (EAJP) for the divorce matter. The EAfP attorlley spent numerous hours with the client trying to locate the husbOlld for service. Between the EAJP attorney and the Child Support Enforcement Unit, the husband was located and service was obtained. Beth} got a divorce and 011 order of child support for Sandy.

Collaborative Effort.

L~~!s~!~~i~S ~:::ns~rkfi

for a statewide legal telephone hotline service access the Hotline via a statewide 800 number. would screen callers for income eligibility and c rOl/ted automatically to the Legal Services pl'ogr would staff the hotline and provide legal advice lines and common computer software would lin experience their calls as "seamless." It is anticipated that approximately 60% legal advice and briefservices by telephone. In ad those ill rural areas where transportation proble Services offices. It is also anticipated that many a wise reluctant to visit an office, will access the I service. Two consultants are working with the figl/re the telephone and computer systemfor the would consist of 15 hotline afforneys and four statewide hotline service is $3 million for the firs per year thereafter.

~ A 27 year -old won1Oll, 'Adrian, was seeking visitation rights with her two minor children, 'Chris and 'LaMont. Her hl/sband had filed for a divorce, but Adrian did not have the money to hire a lawyer and failed to file 011 answer. She did not attend the final divorce hearing, and the divorce decree did not providefor any visitation rights with the children. Adrian tried numerous times to see Chris and LaMont, but ti,e ex-husband refused her attempts to visit. She would periodically send packages to the children, but the ex-husband told her that he would throw them away. Adrian kept informed about the children through other relatives. After more than a year, slle contacted the Center for assistance. The case was referred to a VOCALS attol'lley, who filed a petition for visitation. The VOCALS attomet} was successful in the matter and was able to get extended summer visitation rights for Adrian with Chris and LaMont.

1fiJ

"While all these ston"es are true, the names are fictitious to protect eIient identity,

~

1999 lFIINANCIAL 1 FORMATllO

'"

INCOME IOlTA Accounts Interest earned on operating account Interest earned on unemployment account Interest earned on money market account interest earned on C.D.'s

$842,163.00 940.00 106.00 4,092.00 41~958.00

Total Revenue for Period

$889,259.00 EXPENSES

Administrative expenses Grant disbursements

$127,916.00 598,500.00

Total Expenses for Period

$726,416.00 LEGAL SERVICES ProVidIng quality I. Independence, Jal longtime Executive D Attorney, William Lee representation, phon, types of cases) 10

'Audit of the Foundation's books will be completed by the end of April. Final audited figures will be available from the Foundation's office after May 15, 2000. If you would like a copy, please call the Foundation office at 376-1801 or 1-800-449-6560. The unaudited information presented above is based on the Treasurer's Report for January 1 to December 31, 1999.

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so 1988

1989

1990

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1992

1993

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1999

&

L . IT • R F 1999

0) THE

PR . SlIm.. 'T 1" .. 'D

lE~ 'EC 'T YE DIRECTO

BOARD OF

DIRECTORS OFFICERS

Dear Friends,

Carolyn Witherspoon PRESIDENT

Janet K. Moore VICE PRESIDENT

Thomas Ray SECRETARY

James D. Gingerich TREASURER

DIRECTORS Sherry P. Bartley LITTLE ROCK

Vandell Bland, Sr. WEST HELENA

Elaine K. Dumas LITTLE ROCK

Louis B. Jones, Jr. FAYETTEVILLE

Larry Kircher

The Arkansas IOLTA program was created in 1984 by the Arkansas Supreme Court. In 1995 the program became comprehensive. which means that all Arkansas lawyers who hold client tru t funds that are short-term or nominal in nature must place these funds in IOLTA accounts. Rule l.15 of the Arkansas Model Rules of Professional Conduct provides the guidelines for safekeeping the property of others. The interest from IOLTA trust accounts is paid to the Foundation. The Foundation then uses these funds to increase access 10 justice in the civil legal system. Grants are funded in three categories: • Programs that target the legal needs of low-income Arkansans • Projects that aid in the administration of justice. and • Law School scholarships In 1999 the Foundation awarded $602,500 in grants in these three categories. Over 225 banks offer IOLTA accounts and most do so without charging fees. While the number of participating banks appears down this year, this is really a result of consolidation in the banking industry. The foundation sincerely appreciates the support of the Arkansas banking community. A Bank Honor Roll appears on the last page of this Annual Report. We urge Arkansas lawyers to thank their Arkansas bankers for their support of the IOLTA program.

BALD KNOB

Jeanne Sanford BENTON

Margaret M. Staub HELENA

Anna Via DARDANELLE

We hope that you will take a few minutes to review this report, especially the case vignettes that exemplify the good work done by Arkansas lawyers. We appreciate the positive response and leadership of the legal community in Arkansas --- with the effons of each of you, the Foundation's mission of equal access to justice becomes more of a reality each day. Your work does make a difference daily in the lives of people who need help.

EX OFFICIO Don Hollingsworth EXECUTIVE DIRECTOR ARKANSAS BAR ASSOCIATION

STAFF Susie Pointer EXECUTIVE DIRECTOR

Reshun Racy ADMINISTRATIVE ASSISTANT

Carolyn Witherspoon Pr ident,l999

Susie Pointer Executive Director

IL WSCHOOLSCHOL RSHKPS

I

UNIVERSITY OF ARKANSAS - SCHOOl OF LAW, FAYETTEVILLE The following law students at the University of Arkansas School of Law, Fayetteville, received IOLTA scholarships for fall of 1999:

Darrell F. Brown, Jr. received the Arkansas Bankers Association JOLTA Scholarship. He was born in Colon, Republic of Panama, is a graduate of Hall High School in Little Rock and Rhodes College (B.A., History). Shelia J. Farmer received the Arkansas League of Savings Institutions IOLTA Scholarship. She was born in Clarksville, Mississippi, aU oded McGehee High School, and is a graduate of the University of Arkansas at Monticello (B.A., Political Science and Speech).

Kezia Josenberger-Johnson received the Arkansas Bar Association IOLTA Scholarship. She was born in Ingelwood, California, attended Northside High School in Fl. Smith, and is a graduate of the University of Arkansas (B.A., Political Science and History). Abbie D. Decker is the reCipient of the Waller R. Niblock IOLTA Foundalion Scholarship. She was born in Batesville, attended Mountain View High School, and is a graduate of the University of Arkansas (B. A., Criminal Justice and Sociology).

Recipients of Arkansas IOLlA Foundation Scholarships are Caroline L. Curry and David H. Roberts. Ms. Curry was born in Abilene, Texas, attended Gurdon High School and is an undergraduate of Ouachita Baptist University (BA, Political Science) and holds a Master of Arts in Slavic languages and literatures from the University of Kansas. Mr. Roberts was born in Ft. Worth, Texas, attended Gosnell High School and is a graduate of Arkansas State University (B. A., Criminology). UNIVERSITY OF ARKANSAS AT UTILE ROCK - SCHOOL OF LAW The following law students at the University of Arkansas at lillie Rock School of Law received tOLTA scholarships for fall, 1999:

Douglas McCash received the Arkansas Bankers Association IOLTA Scholarship. He was born in lawrenceburg, Tennessee. was a church service missionary in Argentina, and is a graduate of the University of Arkansas (B.A., Spanish and International Economics & Business). Derrick Smith received the Arkansas league of Savings Institutions IOLTA Scholarship. He was born in Marianna, attended Marianna High School in Lee County, and is a graduate of Hendrix College (B.A., Integrated Studies). DeLeith Gossett received the Arkansas Bar Association IOLTA Scholarship. She attended Plaino Senior High School in Plaino, Texas, and is a graduate of the University of Central Arkansas (B.S,E., Social Sciences). Emily Paul is the recipient of the Walter R. Niblock IOLTA Foundalion Scholarship. She allended Central High School in Little Rock and is a 1998 graduate of the University of Arkansas at lillie Rock (B.A., Journalism).

Recipients of Arkansas IOLTA Foundation Scholarships are Laura Clayton and Jamie L. Ewing. MS. Clayton attended Warren High School in Arkansas and is a graduate of louisiana Tech UniverSity (B.S., cum laude, Business Administration). Mr. Ewing was born in Sheridan, attended Sheridan High School, and is a graduate of Arkansas State University (B.5., Wildlife Management).

UNIVERSITY OF ARKANSAS SCHOOl. OF LAW

UNIVERSITY OF ARKA SAS AT LITTI.E ROCK

FAYElTEVILLE

SCHOOl. OF LAW

Iam writing today to tlra1lkyoll and Ole Arkansas IOLTA FOlmdatiotlfor the generolls grOllt you presented to tile Ulliversity of Arkansas Scllool of Law i" Fayetteville. Recmtly, IlOOS summotled to Dian Miflu's office. Likenl1lg it to asummons to OIl' principal's office, I was naturally IlertJOUS, Wire" lie instead informed me tlwt I had bee" d,ose" to recrive a scllolarship from fimds provided by tile IOLTA FOImdalioll,l was overwhelmed.

I am IIJriffed to be able to say thallk you for selecting me to receive tile Arkansas 10LTA Foundation Scholarship for lite 1999 Fall semester, I 1tIQS so excited when I receitltd Ihe allnOlmceme"t from Dean Kinsey Ihat I immediately began calling myfricnds andfamily 10 teII tllem tile great news!

I ca,,'1 possibly thank you enougll for Ille generosity ofyour organiZiltioll. I COli only tell you that I am truly gratefill for Ihe scholarship, alld tlwl I will prove tlwi Iam well-deserving oftire SCholarship, 1have worked very liard ill r芦nll years to complete myeducalion. The decisioll to attend law SC/IOOf, and my subsequent acceptance, Iws Oldy fidfilled adream tlwt I havefostered since I wasfive. Now, I am here, and the scholarsllip I have receil'Cd has only serwd to validate my decision. Financially, 1 tlumk you. Personally, I cml't evt!r explain lt1lmt the Ilonor lias done for me.

Again, I thank you, arId ti,e Arkansas IOLTA Fou,utation.for tl,e scllolarsllip I have been givell. Sincerely. Cnroline Curry

This is agreat honor. and this assistance will goa long way in allowitlg me to achieve my goal offinishing law school with a mi,timum ofacm路 mulaled ji,w/fcial debt. Thanks to the IOLTA Scholarship. I wiff be reqUired to borrow very little 1Il0lleydllring myfinal two years at UALR Schoof of Law. Of course, this mfill1$ a lot of hard work 011 my part! But I am up to it. alld am co'ifident that yourfaith ill me will prot.lt to be justlyfouuded all my ability to meet my persallal and academicgoals. Once agai'l, thank yOIl for allowing me personally to be the recipient of your generosity and support of legal edllentioll ill Arkallsas, I will do my utmost 10 ensure that yOIl will be pleased thaI you dIose me to receitlf this scholarship, Sincerely, LaUrll

L elm,ton

[():r ~r.\ D TO THE POOR, 1999 HlGHLlGHTS AS LEGAL SERVICES (Center) 5197,809 representation 10 low-Income Al1cansans in Arkansas. Ashley, Bradley, . Cleveland. Columbia, Conway. DaJ1as. Desha. Drew, Faulkner. Garland, rd, Je'ferson, Uncofn, Lonoke. Montgomery, Nevada. ouachita. Perry, Pike, line, seVIer, Union and White counties. The Center continued to operate the d telephone intake system 10 serve dients In the Center's 32 countIes. The :0 provide legal advice or brief services 10 income-qualified clients. In addition, clients in a wide variety of CIvil cases. with emphasis on spouse abuse, , the elderty, and juvenile law GAL SERVICES (EALS) $55,069 represen:ahon to low-Income AOOinsans in Cnnenden, Cross, Lee, MISSissippi, t FrallClS counties. EALS'long-brne Executive DIrector. Ben Thomas Cole II, by the program's lIbgabOn DIrector. VICtor H,I. The program conbnued to matters as houSing. social security disability, divorce. custody and domesbc ,I taught classes in the Home Buyer EducatJon Program and assisted ,s With such matters as incorporation, tax exempt status and spetial PfOlect5. SERVICES (ETLS) 519,087 representation to low-income Arkansans In Hempstead, Lafayette, Little River managing attorney, two staff attorneys and a paralegal represented clients at and in ClViI court In these four counhes In Southwest Arkansas. In addition to sponsored Commumty Legal Education projects regarding rights of the poor F NDRTIIEAST ARKANSAS (LSNEA) 5SO,754 I representation to low-income Arkansans in Clay. Craighead. Greene, . Lswrence. Pomsett. Randolph, Sharp and Woodruff counbes. LSNEA's :or, Lou s Nisenbaum, reSigned and was replaced by the program's Managing ichardson. Attorneys In offices In Jonesboro and Newport provided direct legal consultabOns. holline servICeS, brochures. and pro se pfeadings (In certam ,"come clients. ICES (OLS) 559,430 ,resenlabon to 1ow·1IlCOme Arl<ansans" Bax1er, Benton. Boone, Canoll, Cleburne. Manon. Newton. searcy, Slone and Van Boren oounties Ozark Legal Services ,trICe from the downtown area where OLS had operated for many years to a new 'est Arkansas Mall. OLS also continued 10 operate Of"Ie-attomey satellite nlaln V",w Legal seMCeS oncIuded advice. boo! service (making telephone 'l!abons, court representation and community educaHon. S LEGAL SERVICES (WALS) 541,644 epresentabon to Iow·lncome AOOinsans in Crawford, Franklin, Johnson. Logan, and Yell counties. WALS moved Its offices from downtown to a new buIlding luare feet smaller in size. Modem workstations and a new computer-research shortage in space. WALS continued to selVe low·income chenls in such civil ,use abuse, custody and consumer issues. EER LAWYERS FOR THE .DERL :A\ 514,468 of the Arkansas Bar AssoClabon. SIX Legal seMceS programs, and the serviceS. DMSlOO of Aging and Adull services The AVLE staff works closely programs and the Area Agencoes on Agong to ,nsure older Arkansans get the ley need. J'l 1999. over 490 IoW·lncome elderty Arkansans were assisted WIth the efforts of these volunteer attorneys. Bruce Harlan of BtytheviIle was Attomey 01 the Year. Mr. Hartandonated 1$5 hoors of pro bono seMCe to low· the AVLE program.

~e

GAL SERVICES PRO BONO PANEL 59,339 no panel assIsts low-income clients 01 East Arkansas Legal SelVices in seven thiS pro bono program volunteered to aSSISt EALS staff with domesUc relations and custody matters. E, ,~I IS"S PRO BONO PROJEC1' 52,526 ,ists ArXansas loW-Income chents with civil legal needs in lour counties In ETLS works closely w,th the Texarkana Bar AssoaabOn and the Soothwesl

( .~RL\S'T'

~QUAL ACCESS TO JUSTICE PRO Be P, ",L, SNEA) $5,353 This pro bono panel is a volunteer entity of Legal services of Northeast AOOinsas. The panel prtMdes quaJrty IegaJ services to poor people In ten Northeast Arkansas oounties Approxomately 90 pnvate attorneys served as volunteers In 1999.

p, .EGAL _ VICES PRO BONO PA IEL 57,732 The 1991 winner 01 the dIstIngUished Hamson Tweed Award.' thiS panel is a joint venture between Ozark Legal SelVices and fourteen county bar associations In Northwest Arkansas. The goal is to expand the availability ollega! assistance to a larger number of poor people in the area. In 1999, over 190 referrals were made to volunteer attorneys on this paneL Ten new attorneys and four new volunteer court reporters were recrUited With the latter handling depoSitions in poverty cases. The pro bono program was automated, acqUiring an e-mail address for communication among volunteers and staff. The program also intensified its lund-raIsing efforts 10 help more low-Income Arkansans in the seMCe area.

,OLUI -:ER "-OR!~· PROJECT 'AP) $5,741 VAP is ajOIIlt venlure of the sebastian a'ld Crawford County Bar Assoctabons and is administered by staff 01 Western Arkansas Legal services. The program exists to provide free legal representallon to poor people In the twocounty area Currently, over 115volunteerIawyersprlMde tree legal aSSIstance to poor people in these commUnities. 10 1999, the VAP panel assisted approximately 131 low-income clients, Five new attorneys were recruited as volunteers lor the panel. VOLUNTEERS' ORGANIZATION. CENTER FOR AR LEGAL SERVICES (VOCALS) 530,391 VOCALS won the prestigIOus Harrison Tweed Award' in 1985. The program was started In 1982 by lhe Pulaski Coonly Bar Associabon In an ellort to help Cenler for Arkansas Legal seMCes (the Center. formerly CALS) meet the legal needs 01 poor people In Pulaski Coonly. Through acooperative venture between eIght central Arkansas bar associations, indMdual attorneys and the Center, over 750 voIunleer lawyers now prOY1de free !ega aSSIStance to poor people In central and south Arkansas Duong 1999 volunteer attorneys asslstecl VOCALS staff In presenting -Words to the Wise" preventlV8 legal education clmics for sen)or citizens at 12 locations throughout the state. These wori<shops informed senior citizens about WIlls. livil'lg wdls and powers of attomey. A special feature of the workshops thIS year Included information contained in the senior CItizens' Handbool<lCareglvers' Resource Guide, a publication of the Arkansas Bar Association. Also. a new VOCALS program was formed In EI Dorado

PROJECTS TO DlPROVE THE ..,D;\lI:\,lSTRATiO:-\ OF Jl'STICI. CASA·2nd JUDICIAL 01 "-'IliCT 55,000 Ths Court'AppOlf1ted SpecIal Advocate ,CASAl program headquartered ,n Jonesboro was named 1999 CASA Program of the Year In Arkansas The program began in 1995 and has grown to include four employees, 35 volunteers, 11 board members, and 19 acMsory members The program served over 100 abused or neglected chIldren In its six--county area 10 1999. CATHOLIC SOCIAL SERVICESilMMIGRATlDN 57,500 Attorneys and staff compleled 328 application packets, held 23 naturalization group processing ses· sions. and conducted 15 informational workshops lor immigrants 10 Spanish, reaching an estimated 874 Immigrants in Arkansas. MOCK TRIAL COMPETITION 59,000 The Youth EducabOn Commrttee of the Arkansas Bar AssoaabOn sponsored the 1998-99 Arkansas High SChool Mock Tnal Program. thiS amual stateWIde competitIOn educates high school students about the law and how the IegaJ system lunc\JonS. Over ISO volunteers assisted w,th ttus yeafs Arkansas program. The State Champtons. an aI~sophoroore team t,orn Central High School. were Sarah Luppin, Chaney McBryde, Andrew Yancey, Ben Uncoln. Ann Glotzbach. William Hahn, Ross Noland and Joanna Young The teacher/coaches were Ms. Melissa Colburn and Mr. Sam Stueart. The team competed in the final competition 10 St. LOUiS, Missouri and ranked number 24 In total polOtS and number 27 in the overall win/loss rankings. SI'NIOR CITIZENt HANDBOOK 522,657 The Young lawyers Secbon of the Arkansas Bar Assoaalion produced the 8th Ed<l1Ofl of this popular pubhcatlon. A new section, The Caregivers' Resource GUide, was added. thiS sectIOn containS information on Elderty services. Health and Nutntion, Income and Insurance, Consumer Matters and Estate PtaMlng. "The Hamson Tweed Award IS gwen by the Amet1c8n Bar As.socIatJon 8nnuafly to the best pro bono programs 11'1 the Uruted States

vo National Awards school dating violence, is the recipient of eWorld Medal in the New York Festival's . The award was made in the category of d is the American Women in Radio and made in the Local/Markets 26+ Documen.Not" was aproject ofthe Youth Education was funded by a $10,000 grant from the I

nd strives to educate them about dating , has aired four times on AETN, contains a view of the body of an Arkansas woman cal newscaster's description of violence in ittle Rock lawyer, Marcin Barnes, was the p Thomas ofTllOmas Films, also in Little I, Zacll, and his band-Juntoo Wazoo-wrote to Marcia Barnes and Skip Thomas on rkansas Bar Association on Jmwary 21, will be presented in April 012000, also in

For A Statewide ;-Income Arkansans II50S have joined together to seek funding r low-illcome Arkan5Ons. Callers would centralized intake service in Little Rock nflicts. Once accepted, clients would be m ill their area, where seasoned attorneys nd brief services by telephone. Telephone the six programs, so that clients would

ifclieuts' probtems cau be resolved through ition, a statewide legal hotline would help keep many people from getting to Legal the state's neediest people, who are otheral help they need through this telepholle

IS

gal Services programs to design alld contatewide hotline. Personnel for the system nancial screeners. Estimated cost of the two years of operation, and $1.2 million

Legal Services Help People Who Need Help Attorneljs for the Legal Services programs in Arkansas handled the following cases. While the cases are real, the 'names are fictitious to protect client identity.

~hrough

a Farmer's Home administration loan program, 'Mabel hired a builder to build her "dream home." The total cost of the new home was $40,000. Severalmontlls after the completion of the house, the light fixtures started coming loose from the ceilings, the floors started buckling, and the kitchen cabinets werefalling offthe walls, along with several other problems. Mabel's dream had turned into a nightmare. 111 accordance with the warranty provision of the constmctioll COlitract, she attempted to notify the builder. Her telepholle calls and letters went Immlswered. Several weeks later, Mabel saw the builder at a local fast food restaurant and informed him of the problems. He assured her that the necessary repairs would be made, but nothing ever happeued. Mabel coutacted Legal Services. A staff attorney located the builder, but he refused to do anything. The attorney filed a lawsllit against the builder alleging breach of COIItract and warranty. A jury returned a verdict in favor ofMabel ill the amollnt of $7,000 to repair her house.

~Sue

rented a mobile home, and tile landlord provided all her utilities as part of the rental agreement without the benefit ofa written lease. The landlord, using self-help eviction methods, cut off Sue's utility service durillg very hot weather. Sue's minor son, 'Darrell, suffered from severe asthmatic attacks and she was forced to obtain a motel 1'00m until her limited funds were exhausted. Then she and her SOIl had to stay in the mobile home without air conditioning or the lise of a fall. The local utility company had flO policy concerning the due process rights ofa tenant ill til is situation. Legal Services contacted tile attorney for the utility commission, and this situation also received notice in the local press. The utilities were restored. The customer service committee of the local utility has 'lOW proposed a new policy to protect the rights of tenants in these self-help eviction cases.

~Jacob was placed on Social Security benefits (SSI) because of kidney failure. He successfully undenvent a kidney transplant. After a review by the Social Security Administration, Jacob was told that his benefits would cease because he was able to return to work. However, his medication cost $1,200 per month. Without this medication Jacob would die. While on SSE bellefits, Medicaid paid for his medication. Since Jacob's work background qualified him for nothing more than a minium wage job, his removal from SSE and a return to work would effectively act as a death sentence. A Legal Services staff attorney represented Jacob in an appeal of the SS! termination. As a consequence, Jacob is still able to acquire his necessary medication. 1~1

1999 KOLTA '13

,1

'K HOi 'OR ROLL

The Atk.n....s IQLTA Found.tion gis",s speci.1 recognition .nd th.nks to the following fin.nci.1 institutions for p.ying.n .ver.ge interest rate of 2.0" or higher AND waiving sl.'(V;ce charges on attorney IOLTA account5: Nailonal Bank of Atkansas, North little Rock Commercial National Bank, Texarkana first Nailonal Ban~ Wynne Atnerican State Bank, Jonesboro National Bank of Commerce, EI Dorado First National Bank of Eastern Arkansas, Commumty Bank of Cabot American Stale Bank, Osceola National Bank of Commerce, Memphis Commumty FlOl Bank, Eureka Spnngs forrest City Arkansas Nabonal Bank, Bentonville Newport federal Savings Bank First National8ank of lawrence County, Community First Bank, Harrison Bank of Augusta OneBank, little Rock Dlannond State Bank, Murfreesboro Walnut Ridge Bank of Dardanelle Perry County Ban~ Perryville Diamond State Bank, Nashville First National Bank of Paris Bank of En~and Pinnade Bank, litde Rock First Security Bank, Searcy Eudora Bank Bank of Eureka Springs Pocahontas federal Savings Farmers Bank, Greenwood first Se"ice Ban~ Clinton Bank of Holly Grove Portland Bank farmers Bank, Hamburg First Slate Bank, Conway Bank of lake Village Regions Ban~ C~rksville farmers & Merchan~ Bank, Stuttgart first State Bank, Crossett Bank of litde Rock Re~ons Bank, Morrilton Fidelity Nailonal Bank, West Memphis First Stale Bank, lonoke Bank of Montgomery County, Mt. Ida Ri\er Valley Ban~ Russellville first Bank, Texarkana First St>te Bank of DeQueen Bank of Mountain View River Valley Bank & Trust, Barling first Bank of South Arkansas, Camden First United Bank路 Hazen Division Bank of North ArkanS<1s, Melhourne Scott County Ban~ Waldron First Community Bank, Conway first United Bank, Stuttgart Bank of Prescott Simmons First Bank, Dumas First Community Bank, Jonesboro forrest Oty Bank Bank of Rogers Simmons First Bank, Dermott First Commumty Bank, Pocahontas Greers feny lake Bank Bank of Salem Simmons first Bank, lake Village Heartland Community Bank, Monticello first Ddta Bank, Tyronza Bank of Star City Simmons First Bank, lincoln First finandal Ban~ EI Dorado Hdena Nailonal Bank Bank of Trumann Srrrnons FlOl Bank of Northwest Mansas, First National Bank, Crossett Heritage Bank, Jonesboro Bank of Tuckerman Springdale Horizon Bank, Arkadelphia First National Bank, DeQueen Bank of Waldron Smackover State Bank first National Bank, 8 Dorado Horizon Bank, Hot Springs Central Bank and Trust, little Rock Southeast Arkansas Bank, Hamburg First atlonal Bank, ft. Smith Horizon Bank, Malvern Citizens Bank, Batesville Southern State Bank, Malvern First National Bank, Helena Horizon Bank. Sheridan Citizens Bank &Trust. Van Buren Unico Ban~ Paragould First National Bank, Marianna Madison Bank &Trust, Kingston Gtizens National Bank, Nashville Union Bank & Trust, Monticello Marked Tree Bank First National Ban~ McGehee Ciilzens Slate Bank, Bald Knob Union Planters Bank, Clinton First National Bank, Mena McGehee Bank City National Ban~ ft Smith First National Bank, Paragould Merchants & Farmers Bank, Dumas City Nailonal Bank, Alma First Nailonal Bank, Springdale Merchants & Planters Bank, Oarendon Commercial Bank &Trust, Monticello (J

A special thank you to

th~ fof/owing financial institutions for paying intprest AND waiving

Alliance Bank, Hot Springs Bank of Cave Gty Bank of Deligh, N"atia Co. Braoch Bank of FayetteviOe Bank of Gleowood

Bank of Harnsburg Bank of Pocahontas Bank of the Ozarlt;~, Harrison Bank of the Ozarks, Jasper Bank of me Ozar'-s, utile Rod Bank of the Owks. Ozark Bank of the Ozarks, Van Buren Bank of Yellville Gtizens Bank, Booneo.,itIe Citizens Bank, Marion Cleburne County BanIc, Heber Spnngs Community Bank. Fayetteville Decatur State Bank Deposit GuaranteejFirst American, lackson, Miss. Fanners Bank & Trus, Blyt!reville farmers Bank &Trust, Camden Farmers Bank &Trust, Oarksville Farmers Bank &Trus~ Magnolia First Arkansas Bank & Trust. Jacksonville First Arkansas Valley Bank, Dardanelle First Community Bank, Batesville

First Federal Bank of ArkansaS, BentonviDe first Federal Bank of Arkansas. Berryville First Federal Bank ci Arkansas. Fayelleo.ille First Federal Bank of Arkansas, Harrison First Federal Bank of Arkartsa~, f.r\ountain Home First Federal Bank cJ Arkansas, Rogers Fim NatIonal Bank, Ashdoon First National Bank, DeWitt First NalionalBank. Hope First National Bank, Magnolia First Natioo.'ll Bank. Mountain Home first National Bank, Siloam Springs First Stale Bank, WarrfO First Western Bank, Rogffi Heartland Commun tv Bank, Camden Heber Springs State Bank Malvern National Bank Mercanlite Bank. Cooway Mercantile Bank. Hmer Springs

Mercantile Bani<, N<Jth Utlie Rod Mercantile Bank of Morrilton Merchants &Planters Bank, Camden Merchants & P1anteri Bank, Newport MetropOlitan National Bank, little Rock M~SouItr Ban~

Jonesboro

Petit Jean Sldte Bank

Peoples Ban~ Paragou~ Piggott State Bank Pine Bluff Nationcll Bank Pulaski Bank & Trustlilde Rock

servke ('harges on attorney IOLTA accounts:_ SopenDr federal Bank ft Sm,ltr

Regions Bani<, Bates,ille Regions Bank, Benton Regions Bank. Ointon Regions Bank, Conway

Rl'gIOOS Bani<, 8 Dorado Regions Bank, Fordyce

Regions Bank Hoi Springs Regions Bank, Jonesboro R,~ons Bani<, little Rod Rl'gIOOS Ban~ Na"",""

Regions Bank. Osceola Regions Bank, Rogers Regions Bank, Russellville Regions Bani<, Sear<y Simmons First Bank.looesboro Sinvnons First Bank. Searcy Simmons First Bank of Arkansas, Russellville Simmons flf5t National Bank, Pine Bklff

Soulh Ban~ Blythe>ill,

The Ca~laJ Ban~ Unle Rod TrustBank, Mountain Home Union Bank of Benton Unoon Bank of Mend Union Planters Bank, Des Arc Union Planters Bank. Forrest Gty Union Planters Bank, MaJ)/lall Union Planters Bank. Newpor1 Unton P1anlro Bank, Osceola Union Planters Bank. Paragould Union P1anter5 Bank. We!ol Hekna Union Planters Bank, West Memphis Unton Planters Bank 01 Northeast Arkansas, Hardy Union Planters Bank of Northeast Arkansas,

Jonesboro Union Plantffi Bank of Northeast ArkanSil5,

Manunoltr Spnngs Union Planters Bank of Northeast Arkansas, Newport Union Planters Bank of Northeast Arkansas, Rector

United Ban~ Springdale Warren Bank &Trust Warren

South Bank. Manila

South Bani<, Osceola Spnngdale Bank &Trust

Th.nk you 10 these other p.rticip.ting IQLTA b.nks for p.ying inter..t in 1999: Arkansas State Bank, Siloam Springs Sdnk of Ameri,,!. StlOUIS Bank of Arkansas, Tulsa Banlc of Benlooville Bank of McCrory GliZerlS National Bank, Hope

Cross County Bank, Wynne Danvine Slate Bank Elk Hom Bank &Trust, Arkadelphia FalTl1Cf5 & Merchants Bank, PraIrie GrO\oe First Arvest Bank. 8erry'I!lle First NatJonal Bank, AYl Rat

first National Bank, Berry.JlIe Frrst National Bank. B~the\.o!lIe First National Bank. Rogers Hibernia National Bank. N{'W Orleans Mcilroy Bank & Trus~ Fayetteville Peoples 8.lnk & Trust.l~,S\'iUe

_ Peoples Bank &Trust ~ntain Home Regions Bank, Harrison RegionS Bank. Texarkana Regions Bank. West Memphis

This listing is based on interest rales on aCli\'e attorney JOL TA accounts as reported to the Foundation by individual banks in 1999.

interest" inscruction might read: I direct that the central guideljne shaping my medical care to be my best interests, including consideration of pain and suffering and dignity-related factors. This means that if, in the course of my medical care, the burdens of cominued life with rreatment become greater than the benefies I experience, or if my condition is demeaning, life-sustaining measures are to be withheld or discontinued. 53

2. Avoid vague and ambiguous terms and inc/Ufk definitions when necessary. When writing instructions, words such as "heroic measures" or "exrraordinary measures" ought to be avoided because they mean different things to different people. It is better to craft instructions with more precise language and include definitions.

3. Identify medical conditiom that make the directive operative. Clients should state clearly the conditions that trigger the directive. Triggering events may include terminal illness, permanent unconsciousness, incurable debilitating diseases or injuries for which there is no hope of recovery, or a prolonged "intolerable quality of life". The latter two options may be followed by an illustration of specific conditions or combination of conditions the client finds intolerable. For example, a client may wish to refuse treatment in the event of dementia, inability to recognize family or friends, inability to understand and communicate, or complete mental incapacity (mental dysfunction); immobility, incontinence, helplessness, or dependence on other for feeding, bathing, and dressing (physical dysfunction); or embarrassmenr, frusrration, anxiety, or agitadon (emotional dysfunction).54 Clienrs who find it intolerable to think about the possibility of incapacity and health-care decisions, who don't wish to spend the time or money drafting a detailed, highly customized directive, or who are simply overwhelmed with planning for every conceivable eventuality may be well served by a simple statement that reads: "'fl am diagnosed as having an incurable and irreversible injury, disease or condition which may not be terminal and which may cause me to experience severe and progressive physical or mental deterioration and/or a permanent loss of capacities and Faculties, then I direct my physician to withhold or withdraw rreatment that merely prolongs my dying."55

4. Describe the health-care treatments

that are, or are not, desired. After stating the triggering medical conditions, the directive should identilY specific treatmenes that are, or are not, desired. The dient may wish a broadly worded instruction that refuses "all lifeprolonging medical and surgical treatrnenes and procedures". If the client chooses this option, he should also include a specific instruction regarding nutrition and hydration [0 avoid confusion among the decision-makers. Or the client may have strong feelings about certain kinds of treatment that he would wish [0 avoid. In that case, a list may be used directing the withholding or withdrawal of care such as antibiotics, other medications, surgery, blood products, artificial feeding and Auids, artificial ventiladon, cardiac and pulmonary resuscitation, or kidney dialysis. Finally, the client should include a statement about comfort care. Such a statement might read, "I prefer to be kept comfortable and to receive medkation necessary [0 relieve pain, [even if it has the effect of hastening my death]." If the client wishes to direct her care only in the event of terminal illness or permanent unconsciousness, then she may be well served by obtaining a copy a model advance directive from the University ofArkansas for Medical Sciences. 56 This directive conforms to ARTIPUA.

Signatures and Attestations Whether drafting a Statutory directive or a nonstatutory direcrive, the following model signature and attestation clause may be used: "I, [dient], being of sound mind, do hereby sign this document, knowingly, voluntarily, and with careful thought." Include a date and signature line for the client or someone signing at me direction of the client in the client's presence. Provide space after the arrestation clause for two witnesses to sign and date the attestation which may read, "I attest that the person who signed this document djd so in my presence, that he appears to be of sound mind and free of duress or undue influence. I am eighteen years of age or older, and I am not designated by this document as the person's health-care representative."

TAKE STEPS TO ENSURE THE ADVANCE DIRECTTVE IS ENFORCED Now that the client has an advance directive, the next step is to increase the likelihood that it will be enforced should the time come. To accomplish this, clients should be encouraged to have fran.k discussions with their physicians and family members and receive assurances that their wishes will be carried out. 57 If the client has a directive naming a surrogate decisionmaker, the surrogate should be given a copy of the directive. Upon hospitalization or admission to a long term care facility, clienes should take several copies of their directives with them and make sure a copy is placed in their medical records and other copies given to treating physicians and nurses. Later, if a physician is reluctant or refuses to comply with the patient's directive, the surrogate decision-maker should ask the department head or institution's administrator to enforce the directive or to arrange the patienr's transfer to a provider who will honor the patient's wishes. The decision-maker may also petition the institution's ethics committee if necessary. As a last resoer, the decision-maker may seek legal recourse through licensing and certification agencies or in the couces.

CONCLUSION When drafting advance directives for clienes, it is imporra.m to understand the circumstances under which the client does or does not want medical treatment, including life-sustaining treatment. All too often, advance directives are drafted in the language of ARTIPUA without much thought ro the cliems' wishes should they become seriously debilitated with an incurable or irreversible condition. This article suggesred rhat the common law and consticutionallaw may be used as legal bases to expand cliems' powers to direct care when they are nOt competent to speak for themselves. A well-conceived advance directive that accurately reAects clients' wishes should conrribuce to their peace of mind about furure health care. ENDNOTES The author is grateful for the wisdom of Chris Hackler, PhD, Direcror, Division of Medical Humanities, Universiry of Arkansas for Medica.! Sciences, in the preparation of this arricle. 1. Estote ofAdams v. Inlow, No. 97-385-2. 2. 42 C.ER. ยง 489.100.

"ol.ll SI. !fSpriRg 2000 The lrkmas La~w

II

treatment decisions for me patient). &~

<t aJ.. The Issut of PtrSOnnl OJoicc 1M Compamt Incumbk Patiml and fix Right to Commit Suici.tk?, 57 Mo. L REv. I. 16.49 nn. 101-04 (1992) (imemal cirations omiued); Pwrzm v. Sisco, 406 E Supp. 776. 778-79 (WD. Ark. 1976) ajJ'd. 547 E2d 1172 (8th Cir. 1976) (nocing

18. A "qualified patient" is "a patient eighteen

"a physician's f:lllure to obmin an informed

attending physician to be in a terminal

36. 42 C.ER. § 489.102.

condition or in a permanently unconscious

37. /d.

state by me anending physician and anomer

38. Ark. Code Ann. § 20-17-214.

3. Rebecca C. Morgan

consem may give rise to a suit for an imenrional assauh and banery. though such suits are usually brought alleging negligence."). 4. Ark. Code Ann. §§ 20-%01 to -604 (Rep!. 1991. Supp. 1999). 5. Stt. Robert B. leBar.

Libmy and Dtath:

Advana HMlth Carr Dirrctivn and tIN LAw of Arkantm. 1986 ARK. L.R. 375. 384 (citing D,mman v. Rnnry. 118 Ark. 337. 176 S.W.

not aperience "mought, feeling, sensations, and awareness of selfand environment". Ark. Code Ann. § 20-17-201(11).

anending physician. Ark. Code Ann. § 2016-214.

qualified physician who has examined me

39. Ark. Code Ann. § 28-65-302 (Supp. 1999).

pacient". Id. § 20-17-201(7).

40. See Aa 1536 of 1999. § 7. 41. Ark. Code Ann. § 20-13-104 (Supp. 1999). 42. Ark. Code Ann. §§ 28-68-101 to -313 (1987). Original durable power of anorney acts were imended to delegate property decisions. Also, some acts have been

1993 ARK. L. NOTES 79. 80 (citation, omitted).

considered nondelegable because tlley are "tOO personal" in nature. &~ Leflar, mpm

20. Ark. Code Ann. § 20-17-206(b) (The physician is still responsible for providing "treatment,

7. See M'J'T

hydration, for a patient's comfort, care, or

NtbraskA. 262 US. 390 (1923); P;=t u Sodtty of Sur",. 268 U.S. 510 (1925); SIr;nn" u OklAhoma. 316 U.S. 535 (1942); Gmwold u Connt<t;cut. 381 U.S.479 (1965); Rot v. Wadr. 410 U.S. 113 (1973); Moo" u c;ty ofEast Ckutlnnd. 431 U.S. 494 (I 977); Plmmd Pomlthood of South~l1.It",1 Pmnty/uan;a v. Casty. 505 U.S. 833 (1992). 8. In" Qu;nlnn. 355 A.2d 647 (N.J. 1976) em. dm;td rub nom. 429 US. 922 (1976). 9. /d. at 651. 10. It!. at 663. 11. 497 U.S. 261 (1990). U.S.c. §§ 1395cc(f). I396a(w) (1993).

hospitals, nursing facilities, home healdl agencies, hospice programs, and health maintenance organi13tions. !d. §§ [0

1395cc(f)(2)(A) to (E). 1396a(w)(2)(A) to (E). 14. Ark. Code Ann. §§20-17-201 to-214(Rep!. 1991. Supp. 1999). 15. "Li~.susrn.ining ueaunem", as applied to terminally ill or pennanendy unconscious

induding

nutrition

and

alleviation of pain".).

21. S« Ldlar, Iupm nou 18, :11 81; In " Quinlan, 355 A.2d 647. 652 (N.J. 1976) em. dm;td rub 110m•• 429 U.S. 922 (1976); Cr=ln u Dirmor, Missouri /JqJI. of Hra/th, 497 U.S. 261 (1990). 22. Ark. Code Ann. § 20-17-204.

note 18, p. 413.

43. Stt Ark. Code Ann. § 20-9-602 (Rep!. 1991). 44. Wright u 7k Johns Hopk;,lS Htauh Syrtans Corp.• 728 A.2d 166 (1999). 45. /d. at 172. 46. SuArk. Code Ann. § 20-9-603 (Rep!. 1991) regarding "Implied Consent." 47. Ark. Code Ann. § 20-1 3-1 04 (e). 48.

23. Ark. Code Ann. § 20-17-208. 24. Ark. Code Ann. § 20-17-209.

NORMAN L. CANToR. ADVANCE DIRECIlVES AND THE

25. Ark. Code Ann. §§ 5-4-201; 5-4-401(Rep1.

PURSUIT OF

51. Canror, mpra nOte 48, at 67· 69. 52. Canror, mpra note 48, at 54.

14406 (1997). 27. Ark. Code Ann. § 5-10-106 (Supp. 1999).

53. Adapted from Cantor, Iupm note 48, at 150.

28. Ark. Code Ann. § 5-10-106.

54. See Cantor, mpm note 48. ar 60. 55. Adapted from Cantor, mpm note 48, at 61. 56. Model Advance Directives are available from UAMS Medical Center, 4301 West Markham Street, Slot 727, Litde Rock,

29. 30. 31. 32.

Ark. Code Ann. § 20-17-202. Ark. Code Ann. § 20-17-207. Ark. Code Ann. § 20-9-602. Ark. Code Ann. § 20-9-601. 33. Sa I..eRv, mpra nore 5, at 391-94 (stating Arkansas's Consent to Treatment Statute

Arkansas. 72205. 57. Cantor, Iupra note 48. at 122-134.

recognizes the substituted judgment principle when it authorizes other persons to make

NEED ASSISTANCE WITH APPEALS?

the process of dying or ro maintain the

201 (4) (Supp. 1999). 16. "Terminally ill" is the physician's derermination that a patiem has an "incurable and i~ible condition" and mar wichom life-sustaining rrearment, the patient will die "within a relatively shon time". Ark. Code Ann. § 20-17-20 I (9). "Relatively ,hort time"

is nor funher defined in the Code. 17. "Permanently unconscious" is a lasting, indefinite condition in which the patient does

WITH

DIGNm'. 4445 (1993). 49. Adapted from Cantor. supra nOte 48, at 149.

patiems, IS any "'medical procedure or inrervention" that wilJ "serve only to prolong patient In a condirion of permanent unconsciousness". Ark. Code Ann. § 20-16-

DEATH

50. Canror, mpra note 48, at 70.

1997). 26. Ark. Code Ann. § 20-17-210; 42 U.s.c. §

J 2. The Patients' &:If-Determination Aa. 42

make health

declaration or appoinred a health care proxy

19. Stt. Robert B. Leflar. WtliJdnzUN1lofNurrinon and Hydnznon From Dy;ng and Vtgttanvt Patinzt:s: A Statfltory Analysu ofArkansas Law,

U

(0

care decisions" as determined by the patient's

6. Ark. Code Ann. § 20-9-604 (Supp. 1999).

J 3. The Aa applies

35. "Incapacity" means "unable

(18) or more years of age who has executed a and who has been determined by the

339 (1915).

aw,

In " Connty. 486 A.2d 1209. 365 (I 985). 34. Id. at 366-67.

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M

y patient Alice (not her real name) is eighty -nine years old and has anhritis in her hip. She is now on ca.lcium supplementation and is on a synthetic hormone replacement. She has very well controlled high blood pressure. She acrually gets around well but, and I quote, "Nor like I used to." Unci I recendy (relatively speaking), she lived independenrly in California. A!; her mobility declined, she moved to Arkansas CO be closer [Q her widowed daughter. She is still very competent at handling her own affairs, but as the years pass, she is relying on the judgement of her daughter increasingly. AJice is happy spending time with her daughter and enjoys her grandchildren, some of whom are actually approaching middle age. She has witnessed the advance of human capability from the airplane (0 interplanetary travel. From radio on [0 television and now the Internet, she has seen

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our ability to communicate with one another increase in bandwidth. She has also seen the wars of a hundred years and the increase of our ability to kill one another extended from machine guns and nerve gas to the thermonuclear bomb. The intrusion of the Flu Pandemic of 1918 and polio in the early fifties left her with memories of dead and crippled people young and old. She knows about the emergence of AIDS. She accurately remembers the great depression. That made a more meaningful impression on her than did the development of the transistor or the laser. As a direct consequence, she is very fiscally conservative while, at the same time, very daring in her embrace of the new. Consequently, she is nor totally dependent on Social Security. Is this a story with a happy ending? Well, that entirely depends on your viewpoint. Alice will not live many more years. Her remaining years will be a slow contraction of her world as her options are reduced by the degradation of her mental and physical capabilities. The biggest Medico-Legal hurdles she will face are going to concern avoidance of being taken advantage of or physically! mentally abused by her family, business contacts and other strangers including the government. Additionally, she is going to want to have some say in what her final days and hours will be like. She will want to have some power in terms of what things will be done to her during the endstage of her final illness. She will want to retain as much control of her assets as possible without day

to day responsibility. These are the same problems that all people face except that they have increased urgency as the options narrow and the income becomes more fixed. All of the issues can be ethically defined in terms of the concepts of "beneficence" and "autonomy". Beneficence is what our ethical point of view requires us to do and decide for other people who are less able to do or decide for themselves. Autonomy is the aspect ofour ethicaJ point of view which requires us to let people do what they want and decide for themselves. The rwo positions are mutually exclusive and these competing interests must constantly be balanced in the light of knowledge and experience. Although it has often been said that senior citizens are in their second childhood, this is true only for those whose capabilities have declined to the point where beneficence is the only ethical position. As long as a person retains a minimum of competence. the concept of autonomy requires us to leave well enough alone. Where do you draw the line? As Hypocrites taught us, "First, do no harm." If not acting in someone's best interest allows him or her to come to harm, it is imperative to act. Even this maxim needs to be tempered by allowing autonomy wherever it is at all possible. This should be tempered by good sense. One of my patienrs (nor Alice) with emphysema continued smoking until she required hospitaJization for a period of over a month. During this time she was treated with potent steroids, and she became psychotic. Evenrually, she recovered her sense but left the hospital on oxygen. Is it ethical not to allow her to smoke? She is no longer able m drive so her cigarettes would have to be bought by someone else. Restricting her access to cigarettes is a matter of informing her children that further smoking would likely soon return her to the hospital with no guarantee of recovery. She was also unable to smoke during the six-week visit to the hospital so she was fully withdrawn from the nicotine. I define procuring cigarettes for this woman as codependency. In this instance, beneficence wins. In other circumstances, if the woman were able to supply her own desire for cigarettes, I would be able to discourage her but would not be able to use beneficence for her benefit. Autonomy My Patient Alice Continued on page 40

INFORMAL CAREGIVERS OF AN AGING ADULT By Judy Hoelzema, Public Relations Officer, CareLink

S

everal years after they had both retired. my parenes asked me to be the executor of their Will. Although I was glad they had finally written a Will, I didn't want to be the executor. But I said yes. Ten years ago, after my father djed, my mother asked me to sign on as the joinr holder of her checking and savings accounts. J didn't want to do that, eimer. But I said yes.

Today, my mother is 84. Now, once a month, I help her pay bills. I sir with her, trying to be patient while she struggles with the date, how to write the amount and at times, even how to sign her name. I hun inside and think, sometimes bitterly, "This is why I didn't wam (Q say 'yes' 10 years ago, why I didn't even want to be asked." And what's the hardest parr? Not patience; I do pretey well with (har. And besides, there is such a feeling of vicwry and hope when Mama does well at writing the checks. And its not hard ro ask the phone company to remove a charge that got on her bill as a result of a telemarketing call. It's not hard to keep trying to devise the very best and most comfortable way to give her a bath. It's not the giving up of a Friday night and a Saturday to stay with her that's hard. It's not the "doing" thats hard. Like many people, I can "do" till I drop. The hard parr is, I suppose, whats hardest about all of life. The hardest part is recognizing, accepting and dealing with reality. In this case, the reality is that my mother is failing and is leaving me.

36

The JlrkaDsas I,awjer

fol. 3~ So. 1/Spring 2000

So much questioning, fear, anger, denial, hope, adoration, stubbornness and other feelings I haven't even idemified yet will have to come before I can accept the reality. Should we take my mother for a gerontological evaluation? Should she have the cataract surgery? Wouldn't physical exercise help to stimulate her brain? Eating well and drinking well will surely help. How long will her savings allow us to pay for adult day care and someone to spend a few nights with her? And then, what? Like millions of middle-aged adults in the United States, my seven siblings and I are informal caregivers of an aging adult. Like more and more Americans, we are committing many hours a week to providing or arranging housekeeping, meals, transportation and personal care, and offering financial help as well. It seems that in the area of elder care, American families have blasted the stereotype of being fragmented and neglectful and instead, are very immersed in the care of parents and older relatives. In fact, estimates show that spouses, adult children, other relatives and friends provide 80% of all care and help needed by older Americans. According to the U.S. Administration on Aging, this informal caregiving is worth $45 to $75 billion per year. Informal caregivers greatly reduce the demands on formal systems of in-home and community support services available by means of the federal, scare and local resources. In Arkansas, a double chalJenge faces us because we have the highest percentage of low income older people in the counrry. Though it is happening everywhere, taking care of parenes is not a natural thing to do. It is natural for children - even adult children to expect parenes to be strong and to take care of them, the way parents always have. When adult children are required to care for their parents, everything gees rurned upside down. And very few people can do it without help. In central Arkansas, caregivers can rely on CareLink, for informacion, answers, support and a variety of services, including Meals-OnWheels, personal care, housekeeping, transportation and respite care. CareLink is the Central Arkansas Area Agency on Aging, serving Pulaski, Saline, Faulkner, Lonoke, Prairie and Monroe counties. The rest of the state is served by one of the seven other Area Agencies on Aging, all offering similar services "Call us first," says Elaine Eubank, president of CareLink. "We hear questions

from worried caregivers every day. CareLink's mission is to help older people live as independently as possible in the environmenr of their choice. Most often, they choose to live at home, and CareLink's cost-effective services frequently allow them to do that." The mOst vital and welcomed of these services is CareLink's Information and Assistance program. "We serve as a clearinghouse of information on aging services," Eubank says. "We wam caregivers to know that calling CareLink's Information and Assistance line is the best first step they can take. Care Coordinators are on call to answer e1igibil.ity questions and to match needs with CareLink services and other available programs and opportunities. The Cenrral Arkansas Chapter of the Alzheimer's Association provides information and suPPOrt for caregivers of people with any type of dementia. The nonprofit's executive director, Phyllis Watkins, stresses the importance of finding a good physician. "In any caregiving situation, whether it be dementia-related or otherwise, you need a physician you can work well with, one willing to take the time to do 'trial and error' until the best medication or cafe is found." Waoons also advises caregivers to use their energies most effectively. "Determine what you can reasonably do for your parent. Then decide what you have to stop trying to do. And strike guilt from your life!" she adds emphatically. "People say, 'Bur I promised Mom I would never put her in a nursing home.' You can promise that you will give your parents the best care you can for as long as you can, withom being more specific than that." The positive sides of taking care of an aging parent, and the rich meaning found in it, are not widely acknowledged. [know from experience the enormous rewards in helping my mother be comfortable, safe and happy. Hard as it is, I truly treasure the rime I have with her. Lasr week I told a dear friend (herself 85 years old) that we were taking turns staying with my mother ar night. She said, "Oh, how wonderfuJ!" That was exactly the reaction I needed to hear.

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\I,S Sl'l'liOIl H('pOI'I ANOTHER GREAT YEAR by Baxter Sharp Chair, Young Lawyers Section

A s we qukkly wind down another n.Bar year, your YLS is busy wim

2000

many standard projec[S and a few new

FALL

LEGAL INSTITUTE INTERNATIONAL

LAw

NOVEMBER 3,2000 The 1999 Fall Legal Institute brough t together attorneys statewide for learning and networking in two conferences. We want to continue the tradition with the 2000 Fall Legal Institute, as we focus on International Law, and hope to make this year's Institute even bigger and better! The Arkansas Bar Association and the University of Arkansas School of Law invite international law practitioners, judges, and academics to submit ideas for papers and presentations for the Institute. The Institute's planning committee is looking for a variety of important topics that will appeal to attorneys whose practices are inevitably touched or affected by international law as well as to attorneys specializing in international law. Please send a one-page outline of your ideas for papers and presentation topics by May 31, 2000 to: Cheryl L. Pinkerton Director, Continuing Legal Education Arkansas Bar Association, 400 w: Markham, Suite 600 Little Rock, AR 72201 or Fax: 501-375-3961 or E-mail: cpinkerton@arkhar.com SOME SUGGESTED TOPIC IDEAS:

• • • • •

• • • •

Immigration; family law issues How international law impacts the small business operation Legal issues regarding international e-commerce Alternative dispute resolution with foreign entities and governments Arbitrating international Internet disputes (American Arbitration Forum and United Nations World Intellectual Property Organization (WlPO)) Ethics issues in international law International jurisdiction on the Internet Mom & Pop E-commerce: Where is the law headed? How do we prepare/protect our clients? Global electronic commerce (electronic chattel paper and electronic payment systems)

ones. Paul Dumas has revised our Disaster Legal Assistance brochures and provided a healmy supply of me brochures ro me American Red Cross to have on hand. Stephanie Potter is heading up OUf law week activities. And Mark Hodge and Todd Greer will assist in coord.inaring the next swearing in session for OUf newest admittees. Some of our new projects deal with guardianship elder fraud, a video/guideline. and revision of our Consumer Law Handbook. Dustin McDaniel chaired the effon to revise our Consumer Law Handbook. which is non available. Dustin describes the project as "a reference guide for Arkansans who have questions about their rights on some very common siruarions". He says. "It offers information on purchasing a used car, how me dderly can avoid being taken by tdemarketing scams, handling landlordlrenanr disputes. debt collecrion, erc." Cenainly a project to hdp real people and me real problems mey face. Chad Trammell chairs me dder fraud projecr. This projecr is designed to inform our aged on different aspects of their often ddicare lives thar can be drastiealJy affected by me unscrupulous. Chad has assembled a group of defense, plaintiff and government lawyers who are described to be "unired in their resolve to empower our State's senior citizens in their battle against those who would take advantage of mem". Tim Cullen is organizing a guardianship video ro hdp guardians more fully understand their responsibilities and explore the many questions and concerns they may have. Yes, it has been a busy year, and we're looking forward to moving ahead with these projects and others in the year to come. We'll keep you updated!

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.Jlldil'iaillisl'iplillill'}' .\l'tions The Judicial Disciplinary AClions are wrillen and provided by ,he Judicial Discipline and Disability Commission.

Judge Morri. W. Thomp.oo The Arkansas Judicial Discipline & Disability Commission has announced that a unanimous recommendation is being made to the Arkansas Supreme Court thac Judge Morris W. Thompson be removed from office. This recommendation is the final decision following the Formal Disciplinary Hearing which was held before a <hree (3) member panel on October 20,21 and 22, 1999. The full Commission reviewed the entire proceedings of the Formal Disciplinary Hearing and the Findings and Recommendations of the three (3) member panel. as well as the objections [0 the Findings submined by Judge Thompson's attorney. The Commission found, by clear and convincing evidence, that Judge Thompson

had, by his representation of various clients, practiced law after becoming a judge. in willful violation of <he Code of Judicial Conduce. The Commission also found mat Judge Thompson's failure to honor the subrogation agreement he entered into with one (I) of his clients, as well as his failure to properly repore outside income co the clerk of the Arkansas Supreme Court and <he Arkansas Secretary of State, constituted violations of the Code of Judicial Conduct. Concerning the allegations of dishonored checks for non-sufficient funds, the Commission found that Judge Thompson admitted char fifty-nine (59) checks were returned for insufficient funds berween 1993 and 1997. Forty-one (41) of <hose checks were returned in 1997, some t\vo (2) years a.ft:er he was notified of the complaints filed against him with the Judicial Discipline and Disability Commission. During this time, Judge Thompson presided at criminal cases which included "hot check" cases. Judge Thompson's failure to pay his personal federal income tax for the year ending December 31, 1994, and his operating a vehicle exhibiting a fictitious license plate also violated the Code of Judicial Conduct. One (l) Commission member did not believe that the failure to honor a subrogation agreement and the failure to pay personal federal income taxes should be

used as a basis to sanction a judge. He did join in the unanimous recommendation <hat Judge Thompson be removed from office. The Commission found by clear and convincing evidence these maners were willful violations of <he Code of Judicial Conduct and that Judge Thompson's actions were prejudicial to the administration of justice. While some of the offenses may have warranted a lesser sanction as a isolated event, the seriowness of some of the other offenses, as well as the sheer number of violations committed over such a lengchy period of time, left no ocher alternative than to request that the Arkansas Supreme Coun remove Judge Thompson from office. Judge Fred D. David, III The Commission investigated the allegation that Judge Davis was rude, at different times, to two (2) litigants who had separate cases pending in his court. On September 30, 1997, litigant Arnold Turner delivered a jury verdier form to Judge Davis' case coordinator. Judge Davis' case coordinator cold Mr. Turner that Davis had recwed from the pending case because of the complaint Turner filed with <he Judicial Discipline Commission and that another judge would be presiding over <he pending case. Mr. Turner did not understand the reasoning behind the recusaI, and the case coordinator became frustrated with trying to explain the situ3[ion. Judge Davis came out of his office and spoke angrily to Mr. Turner, at one point telling him, "I'm tired of lying sons of bitches telling lies on me." It was also naced that on February 25, 1997, Judge Davis shouted at litigant Carla Jones. Ms. Jones had gone to <he judge's office regarding a motion for sanctions she had filed against an attorney. Judge Davis shouted, telling her, "I do not have time to teach you law. What are you looking at me like that for' Am I speaking Chinese?" Several weeks later, Judge Davis was again rude and impatient with Ms. Jones when she went to the judge's office. Judge Davis was found to be in violation of Canons I, 2A and 3B(4) of <he Code of Judicial Conduct. It was found that the judge's actions were inconsisrenr with

maintaining the high standards of conduct essential in preserving the integrity and impartiality of the judiciary. It was further adjudged that Judge Davis be required co auend counseling for anger management for an indefinite period of time. The Commission will receive regular reports to be assured that satisfaccory progress is being made. If for any reason satisfactory progress is not made, the Commission will revisit the sanction imposed in these two cases. Judge Berlin C. Jones The Arkansas Judicial Discipline & Disability Commission is announcing that Jefferson County Circuit Court Judge Berlin C. Jones, has recused himself from presiding over all criminal cases pending resolution of the complaint concerning a criminal shoplifting charge <hat has been filed against him. The Order of Recusal was entered based on an agreement between Judge Jones and <he Judicial Discipline and Disability Commission. On Monday, December 13, 1999, at approximately 4:30 p.m., Judge Jones was arrested for shoplifting at McCoy's Lumber Company in Pine Bluff, Arkansas. As Judge Jones exited the store, a sensor alarm was activated. At the request of store personnel, Judge Jones returned to the Store and removed two (2) pencil sharpeners from his pocket. Jones again left the store, and the sensor alarm was activated. Upon returning the second time, Jones removed twO (2) drill bits from his pocker. A citation was issued requiring the judge to appear before the Pine Bluff Municipal Court on January 10, 2000, at 9:00 a.m. The Judicial Discipline and Disability Commission gave notice to Judge Jones and his anorney, R.S. McCullough of Linle Rock, that the Commission would meet to consider recommending to the Supreme Court that Judge Jones be temporarily suspended from judicial office, with pay, pending the outcome of any disciplinary determination by the Commission. After considering a proposal by Judge Jones and his attOrney, the Commission decided that if Judge Jones were to recuse from all criminal cases pending resolution of the complaint before the Judicial Discipline and Disability

Judicial Disciplinary Actions Continued from page 39

Commission, no suspension petition would be filed with the Supreme Coun at this time. On December 21, 1999, Judge jones announced his recusal from all criminal cases pending resolution by rhe judicial Discipline and Disabiliry Commission of the complainc concerning the shoplifting charge. Judge Gary B. "beU The Commission investigated an allegation against judge Isbell rhat centered around the failure to dispose of judicial matters promptly and efficiendy. It was found that following a pose trial hearing on july 11, 1995, both parties filed their respective briefs on july 21 and july 24, 1995. A drafi of the final judgment was prepared at the judge's residence but was never transmitted for Rnal ryping and mailing. One (I) of the anorneys asked about the decision in the Howery II. Jeffirson case. and the draft order was located and transmitted to the judge's secretary for final action. The final order was filed and mailed on February 10, 1997. The letter accompanying the order included an apology CO the respective parties for the delay, and rhe recognition of the judge's personal responsibility for rhe delay. Judge Isbell has inS[itmed procedures to prevent this type of delay in the future...

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Opinions

The Judicial Advisory Opinions are written and provided by the Arkansas Judicial Ethics Advisory Committee.

William P. Watkins Rogers, Arkansas Advisory Opinion 2000-01 January 24, 2000 The Arkansas Judicial Ethics Advisory Committee recendy issued an advisory opinion to William P. Watkins. Mr. Watkins and other attorney members of the law firm of Watkins & Scott, PLLC, at I~t once a month, sit as special judge in the Rogers Municipal Coure. The law firm recendy hired an associate who is married to the Rogers Municipal Court deputy prosecuring anorney. The Advisory Committee was asked if it is appropriate for members of the law firm to continue to sit as special judges in the municipal court. The Committee is of the opinion that, under the facts presented, there is no violation of the Code of Judicial Conduce. Under the Arkansas Code of judicial Conduct the attorneys serve as a "pro tempore part~time judges". The Commentary to the Code does not require automatic recusal of the judge merely because a relative of the judge is a member of a law firm appearing before the judge. The Committee, therefore, concludes that disqualification is not required when a member of the law firm is married to the deputy prosecuting anorney appearing before the judge. The Committee nores, as in Arkansas Judicial Ethics Advisory Opinion 96-07, the underlying issue in Canon 3(ÂŁ) is whether the impartiality of the judge might reasonably be questioned. The Commentary to Canon 3(E)( I) states rhat "a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification. even if the judge believes there is no real basis for disqualification". The Committee recommends that there be disclosure, on the record, that a member of the law firm is married to the prosecucing attorney appearing III court. The responsibility then shifts to the defense attorney to request a recusal.9

My Patient Alice Continued from page 35 would win. Concerning laws affecting elderly people, these same ethical concerns are primary. Let us consider me Medicare act of 1967. Initially, people were able to Opt in or out of che various provisions: Parr A, Part 8, etc. Over time, the Government's beneficence has totally overcome autonomy. Some of the newest regulations have driven a wedge between physicians and their patients by putcing the patients on che investigacive team for waste, fraud and abuse. This is especially ttoublesome because denied charges on Medicare are frequemly described in their paperwork as "not medically necessary". Many senior paciencs' physicians have decided not to see Medicare patients anymore because of these new provisions. This is dearly not to che best advantage of our seniors. It is no longer possible to opt out of Medicare. Some of the biggest issues faced by seniors have already been addressed by the legislature in times past. The Social Security Act, if saved, will provide some income until death - alchough it does not appear to adequately address long term care wich increased needs. Considering the historical context, at the time it was implemented, mOSt elders remained in their homes or children's homes for this care. Wirh rhe breakdown of the extended F.unily, rhis type of care has declined requiring more nursing home and/or recirement center beds. My paciem Alice will do weU. She has a supportive family who shows respect for her desires while at me same time cares for her needs. Autonomy is being tempered by beneficence in her situation. Alice's srory will have a happy ending. She is perhaps unusual because of this. A5 we all know, che answer given will depend on rhe question asked. Ask anyone if they would like to have meir medications supplied free by rheir Medicare coverage and rhe answer is reasonably predictable. However, the same question put into che COntext of expansion of an already troubled financial program for beneficiaries who have made all their contributions in me past raises issues about which reasonable men might differ.â&#x20AC;˘

Amendment 3 on November 7. 2000

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USURvIN

ARKANSAS: MILLENNIAL

PRE-EMPTIONS by W. ChristOpher Barrier

and John O. Moore This is the first of two articles on the Financial Services Modernization Act ("FSMA''). The second will summarize FSMAs londmark provisions reorganizing relationships among banks, insurance companies, securities firms. the new holding companiesfor all three. their subsidiaries. their agents and brokers, and (with respect to privacy, ATMs, community re-investmmt and small business) you and me.

T

he passage of Title VII, Subtitle C, Section 731 ("Section 731") of the recemly-enacrcd Financial Services Modernization Act of 1999 ("FSMA") raises serious and immediate issues for Arkansas bankers and their lawyers. In practical terms, Section 731 pre-em pes (but only for banks and other insured depository insricutions) Arkansas' usury limits. It substitU[es for those limits the home-state limits of banks branching into Arkansas pursuant to the federal Riegle-Neal Act l and the Arkansas Interstate Banking and Branching Act2 â&#x20AC;˘

About the Authors Chris Barrier practices at the Mitchell, Williams, Selig, Gates & Woodyard law firm in Little Rock where he is chair of the firm's Business Practice Group.

John O. Moore is an associate in the Business Practice Group of MitcheU, Williams, Selig, Gates & Woodyard.

42

The Arknsas LaWler

1'01. Ii 11'0.

2/Spril( 2000

term "from time to time", in the manner of 12 USC 85 (for national banks) rather than Amendment 60's phrase "at the time of the contract". Linkway Stores, Inc. 3 However, as to Aoating ratc nOtes This discussion seeks (1) to identify those areas of uncertainty for Arkansas bankers executed beftre the enactment of Section and lawyers and (2) to offer practical, 731, the ceiling is unchanged, unless the reasonable suggestions for taking advantage note in question very specifically of this brief, but far-reaching, section of contemplated this possible change in the law when the note was executed. Otherwise, the FSMA, without undue risk. contract would be altered by a statute, 1. Application of 731: The wording of Section 731 does not track Amendment 60 which is not permissible constitutionally.5 precisely, in that it does not reference the There are contrary arguments, but they do consumer loan ceiling. However, a nor appear to support the risk. 4. Extensions and renewals of prereasonable reading of me legislative history enactment notes: Genuine exttmiom of leads to the conclusion that Congress intcnded to pre-empt the Arkansas notes executed prior to Section 731's constitution with regard to interest ratc enactment - for instance, a 30-day extension of a maturing cwo-year note - are limits. very likely subject to their original ceiling. There is an argument that Section 731 does not take effect until an interstate Under the reasoning of the Bank ofEvening branch is established after its enactment, Shade case, renewals of such nOtes, where since it uses the phrase "upon the there was no commitment to renew, are new establishment" of such a branch, even contracts, and hence, subject to the prethough such branches already exist. emption, just like new loans. 6 In other However, such a strained interpretation words, they have no ceiling, if the principal would produce ludicrous results and is balance of the renewal note exceeds $2,000, likewise not supported by what legislative under this analysis. 5. Transactions covered: Section 731 history there is on the point. An Arkansas court could reasonably be would apply the rate applicable to "a similar expected to decide that the pre-emption is transaction" in the state being referenced. effective now and is measured in relation to Since Alabama appears to have basically the home states represented by existing and only three categories of transactions - (a) those over $2,000, (b) those under $2,000, future interstate branches. 2. Applicable law: A review of the and (c) credit cards - those categories records maintained by the Arkansas State apparently would be applied in Arkansas. There are various formulas and indexes in Bank Department indicates that as of December I, 1999, branches had been each of the states noted, including Alabama, established by interstate branching by which may raise the ceiling for all Arkansas institutions whose home states were banks to at least 16% per annum and Alabama, North Carolina, Tennessee, perhaps higher. However, given the Missouri and Texas. Hence, those are the complexities and uncertainties, it certainly states whose maximum interest rates are may make the most practical sense for relevant for purposes of the pre-emption. Arkansas banks simply to either choose one Of these states, the one of the most safe, understandable ceiling or continue to profound relevance appears to be Alabama, use the Amendment 60 limits (for loans which has no ceiling for loans with an with an original principal amount below original principal balance exceeding $2,000 $2,000) rather than seeking to track those and which permits borrowers to contract for other indexes or to remember unfamiliar any fees and rates on credit cards that they formulas. This approach is clearly and their lender agree to. 4 This statute permitted by Section 731. appears to be thc most straightforward and 6. Existing Pre-emptions: By its terms, comprehensive of those reviewed. Section 731 does not disturb existing pre3. Floating rates: While the application emptions, such as those provided by the of the Alabama statute may make the Depository Inscitutions Act for first question immatcrial, Section 731 does mongage home loans'? appear to permit floating rates, as in 7. Participations and Trustees: Under referring [Q the point in time for the literal wording of Section 731, if the lead determLoing controlling rates, it uses the lender is an insured depository institution, it

Any analysis of the untested usury enactments must be cautious, as demonstrated by the decision in Bishop v.

should not matter that portions of the loan are participated out to lenders who do not meet that definition, but transactions of that nature really would need to be examined on a case by case basis to reach a firm conclusion. Likewise, exrensions of credit where the lender is an insured depository instirurion, bur one acting as trustee as in a bond issue, would have to be looked at on a case by case basis. However, because of the specific wording of Amendmenrs 62 and 65 co the Arkansas Constitution, bonds issued pursuant to either amendmenr are likely limited ro Amendmenr 60 rates, regardless of the Section 731 pre-emption. 8. Credit cards: As noted, Alabama apparently allows complete freedom of contract on credit cards. Hence, banks issuing such cards may contract for any interest rate limit their customers agree to. However, as to existing credit cards, the old limits may well apply unless the cards are cancelled and replaced or unless the customer and the bank specifically agree ro modify their conrract or unless the cardholder agreement is very dear on the point. If the issuer has the absolute right to cancel the card on notice, as they generally do, there would not appear to be any prohibition against irs exercising that right solely to take advantage of the new absence of rate limits, although there may be practical business constraints to doing that. Before doing anything, the issuer should carefully review its form cardholder agreement. Again. Section 731 does not change the interest rate limit for credit cards issued by non-banks. 9. Who can use Section 731? As noted above, the preemption applies only to n "insured depository institutions -in other words, only Arkansas-based banks and other lenders who have federal deposit insurance. Insurance companies, finance companies, mortgage bankers, department stores, etc. are simply not authorized to take advantage of the pre-emption, nor are out-of-state banks that have branched into Arkansas. Perhaps more important to Arkansas bankers, subsidiaries and affiliates of insured institutions that themselves are not "insured n depository institutions do nOt clearly qualify for the pre-emption - so care must be taken when loans are originated. There is a respectable substance-over-form counterargument, bur again, that seems to involve an unnecessary risk.

10. Exporting pre-empted rates: Read lirerally, Section 731 seems to say that Arkansas lenders can rake the pre-emption with them to other states - that is, an Arkansas bank can lend at any rate it conuacrs for, using the Alabama sratutes, not only as to Arkansas loans but in other states as well. Regardless of the wording, that is arguably not consistent with the stated "paritl purposes of Section 731. Hence, prudent lenders and lawyers should not rely on mat interpretation when lending in other states but should look to the laws of mose states as they do now. 11. Post-maturity rates: Notes frequently recite that, after marurity or defauJr, they bear interest at the "highest rate permitted by law". Does mat mean that a nOte executed prior to me enactment of Section 731 that marures or goes into default after its enactment has no limit on the rate to be charged? While mere are cercainly arguments that this is the case, the more reasonable, prudent approach is CO presume that the applicable "law" is the one in effect when the note was executed, nor at maturity or default. However, post-enactmenr notes need to recite a specific post-maturity or post-default rate - otherwise, the rate is either the same as the note or it is infinite (which is simply not enforceable, as a practical matter). This may require an insert in the typical pre-printed form note, following the quoted phrase with "but in no event more than XX% per annum". 12. Late charges, origination fees, prepayment penalties, etc.: Since Arkansas regulates such charges only by including some of them in the calculation of the effective interest rate, removal of the ceiling for most loans would simply allow complete freedom of contract as to such fees and charges for post-enactment notes, including but nOt limited to Origination and commitment fees and pre-payment penalties. 13. Notes below $2,000: While the limit is apparently in fact higher under some of the other available indexes, as noted above, it makes sense to simply pick a single understandable rate or use the same limits and calculations for these smaller loans that Arkansas banks have been using up until now for all of their non-residential loans, for the short-run. Again, the key determinant is the original face amount, since obviously almost all loans which are amortized will evenrually have a principal balance of less than $2,000.

14. Othet charges: The pre-emption applies only to interest on loans and other extensions of credit and fees related thereto that could be considered interest. Fees and charges for other bank services, such as ATM fees, fees for checking accounts and overdraft penalties, simply are not impacted one way or the other. But again, since most penalties simply are not interest under Arkansas law, regardless, the absence of the application of the pre-emption to these charges is apparencly not significant anyway. 15. Judgments. accounts: As a practical matter, judgments will bear interest at the contract rate (which may be the pOStmaturity rate) and therefore, without any limitation, so long as the original debt sued upon exceeded $2,000. Lines of credit wherein it is reasonably assumed that the borrower will draw more than $2,000 and in fact the face of the note exceeds that amount would be unlimited as well. Open accounts, such as retail charge accounts, typically are not bank extensions ofctedit anyway, even if they exceed $2,000, so they are nOt significant. Bundling and purchasing such accounts would nor be likely to come within the pre-emption, however. Some Arkansas bankers and lawyers were caught off guard by Section 731's passage, despite the faCt that irs inclusion in FSMA was widely reported in the Arkansas press. After all, many of them had been listening to predictions of just such a preemption for decades. Some uncertainties rematn, and challenges may be expected, constitutional and Otherwise. But for now Section 731 has finally pushed Arkansas interest rares inro the national economy and will very likely consign usury in Arkansas to (he history books... Endnotes 1. The Riegle-NeaJ Interstate Banking Act of 1994. 2. (Act 408 of 1997) See The Arkansar Lawyer, Vol. 32,No.I, Fall1997,pages 11-I3fora discussion of both pieces of legislation. 3. 280 Ark. 106,655 S.W2d 426 (1983). 4. Code of Ala. §§ 8-8-5, 5-20-5. 5. Const. U.S., An. I, § 105; see also Canst. A,k., An. 2, § 17. 6. Bank of Evening Shad. v. Lindsey, 278 Ark. 132,644 S.W2d 920 (1983). 7. Depository Institutions Deregulation and Monetary Control Act of 1980; 12 USc. § 226 (1980), amended by 42 U.S.c. § 5301 (1980).

1'11.11,1'0. 2/Spriog 2000 TIe Arkmas LaWler ,II

Lil\\ ~'lll' DisripliRiu}\rtions The Lawyer Disciplinary Actions are written arid provided by the SlIpreme COllrt of Arkansas' Committee on Professional Conduct. rrnnON TO SURRENDER LICENSE

IN Iffi TIMOTHY GEMENT TUCKER WYNNE,AR JANUARY 20, 2000 Anomer Timothy Cement Tucker, formerly of Wynne, Cross County, Arkansas, with Arkansas Bar 10 '89055 has been permanendy barred from engaging in the practice of law in this State for violation of the Arkansas Model Rules of Professional Conduct. On the recommcnd:uion of Arkansas Supreme CoUrt Committee on ProfessionaJ Conduct. the Arkansas Supreme Court accepted surrender of the l:aw Iia=nse of Timothy Gemenl Tuckl:'f on January 20. 2000. Anorne)' Tucker's Petition to Surrender was based upon violation of Model Rule 8.4(b) of me:: Arkansas Model Rules of Professional Conduct. The Petition and aruched exhibirs on file with the Clerk of the Arkansas Supreme Court, reflect that the anomey was convicted in the United States Disuict Court for the Western District ofTennessee, Western Division, of the criminal offenses of Possession of an JlJega.J Firearm, Possession of a Machine Gun, and Bank Frnud, fdonies. Mr. Tucker's name shall be removed from the registry of licensed attorneys, and he is permanently barred from engaging in the practice of law in this state.

me

me

NOTICE OF SUSPENSION OF UCENSE

IN Iffi ROBERT B. LESLIE LITTLE ROCK, AR DECEMBER IS, 1999 The formal charges of misconduct upon which this Order is b~ ar~ Out of information provided by Candace D. Shoenig, a former clie:nt of Robert B. Leslie, and infonnation derived from a compilation of the trust account records of Mr. Leslie from ovembcr 1996, through the end of Febru3ry 1998. During Decembcr 1995, Ms. Schoenig hired Mr. Leslie. an 3[rarney practicing in Little Rock, to rcpresem her in all matters rdated to the administration of her late husband's estate. The toml fee for Mr. Leslie's services W2S qUOted as 52,000. He uplained to Mr. Schoenig that this W2S a "flat rate". During their initial consultation. Ms. Schoenig paid Mr. Leslie S500 of the S2000 fee. Following that payment, communication with Mr. Leslie became quite difficult for Ms. Schoenig. Ms. Schoenig initiated most of the communication, and it was via tdephone nOt correspondence. Mr. Leslie did not file the Petition for Appointment of Administrator in Perry County, until May 1996, five months after he had been hired to do so. 0 reason for the dday was provided to Ms. Schoenig. Mr. Leslie acknowledges the dday in filing the Petition but offers his belief that it was not unreasonable and also assertS that Ms. Schoenig was not in a hurry to probate the estate. Two months after the: filing of the Petition, Mr. Leslie and Ms. Schoenig went to the Perry County Courthouse and met with the Probate Judge who signed the Order appointing Ms. Schoenig as administrator of her husband's estate.

While at the counhouse in Perry County, Ms. Schoenig made another installment payment in the amount of $500 to Mr. Leslie. Following that payment, Mr. Leslie had Letters of Administration prepared for Ms. Schoenig. After she received the leIters of Administration, Ms. Schoenig arranged for the sale of her late husband's real property located in Perry County. Ms. Schoenig arranged for a sale price of $15,000 with the potential buyer, but Mr. Leslie convinced her to sdl the property for 514,000 to "get it over with". Mr. Leslie also advised Ms. Schoenig to allow the estate to pay the closing COSts and the COSt of title insurance, without explaining to Ms. Schoenig why doing so was necessary. .\.1s. Schoenig was nOt aWllre of the date of closing on the property because Mt. Leslie nevcr advised her of the same. The buyer signed the offer and acceptance on August 24, 1996, howevcr, he did not remit the funds for the purchase price until Novembcr 1996. Two checks were provided 10 Mr. Leslie when the buyer tendered the purchase price. One check W2S for SI4,OOO, and the other was for $85. Pursuant to Mr. Leslie's advice, Ms. Schoenig had planned to open an estate account from which the funds could bc disbursed pursuant to probate court order. However, she was not afforded the opportunity 10 place the funds into an estate account because Mr. Leslie opened an IOlTA account with the funds. Mr. Leslie did not advise Ms. Schoenig that he had donc so. Even though Mr. Leslie accepted the funds from the buyer in Novembcr 1996, he did not petition the probate coun for authority to seU the re2l estatc until December 1996. In addition, the Notice of probate required by the probare statutes was not filed until seven (7) months after the probate proceeding was filed. Mr. Leslie believed the Notice had been filed timely, bUI when he bccame aware that it had not, he undertook to file it and made his client aWllrc of these aaions. The Report of Sale which was prepared and filed by Mr. Leslic only reported that the buyer had rt:mined SI3.81O instead of $14,085 because Mr. Leslie did not include the expenses in the Report of Sale. Mr. Leslie also reported that the funds had hccn paid to the Estate of Ms. Schoenig's late husband, even {hough they had not been paid. Finally, in January of 1997, Mr. Leslie sent Ms. Schoenig a check in the amount of $7.000 representing partial payment of the sale proceeds. Mr. Leslie had not requested pennission from the probate coun ro do so. In his transmittal letter to Ms. Schoenig, Mr. Leslie explained that me reason he had nOt sent the entire amount of the funds W2S because he had to get "back on the file and get everything paid". Soon after she received these funds, Ms. Schoenig contacted Mr. Leslie and requested that he send her the remainder of the funds, so that she could send the money to her husband's twO sons for their share: of the estate. A meeting was scheduled bctween Mr. Leslie and Ms. Schoenig. During th.at meeting, instead of providing the funds to Ms. Shoenig, Mr. Leslie requested to borrow the remaining amount for a period of three (3) months. Ms. Schoenig wanted to help Mr. Leslie with .....hat she believed to bc financial difficulty so she agreed to the loan. A promissory nOte was executed by Mr. Leslie in favor of Ms. Schoenig. Ms. Schoenig was never advised that she should seek the advice of olher

counsel bcfore entering into the business agrtt:mem concerning the funds, nor did Mr. Leslie evcr even suggest that she should do the same. This is disputed by Mr. Leslie who 3SSCrtS that he did advise: Ms. Schoenig to seek the advice of independent counsel. Mr. Leslie did not satisfy the loan when due in April of 1997. Instead, he asked for an additional amount of time to pay the balance. At this same time. Mr. Leslie forgave the remainder of the fees that Ms. Schoenig owed to him for his servict.s in the estate matter. When the promissory note was ulended, Mr. Leslie provided Ms. Schoenig with a mortgage on his home. Mr. Leslie never advised Ms. Schoenig that for the mortgage to bc 1ega.Jly effective, she needed to file il with the Clerk of the county wherein the property was located, nor did he ever advise her that the mortgage was a second mortgage. According to Mr. Leslie. Ms. Schoenig advised him that she was nOt interested in filing the mortgage, instead she jwt wanted to have it in her possession. Mr. Leslie finally settled the debt with Ms. Schoenig in April 1998, one year after the debt was supposed to bc settled. Although the funds actually belonged to the Estate, Mr. Leslie never sought approval from the probate court to borrow the money from the Estate. Mr. Leslie never provided Ms. Schoenig with a deed to execute in favor of the buyer of the real property bclonging to her husband's estate. In addition, the probate proceeding remained open in 1999 when Ms. Schoenig's complaint was given a docket numbcr by the Executive Director, because Mr. Leslie had never prepared the proper documents to c1~ it. According to Mr. Leslie, he was waiting for Ms. Schoenig to advise him when she was ready to close the estate. After receiving Ms. Schoenig's complaint, James A. Neal, Executive Director of the Committee on Professional Conduct, subpoenaed certain of Mr. Leslie's lrwt account records for the rime period involved in Ms. Schoenig's complaint. Upon receipt and review of thOSC' records, it W<lS learned that Mr. Leslie had commingled his own funds with those of hjs clients in hjs UUSt account. It was also discovered that Mr. Leslie had misused his truSt account by using it to pay personal debts and bwiness obligations. Mr. Leslie docs nOt dispute the misuse of thc trust account but asserts that the information should not be part of this complaint because the misuse did not involve Ms. Schoenig's funds. Upon consideration of the formal complaint, the response themo, and the Arkansas Model Rules of Professional Condua, the Committee on Professional Conduct finds: 1. That Mr. Leslie violated Model Rule 1.3 when he failed lO file the Petition 10 open the Estate on behalf of Ms. Schoenig until five (5) months after he was hired to do so; when he did not have Letters of Administration prepared until two (2) monrns after opening the estate; (3) when he did not publish the required Notlce until seven (7) monrns after the estate was opened; (4) when he did not remit the estate funds to Ms. Schoenig until a year after he received them; and (5) when he took no action to close the estate proceeding. Model Rule 1.3 requires thaI a lawyer act with reasonable diligence and promptness in representing a client. 2. That the conduct of Mr. Leslie violated Model

till' ~'lll' Rule:: 1.8(2) because he failed

to

afford Ms. Schoenig

the reasonable opportunity [Q seek the advice of independent counsel when he entered illl'O a business tranS3Clion with her and simuluneously acquired a pecuniary intercst adverse to her; he executed a mortgage in favor of Ms. Schoenig without informing her that it was second in priority to his purchase money mortgage; and he failed to advise her of the need for the mortgage (Q be filed. Model Rule 1.8(3) requires, in perrinenl parr, lhal a lawyer not enter into a business transaction with a client or knowingly acquire a p«Uniary inu=re'i[ :adverse to a diem unless: (i) the transaction and terms on which rhe lawyer acquires the inu~rcst are fair and reasonable to me diem and arc fully discloS«! and transmincd in writing to the diem in a manner which can be reasonably understood by the dient; Oi) the diem is given reasonable opporrunity to seck the advice of independent counsel in the transaction; and (iii) the dient consents in writing thereto. 3. That Mr. Leslie violated Model Rule 1.15(a), to wit: (I) he F.tiled to keep Ms. Schoenig's funds which were in his possession in connection with representation separate from his own propertyi (2) he withdrew Ms. Schoenig's funds from the (rUSt accoum before he received her consent to borrow a portion of the fundsi (3) he rcpearedly deposited funds belonging to him in an account designated as the (rUSt account during the time period from November 1996 through January 30, 1998 and (4) between November 1996 and January 30, 1998, he usM his dient trust account to pay his mortgage four rimes, his payroll to Jan C. Weddle twice, his office.' rent on two occasions, his Southwestern Bell telephone bill twice, his Sourhwestern Bell advertisement account for 1998, his SBA Firm loan paymenr oncc, his personal dryclcaning on one occasion, his Circuit City account, and ro pay an account owed to MarrionJRil7. Carlton Hotel of St. Louis. Model Rule 1.15(01) requires, in pertinent pan, that all lawyers hold property of diems or third persons that is in a lawyer's possession in connection with a represemarion separate from rhe lawyer's own property; that funds of a dient be deposiled and maintained in one or more identifiable trust accounts; and that the lawyer nor deposit fund.o; belonging to the lawyer in any account designaled as the truSt account. 4. That Mr. Leslie violated Model Rille 3.4(c) when he emered into a promissory note with Ms. Schoenig, personally, and borrowed the remaining $7,000 of the esrate's real property sale proceeds without obtaining the required consent of the probate Court; when he F.tiled to obtain the [C{juircd consent of the probate court before executing the promissory nOte relating to the estate funds on April 30, 1997; when he deposited the proceeds of the sale of the real property into his trUSt account befote obtaining an order to scll the property from the Probate Coun; and when, without the benefit of a Probate Court Order, he disbursed 57,000 of the proceeds from his trUSt account to Ms. Schoenig, individually, not in the name of the estale and when he remitted the remaining proceeds of the sale again without benefit of a Probate Court Order. Model Rule 3.4(c) requires, in pertinent pan, that a lawyer not knowingly disobey an obligation under the rules of a tribunal. 5. That Mr. Leslie violated Model Rule 8.4(d) in that as of the d.:ne of Ms. Schoenig's affidavit, he had

IliSriplillill} .\rtiolls

not closed Ihe Estate of her late husband, evcn though the est:ue assets were minimal and the heirs waived the Statutory requircmcnts. Model Rulc 8.4(d) requires that a lawyer nor engage in conduct that is prejudicial 10 thc administration of justice. WHEREFORE. it is the dccision and order of the Arkansas Supreme Coun Comminee on Professional Conduct that ROBERT B. LESLIE, Arkansas Bar [0 #69044, be, and hereby is, SUSPENDED for a period of six (6) months for his conduct in this maner. The sllspension shall become effective as of the datc of the filing of this Order.

IN R£, TIMOTHY GEMENT TUCKER WYNNE,AR DECEMBER 27.1999 ORDER OF INTERIM SUSPENSION Timothy Cement Tucker, Arkansas Bar ID #89055, an anorney formcrly practicing law primarily in Wynne, Arkansas, plead guilty, in the United States Disnict Cout( for the Western District ofTennessee, to the criminal offenses of Possession of an Illegal Firearm, Pos.session of a Machine Gun, and Bank Fraud in violation of 26 USC &ctions 5841, 5861 (h) and 5871 and 18 USC Sections 922(0) and 1344, felonies, Casc

No. 99·20041·G and C= No. 99·201 66-G.

On Septcmber 23, 1999, a Judgment in a Criminal Case was filcd of record in the aforesaid criminal maner. The Arkansas Supreme Court Committee on Professional Conduct (Committee) found that Mr. TimOlhy Gement Tuckcr had been convictcd of a felony and directed that disbarment action be institutcd pursuant to the mandate of Section 68(1), Procedures of the Arkansas Supreme Coun Regulating Professional Conduct ofAnomeys at Law (Procedures), and that an interim suspension of Mr. Timothy Gement Tucker's privilege to praclice law under the amhority of his Arkansas law licensc be imposed pursuant ro Sections 7E(3)(a) and (b), and 8B(I)(a) and (b) of the Procedures. It is therefore ORDERED that TIMOTHY CEMENT TUCKER be, and he hereby is, SUSPENDED from the practice of law within this jurisdiclioll immediately upon rhc filing of this Order with the Clerk of the Arkansas Supreme Cout(.

IN Iffi MARION DOUGLAS WOOD. JR. SHERWOOD,AR DECEMBER 27. 1999 ORDER OF I TERIM SUSPENSION Marion Douglas Wood, Arkansas Bar ID #74155, an attorney pracricing law primarily in Sherwood, Arkansas, was found guilty by a jury, in the United Srates District COUrt for the Ea5tern District of Louisiana on August 13, 1999, of the criminal offenses of Conspiracy and Mail Fraud in violation of 18 USC Sections 371, 1341, 1343, 1346, 1956, and 1957, felonies. Case No. 94-377·8. On ovembcr 12,1999, a Judgmem in a Criminal Case was filed of record in the aforesaid criminal maucr. The Arkansas Supreme COUrt Committee on Professional Conduct (Committce) found that Mr. Marion Douglas Wood had been convicted of a felony and directcd that disbarment action ~ instituted pursuam to the mandate of Section 68(1), Proccdures of th~ Arkansas Supreme Coun Regulating Professional Conduct of Anorneys at Law (Procedures), and that an illletim suspension of Mr. Marion Dougla5 Wood's privilege to practice law under the aUlhority of his Arkansas law license bc imposed pursuant to Sections

7E(3)(,) ,nd (b). ,nd 8B(I)(,) ,nd (b) of ,he Procedures. It is th~refore ORDERED that MARION DOUGLAS WOOD be, and he hereby IS, SUSPENDED from the practice of law within this jurisdiction immediately upon the filing of this Order with the Cletk of the Arkansas Supreme Court.

NOTICE OF REPRIMANpS

IN REt TONA MARlA DEMERS UTILE ROCK. AR DECEMBER 7. 1999 The formal charges of misconduct upon which this Order is based arose OUt of information that came ro the ancmion of the Committee. The information pertained to the representation of 8ie--Tech Pharmacal. Inc, by Tona Maria Demers, in 8io- uch Pharmacal Illc. VJ. tht Coch-Cola Compa"y, Case No. LR·C·97·

539. Bio·Tech initiaTcd a trademark infringcmem lawsuit in the United States District Court for the Eastern

Accounranr/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

0

Regular Court Appearances 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 Phone: (501) 221·9900 Fax: (501) 221-9292 e-mail: schwartz@busvalu.com

1'01. jj ,\0. 21Spring iOOO

Thr ,lrkaRSiSI,iwler

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DiStrict of Arkansas against me Coca-Cola Company. Dilling and Dilling of Chicago, l1Iinois and the Rose law Firm of Little Rock reprc:senred Bio-Tech. The lawsuit was settled. Subsequently, Bio-Tech refused to execute the necessary documentS 10 conclude the Iiti&2lion. Subsequently, Dilling and Dilling sued Bio* Tech for breach of contract in Cook County, Illinois.

Jack Davis

Sid McCollum

On Much 5, 1998, Ms. Demers. an anorney who primarily practices in Little Rock, Pulaski County, Arkansas, entered her appe:arance as Bio-Tech's :lttorney, replacing Bio-Tech's previous counsel, Dilling and Dilling. In her entry of appearance. Ms. Demers stated that Dilling and Dilling had filed itS lawsuit against Bio-Tech to force and intimidate Bio-Tech into

Bob Hornberger

Frank Hamlin

INC Museum Center, Suite 10, 500 East Markham Street Little Rock, AR 72201 501-376-2121 1104 South Walton Blvd., Suite 20, Bentonville, AR 72712 501-271-2237 423 Rogers Avenue, Suite 101, Fort Smith, AR 72902 501-783-1776

a settlement with the Coca*Cola Company. On Much II, 1998, Coca-Cola filed a Motion to Dismiss wim Prejudice: against Bio-TÂŤh b~ on the settlement agreement. Ms. Demers responded on BioTech's behalf to the Motion and moved that the settlemenr be set aside as to Oio*Tech. She alleged that Coc:a*Cola had "pr.teticed a fr.tud upon [Bio-Tech] in order to procurt a mon: &vor.tble settlement". Ms. Dmlers' response Stated thu Bio-Tech signed the Sttdement a.grecment unwillingly and "undu duress and undue influence: by its own attorneys". On April 13, 1998, Ms. Demers filed:l; Motion to set aside the agreement Stating thaI the Rose Law Firm had previously represented Coca-Cola and reiter-ned mat Bio*Tech's previous counKI had "forced and intimidued" Bio-TÂŤ:h into settling the ~. On May 29. 1998, Senior Judge G. Thomas Eisele issued an order enforcing the settlement agreement. Judge Eisele Stued his "firm conclusion that rhert is absolutely no basis under the law for setting aside the Agreement". Further, Judge Eisele found m:n Bio-Tech submitted "no evidence: whauoever that the Coca-Cola Company behaved improperly or committed any act or omission which would justify depriving Coca-Cola of itS good &ith settlement of this lawsuit". Judge Eisele gave Ms. Demers an opponunity to show callS(' why sanctions should not be assessed pursuant to Rule II of the Federal Rules of Civil Procedure based upon the "legally and &ctually frivolous" allegations conta.ined in me record. On June 19, 1998, the Coun ordertd Bio-Tech fO endorse me Sttdement check form Coca*Cola which was in me possession of the Rose law Firm. Ms. Demers men moved for reconsider.ttion of the June 19th order based upon her reliance on the advice of a disinterested, in-hollS(' attorney of a Georgia bank and wimout any other independent research on her part. The advice: incorrtedy alleged that the negotiability of me check was controlled by Georgia law, not Arkansas law. Jud~ Eisele had previously aplained to Ms. Demers, on me record and in open coun, the absurdity of her argument in previous opinions. Subsequendy, Judge Eisele issued an order for Ms. Demers and her client 10 show cause why mey should nOl be held in contempt. Ms. Demers then filed a Motion for Judge Eisele's~. Judge Eisele found me recusaI motion "so patently frivolous and lacking in any re2S0nable justification mat it put in serious question the motive for, and me bona fides of, th~ motions". Ms. Demers filed another motion to recuse Judge Eisele which was denied. On July 6. 1998, Judge E.iKle issued a Memorandum Opinion and Order affording Bio-Tech and Ms. Demers the benefits of the safe-harbor provisions of Rule II of the Federal Rules of Civil Procedure. On July II, 1998, a hearing was conducted on the Rule II sanctions. In an Order filed Augwt 18, 1998, Judge Eisele found that Ms. Demers, in a telephone conversation with Coca-Cola's lawyers, Stated that the purpose of hc:r actions on behalf of BioTech against Dilling and Dilling and the Rose Firm was to perfect a malpractice: action against them. Judge Eisele found that Ms. Demers' testimony as to her certification of mailing of pleadings to Coca-Cola's counsel, totally incredible and preposterous. He sanctioned Ms. Demers, jointly and .severally along with her c1iem, $50,600.00 and imposed an additional

till' ~lll' monetary sanction of S J ,SOO $Oldy against Ms. Demers. On August 29, 1998, Ms. Demers was qumed by Linda Fri«Jlieb of (he Arkansas ~mocr:ll-G2tttte when Ms. Demers was asked to respond to Judge Eisele's August 18, 1998 Order s:mclioning Ms. Demers. In thai n~p2lXr article, Ms. Demers is quolrd as saying, "Eisele ruled on sanctions without hearing my side: and, .. , luve never .ittn such a gross display of ab~ of po\\~r from the ~nch... Eisde has a

bl.U'am

dis~

for 8io-T«h's and my rights."

Upon considetalion of the formal complaim, me response memo. and the Arkansas Modd Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Ms. Demers' conduct violau:d Mood Rule 3.1 when, in her Entry of Appe:l.rance and her

Response:: to Coo·Cola's Motion to Dismiss with Prejudice. she' made knowing false and frivolous accusauons against Coa-CoI2, Dilling and Dilling and the Rose:: uw Firm. Specifically, when she frivolously allr:gcd that Dilling and Dilling had usr:d iu lawsuit apinsl Bio-Tr:ch as a roolto for~ and intimidate BioTech into sr:ttling its lawsuit with the Coca-Cola Company; when she fri\"Olously allr:gr:d thai Bio-Tr:ch was without Ir:gal represcnt2tion in the matter and had no OIher choice but 10 sign the senlemem agr«menl; Ihat when she falsely alleged mat lhe Rose UW Firm had represenled Ihe oca*Cola Company; when she frivolously alleged mat Ihe Coca-Cola Company had practiced a fraud upon Bio-Tech in order (Q procure a more F.won.ble seu..leme:nl; whe:n she frivolously :alleged thai Bio-Tech did nOI enler inlo Ihe settlemenl agr«mem willingly, bUi signed the senlemem aglttment under duress and undue influence: of its own attorneys; and in a conrempl hearing. when she made sr.uements as 10 Georgia law involving the nr:gotiabiliry of the selliemeni check without independently researching Ihe law and relying upon the information obtained From a disinl'cresl'ed, in-house counsel For a Georgia bank mat were shown to Ix miSSlatements of the law. Modd Rule 3.1 requires thai a lawyer not bring or defend a proc«ding or assen or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argumem for an exlension, modificuion or In'ersal of existing Law. 2. That Ms. Demers' conduct viol:ued Modd Rule 3.3{aHI), when in a contempt h~ng. Ms. Deme:rs made n:l.tementS as to Georgia law involving the negotiability of Ihe selliement check without independently researching the law and relying upon me informalion obtained from a disinterested, in-house counsel for a Georgia bank !hal was shown to Ix misstatementS of the l;l.w. Additionally, on July 31, 1998, when queslioned under oath by Judge Eisde, she specifically denied Coca-Cola's anorney's lestimony Ihat on April 2, 1998, she advised Coca-Cola's anomey dut she was nOI aware of any fraud claims relating (Q the parties' senle:ment aglttmenr and denied Coca* Cola's anomey's testimony thai she filed the motion to set aside the settlemenr agreement in order fa perfea a lega..I malpracti~ aClion againsl Bio-Tech's former lawyers. She denied Coca-Cola's anomey's lestimony that he had not received pleadings from Ms. Demers despite the faCt lhat Demers had cenified that she had scm Ihem to him. Additionally, Ms. Demers denied Ihat Coca-Cola's lawyer aulioned her about relying on

IlisripliUiIl')\l't ions

information provided to her by Bio-Tr:ch. Judge Eisele found Ms. Demers' testimony nOt credible. Model Rule 3.3(a){l) requires thai a lawyer not knowing make a false st2temem of material F2ct or law to a Iribunal. 3. That Ms. Demers' conduct violated Modd Rule 3.4{c) when Ms. Demers, on two occasions. ce:nified fa the Court that she served copies of certain papers on Coca-Cola's counsel as required by the CoUrt whe:o, in fxt, she did not serve Coca*CoLa's counsel. Modd Rule 3.4(c) ~uires, in pertinem pan, thai a la~r not knowingly disobey an obligation under Ihe rules of a [ribunal. 4. Thai Ms. Demers' conduct violated Model Rule 8.2{a), when Ms. Demers stated to Linda Friedlieb, a reporter for the Arkansas Democrat-Gazelle mat, "Eisele ruled on sanctions wilhoul hearing my side." and, "I have never seen such a gross display of abuse of powe.r from the bench... Eisele has a blalam disregard for Bio-Tr:ch's and my rightS." Modd Rule 8.2(01) requires that a lawyer nOt make a st:lIemeni dut the LaW}'('r knows to be false or with reckless disregard as 10 the truth or falsiry con~rning me qualifiations or imegriry of a judge. 5. That Ms. Demers' conduct violaled Model Rule 8A(c) when Ms. Demers, under Dath, denied Coca* Cola's allorney's lestimony. Judge Eisele found, ..... thal Ms. Demers lied under oath when she denied Mr. Baber's le5rimony." Model Rule 8.4 (c) requires in pertinent part, th..t a lawyer not engage in conduct involving dishonesty, G. That Ms. Demers' conduct violated Model Rule 8.4(d) whe:n Ms. Demers filed frivolous motions, allegations and assertions on me behalf of her diem, Bio-Tech, causing unnecessary delay in the administnltion and resolution of me BiD- T«h VI. UKII ColA Complln, ClSC.' pending before Judge Eisele. Despile being advised of lhe safe harbor provisions of Rule 11 of the FederaJ Rules of Civil Procedure, Ms. Demers failed to withdraw any of her improper and frivolous pleadings and statements. The Court found her and her diem liOible For $50,600.00 of unnecessary anomey's fees and COStS and Ms. Deme:rs individually liable for an additional S1,500.00 in Rule II mone:l:uy sanClions. Model Rule 8.4(d) requires that a lawyer not engage in conduct thai is prejudicial 10 Ihe administration of juslice:. WHEREFORE, it is the decision and order of me Arlunsas Supreme CoUrt Commitlee on Professional Conduct mat TONA MARJE DEMERS, Arkansas Bar ID 191024, be, and hereby is, REPRIMANDED, for he:r conduct in this maner.

IN Iffi WILLIAM EDWARD JOHNSON HAMBURG.AR JANUARY 25. 2000 The formal charges of misconduct upon which mis Order is based arose from informauon provided by me Honorable Harry F. 8a.rnes, United Scates District Coun Judge for me Vniled St2tes Disuict Court for the Western District of Arkansas, EJ Dondo Division. The information was provided in the form of a Memorandum Opinion delivered by Judge Barnes on Ja.nuary 3, 1996, in Ihe case of jn«11 Milln lind Opnl Milkr lIS. &try Ann Wootm, CJrri~ j~(m Simmom and William johnson. William Johnson is an attorney practicing law in Hamburg. Arkansas.

The lawsuil filed against Mr. Johnson resulled from actions takc.n by him 2nd Ihe Olher twO defendaOls in the creation and administration of twO truStS: the T.P. Miller Family TrUSI and the Jewdl Miller Tru$I. Jewell and Opal Miller also asserted mat Mr. Johnson had commined lega..I malpractice in his dealings wim memo AI me lime of Judge Barnes' Order, Jewell Miller was 88 yean old and Opal Miller was 93 yean old. Jewdl Miller's initial contact with Mr. Johnson occurred in me summe:r of 1992. Mr. Johnson never mel with Opal Mille:r. The meeting was arranged by Belty Ann Wooten, a distanl cousin of Ihe Miller sisters. Alier the inilial meeling. Mr. Johnson prepared a trust document entided "T.P. Miller Family Trusl". (T.p. Miller was lhe F.uher of Jewell and Opal Miller.) Both siSiers signed the documem which lIamed Betty Ann Wooten trustee 2nd sole beneficiary. According 10 Mr. Johnson, Ihe lrust was prepared 10 rdiae Jewell Miller from the harusment of persons who SOUghl her money. The assets of the trust remained in the names of Jewell Miller and Opal Miller. Then, in December of 1992, Je>Ao'Cll Miller hired anomer OIttorney 10 assist he:r in an ane:mpt to set aside the: T.P. Miller Family TrWI. Mr. Johnson recommended an anorney for Betty Ann Wooten 2nd also provided the services of an attorney for representation of the T.P. Miller Family Trwi. Mr. Johnson appeared in lhe liligalion as a wimess. The judge who heard that matter found that Jewell and Opal Miller never understood the mC2.ning of a trust and cC'rcainly never undC'rslood thai the trust would divesl them of their property and money. As a resuh, an order was e:ntered which SCI aside me T.P. Miller Family Trusl. L.e:ss lhan a mOOlh afte:r Ihe: T.P. Miller Family Trusl was SCI aside, me "Jewell Miller Trust" was executed. This documem was nOI prepared by Mr. Johnson. bUi he was subsequently hired to represent Betty Ann WOOten and Carrie Simmons in their capacilies as trustees of the Jewell Miller Trusl. In addilion, on May 13, 1994, Mr. Johnson filed a declaratory judgment action on behalf of Ms. Wooten and Ms. Simmons in an attempt to v:llidate the Jewdl Miller Trust. Approximately five mOlllhs later, the :u:tion heard by Judge Barnes was filed. Judge Barnes found lhat Ms. WOOlen and Ms. immons had commined fraud and engaged in a conspiracy to commit fraud for the purposes of defrauding the: Miller sisrers of substantial ponions of their wealm. Thett was no finding by 01 prepondera.nce: of the evidence that Mr. Johnson e:ilher committed fraud or participaled in the conspiracy 10 commil fraud. Although there also was no finding of Ir:gal malpra.clice, Judge Barnes did find a blaram connict of imere:5t. Mr. Johnson was paid at least $12,216.90 From truSt funds in a fourleen month period for his represencation of Ms. Woolen and Ms. Simmons in their capacities as nuslees. The findjng of a conflict of interest was based upon Mr. Johnson's prior repre:sentation of Miller si$leu and his laler reprekncalion of Ms. Woolen and Ms. Simmons in meir capacities as truSlee:s of the Jewell Miller Trusl. Following Mr. Johnson's receipt of lhe formal complaint, the respondem attorney and Ihe Executive DircclOr undertook discussions which have resulted in Mr. Johnson's agrc-=ment 10 discipline by consent pursuant to Section 8C, Procedures of the Arkansas Supreme Court Regulating ProFessional Conduci of Attorneys 201 Uw. Upon consideration of the formal

111.31 SI. VS,rill iMI 1R Arulll! LI~W

Ii

til\\}(ll' complaint, respon.se herein, the terms of the proposed consent to discipline hereinafter stated, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Johnson was paid approximately $12,216.90 from truSt funds over a period of foutteen (14) months for his representation of Ms. Wooten and Ms. Simmons in their capacities as truStees, which was found to be in conflict with his representation of his former clients, Jewell Miller and Opal Miller. without obtaining the consent of Jewell and Opal Miller for doing the same. 2. That Mr. Johnson's conduct, as described above, violates Model Rule 1.9(a) which requires that a lawyer, who has formerly represented a client in a maner, not thereafter represent another person in the same or substantially related maner in which that person's interests are materially adverse to the intefCSts of the former client unless the former dient consents after consultation. WHEREFORE, in accordance with the consent to discipline presented by Mr. Johnson and the Executive Director. James A. Neal, it is the decision and order of the Arkansas Supreme Court Comminee on Professional Conduct that WI LLiAM EDWARD JOHNSON, Arkansas Bar ID #66034, be. and hereby is, REPRIMANDED for his conduct in this maner.

IN RE. ROBERT F. MOREHEAD PINE BLUFF, AR NOVEM BER 18, 1999 The formal charges of misconduct arose from the Arkansas Supreme CoUrt case of udn'c lAmar Hams, CR 96-782. Roben F. Morehead, an attorney practicing in Pine Bluff, Arkansas, represented Mr. Harris in an appeal to the Arkansas Supreme CoUrt in the above-mentioned maner. Mr. Harris was convicted of capital murder and attempted murder and sentenced to, respectively, life imprisonment without parole and thirty years' imprisonment. Following his conviction, a posttrial motion for a new trial was filed on October 16, 1995. and was deemed to have been denied on November 15, 1995. No notice of appeal was filed until January 2, 1996. On January 13, 1997. the Arkansas Supreme Court dismissed Mr. Harris' appeal as the Notice of Appeal was not timely filed. In its decision, the Arkansas Supreme Court suggested that the failure to file a timely appeal could be rectified by seeking timely permission to file a belated appeal. No Motion for Belated Appeal was filed until May 18, 1999. Mr. Morehead offered that. upon the Arkansas Supreme CoUrt'S decision in January 1997, he was contacted by Mr. Harris' uncle who advised that the client was going to retain someone to review the matter and, following that discussion, he did nothing further. Upon consideration of the formal complainl, me response herein, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr.Morehead's conduct violated Model Rule 1.2(a) when he F.tiled to perfect an appeal on behalf of his client, Cedric Lamar Harris, from the conviction of capital murder and attempl'ed murder. Model Rule 1.2(a) requires, in pertinent pari, that a lawyer abide by a client's decisions concerning the

48

The Jlrkanm Law!er

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,10. 2/8pring 2000

IIisriplinal')' ,\ft ions

objectives of representation. 2. That Mr. Morehead's conduct violat'ed Model Rule 1.3 when he rojled to file a timely Notice of Appeal from the Ashley County Circuit Court in 1995. in Mr. Harris's criminal case and when he failed to file a timely Motion for Bclued Appeal as suggested to him in a Per Curiam Order dated January 13, 1997. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promplness in representing a client. WHEREFORE. it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that ROBERT F. MOREHEAD, Arkansas Bar 10 No. 70050. be, and hereby is, REPRIMANDED, for his conduct in this maner.

IN RE. HENRY CAROL MORRIS DEQUEEN,AR NOVEMBER 18, 1999 The formal complaint of misconduct arose from the romplainr of Virginia Fulton. Henry Carol Morris, attorney at law, DeQueen, Arkansas, was employed to represent Ms. Fulton on appeal to the Arkansas Supreme Court. On November 4, 1996, a civil judgment was entered against Ms. Fuhon in Hempst'ead County Circuit Court. Ms. Fuhon wished to have the judgment appealed ro the Arkansas Supreme Court but her anorney declined to represent her in her appt"al. Her attorney referred her to Henry C. Morris. On November 8. 1996, Ms. Fulton called Mr. Morris to make an appointment to discuss the malter. Ms. Fulton talked to Mr. Morris for approximately one-half hour and then met with him on November 13, 1996. At the November 13, 1996, meeting, Mr. Morris instructed Ms. Fulton to pick up her file from her former attorney. Ms. Fulton then drove to Hempslead County, procured her file and delivered to Mr. Morris at which time she paid him $200.00. According to Ms. Fulton, Mr. Morris stated that he only needed $200.00 at the time to retain him but that he would need $500.00 laler for the cost of lhe uanscript for appeal. Mr. Morris understood the conversation to have been that for the ftt of $200.00 he would review the matter 10 ascertain the probability of a successful appeal. Ifhe concluded there was a good likelihood of success. he would then file me notice of appeal. However, Ms. Fulton left Mr. Morris's office on that day believing that Mr. Morris was going to pursue an appeal on her behalf. During the weeks that followed, Ms. Fulton called Mr. Morris's office several times. Apparently the attorney was unavailable on those occasions and Ms. Fulton was advised that Mr. Morris would return the calls. No calls were returned. Mr. Morris stared in his response that he reviewed the trial court'S decision, found it to be proper, and in good conscience. did not feel he could appeal the matter for Ms. Fulton. Unaware of the lawyer's conclusion, Ms. Fulton called Mr. Morris' office on December 12, 1996, to check on the StatuS of her appeal and was informed tim nothing had been filed on her behalf. The time to file a Notice of Appeal had expired some weeks earlier. Mr. Morris admitted thaI not filing a Notice of Appeal prevented Ms. Fulron from having the matter reviewed by the appellare coun but averred that he performed the services for which he was employed.

Mr. Morris stated that he charges a great deal more than $200.00 to pursue an appeal and rries to collect, or at least make arrangementS to coll~t, the fee before he pursues an appeal. Mr. Morris, to the ben of his knowledge. never contacted Ms. Fulwn asking her [Q make any addjtional fee arrangemcnts. Although he cannOt rceaJI with cenainty, he believes he contacted Ms. Fulton to let her know his decision not to appeal. Mr. Morris related that he has had a serious heart problem in which blackouts are a symptom and that he cannOt remember specifics due to the amoum of time that has transpired. Upon consideration of the formal complaint, the response herein, and the Arkansas Model Rules of Professional Conduct, the Comminee on Professional Conduct finds: I. That Mr. Morris' conduct violated Model Rule 1.3 when he failed to file a Notice of Appeal on behalf of his diem. Virginia Fulwn, in a timely manner. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in represeming a diem. 2. That Mr. Morris' conduct violated Modd Rule 1.4(a) when he F.tiled to respond to Ms. Fulton's requests for information concerning pursuit of her appt"al and when he F.tiled to keep Ms. Fuhon informed about the status of her legal maner. Model Rule 1.4(a) requires that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 3. That Mr. Morris' conduct violated Model Rule 8.4(d) when he F.tiled ro file a timely Notice of Appeal on behalf of his client, Virginia Fulton, which precluded her from having her matter reviewed by an appellate court. Model Rule 8.4(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 Court Committee on Professional Conduct that HENRY CAROL MORRIS, Arkansas Bar ID No. 67042. be. and hereby is, REPRIMANDED for his conduct in this maner.

IN It[, HENRY CAROL MORRIS (2) DEQUEEN,AR NOVEMBER 18, 1999 The formal charges of misconduct upon which this Order is based arose from the complaint of Thomas Monroe Waller. Henry Carol Morris. anorney at law, DeQueen, Arkansas, was appointed to represent Mr. Waller on criminal charges filed against him in Sevicr County Circuit Court. On September 14, 1997. Mr. Waller was arrested for aggravated robbery in Sevier County and criminal use of a prohibited weapon in Polk County. The criminal charges arose out of a continued course of acrion. Mr. Waller, with other counsel, appeared in Polk County Circuit Court on Septcmber 17. 1997. and plead not gujlty by reason of mental disease or defecr. A mental evaluation was then scheduled to be conducted at a later date on Mr. Waller. On October 9, 1997, Mr. Waller was arraigned in the Sevier County Circuit CoUrt on the charges pt"nding in that coun. The Circuit Court appointed Henry Carol Morris. the public defender for Sevier CoUllty, to represent him. Mr. Waller visited Mr. Morris on October 29, 1997, to

til\\}rI' discuss his case. According (Q Mr. Waller, he informed Mr. Morris of the action being raken in his case in Polk County; specifically, thl1lt a mental evaluation was done in the Polk County maner. Mr. Morris dispured that a discussion of a defense based on menral disease or defect occurred at the October 29. 1997, meeting. On October 30, 1997. Mr. Waller received twO copies of a letter from Weslern Arkansas Counseling and Guidance Center containing the results of the mental evaluation. According to the psychologist, Mr. Waller lacked the capacity to conform his conduct to the requirementS of the law at the' time of the September 14, 1997. offense. Upon receipt of the evaluation. Mr. Waller delivered a copy to Mr. Morris's office. Mr. Waller met with Mr. Morris again on January 9, 1998, and provided him with another copy of the evaluation. Mr. Waller received 11I call from Mr. Morris's office staff on January 20. 1998. requesting him to contaCI his lawyer's office. When the call was returned on January 21, 1998. Mr. Waller was informed that Mr. Morris was no longer the public defender for Sevier County and that if he wished Mr. Morris to continue representation that he would need to pay S800. or at least half of it, by the next day. Mr. Waller went to Mr. Morris's office and paid the fee. On January 27, 1999, Mr. Waller met with Mr. Morris and provided a third copy of the mental evaluation from Polk County. On January 28, 1999, Mr. Waller and Mr. Morris appeated in the Sevier County Circuit CoUrt for trial. Prior ro the start of the trial, Mr. Morris filed a Notice of Intent to Raise Mental Defect or Disease as a Defense to Prosecution. The trial court proceeded with trial and Mr. Waller was sentenced to then (10) yel1lrs in the Arkansas Dep:.1rrmenr of Correction. Mr. Morris stated in his response that he did not know why the court did not stay the criminal proceeding and gram a continuance. Upon learning of wh:.1t OCCUrted in Sevier County Circuit Court, Mr. W:.1I1er's anorney in Polk County filed a Motion for New Trial in Sevier County Circuit Coun based on Mr. Morris's failure to raise the defense of menta.l disease or defect in a timely m:.1nner. The trial court scheduled a hearing on the motion and the hearing was held on March 26. 1998. Following the presentation of the evidence at the hearing, the trial courr granted the Molion for New Trial for good cause shown. Mr. Morris offered in his response for mitigation that he has had a history of heart problems in which blackoutS are a symptom. He denied violating any Model Rules of Professional Conduct in his represtmation of Mr, Waller and he asserted that he did :.1 competem job in representing Mr. Waller. Upon consideration of the formal complaim. the response herein, l1Ind the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Morris' Conduct violated Model Rule 1.1 when he failed to file any motion on behalf of Thomas Wl1Iller during the course of his representation. Model Rule 1.1 requires that a lawyer provide competent repre.se.ntation to a client. including the thoroughness and preparation reasonably necessary for the representation. 2. That Mr. Morris' Conduct violated Model Rule 1.2(a) when he failed to raise the defense of mental disease or defect despite being requested 10 do so by

Ilisriplinal} .\dions

Mr. Waller. Mood Rule 1.2(a) requires, in pertinent pl1lrt, thl1lt a lawyer abide by a client's decisions concerning the objectives of representation, l1Ind in a criminal case. the lawyer abide the c1iem's decision. after consulrcuion with the lawyer as to a plea to be emered. 3. That Mr. Morris' Conduct violated Model Rule 1.3. when he failed to file any motions on b<:half of his client, Thomas Waller, prior to the day ofhis jury trial. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in repre.se.nring a client. 4. That Mr. Morris' Conduct violated Model Rule 3.4(c) when he dem:.1nded payments of fees from his client knowing that he had been appointed by the trial court to represent his client throughout the proceedings l1It no COSt to him. Modd Rule 3.4(c) requires, in pertinent part, th:.1t a l:.1wyer not knowingly disobey an obligation under the rules of a tribunal. 5. That Mr. Morris' Condua violated Model Rule 8.4(d) when he failed to file any motion on behalf of Mr. Waller; failed to raise the defense of mental disease or defect in a timely manner; and his failure to file the motions and raise the defense resulted in the trial COUrt to schedule a hearing on a Rule 37 petition tequiring the COUrt to expend additional time and effort and causing delay in the administration and resolution of matters pending in the Sevier County Circuit Court. Model Rule 8.4(dlrequires that a lawyer not engage in conduct that is prejudicial to the administration of jwtice. WHEREFORE. it is the decision l1Ind order of the Arkansas Supreme Court Committee on Professional Conduct that HENRY CAROL MORRIS, Arkansas Bar ID #67042, ~. and hereby is. REPRIMANDED for his Conduct in this maner.

IN Illi JAMES R. NOBUN FORREST CITY. AR NOVEMBER 19. 1999 The form21 charges of misconduct upon which this Order is based arose from the complaint of J. Baxter Sharp, Attorney at Law. Mr. Shatp was the Deputy Prosecuting Attorney for Monroe County. Arkansas. The information Mr. Shatp submitted to the Committee showed that on Augwt 11, 1995, Johnny Paul Dodson, Ricky Bennett, and James Martin were each arrested for possession of methamphetamine with intent to deliver. a class Y felonYi possession of marijuana, :.1 class C felonYi and possession of methamphetamine. a class C felony. The arrestS followed :.1 tr:illic StOP and search of the vehicle in which the three individuals were passengers. John P2ul Dod.son :.1ppeared in Monroe County Circuit Court on Novem~r 6, 1995. and entered a plea of nor guilty. Appearing with Mr. Dodson was attorney J:.1mes Noblin. anomey at law, Forrest City. Arkansas. Mr. Dodson wished to proceed to trial as quickly as possible. Trial was held on Novem~r7.1995. During the uial. Ricky Bennett testifil"d as .a witness for the defense. Following the testimony of all witnesses, Mt. Dodson Wa.'i found guilty of two counts of possession of a controlled substance and one count of possession of a controlled substance with intent to deliver. On January 4, 1996, Ricky Bennett and James Martin appeared in Monroe County Circuit CoUrt for

arraignments on charges from the August 11 traffic stOp, were appoimed counsel, and emered a plea of not guilty. Mr. oblin was appoimed to represem Mr. Bennett and Mr. Martin. Trial was set for rhe week of February 10, 1997. Thereafter. Mr. Noblin filed a Motion for Discovery for Mr. Bennen and appeared on his behalf at hearings. In Court on February 14, 1997, Mr. Noblin made an oral motion to withdraw as counsel. The motion was granted and Mr. Noblin was allowed to withdraw. Johnny Paul Dodson filed a Rule 37 Perjrion based on a conflict of imeresl. A hearing was held on March 17, 1997. and following the tesrimony and evidence presemed, the court made a finding that there was an actual conAia and that the conllict adversely affected Mr. Noblin's performance. For his response, Mr. Noblin denied the violation of Model Rule 1.1 as he di.scus.sed with his client his legal rights and that his client insuucted him to proceed as swiftly as possible with trial withour any further prepararion even though he thoughr discovery was necessary. Mr. oblin also asserred in his response that he did not violare Model Rule 1.7(a) as he had met wirh each of the defendants separately and as a group and explained to them thar he could represent each one if there was no conflicr of interest. According to him, each of the defendants made nearly identical statemenrs concerning the events of Augusr 11. 1995. Upon consideration of the formal complaint, the response herein. and the Arkansas Model Rules of Professional Condua, the Comminee on Professional Conduct finds: I. Thar Mr. Noblin's condua violated Modd Rule 1.1 when he agreed to represem Johnny Paul Dodson at arraignmenr on Novembt:r 6, 1995. l1Ind then represenred Mr. Dodson at trial on November 7, 1995, on charges of possession of methamphetamine with imem to deliver, a class Y felony; possession of marijuana, a class C felonYi and possession of methamphetamine, a class C felony, withom the benefit of pretrial morions having been filed. Model Rule 1.1 requires, in pertinent part, that a lawyer provide competent representation to a client, including the thoroughness and preparation reasonably necessary for the representation. 2. That Mr. Noblin's conduct violated Model Rule 1.7(a) when he represemed Ricky Bennett and James Marrin in criminal charges arising from the sanle ser of faCtS and their inrerest.!l were direccly adverse to each others and were directly adverse t'O Johnny Paul Dodson. Model Rule 1.7(a) requires that a lawyer nOt repre.se.nt a client if the representation of that client will be directly adverse to another client unless: (I) the lawyer reason:.1bly bdieves the representation will not adversely affect the relationship with the other client; and (2) each client consents mer consultation. WHEREFORE. it is the decision and order of the Arkansas Supreme Court Comminee on Professional Conduct that JAMES R. NOBLIN. Arkansas Bu ID #88144, be, and hereby is. REPRIMANDED for his Conduct in this maner.

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tiln ~'lll" Disl'ipliUiU} .\l't ions IN R£, CLAUDELL WOODS NORTH LITTLE ROCK, AR NOVEMBER 18, 2000 The formal complaim of misconduct arose from the complaint of Tevolia McClure. C1auddl Woods, an :morney then practicing law in North Little Rock, Arkansas, was employed to represent Mr. McClure and others in a racial discrimination case involving Gurley Refining Company. On December II, 1990, a complaint on behalf of Mr. McClure and others was filed in the United States District Court. In January 1993, Mr. Woods called to inform Mr. McClure about an offer that had been made by the former employer for about $1,000.00 to each of the plaintiffs. Mr. Woods believed that he had been authorittd to seale the lawsuit. Mr. McClure consulted with each of the co-plaintiffs and it was the consensus of the group that the offer be declined. Mr. McClure called Mr. Woods's office the next day and informed a member of Mr. Woods's staff that the group had declined the offer. Mr. McClure was then informed that Mr. Woods was OIt the courthouse where he was stopping Mr. McClure's case. Mr. McClure informed the other co-plaintiffs and, on January 25, 1993, Stanley Ford, a member of the group, wrote the Honorable Stephen Reasoner, the presiding judge, to inform him that the plaintiffs did not want to settle. Upon receipt of the letter, Judge Reasoner entered an Order on February I, 1993, which directed the clerk to treat the lener as a Motion to Set Aside the Judgment of September 28, 1992. According to records of the United States Dimict COUrt, the lawsuit had been dismissed with prejudice on September 28, 1992, four months prior to Mr. Woods advising Mr. McClure of the potential settlement. Judge Reasoner set a hearing on the Motion to Set Aside the Judgment for May 17, 1993. On May 16, 1993, Mr. McClure learned of the hearing scheduled for the ncxt day from Mr. Ford. Mr. Woods never contacted Mr. McClure about the hearing. Mr. Woods believed that he talked to Mr. McClure and Mr. Ford about the hearing but had no records to confirm that he did. Following the hearing on May 17, Mr. Woods was asked by Mr. McClure and Mr. Ford ifhe still wanted to continue representing the plaintiffs and he indicated that he did. On May 19, 1993, Judge Reasoner granted the Motion to Set Aside the September 1992 Judgment. The opposing party appealed the court'S decision to the Eighth Circuit Court of Appeals. Following the filing of me Notice, Judge Reasoner entered an Order on June 24, 1993, stating mat, unless an application to reopen the matter was filed by one or more parties to the action within sixty (60) days of the decision of the Court of Appeals, the matter would not be reopened. The Court of Appeals made its decision on July 22, 1993 denying the defendant's appeal. Mr. Woods endosed a copy of the decision of the Coun of Appeals in a letter 10 Mr. McClure and Mr. Ford dated July 26, 1993. In his letter, Mr. Woods Slated that Judge Reasoner should set t.he matter for trial within the next few months. No applicarion to reopen me case was filed by Mr. Woods within sixty (60) days of the decision of the Court of Appeals. Pursuant to Judge Reasoner's Order of June 24, 1993, Mr. McClurt:'s lawsuit was deemed to have bet.n dismissed with prt:judice sixty (60) days following disposition by the Eighth Circuit Court of Appeals. Mr. Woods admined that he did not read Judge

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Reasoner's June 24, 1993, Order sufficiently and by the time he inl:Juired about rhe SlatW of the case, more than sixty (60) days had passed since disposirion by the Court ofAppeals and the case had been dismissed with prejudice. Mr. Woods offered for consideration that he has reduced his practice over the last few years as he had tried to do too much in the past at one time which resulred in Mr. McClure's case bdng dismissed. Upon consideration of the formal complaint, the response thereto, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. Thar Mr. Woods's conduct violated Model Rule 1.3 when he failed to file an application to reopen his clients' case following a decision of the Eighth Circuit Court of Appeals as rel:Juired by an Order of June 28, 1993. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a dient. 2. That Mr. Woods's conduct violated Model Rule 1.4(a) when he failed to notify his dients of the Sqnember 1992 Order which dismissed their lawsuit based on a settlement berween the parties and flIiled to give notice of the May 17, 1993, hca.ring concerning the Motion to Set Aside the September 1992 Order. Model Rule 1.4(a) rel:Juires that a lawyer keep a client rea.sonOibly informed about the status of a matter. 3. That Mr. Woods's conduct violated Model Rule 8.4(d) when he failed 1'0 file an application to reopen his dients' case within sixty (60) days of the Eighth Circuit Court of Appeals decision which resulted in the case being dismissed with prejudice by the District Court. Model Rule 8.4(d) requires that a lawyer not engage in conduct that is prejudiciOiI 10 the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that CLAUDELL WOODS, Arkansas Bar 1D No. 83188. be, and hereby is, REPRJMANDED for his conduct in this matter.

NOTICE OF CAUTION

IN RE, CLARENCE W. CASH LITTLE ROCK, AR DECEMBER 14, 1999 The formal charges of misconduct arose from the A.rkansas Supreme CoUrt case of Ray Shan~ Paclt v. Start: of A,ltansaJ, CR 98·1358. Clarence W. Cash, an practicing law in Little Rock, miscalculated the date for filing the record on appeal with the Clerk of the Ark.ansas Supreme Court. As a result of his miscalculation, the record was filed five (5) days late. Mr. Cash accepted full responsibility for the late filing. The Supreme Court of Arkansas granred Mr. Cash's Motion for Belated Appeal and referred the same to the Committee on Professional Conduct. Upon consideration of the formal complainr, the response thert:to, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Mr. Cash's conduct violated Model Rule 1.3 when he filed the record for appeal wirh rhe Clerk of the Arkansas Supreme Court five (5) days late.

Model Rule 1.3 rel:Jujrcs thllt a lawyer act with reasonable diligence and promptness in representing 11 client. 2. That Mr. Cash's conduct violated Model Rule 8.4(d), to wit: (i) The orderly and timely administration and resolution of appellate prOCCt"dings were delayed by his flIilurt: to timely file the transcript for appeal on behalfofhis client, Mr. Pack; and (u) His failure to file the transcript with the Clerk of the Arkansas Supreme Court in a timely fashion rel:Juired the Court to expend additional time and effort which would not have been noccssary otherwise. Model Rule 8.4(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 Court Committee on Professional Conduct that CLARENCE W. CASH, Arkansas Bar JD #73017, be, and heteby is, CAUTIONED for his conduct in this matter.

IN R£, DAVID R. CASON MONTICELW, AR JANUARY 13, 2000 The formal charges of misconduct upon which this Order is based arose from the complaint of Lori Mosby. David R. Cason is an attorney primarily practicing in Monticello, Drew County, Arkansas. Mr. Cason was the Chief Deputy Prosecuting Attorney for the Tenth Judicial District. Ms. Mosby was the attorney for Brian Watkins who was chatged with a felony in the Desha County Circuit Court. On July 20, 1998, a pretrial hca..ring was held before the Honorable Sam Pope, Circuit Judge of the Tenth Judicial District. Mt. Cason was presenr rt:presenting the State. Wirhout objection from Mr. Cason, Ms. Mosby's discovery motions wert: granted by Judge Pope with a deadline for compliance by the State set for the close ofbusincss July 21, 1998. A jury trial date of July 28, 1998, was sct. When the discovery information was nOt received by July 24, 1998, Ms. Mosby filed a Motion to Exclude, which wou.ld bar the State's evidence which it should have disclosed on July 21, 1998. When Ms. Mosby arrived for trial on July 28, 1998. she had Still not received the State's discovery response. Mr. Chris Hayes, the Deputy Prosecutor assigned to try rhe case, reponed ro Judge Pope that he caused the discovery response to be sent [Q Ms. Mosby on July 24, 1998. Judge Pope granted Ms. Mosby's Motion, in part, by continuing the trial and djsmissing the assembled jurors. When Ms. Mosby returned later mat day to her office in Little Rock, the envelope with the State's response had arrived, posrmarked July 27, 1998. Subsequently, Ms. Mosby filed a Motion for Sanctions against rhe Prosecuting Attorney's Office. The Judge found the Prosecuting Attorney's Office in contempt and required that it repay to the Desha County Circuit Clerk, $1,017.00 representing the daily pay and mileage to the jurors who assembled for the Brian Watlcins's trial on July 28, 1999. For his response, Mr.Cason stated that the Prosecuting Attorney was Out of town during this time period. At the July 20, 1998, pretrial hca.ring, he was standing in for Mr. Hayes who was migned to the cast. Mr. Cason stated that at recess OIfrer me pretrial hearing, he telephoned Mr. Hayes and informed him of the rel:Juiremel1l of Judge Pope's discovery order. Mr.

La\\JPI' Disl'iplinill} .'dions Cason believed that this communication concluded his professional responsibility for overseeing the State's compliance with the discovery order. Upon consideration the formal complaint, response herein, and the Arbnsas Model Rules of Professional Conduct, the Commintt on Professional Conduct finds: I. Th.at Mr. Cason's conduct viol.ated Model Rule 3A(d) when he fajled to timely cause compliance with the court's discovery order requiring disclosure of the S{2te's confidential informanl. Model Rule 3A(d) requires that a lawyer nOt fail to make a reasonably diligent effoTllo comply with a legally proper discovery request by an opposing party in a pretrial procedure. 2. That Mr. Cason's conduct violated Model Rule 8A(d) when (i) he failed to comply with the Desha County Circuit Court's Discovery Order of july 20, 1998, in SJIlU v. l%tkim, which r«{uired the Circuit judge 10 continue the trial of Mr. Watkins; (ii) his conduct resulted in Desha County Circuit Court judge Sam Pope finding the Prosecuting Attorney's Office for the Tenth Judicial District in contempt and assessing Desh.a County's COSt of calling the jury panels to the Prosecuting Anomey Office in the amount of $1,017; and (iii) he failed to comply with the Order entered July 20, 1998, which delayed the timely and efTC1:tive adminislration and resolution of matters pending in the Desha County Circuit Court. Model Rule 8A(d) requires that a lawyer not engage in conduct th.at is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Comminee on Professional Conduct that DAVlD R. CASON. Arka.nsas B.ar 197155, be and hereby is CAUTIONED for his conduct in this matter.

IN RE, DAVID LEWIS CLARK AMITY,AR NOVEMBER 18, 2000 The formal charges of misconduct arose from the Arkansas Supreme Coun case: of SrauJ Eugrn~ Johmon u Stat~()fArlCIllUllS, CR 98·743. David lLwis C1.ark, an anorney practicing in Amity, Arkansas, was held in contempt of the Supreme Court of Arbnsas for his conduct in the above-mentioned maner. The Contempt Order was Insed upon Mr. Clark's failure 10 file his client's brief. Mr. johnson was convicted of capital murder and semenced to death by lethal injection in a judgment entered on November 24,1997. The transcript in the case was filed on June 19, 1998, and following motions filed by Mr. Clark, a new briefing schedule was set which required a brief 10 be filed on or before january 12. 1999. On January II, 1999, Mr. Clark was granted a seven-day clerk's extension, making Mr. Johnson's briefdue on Jmuary 19, 1999. A subsequent motion for an extension W2S filed and granted extending the time for filing the brief 10 March 29, 1999. Another motion for an extension of time was filed and a final extension was granted until April 28, 1999. On April 28, 1999 and on May 12. 1999, Mr. Clark filed further motions for extension of rime. On May 27, 1999, the Arkansas Supreme Court issued a per curiam order directing Mr. Clark 10 appear before the Court and show cause as 10 why he should not be

held in contempt for failing to limely file a brief on Mr. johnson's behalf. Mr. Clark appeared before the Court and entered a guilty plea and stated that he had no excuse for failing to timely file the brief. The Court found Mr. Clark to be in contempt of coun, fined him $250.00, removed him .as counsel for Mr. johnson, and forwarded a copy of the Contempt Order to the Comminee on Professional Conduct. Mr. Clark admitted his fault for failing to file a brief on behalf of Mr. Johnson and offered that, as a sole practitioner, he simply undercuimated the time required for resnrch and abstract preparation. Upon consideration of the fonnal complaint, the response herein and the Arkansas Model Rules of Professional Conduct, the Commiltee on Professional Conduct finds; I. Th.at Mr. Clark's conduct violated Model Rule 1.3 when he failed to file .a brief on behalf of his cliem, St:lcey Eugene Johnson, on or before April 28, 1999, the final extended due date set by the Court. Model Rule 1.3 requires mat a lawyer act with reasonable diligence and promptness in representing a cliem. 2. That Mr. Clark's conduct violated Model Rule 3A(c) when he fajled to file a brief on behalf of his client, Sracey Eugene johnson, on or before April 28, 1999, the date set by the Court for the brief 10 be filed. Model Rule 3.4(c) requires that a lawyer not knowingly disobey an obligations under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. 3. That Mr. Clark's conduct violated Model Rule 8A(d) when he failed 10 file .a brief on or before April 28, 1999, which resulted in a delay 10 the orderly and timely administration and resolution of appe.llate procttding, the expe.nding ofadditional time and efTon by the Court which would nor have bttn necessary had thl:': brief bttn timely filed, and the necessity of a Show Cause hearing before Ihe Arkansas Supreme Coun which would nor have been necessary had the brief been timely filed. Model 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 Court Committee on Professional Conduct that DAVID LEWIS CLARK, Arkansas Bar ID 0.95093, be, and hl:':reby is, CAUTIO ED for his conduct in this maner.

IN RE, RONALD LAVAL DAVIS, JR. UTILE ROCK, AR DECEMBER 9, 1999 The formal charges of misconduct upon which this Order is based arose from an Order of the United States Coun of Appeals for the Eighth Circuit in case no. 989021, In & Ronald L Oaf/is, Jr., Anonlry Disciplinary Marur. Ronald L Davis, an .anorney practicing in Little Rock, W2S the anorney of record on appe:.t.l in the case of Uniud Starn ofAmm£1l u Vinunt £IrI MIlXf«/J, case no. 98-2191. Mr. Davis failed to file Mr. Maxwell's brief by the due date. Because of his failure. an Order was sem directing Mr. Davis to show cause why the appeal should not be dismissed for failure to prosccure. Mr. Davis was given 15 days from the date of tile Order to respond, bur he did llOt do so. The appe.al was thereafter dismissed. Next, Mr. Davis was ordered to show cause why his folilure to file.a brief and

10 respond to the order to show cause against dismissal of the ap~al should nOt be referred to the Committee. Mr. Davis does not dispute any of the informacion contained in the formal complaint. He docs explain, in miligation, thar he was going through a divorce at the time of the appe:.t.l and also that there were some problems with office staffduring that same time period. Because of the problems that were being encountered with members of the office staff. he was not aware of the orders entered by the Eighth Circuir CoUrt of Appeals. Mr. Davis advises that he certainly had no intention of not responding to the orders in Mr. Maxwell's appeal. He would have responded had the office staff made him aware of the nOlices from the Clerk of the Eighth Circuit. Mr. Davis also provides information demonstrating that Mr. Maxwell's fee was returned to him. Following Mr. Davis's receipt of the formal complaint. Darrell Brown, attorney for respondent. and the Executive Director undertook discussions which have resulted in Mr. Davis's agreement to discipline by consent pursuant to Section 8C. Procedures of the Arbnsas Supreme Coun Rq;ulating Professional Conduct of Attorneys at Law. Upon consideration of the formal complaint, response herein, the lack of prior disciplinary maners involving Mr. Davis, the terms of the proposed consent to discipline hereinafter stated, and the Arkansas Model Rules of Professional Conduct (Model Rules), the Committee on Professional Conduct finds; 1. That Mr. Davis's conduct vlolated Model Rule 1.3 when he failed to file a brief on behalf of Mr. Maxwell by june 25, 1998, the date it was due and when he f.a.iled to respond to the Court's Order entered August 26, 1998. thereby allowing Mr. Maxwell's appe:.t.l to be dismissed for failure to prosecute. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptnas in representing a client. 2. That Mr. Davis's conduct violated Model Rule 8A(d), to wit; (i) His lack of acrion in Mr. Maxwell's appeal resulted in the appeal being dismissed for failure to prosecute; (ii) The timely and orderly adminisrration and resolution of appe.lI.ate proettdings were delayed by his failure to take any action subsequem 10 filing Mr. M~'dl's Notice of Appol; and (iii) His failure to take action to comply with the Court'S Orders caused the Coun to expend additional time and effort which would nOt have bttn n«essa.ry otherwise. Model Rule 8.4(d) r«{uires th.at a la~r nor engage in conduct that is prejudicial to the administration of justice. WHEREFORE, in accordance wim the consent to discipline presented by Mr. Davis, his attorney Mr. Brown, and the Executive Director, James A. Neal, it is the decision and order of Ihe Arkansas Supreme Court Committee on Professional Conduct th.at RONALD LAVAL DAVlS,JR., Arbnsas Bar ID #98016, be, and hereby is, CAUTIONED for his conduct in this malter.

IN RE, ROY TRAVIS DOUGLAS FORT SMITH, AR DECEMBER 9, 1999 The formal charges of misconduct upon which this Order is based arose from information coming to the attention of the Executive Director of the Committee on Professional Conduct. Roy Travis Douglas, an

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Lil\\}PI' attorney practicing in Fon Smith, Arkansas, has been an anorney licensed in Arkansas since 1971. AJthough licensed since 1971, Mr. Douglas has been suspended from the practice of law in Arkansas since March 2, 1985, for his failure to pay his annual license fee. Although required to do so, Mr. Douglas has nOt paid his license fee for over 15 years. Mr. Douglas does nOt dispute mat he has failed 10 pay his annual license fee for Ihat period of time. Mr. Douglas is also licensed [0 practice law in Louisiana wht:rt he had practiced until relocation 10 Arkansas. The attorney primarily engages in legal represenration in immigr:uion matters in Louisi;ma. Until served with the formal complailll herein, Mr. Douglas's letterhead in no way demonstrated thai he was restricted to the practice of law in Louisiana since he was nOI in "good standing" to do SO in Arkansas. It W;l,S misleading in [hat it showed only a Fort Smith, Ark;l,nsas addrC'$S and [e1ephone number while denoting Mr. Douglas as anorney OIl law, thereby giving the dear impression thai he W2S able to practice law in Arbnsu, which he W2S nOI allowed [0 do. Since be:ing served with the formal complaint herein, Mr. Douglas has undertaken remedial measures 10 correct the misleading narufr of his lenerhead and has denoted himself as only licensed 10 practice law in Louisiana. Mr. Douglas also agreed 10 repay [he license fees and penalties thereon which he has nor paid since 1985 to the Clerk of the Arkansas Supreme Court. AI the time sel for Ihe de novo hearing in this muter, a proposed Conselll 10 Discipline was pte2-nted to the Committee by the Execu[ive Director's office and respondenl's counsel pursuant 10 Section 8C, Procedures of the Arbnsu Supreme Coun Regulating Professional Conduct of Anorneys at Law. The proposed Conselll 10 Discipline consisted of an admission by Mr. Douglas tha[ he violated Arkansas Model Rule 7.5(a) and Rule VII of the Arkansas Supreme CoUrt Rules GoverningAdmission [0 Ihe Bari and that he would pay all licensing fees due since March 1985, plus penalties, in exchange for a disciplinary S:l.nction of caution. Upon consideration of [he formal complaint, response herein, and [he proposed conselll [0 discipline, and the Arkansas Model Rules of ProfC'$Sional Conduct (Model Rules), [he Committee on Professional Conduct finds: 1. Th.a[ Mr. Douglas's conduCi violated Model Rule 7.5(a) by using his Fon Smith, Arkansas address on his letterhead wilhout indicating anywhere thereon thai his practice has jurisdictional limicuions in mal he is nOt eligible to practice law within the Srate of Arkansas because of his suspension which has been in effe<:t since March 2, 1985. Model Rule 7.5(a) requires, in pertinent part, rhat a lawyer nOI use a letterhead tholl violates Model Rule 7.1, which requires, in pertinem pan, that a lawyer not make a false or misleading communication abom the la~r, such as omitting a faa neussary to make the sutement considered as a whole not materially misleading. 2. Thai Mr. Douglas violated Rule VII of the Arkansas Supreme Coun Rules Govc:ming Admission to [he Bar and iu predecessor Rules, (Rule VII), which is incorporatcd into the Arkansas Modcl Rules pursuant to Section I E(G) of the Procedures of the Arkansas Supreme Court Regulating Professional ConduCi of Anorneys at Law, by bi1ing to pay his required annual license fee in Arkansas from 1985

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through [he pte2-nt, a total of 15 years. Rule VII requires, in perlinem part, that a lawyer pay annually to the Clerk of the Arkansas Supreme Court an annual license fcc as SCi by thl: Coun, from time ro time, which is imposed upon each attorney ac[ively licensed 10 practice law in this S[2[e and is payable january I of each year and mUSI be paid no laler than March I of each year. WHEREFORE. in accordance with the conselll [0 discipline presemed by Mr. Douglas, his counsel, Troy R. Douglas, and the office of the Executive Director, James A. Neal, it is the decision and order of the Arkansas Supreme CoUrt Committee on Profes.sional ConduCi th:1.I ROY TRAVIS DOUGLAS, Arkansas Bar ID #71089, be, and hereby is, CAUTIONED for his conduct in this matter. In addition, Mr. Douglas is ordered [0 remit to the Clerk of the Arkansas Supreme CoUrt payment for his annual license fee since 1985, along with all penalties associated with the late payment [hereof, within rwenry (20) days of the date of this Order, along with his completed application for rtadmission to the Bar of Arkansas.

IN R£, JOHN D. GARNETT UlTLE ROCK, AR JANUARY 6, 2000 Tht: formal complainr of misconduct arose from the complaim of Russell I·laney. john D. Garnen, anorney ;l,t law, Little Rock, Arkansas, was pr.J.cticing in the Madden Law Firm which was employed to represent Mr. Haney in a foreclosure action. Russell Haney employed Madden Law Firm in July 1998, [0 represtn[ him in a forttlosurt action against the bu~r of some real propeny. Mr. G:unett was the associate attorney in Madden Law Firm who rcpte2-nted Mr. Haney. Mr. Garnett qUOted Mr. Haney ;l, fee of S1500.00, and Mr. Haney wrote a check to the Madden Law Firm in [hat amount. In Augus[ 1998, a Complaint for Foreclosure was filed on Mr. Haney's behalf in Pubski CoUllty Chancery Court. Prior to completion of the foreclosure action, the debtor flied for bankruplCY relie( Mr. Garnen suggested [0 Mr. Haney thai he flle an adversarial proceeding in the bmkruptcy court. Mr. Garnett stated thai he would need additional money and Mr. Haney paid $100.00 10 [he Madden Law Firm. On No~mber 25, 1998, a Complaim 10 Determine Dischargobility W2S flied in the bankruptcy coun by Mr. Garnett. Within a few days, Mr. Haney telephoned Mr. G:unen at the Madden Law Firm and was lold that Mr. Garne(( was no longer associated with the firm. According to Mr. Garnen, all client files were the property of the Madden Law j:irm, and Mr. Haney's file remained with Madden Law Firm. Mr. Garnett never informed Mr. Haney of the move until December 3, 1998, when Mr. Garnett sem him a copy of the Complaint which W2S filed in bankruptcy COUrt. Mr. Garnett's address was liSled on the letterhead bur there was no telephone number Listed. According to Mr. Haney, he tried to call Mr. G:unett at his home, but the calIs wert never n:turned. Mr. Haney had no funher communicalion with Mr. Garnen after Dea::mber 3, 1998. Funher, Mr. Garnen did not act on Mr. Haney's behalf in rhe adversarial proceeding after the initial filing of the Complaint. The adversarial proceeding in bankruptcy COUrt was dismissed on February 24,1999.

Mr. Garnett denied violating the alleged Model Rules as he acted with reasonable diligence and prompmC'$S in repr~ming a diem of Madden Law Firm when he was with the firm. Mr. Garnen stated that he kept Mr. Haney informed about the Stams of the on-going lirig31ion, and following his departure from the firm, Madden Law Firm cominued to represmt Mr. Haney. It was Mr. G:unett'S position thai ro main Madden Law Firm after he left the firm. Upon consideration of me formal complaint, the respo~ herein, and me Arbnsu Model Rules of ProfC'$Sional Conducl, the Commillee on ProfC'$Sional Conduct finds: I. That Mr. Garnett's conduCT viol:l.Ied Model Rule 1.3 when he failed to timely advise Mr. Haney that he had left Ihe employment of Madden Law Firm and after filing the adversarial proceeding, failed 10 take additional sleps ro SC'CUre Mr. Haney's rights and remedies. Model Rule 1.3 requires that a la~r aCi wilh r(2$()nable diligence and promptness in repte2-nting a diem. 2. That Mr. Garnett's conduCi violaled Model Rule 1.4(a) when, after Dea::mber 3, 1998, he failed to communicate with Mr. Haney despite Mr. Haney's anempts to locate him, and when he failed (0 advise Mr. Haney of the nuus of his legal marter. Model Rule 1.4(a) requires, in pertinent part, that a la~r keep a client teasonably informed about the status of a maner. 3. Thai Mr. Garnett's conduct viol:ued Model Rule 1.4(b) when he failed to explain to Mr. Haney the implications and ramification of his leaving the employ of Madden Law Firm and as a resuJt, denied Mr. Haney the opportunity of making an informed decision concerning legal counsd for his cause of action against the debtor. Model Rule IA(b) requires that a lawyer cxplain a marter 10 the cxtem reasonable necessary 10 permit the diem to make informed decisions regarding the representation. 4. That Mr. Garnett's conduCi violared Model Rule 1.l6(d) when he ceased to represent Mr. Haney in Mr. Haney's legal mailers without providing Mr. Haney with any notice that he was no longer going [0 assist him with his legal marter, when he failed to advise Mr. Haney of his decision nor ro cominue repte2-nr:arion, he denied Mr. Haney any time for the employment of other counsel; and when he left the Madden Law Firm, he failed to surrender Mr. Haney's file to him. Modd Rule 1.16(d) requires, in pertinem pan, upon termination of repte2-nration, that a la~r rake steps to the cx[ent reasonably practicable [0 protect a diem's interests, such as giving reasonable notice ro the diem, allowing time for employment of other counsel, and surrendering papers and property ro which the c1iem is entitled. 5. Tha[ Mr. Garnen's conduct violated Model Rule 8.4(d) when his failure [0 repte2-nt Mr. Haney in his legaJ matter to conclusion resulted in Mr. Haney's maner being dismis.s«l by the court for \'RIl[ of prosecution. Model RuJe 8A(d) requires mat a lawyer not engage in conduct that is prejudicial to the adminism.tion of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on ProfC'$Sional Conduct that JOHN D. CARNETf, Arkansas Bar ID #89211, be, and hereby is, CAUTIONED for his conduct in this mailer.

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tiln ~l'l' IN Rf, CHRISTOPHER WAYNE HAYS OUMAS.AR JANUARY 13. 2000

The formal chargc=s of misconduct upon which this Order is ba.sc:d arosc from the=: complailll of Lori Mosby. Christopher Wayne Hays is an attorney primarily practicing in Dumas, Dc=sha County, Arkansas. Mr. Hays was a Dq>uty Pros«Uting Anornq for me Te=:mh Judicial District. Ms. Mosby W2S the anornq for Brian Watkins who was charged with a fdony in the=: Desha County Circuit Court. On July 20, 1998, a pre=:trial hearing was hdd be:fore the=: Honorable Sam Pope, Circuit Judge=: of the=: Tenth Judicial District. Mr. Hays W2S nOI present, but Mr. David R. Cason, the=: Chie=:f Dtpury Pros«utor, was standing in for Mr. Hays. Without objecr.ion from Mr. Cason, Ms. Mosby's discovery motions wt::rc= granted by Judge ?opt: with a deadline for compliance: by thc SUte=: set for the=: close of businas July 21, 1998. A jury trial date=: of July 28, 1998 was set. When the discovery information was not rc=cdved by July 24,1998, Ms. Mosby filed a Motion to Exclude=:, which would bar thc= SUte=:'s c=vid(:nct which it should have=: disd~ on July 21, 1998. Whr:n Ms. Mosby arrived for trial on July 28, 1998, shc had still not rcttived the=: Sute's discovery resportSC'. Mr. Hays reponed to Judge Pope that he C<lused the discovery rc=sponse to be: sent to Ms. Mosby on July 24, 1998. Judge Popt: grailled the Motion, in parr, by continuing the=: trial and dismissing the assembled jurors. When Ms. Mosby returned to her offict in Linle=: Rock late=:r that day, thc= Statc='s responsc= had arrived by leue=:r, dated and postmarked July 27, 1998. Subseque=:ntly, Ms. Mosby filed a Motion for Sanctions against the Prosecuting Anornq's Office. The Judge found the Prosecuting Attorney's Office=: in conte=:mpt and required that it repay to the Dc=sha County Circuit Cle=:rk $1,017.00 rtpresc=nting thc= daily pOly and mileage to the=: jurors who ~mbled for Brian Watkins' trial on July 28. 1998. For his raponsc=, Mr. H:ays Staled that the=: ProS«Uting Anomey was OUi of town during this time=: pe=:riod. The=: Brian Watkins case was assigne=:d to Mr. Hays. At the=: July 20, 1998, pretrial he=:aring, Mr. Cason was sanding in for Mr. Hays. Mr. Hays sta.tc=d that he learned of the=: rc=quire=:me=:nrs of the=: discovery ordc.r on July 23, 1999. On July 24, 1999 he caused the rc=sponse to be: compilc=d and mailed to Ms. Mosby. Upon conside=:ration the=: formal complaint, response he=:rc.in, and the Arkansas Mood Rulcs of Professional Conduct, the Committee on Profasional Conduct finds: I. That Mr. Hays' conduct violated Mood Rule 3.4(d) wh(:n he=: failc=d to timdy cause complianct with thc= coun's discovc=ry ordc=r which had bttn (:nte=:rcd on July 20, 1998, and required the SUte=: to revea.l the=: identity of the=: confide=:ntia.l informant by thc= close of business on July 21, 1998. Mood Rule 3A(d) rc=quirc=s that a lawyer not fail to m2ke a re=:asonably diligent e=:{fOfl to comply with a legally prope=:r discove=:ry rc=qUe5t by an opposing parry in a prcrrial procedure. 2. That Mr. Hays' conduct vioJatal. Mood Rule 8.4(d) because his fa.ilure=: to comply with thc= Desha County Circuit Coun's Discove=:ry Orde=:r of July 20, 1998, in SIIIU v. ~lkim resulted in: (i) the=: Circuit Judge being required 1'0 cominue=: the trial of Mr. Watkins until September 1, 1998; (ii) the=: Desha Counry Circuit CoUrt Judge S2m Pope=: finding the=:

ltisriplimll'~

.\l'l ions

PrOS«uting Attornq's Office: for thc= Te=:nth Judicial District in conle=:mpr and assessing Desha Counry's COSt of calling the=: jury pand to the=: Prosecuring Anomey's Office=:: and (iii) the=: timdy and effective=: administration and resolution of matte=:rs pending in the=: Desha Coullty Circuit Coun being ddayed. Mood Rule=: 8A(d) rc=quirc=s thai a lawyer nOt e=:ngage=: in conduct that is prqudicial to the=: administration of junict. WHEREFORE, il is the=: dc=cision and orde=:r of the=: Arkansas Suprc=me=: Coun Commin« on Professional Conduct thai CHRISTOPHER WAYNE HAYES, Arkansas Bar /197141, be and he=:re=:by is CAUTIONED for his conduct in this m2rrer.

IN Rf, HENRY THOMAS JONES. IV UTILE ROCK. AR

wnt

thosc funds for his own pt:rsonal bc:ndit. Mood Rule=: 8.4(c) rc=quirc=s, in pt:nine=:nt pan, that a la~r not e=:ng:l.ge=: in conduct involving de=:ce=:it or misrepresenution. WHEREFORE, in accordance=: with the consent to discipline=: presc=nred by Mr. Jonc=s and the=: Exc=cutive=: Director, Jamc=s A. No.1, it is the d«ision and orde=:r of the=: Arbnsas Supreme=: Court Commiu« on Profession:l.l Conduct th:l.t HENRY THOMAS JO ES. IV, klun.= 8a< 10 197018. 1><. ",d h<<<by is, CAUTIONED for his conduct in this matte=:r. In addition, pursuant to Sections 8A(J) and 8A(2) of the Proce=:dufCS, Mr. Jona is he=:reby orderc=d t'O pay costs in amount of S6.17 as wdl as :I. fine=: in the=: amount of Sloo. Said COstS and fine=: to be: re=:mined to the=: Exc=cut.ive=: DilUtor within rw(:nty (20) days of thc= filing of this Order.

FEBRUARY I. 2000

The formal chargc=s of misconduct upon which this Order is based arose from the=: complainl of Gary Gree=:n, Anorney al Law. He=:nry Thomas Jonc=s, IV, an anornq forme=:rly practicing law in Little Rock, was e=:mploycd by Mr. Creen in his law firm from April 199810 April 6, 1999. In Fd>rua.ry 1999, in the=: COUlK: of his e=:mployme=:nt with Mr. Grttn, Mr. Jonc=s h:ad occasion to mttt with Paula Vale=:riano. Ms. Valeriano had sought the scrvicc=:s of the Grttn Law offices bc.ause she wished 10 pursue=: a divorce=: proceeding. On or aboul February 23, 1999, Ms. Vale=:riano paid $300 to Mr. Jonc=s for he=:r rc=raine=:r. The $300 was paid in the=: form of a chttit made=: pay:able=: to Hank Jonc=s. Although the money be:longed to the offices of Cary Grttn, Mr. Jonc=s failed to rum the=: monq ove=:r to the=: offict manager. During the=: subscque=:nt five=: or six weeks, Mr. Jonc=s continued to assen that Ms. Valeriano had nOI paid the=: re=:tainer. It was not until April 6, 1999, that Mr. Jonc=s turned ove=:r $300 to anothe=:r m(:mber of Mr. Cr«n'.s sra.ff. Wh(:n con(;lCfed, Ms. Valeriano stated that shc= had paid Mr. Jones the=: $300 on Februa.ry 23, a fact Mr. Jonc=s admined when confronted by Mr. Grttn. In addition, Mr. Jonc=s adminc=d that he=: used me=: money for his own pe=:rsonal usc. Mr. Jona explains thai he did Ihe work for Ms. Valr:riano so she was not harmed in any fashion. He=: does acknowledge that he has no dd"e=:rtSC' to thc= fact that hc= mislc=d employtt5 of lhe=: Law Offiu of Gary Grttn. According to Mr. Jonc=s, his commission paychc=cks from Gary Grttn were consiste=:ndy late=: from January through his rc=signation in April 1999, so his financial situation was dire=:. Bdic=ving he=: had a set-off right to the=: $300 hc= did use Ihe=: funds for his own personal use. Following Mr. Jones rl"Ct"ipt of Ihe=: formaJ complaint, thc= rc=sponde=:nt artornq and the Exc=cutive DilUtor undwook discussions which have=: resulted in Mr. Jonc=s's agr«ment to disciplinc= by conse=:nt pursuant to &aion 8C, Procedurc=s of the=: Arkans:as Supreme Coun Rq;ularing Professional Conduct of Anorneys at Law (Jlrocc=dures). Upon consideration of the=: formal complaint, respon.sc= he=:rc=in, the=: te=:rms of thc= proposed consent to discipline=: he=:rc=inafter sta.ted, the=: Alte=:rnate=: Committtt on Professional Conduct's approwl the=:rror, and the=: Arkansas MOOc.1 Rulc=s of Professional Conduct. the=: Commintt on Professional Conduct finds: I. That Mr. Joncs's conduct violated Model Rule 8A(c) whe=:n he=: failed (0 propt:r1y account for 300 be:longing to me Law Officc=:s of Gary Grttn and

IN Rf, THOMAS D. LEDBETI"ER HARRISON. AR JANUARY 6. 2000

Thc= fonnal compl:aint of misconduct arose from the complaint of Jessie=: Ft:nmor. Thomas D. Lc.dbene=:r. Attorney at Law, Harrison, Arkans.ts, was c=mpJoyed to pursue=: an ancillary probate=: mattc=r in ewmn Counry, Arkansas. Jessie Fenrnor was appointed Personal Rq>rescntative of the Esta.te=: of Louis Hoyt Ft:nmor by Ihe Supe=:rior Court of the Slate=: of Arizona. One=: of the=: assets of the estate=: was propt:rty localc=d in Ntwton County, Arkansas. Ms. Fenmor employed Mr. Lcdlxtt(:r to sdl the=: Arbnsas propt:rty in October 1992 and provided an advanced f« of $900.00. On Nove=:mlxr 23, 1992, a Pe=:tition for Ancilla.ry Probate and a Pe=:tition ro Sdl Rea.l Propc=rty we=:rc= filed in Nc=wton Counry Probate=: CoUrt. Ms. F(:nmor W2S appoinred pt:rsonal represtnrative of the=: anci1l:ary procttding on DttC'mbc:r 21, 1992, and received permission from the=: prolnte coun 10 sc:ll the property :1I a price=: not las than thrtt-fourrhs of the=: appl'2ised value. According 10 Mr. Lcdbe:tter, he suffered an ischemic sHoke=: losing his spttCh and movement in the=: right side=: of his body on May 19, 1993. He=: was hospiulized for e=:ighl days :and conwlescc.d at home=: for somc= additional months. The property was plaud on the=: rea.! c=state=: m2.tke=:t, and an offe=:r acapred on January 4, 1994. Ms. Ft:nmor thcn provided an additional advance=: fee to Mr. Ledbetter of S500.00 on March 23. 1994. According ro Ms. Fe=:mnor, Mr. Lc.dbene=:r informed he=:r that closing was to occur on or about May I, 1994. Ms. Fenmor SUted that shc= did nor heir anything from Mr. Ledbetter after she=: signed and mumed a Settlement SUIe=:mem Mr. Lcdbcrrer sent to he=:r in June=: 1994. In October 1994, Ms. Ft:nmor lea.rned from the rc=al c=sratc= age=:m who W2S assisting her that closing occurre=:d in August 1994. Ms. Fenmor the=:rea.fte=:r tde=:phoned Mr. Ledbetter and he=: confirmed that closing had take=:n place:, that the=: money was in his escrow account, and mat he would finalize=: the prolnte matte=:r soon. Ms. N:mnor Slated that she=: had not hord from Mr. Lcdbc.tte=:r by D«tmbc:r 1994, and called him on Decc.mbe:r 2. Mr. Lcdbe:ne=:r indiC<lted that an accounting would ntt<! to be: prepared before=: the=: CoUrt would closc= the=: estate :Illd rde=:ase=: the money. According to Ms. Fe=:nrnor, she did not rc=cdve from fXa.mbe:r 1994 to April 1995, any information about

till. ~'l'l' th~ escau: from Mr. Ltd~ntr. In April 1995, Ms. Ft:ntnor's son callcd Mr. Lcdbnt~r and inquiml aoom the status of the en.ne. 5I=\'cral days Ioltcr, Mr. Ltdbm.cr Kent a Fina.! Accounting. Fee Petition and Petition 10 Clo~ the Estate, along with a check in the amoum 0£S61,294.93 (0 Ms. Fenmor. On December 15,1995, a Pc[ilion to Confirm Sale was filed, and an Order Confirming Sale was enrered. Also filed on December 15, 1995. was a Petition for Allowance and

IIiSripIiDill}\ft inlls

adminlsmtion of justice. WHEREFORE., il is thc dccision and order of thc Arkansas Suprcmc Court Committcc on Professiona.l Conduct m:lt THOMAS D. LEDBETTER, Arkansas Bu 10 #67042, be. and hercby is. CAUTIONED for his conduct in this matter.

Amendment 3 on November 7. 2000

Payment of FeC's :;lnd Expenses to the- Personal Represcm:uivc and Anorney for the Estate. Ms. Fenlor did nOI rccdve any funher information about the status of the estate and wrote Mr. LedIxIU=r on September 9, 1996, r~uesling the bal:ance of the proe«ds in his escrow account which belonged to the CSl;ne. Ms. Fcntnor st:l.led thai she received no I"e5"ponsc, and on ~mber 21, 1996. she again wrote to Mr. Ledbetter. o rcspoR$(: was rtteivnl until March 14. 1997. when Mr. Ledbener K:nt a handwril1en rttap of income and clJX:nses. According 10 me lenu, me~ \\OC~ nOI sufficient funds in the escrow account to fully pay Ms. Fcmnor for the advance fttS she had paid Mr. Ledbetter and for Ihe coun·aJlownl fees and expenses. The recap indic:ued Ihal Mr. Ledbeller wjthdrew $1 ,365.91 from the escrow account on November 21. 1995, and placo:l it in his general account. Ms. Fentnor then requesh~d an itemi7.cd accounting of all pcnses and fees taken by Mr. Ledbetter. 0 ilemi7.cd ocplanation of Ihe ocpenses has been received by Ms. Femnor. An order authorizing payment of anorney's fees and expenses in theamoum of$I.365.91 was entered by the Coun on January 3, 1996. The maner remained open as of August, 1999. according to I"«ords maintained in the Newton Counry Probate Coun Clerk's office. Upon considcr:uion of the formal complaim. the rt'Sponsc he~in. and me Arkansas Mood Rules of Professional Conduct, the Committcc on Professional Conduct finds; 1. That Mr. Ledbcner's conduct violaled Mood Rule 1.3 when he f.lilcd to take' auion to bring the lepl matter 10 conclusion in ::I limely manner. Mooel Rule 1.3 requires thai a lawycr act with reasonable diligence and promptness in rcprcscming a c1iem. 2. That Mr. Lcdbcncr's conduct violaled Modd Rule 1.4(01) when he failed to comply with Ms. Fentnor's requestS for information following her requests and when he fililcd 10 provide Ms. Fentnor with information about the status of the estate from June 199410 October 1994. and from December 1994 to April 1995. Model Rule 1.4(01) requires th.u a l:lwyer kccp :l client reason:lbly informed about me StatUS of a maner and promptly comply wim reasonable requesu for information. 3. That Mr. Lcdbencr's conduct viobtC'd Mooe! Rulc 1.15(b) whcn. despilc requests from Ms. Fcntnor. hc f.Uled 10 rcndct an accounting rcgarding funds which "'OCI'(: in his possession to which sht' was emidC'd. Model Rule 1.l5(b) requites, in perrincm parr. thai a lawyt'r prompdy ddiver 10 Ihc client any funds th:lt mc c1icnt is cmidC'd to I"«civc and, upon request by thc client. promptly rcndcr a full accounting rcg2rding such property. 4. Thai Mr. Lrobellcr's conduCt violaled Model Rulc 8.4(d) when hc caused dc1ay in thc administration of justicc by F.tiling 10 limely pursue closure of the probatc malter. Model Rule 8.4(d) requires that a lawyer nOI cngagc in conduct mal is prcjudicial to Ihe

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Harry Truman Moore

Richard N. Moore, Jr.

Charlotte B. Murphy Ralph C. Murray Richard S. Muse Timothy J. Myers E. Sheffield Nelson George H. Niblock Raymond L. Niblock R. Gary Nutter Debby Thetford Nye Bobby Lee Odom Conrad T. Odom Ranko Shiraki Oliver Joe D. Olson Hugh R. Overholt Charles C. Owen Charles R. Padgham Nicholas H. Patton B. Jeffery Pence Edward M. Penick Donna C. Pettus

E. Lamar Pettus John V. Phelps Norwood Phillips David A. Pierce John B. Plegge Frank A. Poff, Jr. David M. Powell William I. Prewett Donald C. Pullen Janet L. Pulliam John I. Purtle Louis L. Ramsay, Jr. Brian H. Ratcliff Gordon S. Rather, Jr. Thomas Ray Elton A. Rieves, 1lI Chet A. Roberts Charles B. Roscopf Charles D. Roscopf Kent J. Rubens Herbert C. Rule, III John L. Rush Donald S. Ryan Charles L. SchJumberger Don M. Schnipper Isaac A. Scott, Jr. John R. SCOtt John S. Selig Frank B. Sewall Dennis L. ShackJeford James B. Sharp

Srephen M. Sharum J. L. Shaver, Jr. James Marlon Simpson, Jr.

H. Edward Skinner Theodore C. Skokos J. Timothy Smith Laura H. Smith Robert D. Smith, III David Solomon James D. Sprott Thomas S. Stone Leonard P. Sttickman John F. Stroud, Jr. William H. Sutton Thomas J. Swearingen Robert F. Thompson Danny Thrailkill John B. Thurman R. Bryan Tilley John R. Tisdale Robert D. Trammell Fred S. Ursery James R. Van Dover Stevan E. Vowell John C. Wade WJ. Walker Bill H. Walmsley G. Chris Walthall C. R. Warner, Jr. John D. Watson Timothy F. Watson, Sr. Bud B. Whetstone Chris E. Williams David H. Williams Robert H. Williams W Jack Williams, Jr.

J.

Gaston Williamson

Mike Wilson William R. Wilson, Jr. Russell B. Winburn Teresa M. Wineland Carolyn B. Witherspoon

Tom D. Womack Marsha C. Woodruff Henry Woods Robert R. Wright, III Damon Young

Paul B. Young Robert E. Young

"'as of the time this iss Itt was printed.

1'01. Ii ,10. VSpring 2000

Tie ,\rkansal LaWler

ii

III llrllllll'iillll DOROTHY MAY DRSI I JONES

~

Dorothy May Orsini Jones, 82, formerly of Little Rock, passed away Sunday, February 6, 2000, in Louisville, KY. She was the first Executive Director of the ~ Arkansas Bar Association, Past Presidem of the adonal Association of Women Lawyers, first female member of the American Bar Association House of Delegates, first recipienr of the Pioneering Women '---_---I Award from Girls United, a member of Zanca International, and a member of Calvary Episcopal Church. She is survived by a daughter, Merrily Orsini; two sons, Ed and David Orsini; two sisters, Betty and Edna May; twO brothers, Alva and Bob May; six grandchildren; and her companion, Sam Rosenberg. H. HOWARD CoCKRIll

H. Howard Cockrill, age 90, of Little Rock, died Wednesday, January 26, 2000. He was born in Little Rock where he graduated from Little Rock High School before receiving his undergraduate degree from the University of Virginia and his law degree from George Washington University. He served during World War II in the U.S. Army. Afrer the war, he began practicing law - becoming a founding member of the Cockrill, Laser, McGhee, Bosell and Sharp law firm. During his active years, Howard once ran for state Supreme Coun and was a past secretary from the Junior Bar Association of the American Bar Association, past president of the Pulaski Counry Bar Association, an Arkansas Bar Foundation Fellow, and past secretary of the Bar Rules Association. He also served as Junior and Senior Warden of the Vestry of Christ Episcopal Church and once served as president of the County Club of Little Rock and a member of the Jazz Club of which he played the clarinet. Mr. Cockrill is survived by his wife of over 60 years, Marion Alice Jennings

is

ne ,\r~11l1l Li")!r

ItI. Ii lit. ~S,ril! 1111

Cockrill; two sons, Dr. H. Howard Cockrill and his wife, Catherine, and Jack J. Cockrill; two daughters, Alice C. Allred and her husband, Louie, and Jane W. Hughes and her husband, John; one sister, Ann C. Wait; eight grandchildren; and one greatgrandchild. RlITH EUZABETH GREGG YOUNG

Ruth Elizabeth Gregg Young, age 91, of Lirtle Rock, died Sunday, January 30, 2000. She was born in Little Rock where she graduated from Little Rock High School. She then received her undergraduate degree from Hendrix College and her law degree from Little Rock Law School. During her lifetime, she was a teacher, a lawyer, a homemaker, school volunteer, civic leader and an active member of the United Methodisr Church. In 1932, she married Gordon Elmo Young of Malvern. The family moved to Pine Bluff where she raised four daughters and was active in church, school, scouting and other civic organizations. She was known as "Sweet Bird" afrer a song she sang. During her lifetime, she made and gave away tens of thousands of loaves of bread. Her life was cemered on her husband's and children's interests. She was an avid hunter and fisherman and world traveler. Among her many honors were Woman of the Year by the Arkansas Democrar and High Profile fearure person of the Arkansas Gazette. Additionally, she was a disringuished alumna of Hendrix College, an Arkansas Bar Foundation Fellow, Sustainer of the Year of the Junior League of Little Rock, and a lifetime board member of the Arkansas Symphony. To her large family and many friends, she was referred to as Muddie. Her husband, U.S. District Judge Gordon E. Young, and daughÂŤr, Elizabeth Edna Young Newbern, precede her in death. She is survived by rnree daughters: Martha Young Allison and her husband, C. Duke Allison, Jr.; Catherine Young Cockrill and her husband, Dr. Howard Cockrill, Jr.; Virginia Young; and son-in-law, Dr. David E. ewbern. She is also survived by ten

grandchildren grandchildren.

and

thirreen

great-

DAVID ALBERT PIERCE

David Albert Pierce, age 68, of Neosho, MO, died November 7, 1999, following a sudden illness. [n 1959, he graduated from the University of Arkansas Law School, and after practicing law for one year in Mountain Home, AR, he took an appointment with the U.S. Treasury Department with the Internal Revenue Service, assigned to Omaha, E; San Francisco, CA; and Kansas City, MO. In 1972, he was appoimed Midwest Regional Counsel for the Bureau of Alcohol, Tobacco and Firearms in Chicago, IL until his retirement in 1987. Mr. Pierce served as a leader in Boy Scout work in each community and was active in the United Methodist Church. Afrer one year of retirement, Mr. Pierce opened a law office in Neosho where he practiced for three years before retiring. He was a member of the Arkansas Bar Association, the Missouri Bar Association, the American Bar Association and the Federal Bar Association. He is survived by his wife, Joyce; son, Brian Pierce; daughter, Valerie Anderson; two sisters, Ethel Fields and Mary Lou Eiler; and five grandchildren. BERL S. SMITH, JR.

Berl S. Smith, Jr., age 82, veteran Jonesboro anomey and former state legislaror, died Sunday, January 9, 2000. Smith completed his bachelor's degree at Arkansas Stare University in 1938, then earned his law degree at the University of Texas in 1941. As a partner in the Barrett, Wheatley, Smith and Deacon law firm, he served as legal counsel for ASU for more than four decades, from 1948 umil 1992. He served as legal counsel for the Jonesboro chool District from 1962 until 1992, in addition to representing other school districts in Northeast Arkansas. ASU cired his work for the institution with meritorious awards in 1975 and 1983. He was recognized as a Distinguished Alumni by ASU in 1996 and received the Jonesboro Rotary Club's Vocational Excellence Award that same year. At the

Book Review Continued from page 10

time of his death, he was counsel of

me

Smith Law Firm. He had served as chairman of the Arkansas Supreme Court's Commircee on

Professional Conduct and as a special juscice on the court. He was a member of the Craighead County and Arkansas Bar Associations, American College of Trial Lawyers and the Arkansas Association of Defense Counsel. Smith served twO terms as state senator from 1947 until 1953. He was a avy veteran, having served as an officer on a submarine in the Pacific during World War II. He was a member of the Jonesboro Rotary Club and the First United Methodist Church. Survivors include one son, Bed A. "Skip" Smith of Jonesboro. and two grandchildren. He was preceded in death by his wife, Maxine Ammons Smith in 1997. and by his parems. C. CRAIG BURNS

C. Craig Burns. 55, of Yellville, formerly of Little Rock. died Thursday. November 4.

Chananooga, Phillips read countless newspaper areicles about Shipp and its companion case, Stal( of unntsstt lJ. Ed Johnson. Phillips even traveled to Washington, D.C., to seourer the Supreme Court files in the case. In 1988. Curriden was covering a high profile murder trial in which Phillips

defended the suspected killer. After the case was submitted ro the jury. Phillips rold

co exen their power in order to keep it.

Lawyers will be especially fascinated with the deliberations by the full courr. which heard the final arguments in the conrempr

case on March 2 and 3, 1909. The United States was represented by none other than Anorney General Charles Bonapane. The Justices had placed no time limits on the argumenrs. and General Bonaparte spoke for six hours.

The defense for Shipp. and his codefendantS. was equally as impressive. Lead

Curriden about his research into the case. Curriden. too, was astonished that no one had wrinen about the case.

counsel for Sheriff Shipp was a former U..

Phmips and Curriden spent ten years

Justices had over 2200 pages of testimony from the trial in Chattanooga and the many

unearthing the derails and writing this story to clear Ed Johnson's name.

The points of law in [he book are well explained. Curriden's journalisric style translates precedent into language easily

undersrood by lawyers and layman alike. What makes the book a "page turner", however, is the narrative ir spins - the stories of an innocent man, a polirically moriv3red sourhern sheriff, rwo heroic AfricanAmerican lawyers. a state court system that refused ro provide justice for all, and the men of the Supreme Coun who were forced

Attorney General Justin Harmon.

When the case was finally submitted. the

briefs submitted on behalfof rhe defendants in their court. The coure, basically acting as jury in the proceedings before them.

debated the case for days. Finally. on May 24. 1909, they found Shipp and several others guilty, finding that Shipp in effect had "aided and abetted" [he mob. Unforeunarely, too much of the scory ended there, and had it nor been for the eFrons of Curriden and Phillips. the rest of us would be deprived of the accoullts of this riveting segment of American legal hisrory.-oo

1999. He was Director of Government Relations wirh the Arkansas Bankers Association. He graduated from University

of Arkansas at Fayetteville Law School and was a member of the Arkansas Bar Association and the Pulaski HeightS United

MethodiSl Church. Survivors include his wife, Judy; a son,

arkansasfindalawyer.com

Andrew of Arkadelphia; three Slepsons. David Higgens of Fayetteville. Aieks Berry of Yellville and Wes McHan of Little Rock; and three stepdaughrers. Dr. Sraci Jones of

Little Rock, Emily Loving of Yellville and Attila Berry of YelJviJJe. HOMER G. TANNER

Homer G. Tanner. 80, of North Lirtle Rock. passed away Sunday, January 23. 2000. He was an anomey who practiced in orth Little Rock for 50 years. a member of the First United Methodist Church of orrh Little Rock, and a World War II Navy veteran. Survivors include his wife, Hope Tanner; daughter. Suzanne Ellen Tanner; and sister,

Eddie Jo Damm...

How attorneys find other attorneys. For more information, contact Barbara Tarkington at 501-375-4606 or 800-609-5668 btarkington@arkbar.com

Law Office Technology Conrinued from page 9 often poinred Out. See. e.g. Kingrbury "Rob"'son. 325 Ark. 12. 923 S. W.2d 273 (1996). However. wim electronic filing.

they all can examine the record at the same time.

When the reason for the rule

disappears, so should the rule. Many lawyers probably do have an advantage over many courts in the things

required co implement electronic filing, however. For lawyers, what's necessary is a computer, e-mail and word processing sofrware compatible with the court, a modem, an internet connection, and a credit card or some other arrangement on filing fees. For numerous lawyers these requirements would noc pose a challenge in the computerized age. For trial courts, however. and for me clerks who mighr be responsible for administering electronic filing. there could be some substantia)

already bes< equipped. at the appellate level

htl :1

www.courts.stat ar. In any event, the process needs to start somewhere. Nearly 200.000 cases are filed annually in the circuir and chancery courts

of [his state. a1mosr 2.000 per judge. That's a lor of paper. The stare courts mentioned at the beginning of this piece. and others. have accumulated valuable experience with electronic filing, which could be built upon here. The author respectfully suggests that our Supreme Court should charge a committee to review ways and means

(including funding)

Assembly. By me way. Mississippi's already got a head start (http://www.mssc.stat'c.

ms.us/downloadiaocslUdy.htrnll.

.Endn= I. The author tried

t'O research this article without printing anything off the Internet. After three hours of reading a computer screen, he surrendered, and began ro click "Prim".

initial difficulties. not the least of which could be money. Counry government is sriJl largely responsible for funding Staff and equipment needs of Arkansas circuit and chancery courts. Few counties are wealthy, and the initial investment in computer hardware, software and training for electronic filing could be an obstacle for courts starting from scratch. In addition, statewide uniformity in administration and application of e1ecuonic filing would seem ro be desirable. Questions of • security • document integrity • signamre protocol

Th~ Arkansas Bar Foundation ac/mowkdges with grnliful appreciation th~ "c~ipt of mtmorial gifts and scholanhip contributions giwn in mnnory of th, following individU41s from Dmmb" 8. 1999 through hbnulry 29. 2000.

IN MEMORY OF D. BROOK BARTLETI

Judge William R. Wilson. Jr. IN MEMORY OF MARntA GAUNT BASS

Judim Gray

• handling exhibits • time-stamping receipt and acknowledgement • public access • backup procedures and the like are cornman to all electronic filing systems and ought to be amenable to common answers from Arkansas courts. An informative discussion of these issues and more on electronic filing can be found in Hillis, Internet Experiments in Electronic

Court Filing. hnl':lIwww.wdfewer.oom/ ndbillis/efi!e/cbz.htm . These considerations argue for a significant degree of state funding, at least at the Start, and a "standards" role for the state Administrative Office of the Courts, which indeed serves the data collection needs of the judicial branch. The same considerations also argue for a gradual approach and for beginning where we are

of implemenring

electronic filing in Arkansas CourtS, to report to the Supreme Court its recommendations before the start of the next regular session of the General

IN MEMORY OF HOWARD CoCKRILL

IN

W. Christopher Barrier Annis and Judge John A. Fogleman MEMORY OF W'llJAM A. EcKEKr, JR. Michael O'Malley

IN MEMoRY OF

MAx

HOWELL

Randy and Jennifer Coleman IN MEMoRY OF NANcy GEJWDINE MURPHY

Hyden. Miron & Foster. PLLC IN MEMORY OF DALE PRICE

Randy and Jennifer Coleman IN MEMORY OF BITIY EtCHENBAUM WEINER

Peggy and L. R. Jalenak. Jr. IN MEMoRY OF EuzABITH YOUNG

Jack C. Deacon IN MEMORY OF JIM YOUNG

Judge William R. Wilson. Jr.

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The Arkansas Lawyer magazine Spring 2000