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PUBLISHER

Arkansas Bar Association Phone: (SOl) 375-4606 Fax: (SOl) 375-4901 Homepage: www.arkbar.com E-Mail: onoring@arkbar.com

EDITOR

Connie Moring GRAPHJC DESIGN Sara l.imdjs

on en s VOLUME 35, NUMBER 3

EDITORIAL BOARD David H. Williams. Chair Wiley A. Branton Thomas M_ Carpenter Jacqueline J. Cravens Morton Gite1man James C. Graves Lucinda McDaniel Stuart P. Miller Jacqueline S. Wright

OFFlCERS President Ron D. Harrison President-Elect Sandra O1erry Immedjate Past President Louis B. (Bucky) Jones. Jr. Secretary 路Treasurer William A. Martin

Board of Governors Chair

Features 10 Pitfalls of the Appellate Practice Avoiding the Serbonian Bog

by Leon Holmes

16 Realistic Jury Service

Frederick S. Ursery

One Small Step Towards Improving the Civil Justice System

Parliamentarian Gwendolyn D. Hodge

by David Williams

Young Lawyers Section Chair R. Scott Zuerker Executive Director Don Hollingsworth Associate Executive Director Judith Gray

BOARD OF GOVERNORS William M. Clark, Jr. Murray H. Claycomb F. Thomas Curry Thomas A. Daily Elizabeth Danielson Kay West Forrest I...ance B. Gamer Dave Wisdom Harrod Philip E. Kaplan Knox B. Kinney Edwin N. McClure Lance R. Miller Marie-Bemarde Miller Charles C. Owen James M. Simpson, Jr. James D. Sprott Danny Thrailkill

18 Yet Another Habeas Corpus Hurdle: The Limitation Period

by Doug Ward

23 Bank On It: The Financial Services Modernization Act of 1999

by W Christopher Barrier andJohn 0. Moore

30

UAISQN MEMBERS

Ron Harrison -

Alice Holcomb H. William Allen Donis B. Hamilton Judge David B. Bogard Carolyn B. Witherspoon Jeffery E. Hance

A Man with a Mission

by Connie Moring

The Arbns.u Ulwyrr (USPS 546-()1() is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Uttle Rock, Arkansas. POSTMASTER: send address changes to The ArkanSUJ lIlwyer, 400 West Markham, Uttle

Rock. Arkansas 72201. Subscription price to non-members of theArkaNa!! Bar Association $25.00 peryear. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Rar Association or The ArkRnsas LowytT. Contributiot\S to The Arbnsas lAwyer are wclrorne and should be sent in two copies to EDITOR, l'he Arkansas lAwyer, 400 West Markham,. Uttle Rock, Arkansas 72201. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawy"r at the above address. Copyright 2000, Arkansas Bar Association. All rights

reseT\路oo.

On the Cover: Arkansas Bar Association President Ron D. Harrison with his wife Rebecca. Photo by Dixie Knight Photography

Contents Continued on Page 2

Contents VOLUME 35, NUMBER 3

In This Issue 39 President's Report, by Ronald D. Harrison

judicial Advisory Opinions

4

41

Amendment 3 The judicial Article Frequently Asked Questions

CLE Calendar

42 8

The Honorable H. Franklin Waters

by Judge William R. Wilson, Jr.

A Little Good News, by Connie Moring

44

14

Lawyet Disciplinary Actions

YLS Section Report,

by Baxter Sharp and R. Scott Zuerker

58 In Memoriam

38 judicial Disciplinary Acts

60 Classified AdvertisinglIndex to Advertisers ARKANSAS BAR ASSOCIATION 400 W. Markham lillIe Rock, Arkansas 72201 HOUSE OF DELEGATES

Delegate District I-SE: Ray Allen Goodwin Delegate District 2-5E: Henry H. Boyce, Mark R. Johnson, Katharine C. Wilson Delegate District 3-5E: Cindy Thyer, Michael E. Mullally. Paul Waddell Delegate District 4-5E: Bill E. Bracq, Jr. Delegate District 5-5E: William C. Ayers, James Bradley Delegate District 6-SE: Michael L. Ladd Delegate District 7-Sf: Donald E. K~ Delegate District 8-SE: Howard L. Martin De~gate District 9-5E: Charles E. Halbert, James Pat Flowers Delegate District 10-5E: David R. Bridgforth. William Kirby Mouser Delegate District II-SE: Paul W. Keith Delegate District I2-SE: Paul D. Selby Delegate District IJ-SE: Walter K. Compton, Steve R. Crane, Brian H. Ratcliff Delegate District 14-SE: Frank A. Poff, Christie Adams Delegate District IS-SE: Barry D. Barber, Todd M. Turner Delegate District 16-SE: Shannon M. Carroll, Ronald D. Kelsay Delegate District 17-SE: Yolanda L. Dreher Delegate District l-NW: Edwin N. McClure, Glenn E. Kelley, HardyW. Croxton, Jr., George R. Spence Delegate District 2-NW: James M. Graves, Donna C. Pettus, Kathryn E. Plan, Ernesl B. Care, Boyce R. Davis, April M. Rye, Shannon Fam, Raymond L. Niblock, Steve S. Zcga Delegate District 3~NW: Niki Cung, J. Marvin Hontycmt, Claude S. Hawkins, Jr., Wyman R. Wade, Jr., Eddie H. Walker, Jr., Shannon L. Blart, 1imothy C. Sharum Delegate District 4~NW: Daniel B. Thrailkill Delegate District S-NW: Gordon Webb Delegate District 6-NW: Hugh R. Laws, John 1: Tatum, David L. Eddy Delegate District 7~NW: H.G. Foster, Danny M. Rasmussen Delegate District 8-NW: Jerry D. Panerson Delegate District I-e: Anthony W. G. Black, Shannon L. Boy, Brad Hendricks, William O. James, Jr., James L. Julian, Stuan P. Miller, Todd Wooten, Gwendolyn D. Hodge, Ron A. Hope, Philip E. Kaplan, Harry A. Light, Stark Ligon, Harold J. Evans, Charles C. Owen, Charles L. Schlumberger, Don Barnes, Elizabeth A. Thomas, Marshall S. Ney, Mclva J. Harmon, John C. Wade, Jeff Broadwater, Marcella J. Taylor, Reed R. Edwards, M. Stephen Bingham Law Student Representatives: Valerie Glover, University of Arkansas School of Law; Brandon Meadows, UALR William H. Bowen School of Law

2 TIe ,lrkalSll LIWl/f

101. l~ !1.I/S••• er ~OOO

I"'l'sidl'nl\ III'pfll'f

Of Wigs and Robes... by Ronald D. Harrison

I

nnovations abound in the legal profession. Some of us who are slowly learning [0 ucilize computers, input data, hyperlink, PowerPoint our way through trials, and e-mail messages to our e-friends and e-associates, believe things are moving a litde too fast. Okay, I confess. I don't accept change...most change...with open arms. Despite all of the activities in which the Arkansas Bar Association is engaged, I hope we can slow things down a bit in the coming momhs and enjoy JUSt being a lawyer in this wonderful state. You have given me the opportunity, in serving you as President, to work with some very dedicated volunteers, bar executives and bat staff Thank you fat letting me serve. As you know, our Association voted to change from use of an Executive Council to a Board of Governors. Fred S. Ursery has agreed to serve as the Chair of the first Board of Governors of the Arkansas Bar Association. We are fortunate to have such an experienced and fine lawyer to lead the Board. We are also pleased to announce that Gwendolyn D. Hodge has been appointed to help guide the debate of the House of Delegates and the Boatd of Governors as Parliamentarian of the Association. Gwen is a past Chair of the Young Lawyers Section. We believe this is going to be an exciting and historic year in the history of the Arkansas Bar Association. I hope you are not tired of hearing of the new proposed Judicial Article for the Constiwtion known as Arkansas Amendment 3 because we will be talking about it for momhs to come as we approach the general election on November 7, 2000. We need your help in the passage of this Amendment. The approvaJ of a new Judicial Article will indeed be an historic event which will shape the future of our judiciary for decades. The Association is also actively involved in efforts to evaluate and seek changes in

the rules and procedures for admission to the practice of law and the discipline of anorneys in the State of Arkansas. We have filed a petition with the Arkansas Supreme Court suggesting modifications to the rules. We have a terrific group of lawyers in Arkansas. Many our-of-state lawyers I work with relish the opportunity [0 work on cases in our state. Like orner professions, we do have problems. It is not just an image problem. The problem is manifest in lawyers and judges who misbehave and even engage in criminal conduct or who abuse alcohol, drugs or suffer other disabilities that interfere with their practices and cause harm to themselves, their families, and rnose whom they serve. We must be vigilant [0 protect our profession from those who would do it harm, but that is not to say that we are trying co claim the moraJ high ground. We can always do better. However, as a profession we volunteer untold numbers of hours CO help others and provide pro bono legal services. We provide counsel to those who make and those who interpret the law. We hold a very special, noble, place in the workings ofour government. It is an honor and a privilege to serve in that role. The members of the Arkansas Bar Association are dedicated CO continuing the proud tradition thar is held by our profession. The Association also has a petition pending before the Arkansas Supreme Court CO modify our rules of professional responsibility and judicial canons CO permit, and by rule of the court establish, a lawyer and judges assistance program. This article is being prepared before the Court has acted on the joinr petition of the Arkansas Bar Association and the Pulaski County Bar Association for the establishiment of such a program. The Pulaski County Bar Association and its members should be commended for their, at times, singular efforr CO establish such a

program. A future article wiU address this program in more detail after we know what action the COUCt will take. For those of you totally unfamiliar with such programs, let me simply say rhat this program will provide a method by which lawyers, judges and law students who are dependent on alcohol or drugs or suffer emotional problems can receive help. We beJieve it will also protect those whom we seek to serve from those who suffer the ravages of these diseases. After I was elected, a lawyer asked if I had any new programs or was simply going CO try CO "keep the train on the tracks." At thar time J really only hoped to be able ro keep the engine full of steam and on the tracks co continue the projects started by past presidents. In the summer of '99, however, I decided there was one additional matter that simply could wait no longer for anention. We hope you will agree that the Arkansas Bar Association shouJd look more like America. This year we will establish a diversity commission to focus on the lack of participation by many lawyers of color in the Arkansas Bar Association. It will come as no surprise that this is a problem in many bar associations, both national and state. We have simply not earnestly addressed this problem. Many in America are losing confidence in our system of justice. They don't trust the system as they once did. One of the reasons is the state of race relations in this country. We all know there is more that can and must be done by all lawyers, irrespective of color, to improve the diversiry of our Association. How long will it take? Not long, if we are committed to the admonition to " ... let justice run down like waters and righteousness like a mighty stream." Without exception, every lawyer President's Report Continued on Page 60

I'll. ~~ 11'1. ~/SI •• /r tIIO

T~e ,1rkllSil Ll~)/r

AMENDMENT 3 THE JUDICIAL ARTICLE Frequently Asked Questions* I.

QUESTION: Will my ocisting municipal court be 10It? AN WER: o. Existing municipal courts will become district courts. (There will be at least one district court per county.) Other than that, the proposed amendment makes no change in the present mechanism for establishing courts in Arkansas. It will remain a decision of the Arkansas General Assembly as to the number of disrrict courts in each county.

2.

QUESTIO : Will divorce cases be tried by juries' ANSWER: No. The proposed judicial article makes no change in the types of cases tried by jury.

3.

QUESTION: How will court fies b, distributed' ANSWER: The proposal makes no change in how courr fees are distributed. The proposed judicial article will not affect the present law that establishes the percentage ro which each receiving entity is currently entitled.

4.

QUESTIO : Will this cost

Its

more moncy'

ANSWER:

o. It is expected that these changes will result in the alleviation of crowded dockets, allowing Arkansas citizens CO conclude their cases more quickly. This will actually make our system more efficienc. It should save Arkansans money because it will slow the need for the creation of new judgeships. Furure litigants will no longer have the extra time and cost of having their case filed in the wrong courr initially, and arromeys will no longer have to spend rime on researching which is the correCt trial coun.

5.

QUESTIO : Wont there be a possibility thot a judge who was eleered to hear divorce cases and similor kinds ofcases

might end up handling cases for which he or sec is not qualified? ANSWER: It would be expected that each judicial district would create divisions in which categories of cases would be heard. Such divisions would be similar to those currently existing in the larger judicial disrricts. However, any judge will be able to handle rourine marters involving any area of the law. Lawyers in rural areas will be able to have simple legal marters such as criminal arraignmenrs or pleas taken by the judge available at the time. The change will also eliminate the possibility of filing a case in the wrong trial courr and experiencing a reversal based on that choice of courts. Since judges will be given the jurisdiction to decide both marters of law and equity, Arkansas citizens should be protected from reversals at the appellate level because the case was filed in the wrong courr. • This column is parr three of four. Watch for more Frequently Asked Questions regarding Amendment 3 in the next issue of The Arkansas Lawyer.

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It's not always black and white. In the praaice oflaw, mere's a lot of gray. Your Association's Professional Erhics and Grievance Commircee can help. Wirhin specific guidelines, me Commirree will issue an opinion on me member's proposed conduct. There is an administrative charge of $50.

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\ Utlll' l;nnd \,'\\ S "HATS OFF" TO ARKANSAS STATE MOCK TRIAL COMPETITION VOLUNTEERS This installment of'~ Little Good News" is dedicated to offer special

1999-2000 Participatillg Schools

thanks to all ofthe attomeys andjudges who volunteered their time and energy to the 1999-2000 Youth Mock Trial Program.

Cmtral High School' (Linle Rock) JnsP" High School'

O

n Saturday. February 5. 2000.

Belllnd me scenes of me district, regional.

[earns from 38 high schools in 8 districts across the sure came rogerhcr for the Arkansas Bar Association's Youth Mock Trial district competition - a

state and national competitions were anorneys and judges who volumeered their time and energy ro make me program such a success. Each high school mock trial team

program made possible by

worked with a volunteer

funding from the Arkansas Bar Foundation and the Arkansas IOLTA Foundation. When the dust senled. one team from each diS[cicr had been chosen to advance co the regional competition

anorney coordinator and a Youth Education Committee representative to prepare their cases. Each trial at every level of the competition was heard by both presiding and score judges who

held

at

the

~re~wvolun~~fur

Pulaski

Counry Courthouse on

the program. There were

unlrlll HighSchool's Modl Trilll"Auornt}l'11:-", L-R} JorNm Tim!ry, $arllh LupJNn,

Saturday, March I I, 2000. W;uu,,,, From there, twO teams L

II

HlI}",.

were invited to "suit up" and rerum for the state finals co be held the following

weekend. Saturday. Match 18. 2000.

---J

h

d d

we over one un re volumeers from the Bench

and Bar that worked on the competition. It is for this effort, we offer a "hats off" and

our sincete thanks. It simply couldn't be

For the second year in a row, the team

done without the participation of volunteers

ftom Linle Rock's Central High School

ftom the legal community. Those of you

won the state competition. The team wenr on co compere at the: nation~ Youth Mock Trial event held in Columbia, South

who were involved with the 1999-2000 program should feel especi~ly pleased because your efforts yielded such an exciting

Carolina May 11-14. The team took 5rn

outcome for the Central High School team

place in the nation competing in four differenr rri~s over twO days. A very exciting outcome for a very important program.

and a successful year for the program. Thank you!

AttoTfllJs alld Sptaal VoJUllletTS Who UJo,di,UlUd District Compttitions Sandy Moll - Ptogram Co-Chait Mary Beth Sudduth - Ptogram Co-Chair Jane Towsend Don Curdie Chris Morledge

Kim Pulley Ben Caruth Rob Coleman Judge Vicki Cook Mac Golden

Marcia Barnes

H.G. Fosrer

Buck Gibson

Melissa Krebs

Gordon Webb

Patty Zimmerman - Program Coord.

Bill Mann

Judges for Ih. S,at< Fiuals Judge WH. "Dub" Arnold Judge Wendell Griffen Attorney General Mark Pryor

S The Ilrkuml,a\\)er I'ol.li Il'o.I/S.lmrr tODD

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lA

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l"o«I

I1354l ~

of the

Appellate Practice: Avoiding the Serbonian Bog • By Leon Holmes • ") have come [Q the conclusion that it is hazardous for a lawyer to file any motion for posr-judgmelH relief. He will enter a maze of our rules and our decisions which

qualifies for the legaJ 'Serbonian Bog' award (which, no doubt, Justice Cardolo imended co establish by his dissent in the case of Landms v. Phoenix Mutual Life Ins. Co., 291 U.S. 491 [1934])." Pool. v. Pool., 298 Ark. 550, 551-2, 768 S.W.2d 544 (1989) (Hickman, ]., concurring).

This outline is not a complete handbook on all aspects of handling appeals in Arkansas: It is merely a checklist of the major pitfalls that could result in your appeal not being decided on the merits.!

Always raise all of your issues in the trial court. Issues raised for the first time on appeal will not be considered. W't-stenl

World 1m. Co. v. Brancb, 332 Ark. 427 (1998). Arkansas does not have a "plain ercor" rule. Stacks v. jonts, 323 Ark. 643, Even 916 S.W.2d 120 (1996). constirutional arguments are waived if not raised at trial. Sebastian Lake Pub.

Util. Co. v. S.bastian Lak. R.alty, 325 Ack. 85, 923 S. W.2d 860 (1996). Although Ark.R.Civ.P. 59(f) says that a motion for new trial is not necessary to preserve for appeal on an argument that couJd be me basis for granting a new trial, the court has construed the rule to say that every paine argued on appeal muSt have been directed to the trial Court in some manner. Stacks v. Joni!s, supra; Unittd 1m. Co. ofAmerica v. Murphy, 331

I. Your Appeal Will Not be Decided on the Merits if You Fail to Make a Record at

Ark. 364 (1998).

Ttial.

Always

state

years, he has handled more than 25 cases in the Supreme

Court of Arkansas and the Arkansas Court of Appeals.

10 The Arkmas La"w

rol.l~ 110. MSomlPr

mo

Elders, 324 Ark. 246, 920 S.W.2d 833 (1996) (affirming without reaching the merits because the letter opinion was not in the record on appeal). • Always proffer excluded testimony. Ark.

R. Evid. 103(a)(2); DlIqll. v. Oshman; Sporting Goods, 327 Ark. 224 (1997) (review on appeal is precluded by fitjlure to proffer evidence so the appellate court can see if prejudice resulted). • Always state specific grounds when moving for a directed verdict. Stacks v.

jonts, 323 Ark. 643, 916 S. W.2d 120 (1996) (refusing to decide an issue not specifically asserted in the directed verdict motion). Always renew the motion at the close of the evidence. Tram Union Corp. v. Crisp,

49 Ark. App. 76, 896 S.W.2d 446 (1995) specific

grounds

for

evidentiary objections. Ark. R. Evid. 103(a)(I); Thomas v. Lictl.fi.Id, 319 Ark. 648, 893 S.W.2d 788 (1995) ('" don't think it would be pcopec to go through

practice interests are in commercial litigation and appellate practice. Over the past several

• Always insure a letter oplOlon of the trial court is in the record. Winters v.

the fault section of the repon" held not to be an adequate objection). Always obtain a ruling. McLani! Co. v.

Weiss, 332 Ark. 284 (1998); Morrison v. jmnings, 328 Ark. 278, 943 S.W.2d 559 (1997); Nichols v. Wray, 325 Ark. 326, 925 S. W.2d 785 (1996); Brumlry v. Naplts, 320 Ark. 310, 896 S. W.2d 860 (1995) (failure to obtain a ruling on an issue operates as a waiver on appeal).

("Because the motion for a directed verdict was not renewed at the close of appellant's case, it was not preserved for our review.") Always make your record on the jury instructions before or at the time the instructions are given to the jury.

Houston v. Knotdl, 329 Ark. 91, 947 S.W.2d 745 (1997). Always offer a correct instruction even

though Ark.R.Civ.P. Rule 51 only requires that an instruction be offered when the paiD[ on appeal is the failure to instruct on an issue. Uniud Ins. Co. of

America v. Murphy, 331 Ark. 364 (1998).

• Always include in an order from which an interlocutory appeal will be taken an express determination, supported by specific factual findings, that there is no just reason for delay and an express entry of judgment. Ark. R. Civ. P. 54(b); Stockton v. Smtry Ins. Co., 332 Ark. 417 (1998); Davis v. Wdmau Ins. Co., 315 Ark. 330, 867 S.W.2d 444 (1993) ("In order CO determine that there is no just reason for delay, the trial court muSt find that a likelihood of hatdship Ot injustice will occur unless there is an immediate appeal and must set forth facts to support its conclusion. . . . That factual undetpinnings suppotting a Rule 54 (b) certification may exist in the record is not enough. They must be set our in me trial coun's order. tI) 2. YOut Appeal Will Not be Decided on the Merits if You File the Notice of Appeal Too Late or Too Early. Unless the notice of appeal is timely fUed, the appellate court lacks jurisdiction. LaRue v. LaRue, 268 Ark. 86, 593 S. W.2d 185 (1980). Always file the notice of appeal within 30 days from entry of judgment, decree, or order. Ark. R. App. P. 4(a). The time may be extended up to an additional 60 days upon a showing of failure to receive notice of the judgment. Ark. R. App. P. 4(a). Always file a notice of cross-appeal (if you are cross-appealing) within 10 days after receipt of notice of appeal or within 30 days from entry of judgment, whichever is longer. Ark. R. App. P. 4(a). Always file a notice of appeal after the final judgment from which appeal is taken. Reed v. Arkansas State Highway Commission, No. 99-994 (June I, 2000)(holding that a notice of appeal was premature and therefore ineffective when it was filed after judgment but before the circuit judge entered a corrected judgment pursuant to Ark. R. Civ. P. 60). 3. YOut Appeal Will Not be Decided on the Merits if You are Not Extremely Careful with YOut Post-Judgment Motions. • Upon timely ftIing in the trial COutt of (I) a motion for judgment notwithstanding the verdict under Rule 50(b), (2) a motion to amend the court's findings under Rule 52(b), Ot (3) a motion for new trial under Rule 59(b),

the time for filing the notice of appeal is extended. Ark. R. App. P. 4(b). • This rule applies only to the three listed motions. Ptnnington v. Harvtst Foods. 322 Ark. 820, 913 S.W.2d 758 (1995) (holding that a motion for remirritur is not contemplared by 4(b)). Shivey v. Shivey, 337 Ark. 262 (1999) (holding that a Rule 60 motion does not extend the time for filing a notice of appeal because it is not expressly listed in Rule 4(b). Cf. Reed v. Arkansas State Highway Commission, No. 99-994{June I, 2000)(holding thar a norice of appeal filed after judgment bur before a Rule 60(b) corrected judgmem was premacure and ineffective). It does nor appear that a motion for reconsideration of summary judgment would extend the time for filing a notice of appeal. Bur see Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995). The time for filing a notice of appeal runs from the entry of the order granting or denying a new trial or other such motion. Atk. R. App. P. 4(c). Provided that such motion is deemed denied on the 30th day if it is not ruled on before. Ark. R. App. P. 4(c). This means if the trial judge has not ruled on your post-judgment motion within 30 days after it is filed, the motion is denied by operation of law. In that case. your notice of appeal must be fIled between the 31st day and rhe 60th day after rhe post-judgment motion is filed; and your notice of appeal is invalid if it is filed before the 30rh day Ot aftet the 60rh day. The trial court loses jurisdiction to act on the motion 30 days after it is filed. Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991) (also holding rhar a decision made within the 30 days bur not emered of record within 30 days fails to sarisfy Rule 4(c)). A second post-judgment motion relates back to the first post-judgment motion and does not begin a new 30 day period for filing the notice of appeal. Williams v. Hudson, 320 Ark. 635. 898 S.W.2d 465 (1995). 4. YOut Appeal May Not be Decided on the Merits if You Fail to Comply with Ark. R. App. P. 3. The notice of appeal must: 1. specify the parry or parries raking the appeal; 2. designate the judgment, decree.

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order or parr thereof appealed from; 3. designate the contents of me record on appeal; 4. state that the transcript or specific portions thereof have been ordered by the appellant; and 5. state that appellant has made the required financial arrangement wim the COUrt reporrer. Ark. R. App. P. 3(e). Always include in the notice of appeal a statement of the points on appeal or designate the complete record and aU proceedings and evidence. Ark. R. App. P. 3(g). You muSt do one or me omer. • Always order the transcript from me court reporter and state in the notice of appeal that you have done so. Hudson v. H,uhon. 277 Ark. 183. 641 S.W2d I (1982) (dismissing an appeal where the appellant did not state in the notice of appeal that he had ordered the transcript and where he failed ro order it for mree months). If the appellant in fact timely orders the transcript but fails to state in the notice of appeal that he has done so. but no delay is caused, the Supreme Court in the past was likely to hear me appeal. Phillip' o. Laoalle. 293 Ark. 364. 737 S.W2d 652 (1987). If the appellant says in the notice of appeal that the transcript has been ordered. but the statement is false and delay is caused. the appeal will be dismissed. McElroy v. American Mrdical Irul. Inc.• 297 Ark. 527.763 S.W.2d 89 (1989). Always state in we notice of appeal that financial arrangements have been made with the coun reporter. Valley v. Bogard. No. 00-535 (May 12. 2000)(a notice of appeal that did not contain this statement was not void, but failure ro include the necessary statement precluded expedited review). 5. Your Appeal Will Not be Decided on me Merits if You Fail to File me Record with the Supreme Court Clerk on Time. The appellant has the responsibility for transmitting we record from we clerk of we trial cou_n to the Clerk of the Supreme Court and the Court of Appeals. Ark. R. App. P. 7(b); Chrisroph" v. jo/m. 27 J Ark. 91 I. 611 S.w2d 521 (1981) ("The responsibility of the timely filing of appeals must rest with the litigant and his atrorney. not the trial judge or court reporter. It).

It nr ,lrkllllll,IMW III. Ii !1.I/S.llrr 2080

For an interlocutory appeal, the record must be filed wim me Clerk of me Supreme Court within thirty days from entty of the order appealed from. Ark. R. App. P. 5(a). For an appeal from a final judgment. order or decree, the record must be filed wim me Clerk of me Supreme Court wimin 90 days from me ruing of me fir" notice of appeal. Ark. R. App. P. 5(a). In cases where proceedings have been stenographically reported, the trial court can extend we time if the following conditions are met: 1. the trial court must find that the reporter's transcript has been ordered; 2. the trial court must find mat an extension is necessary; and 3. the order extending me time muSt be emered (i.e.• filed in the record of the circuit or chancery clerk) before the record on appeal is due to be filed wim the Supreme Court Clerk. Ark. R. App. 5(b). The maximum extension is seven monws from the date of we entry of we judgment, order or decree or from the date a timely post judgment motion under 4(b) is deemed denied. Always file the order extending the time before the time expires for ruing we record. Christoph" v. jom,. 271 Ark. 911. 611 S.W2d 521 (1981) (holding that Rule 5 was not complied with when the trial court granted the: order before expiration of the time for filing the record but did not file the order until afterward); O,burn v. ArkamilJ Dtpt. Of Human 5,,0.. o. 99-1296 (May 4. 2000)(an order filed mree days alier the record was due was ineffective to extend the time). • Never rely on a trial court order extending the time for more than seven months from the date of the judgment appealed from. Morris o. Srroud. 317 Ark. 628. 883 S.W2d I (1994) (holding that only the Supreme Court can extend the time beyond seven months). • Always keep in mind when calculating me due date for filing me record on appeal that the three different time periods in Ark. R. App. Rule 5 start from different dates. For interlocutory appeals, the record must be filed with the Supreme Coun Clerk within 30 days from the entry of the order appealed from.

For all other appeals the record is due to be filed with the Supreme Court Clerk

within the 90 days from the filing of the first norice of appeal. However, the maximum extension of time a trial coun can grant to file the record with the Supreme Coun Clerk is seven months from me entry of the judgment (not the notice of appeal) or from the date a post-judgment motion is deemed denied. In a multi-party appeal. me due date for different parties can be different. and me parry with an earlier deadline must file the record by its deadline. Penni.gron o. Harrmr Foods. 322 Ark. 820.913 S.W2d 758 (1995). The rules do not provide for an extension of time to file the record if the appeal does not require a stenographer's transcript. If the record consists of the clerk's record without any transcript prepared by a reporter, the record must be filed within 90 days after the notice of appeal was filed. jordan o. Whitt Riotr Mtdical, 301 Ark. 292. 783 S.W2d 836 (I990) (dismissing an appeal where the record was filed more than 90 days after the notice of appeal in reliance on a trial court order extending the time; and holding the trial court has no authority to extend the time in a case where the record on appeal consists only of pleadings). If the clerk or the reporter does not have we record prepared before the deadline for filing it in the Supreme Court. you must file in the Supreme Court a petition for writ of certiorari. The petition must be filed before the time expires for filing the record, and it muSt include a dated and certified copy of me order or judgment appealed from. Supreme Courr Rule 3-5. Campbtll Soup Co. o. Gares. 316 Ark. 704. 874 S.W2d 373 (I 994). If me Supreme Court clerk refuses to accept we record. you can file a motion for rule on the clerk pursuant to Supreme Court Rule 2-2. 6. Your Appeal will not be Decided on the Merits if You Fail to Abstract the Record Properly. "As this court has wrirten numerous times, we will not go to the single transcript. Our review of the case on appeal is limited to the record as abstracted in we briefs, not upon the

one transcript, since there are seven

an appeal where the "261 page abstract

judges

the appellate decision-making process." Stroud Crop. fnc. v. Hagler, 317 Ark. 139,875 S.W2d 851 (1994). Supreme Coun Rule 4-2(a)(6) requires

consists almost entirely of word for word reproductjons of the pleadings, orders by the court and {other documents]."). Board ofEduc. v. Ozark Sch. Dist. No. /4,

S. W.2d 275 (1993).

280 Ark. 15, 655 S.W.2d 368 (1983)

Always attach to the abscracc a copy of

the appeUant to abridge the record into an impartial condensation of the material parts of the record. • Always abstract the complaint and the responsive pleadings. Jolly v. Hartje, 294

(dismissing an appeal where "no attempt was made to condense {the] record to include only material necessary to an understanding of the case."). Never submit an abstract that omits

any photograph, plat

involved

in

macerial unfavorable to the appeUant, that omits material favorable co the appeUee, or that is otherwise biased. Haynes v. State, 314 Ark. 354, 862

Ot

the appellace court needs

other exhibit [0

review to

Appellate Practice Continued on Page 60

Ark. 16, 740 S.W.2d 143 (1987) ("the basic pleadings . . . are essemial constituents of the abstract."). Always attach to the brief photocopies of the order, judgment, decree, ruling, letter opinion, or ALJ opinion from which appeal is taken; and do not abstract the contents of the addendum.

Supreme Coun Rule 4-2(a)(8), adopted by opinion dated January 29, 1998. Always abstract the arguments made and the testimony given to the trial court. City of W<" Memphis v. City of Marion, 332 Ark. 421 (1998). Always abstract exhibits the court must read to decide the issues. Zini lJ. Perciful.

289 Ark. 343, 71 1 S.W.2d 477 (1986) ("It is impossible for us to consider the appeUants' conrentions because counsel has not provided us with an exact quotation of the instrument in question or with an abstract of it. "). • Always abstract proffered testimony you contend shouJd have been admitted. Duque v. Oshman; Sporting Goods, 327

Ark. 224 (1997). Always abstract any objections made at trial with respect to which you are contending on appeal that the trial court erred in his ruling. Always abstract motions for directed verdict if you are contending on appeal that the evidence was insufficient to support the verdict. Stroud Crop. Inc. lJ. Hagler, 317 Ark. 139,875 S.W2d 851

(1994). Always abstract any jury insuuctions you are contending were erroneously given or erroneously refused. • Always abstract bench rulings you will argue were 111 error. Always abstract testimony in the first person. Edwards v. Neuse, 312 Ark. 302,

849 S.W2d 479 (1993).

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Never simply reproduce the transcript or any substantjaJ part of it. Oaklawn Jockey Club, Inc. v. Jameson, 280 Ark.

150,655 S.W2d 417 (1983) (dismissing

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HELPING YOUNG

ANOTHER GREAT YEAR

LAWYERS By R. Scon Zuerker

By Baxter Sharp

A. 5 another Bar year comes ro a dose, I would like to thank the .r\members of the Young Lawyers Section for allowing me to serve as your Chair this year, and I wish Scon great successes next year. It has been a very rewarding year for me as I have seen the behind-me-scenes work of so many young lawyer volunteers through our various commirrees as they work to help our citizens, communities. and the Bar itself To these alld all the I would like (0 congraculate Dustin mallY volullteers, I McDaniel for the Golden Gavel award that he received for his work in leading thallk you for the Consumer Law Handbook revision.

allother exceptiollal This was a great project that re-

produced an incredible handbook that can benefit so many Arkansans. Many volunteers were able to help by joining who have 1l0t this project. gotten illvolved ill I especially thank Mark Hodge for his vision and effons in designing and the secti01l yet, it's institucing the Lawyers For Literacy 1l0t too late, project. This projecr was able to help so many students in need and involve so allother year is jwt many young lawyers. Certainly his begillllillg! effons, and those of his many - - - - - - - - - - volumeers, make him the deserved recipient of this years' Distinguished Service Award. I also need to thank Andy Caldwell of Pine Bluff, and the volunteers there, for believing in this project and helping to spread it to other parts of the state. One Committee, the Elder Fraud Committee, was late in blooming, and is expected ro produce its great results for our "senior" population this fall. Chad Trammell and his committee are working very hard ro pur on a first class symposium to address some of the many needs and pitfalls that face our elder population. There have been so many volunteers that have helped to make this another great Bar year ~ these efforts, in addition to those listed above, were led by Todd Greer and Mark Hodge for our Swearing in Ceremonies; Stephanie Potter for our Law Day projects; Todd Wooten and Paul Dumas for our Bridging the Cap Seminar; Cindy Thyer and Michelle Cauley for our newsleners; Ainsley Lang and Betsy Meacham for our second annual tennis tournament; and David terling for our By-Laws revisions. I would also like to thank Mike Crawford (a former Young Lawyer leader) for his cominued support of our section and his second year sponsorship of a band at the annual meeting for our enjoymem. To these and all the many volunteers, I thank you for another exceptional year! For those who have nor gotten involved in the section yer, it's not roo latc, another year is JUSt beginning!~

year! For those

II

TR IrUM LIW!/r

fll. lj II. l/S.llIr till

would like to start my year as Chair of the Young Lawyers Section by acknowledging the hard work and dedication of my predecessor, Baxter Sharp, and thanking him for his efforts and dedication to the Arkansas Bar Association as a whole and the YLS in parr.icular. When I became involved in the YLS three years ago, Baxter was, and has continued to be, one of the primary facilitators behind many, if not most, of the YLS projects. His friendship, motivation and the results he obtains have drawn people to get involved and nay involved with the YLS, and we are a better Section because of him. I cerrainly hope, actually I know, that he will move on to assume a leadership role with me "Big Bar" and will continue to bener our Association. My hat is off to you, Baxter. I welcome the opportunity to continue the work starred by Baxter and other members of the YLS. We will cominue many of the successful programs of years past, including disaster all klloW about the relief, the YLS Newslerrer, the wOllderfitl service our swearing in ceremony, the Sectioll provides to the Lawyers For Literacy project and Bridging the Gap. I also Arkallsas pltblic alld I hope [0 add new projects and bope to mailltai1l that revive some that have never really taken off, such as the level ofpltblic service, Mentor Program. We all know while at the same time about the wonderful service our Section provides to the illcrease the service Arkansas public and I hope to provided to oltr maintain that level of public members. I mvisiOlI a service, while at the same time increase the service provided to mmtor program that our members. I envision a will provide yOltllg mentor program that will provide young lawyers, as well lawyers, as well as law as law students, wirh sh,dmts, witb information and networking informatioll alld opportunities that will assist them in the transition from lletworkillg student to lawyer. opportullities ... I look forward to working with Baxter, members of the YLS Executive Council, and members of Yl..S in advancing both our Section and the Association. Please become involved in the Section; we always need volunteers to help with our projects. Bar work, as it has come to be called, is a personally and professionally rewarding experience and I hope that each of you will take advantage of the chance to become involved.o>

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Realistic Jury Service One Small steP Towards Improving the Civil Justice System â&#x20AC;˘ By David Williams â&#x20AC;˘

I

n the January-February 1999 issue of judicature (Volume 82, Number 4), a publicarion of rhe American judicamre Society, Robert B03rrighr's article "Why cirizcns don't respond to jury summonses And what couns can do abouc it" sets our a powerfuJ argument for reducing the amount of rime that worlcing people spend on jury service. J Boatright begins his article with a story from Wendy Wasserstcin's play, An American Daughter. which describes how Lyssa Dent Hughes, a presidential nominee for surgeon general, has her appointment derailed after embarrassing information of a past misdemeanor is discovered. The misdemeanor in question? Hughes once failed to respond to a summons for jury duty. Failure to respond (0 summonses is a serious problem for many American courts. In many urban jurisdictions, fewer than 20 percell[ of summoned jurors eventually serve. In courts nationwide, the number of citizens who merely ignore their summonses IS increasmg. This trend has made it difficult to fill me jury box, has increased courts' adminisrrative cOStS, and has threatened the constitutional right to a

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representative jury. One of the more insidious threats to the right to a fair trial in Arkansas, and parr and parcel of the summons non-response problem, is the way in which our jurors are chosen, their length of service (six months), and the way in which the same few jurors end up serving on case after case after case. The verdicts by these "professional" jurors are unfair, unrepresentative and constitute a deniaJ of true justice. Some judges will deny that these problems exists in their jurisdiction. And, they may nor. That's not the point. The fact of the matter is that when folks know there is a definite "reasonable" period of time in which they will "be on call" for jury service, and a definite "reasonable" number of times they will actuaJly have to serve on a jury, the more favorably they will react to being summonsed and the more favorable their opinion will be of the judge, the lawyers, the trial and the entire civil justice system. Reduced jury service is the best thing we could do to improve the image of the legaJ profession is Arkansas and the country. Uudges get to see more voters!) To investigate the extent and causes of summons non-response, the American Judicature Society surveyed court administrators and jurors who did and who did not respond to their summonses. These surveys reveal both that conventional wisdom on the reasons for non-response is not aJways correct, and there are steps courts can take to bring more citizens into the jury box. Most citizens do wish to serve on juries bur are prevented from doing so by economic barriers. Many cannot take time off from work, and others have difficulty getting to the courthouse. The less wealthy and less educated do not possess negative attitudes towards the courts, rather they are

skepticaJ about their own ability to serve competently as a juror. They are afraid their reasons for not being able to serve (i.e. economic hardship) will not be sufficient for the court to excuse them. So, they do not respond. Also, they do not believe they will be treared fairly by the judges, the court personnel or the lawyers. On the other hand, the more affluent jurors avoid service because they believe their affluence and education will be used to keep them off juries. Also, they are more eynicaJ of the fairness of the jury system than are their less affiuell[ counterparts. In any event, doctors and plumbers are avoiding jury service like the plague. They do not register to vote, or if they are aJready registered, they discontinue voting so as to reduce their chances of being called to service. They have heard the rumors that judges believe the only responsible jurors are those who are responsible voters. In fact, the survey evidence shows that this belief is withom suppOrt. The variations in attitudes toward juries, jury service and the court by income, educarion, race and economic circumstances indicate that many of those who would greatly appreciare the opportunity to serve as a juror are prevented from doing so by personal and financial circumstances, while many of those who would bring substantiaJ expertise to the CourtS are reluctant to do so because of the perceived inconvenience that the process of reporting for jury duty - not the experience ofserving on a jury - would entail. The first type believe that employers won't compensate them for time off work. Child care expenses won't be mer. They won'r be treated well by the COUrt and the attorneys and may not be listened to by fellow jurors. The second type, the more educated and

affluent, don't want to waste their tUne spending an entire day or days in the courtroom only to be struck from a voir dire or two. Lost time from work for them means missed meetings, appointments and work-related obligations that would have to be made up later. The third type feel that they will nor be excused from jury duty for what to them is a valid reason. They had a vacation planned, or a doctor's appointment, or merely would prefer nOt to show up until a few weeks later. Once again, these people are not hostile towards the idea of jury service but merely have other

things to do. Courts are not in the business of raising citizens' self-esteem, but it may be that, rather than bolstering the image that the jury is the bulwark of the democratic system and creating the impression mat service is a mattet of privilege (by golly!), and the American way. courts would be better served to demystiFy me jury - to emphasize that anyone can serve competently. Jury improvement comes in three loosely classified categories: juror outreach, juror

processing and juror compensation. These proposals and practices (they are already in effect in many states, including neighboring Mississippi) include the institution of a oneday! one-trial system, and enlarging the jury pool to include licensed drivers. The March-April issue of Judicature reports on how these jury practices have paid off in New York (The same results have occurred in Mississippi). In 1993, New York state launched its Jury Project to reform all aspects of the state's jury system. The latest State of the Judiciary report indicates mat after five years, the project has made significant progress in making me system more efficient, productive and fair. Average terms of jury service are now half of what mey were in 1993. The average juror in New York state spent 2.3 days in service during 1998, compared with 5.2 days in 1993. One reason for this improved efficiency is the one-day/one-trial system that was adopted by 60 of the state's 62 counties. Mississippi has also adopted the one-day/one-trial system and has had glowing reports of irs success coming from

the jurors, of course, but also the judges, the clerks and the sheriffs. The number of jurors who reported for service also rose markedly once the oneThe day/one-trial system instituted. number of New Yorkers who reported for jury service rose from 425,000 in 1993 to 614,000 in 1998. Who is in favor of the one-day/one-trial system? The following organizations participated in and contributed to The American Board of Trial Advocates' (AROTA) "White Paper" during meetings in September and December of 1997, and again in September of 1998, which meetings have been entitled the American Civil Trial Bar Roundrable: â&#x20AC;˘ The Academy of Rail Labor Attorneys (ARLA)

The American Bar Association (ABA) The Association of Defense Trial Attorneys (ADTA) The Association of Trial Lawyers of See Realistic Jury Service on Page 37

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Yet Another Habeas Corpus ~tdJe:

The Limitation Period • By Doug Ward • Dubin Carter's fight [0 reverse his murder .l'...convictions is chronicled in the recent movie "The Hurricane". Freedom for Carter came through writ of habeas corpus. Convicted first in 1967. then again in 1976, habeas corpus relief was granted in 1985 and affirmed on appeal in 1987. 1 The pro se litigant or lawyer now contemplating a federal habeas corpus petition should nOt take heart, however, in Carter's result. The hiscorically low rate of success, coupled with the barriers blocking the presentation of the merits of the case, paint a less promising picture. Two hurdles to the present3rjon of the merits loom considerably larger than the

me

others.

The first hurdle, the statucc of

limitation, is relatively new to habeas corpus law and, as a result, is evolving. More setded principles prevail over the second barrier, procedural default. This article addresses the current state of the limitation barrier, along with computation questions and other related issues. Examples are used to summarize the discussion.

I. The Hurdle of The Statute of Limitation A. Current State The statute of limitation was born in April of 1996 when Presidenr Clinron

About the Author Doug Ward is Law Clerk to United States Magistrate Judge H. David Young. He received his J.D. from University of Arkansas (Fayetteville).

IS

ne ,lrkllSlJ LI~I!r

fol.15 ,1,.IIS,••er mo

signed the Anti-Terrorism and Effective Death Penalty Act ("AEDPA" or the "statute"). The AEDPA provides that a federal habeas corpus petition must be filed within one year after one of four events occur. Of these four events, the most likely trigger to stan the time running is the date on which the petitioner's conviction became final in state court.2 Typical triggering events are: (I) the date on which a stateimposed impediment is removed from the petitioner's path; (2) the date on which a new constitutional right was recognized by the United States Supreme Court and made retroactively applicable; and (3) the date when the faCtual predicate of petitioner's c1a.im or claims could have, with due diligence, been discovered. 3 The statute also exdudes from the one-year period, time during which a properly filed application for postconviction or collateral review is pending.' Failure to comply with the limitation period is routinely used as a defense in federal habeas cases. fu with all limitation periods, the simplistic way to avoid the hurdle is, of course, to file a timely petition. Filing a timely application may not be so simple, and there are occasionally surprising answers to the practical questions encountered, including the basic mathematical computations. B. Computation Questions I. When is a fttkml habeas petition fikd' A petition filed by counsel is filed when it is fiJemarked. The majority of petitions, however, are pro se efforts and a difFerem rule controls. A pro se petition is deemed filed when tendered to prison authorities for delivery to the court. s It is not always clear

when a prisoner delivered a petition to the authorities, and it is nor uncommon for the court to use the date on which the petitioner signed the petition as the date of delivery. Deeming the signing date to be the date of delivery is consistent with the general principle that pro se petitions are to be liberally construed. 6 2. When is a conviction ']inaI"? The statute does not define "final" and simply provides the limitation period commences when "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review".7 No mention of a petition for certiorari is found in the statute. Addressing the omission, the Eighth Circuit Court of Appeals has clarified "final" to mean either the completion of direct review in state court followed by the completion or denial of certiorari proceedings in the United States Supreme Court or, if certiorari was not sought, then by the completion ofdirect State review followed by the ninety day period in which certiorari proceedings could have been initiated. 8 Since a defendant has thirty days following judgment in which to file a notice of appeal, the limitation period commences at the expiration of the allotted thirty days for a defendant who does not appeal his conviction. 9 3. Is a rUtte other than final judgment date likely to trigger the limitation period? As previously nored, the Statute provides the start of the limitation period to be the latest of four dates. The computation of a final judgment date, however, is relevant only if the other options for starring dates are inapplieable. It is highly unlikely that the other dates apply. No reported cases in the Eighth Circuit Court of Appeals deal

with ca1cu1acing the limication period using a date other than the final conviction date. On a dozen occasions, a Court of Appeals has addressed the argumem that the commencement date should have been extended umil a state-imposed impediment was removed. 1O The pctitioner has yet to succeed on such a claim at the Court of Appeals. Most often the petitioner comends he was denied access to necessary legal materials, and the limication period should not have begun until these materials were available. I I Four Courr of Appeals have addressed whether the limitation period should start on the date a new constitutional right has been recogniz.ed and retroactively applied. 12 While one of these decisions allowed the pctitioner to ~ the later date rather than the date of final conviction, this decision is of help only ro the narrow group of federal prisoners convicted of using a firearm in relation to a drug-trafficking offense. 13 Barring cataclysmic changes in the judicial system, the date of "newly recognized and retroactively applied" decisions will rarely

trigger the limitation period: new constitutional rights are scarcely recognized and even more scarcely retroactively applied. Citing "highly unusual circumstances", the Tenth Circuit Court of Appeals, in an unpublished opinion, found the limitation period triggered not by the final convinion date bur by the date on which the factual pte<!icate of the claim could have been discovered by due diligence. '4 The petitioner was convicted of drug trafficking and sentenced to 200 years' imprisonmem. in parr based on the testimony of a chemist named Castillo. On July 19, 1996, newspapers around the county reported that Castillo reported drug test results without actually performing the testS on the evidence. The petitioner filed his federal habeas corpus petition on July 18, 1997. Using the date of publication of the Castillo Story as the date on which the petitioner could have discovered the factual predicate for his claim, the Courr of Appeals found the petition timely by a day. Despite the success of this petitioner, the facts suggest it unlikely that the date of the factual

predicate will be used rather than the date the conviction is final.

4. What is a "prop""'] fiud" p"itian for posteonviction or coilaural rroinv? The statute expressly provides that the time during which a petitioner is pursuing a properly filed petition for postconviction or collateral review "shall not be counted toward any period of limication ... "15 In the absence of a statutory definition, courts have struggJed to describe a "properly filed" application. The majority of courts addressing this issue have deemed a petition properly filed even if the claims raised are frivolous or procedurally barred from being considered by the state courr. 16 According to this view, a "properly filed" petition is merely titled in the correct fashion and filed in the correct place. The minoriry view requires more. holding a scate: petition is not "plOperly filed" unless it complies with the proceduraJ laws of the state in which it was filed. For example, a state petition which is untimdy under the state's rules would be improperly filed and the time spent pursuing the petition would not be

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action would not be excluded from the limitation period. 5. May Ih~ limitation pmod b~ toll~d for r(asons olh" than thos( tisttd in flu stdfllU? The Eighth Circuit Court of Appeals nores the AEDPA limitation period is nor jurisdictional in nature, and as a result, me doctrine of "equitable rolling" may operate ,----------:-::7=-:=-:--,--==-=--:-::::--=-=7=:::-:::-:----:=-=---:=-:-=---, to exd ude ti me from the Ii mita rion MORGANTHAU, O'TOOLE & CO. INC. caleuluion.'9 The doctrine may be much Valuation Specialties more theorerical than practical since excluded from the federal limitation period. 17 The Eighili Circuit Coun of Appeals has nOt yet addressed this issue, and the direction taken will impact Arkansas inmates. Arkansas posrconvicrion proceedings can be confusing, and it is not unusual for pro u litigants in Arkansas [0 seek postconviccion relief in an untimely

fashion or co anempr co raise claims in the incorrect forum. Often, a prisoner will seek state habeas corpus relief without realizing that trial errors and ineffective assiS[ance of counsel are nor cognizable claims in a state habeas corpus proceeding. 18 If the Eighth Circuit adopts the minori~ view, the time spent pursuing me ill-advised state habeas

• ESOPs • • • • •

Family Limited Partnerships Limited Liability Comparues Merger & AcqUIsitions BuyISeli Agreements Divorces

equitable tolling is available only if "extraordinary circumstances" beyond a prisoner's conttol make it impossible to file a petition on time."2. Such circumstances would likely fall into one of the three

statutory categories described herein in section 8.3, leaving One Court to question if any room remains for the judge-made VlcroR E. PAULOS 12 Gaza Lane doctrine of equitable rolling when the Certified Business Appraiser Hot Springs Village, AR 71909 natute already provides three equitable Phone: 501-922-5405 Business Consul tan t rolling provisions in 28 Fax: 501-922-5405 U.S.C.&2244(d)(I)(B-D).21 No reported ' - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ' cases in the Eighth Circuit are examples of , - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , successful equitable colling in a habeas Call A Federally Certif-ied Court Interpreter serting. Perhaps persuasive medical Mendoza, a native Spanish speaker, has tllOusands of !'ou.rs of evidence that rhe petitioner was Ms. .... ::--" inlerpretation work, as well as experience assisting foreign visitors incapacitated would equitably col! the including U1C Governor of }ahsco, Mexico. She has had trai.ning in limitation period. 22 Also, a petitioner who Court, Insurance, and Medicallnterprctatioll; and is a contract hnguist is "actually innocent" as that phrase is used for u'e F.B.I.. Ms. Mendoza is certified by u'e Consortium of Slate in Schlup v. Dew, 513 U.S. 298, 324 (1995), and irs progeny, may effectively avoid any Courts (\f,rginia); and by u'e Administrative Office of the U.S. Courts. limitation period hurdle on equitable tolling U grounds. This may be the only way Arbnsas Spanish Interpretel1l And Tran lalorl, Inc. around the statute of limitation. In lilli, R~~, call 501-312-1300 or call toll free 1-877-312·1300

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C. Two Examples Example I: Rodney Marshall, convicted of two aggravated robberies by a Washington County jury on November 23. 1996, appealed alleging [here was insufficient evidence to support his conviction, and the trial judge erred in running his sentences consecutively. On October 20, 1997, the Arkansas Supreme Coun affirmed the convictions. Mr. Marshall did not file a petition for certiorari with the United States Supreme Court and sought no posrconviction or collateral review in nate court. He signed his federal habeas corpus pe[ition on January 15, 1999, and delivered it to the prison authorities that same day. The petition was filemarked in federal court on January 31, 1999. Analysis: The petition is timely. Although the Arkansas Supreme Court's decision was dated Ocrober 20, 1997, the petitioner's conviction was not final unril ...1 ninety days thereafter, since he did not seek

ceruorari.

Thus, the limitation period

scarted on January 19, 1998. Even though the federal court filed the petition on January 31. the "prison mailbox" rule dictates the petition is deemed filed on

January 15, 1999, within the one year period.

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Example 2: Russell Allen, convicred of therr of property by a Pulaski County jury in Ocrober of 1996, unsuccessfully appealed me conviction. He did not seek certiorari with the United States Supreme Court. One month after the Arkansas Supreme Court denied the appeal on September 4.

1997, Mr. Allen rimely filed a pro" perition for Rule 37 relief alleging his trial anomey was ineffective for failing to interview and call alibi witnesses. The trial court denied

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the Rule 37 perition on May 4, 1998, and Mr. Allen flied a timely notice of appeal on

May 14, 1998. Allen did nothing else, and no trial record was ever lodged with the Arkansas Supreme Court. There was no court order dismissing the appeal. Mr. Allen

signed and delivered his federal habeas corpus applicarion on July 14, 1999, and it was filed on AuguS[ I, 1999. Analysis: While the first example focused

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on when the conviction was "final", the pressing issues here relate to the Rule 37 petition: was it properly filed, and if so,

when did it cease to be properly filed? The answers

to

these questions are known, since

rhe Eighth Circuit Court of Appeals considered similar facrs in Mills v. Norris, 187 F.3d 881 (8th Cir. 1999). The Rule 37 petition was timely filed and raised cognizable claims, so it was "properly filed" under either the majority or minority view. As a result. the limitation period is coiled so long as his Rule 37 petition was pending. The state argued the Rule 37 petition was nOt "pending" under the statute because the petitioner did not timely file the record on appeal after filing his notice of appeal. Under this reasoning, the excluded time

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ended on either May 4, 1998, wirh the £rial court's denial of Rule 37 relief or, at the

larest, on May 14, 1998, with the filing of the notice of appeal. Using either date. the

federal habeas peti rion would be barred as unrimely. The Eighth Circuir Court of Appeals held the Rule 37 appeal remained pending for the ninety days following the

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

notice of appeal. or the period in which the petitioner could have timely lodged the Habeas Corpus

Continued on Page 28

1,1. l~ Nt. l/S.ller 2101

n! ,\rkwlJ Law)!r 11

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BANK ON IT: THE FINANCIAL SERVICES

1999

MODERNIZATION ACT OF by W Christopher Barrier and John O. Moore

This is the second oftwo articles on FSMA. An article on Section 73 J ofFSMA, pre-empting Arkansass usury limits, appeared in the Spring 2000 Arkansas Lawyer. nacted imo law on ovemher 12,1999, the Gramm-Leach-Bliley Act,

E

commonly referred to as the Financial

Services Modernization Act ("FSMA" or the "Act"). provides sweeping revisions ro the Class-Stegall Act restrictions that prohibited broad affiliations among the banking, securities and Insurance industries. I FSMA practically eliminates most all of the federal and state law barriers to affiliations among banks, securities firms, insurance companies and other financial

service providers. Among other maners, FSMA also addresses thrift organizations. customer privacy, the Federal Home Loan Bank System, ATM systems and Communi~ Reinvestment Act ("eRA") requirements. A. FINANCIAL MRUATIONS & ACTMTIES

I. Affiliations. 2 Title I of FSMA authorizes and facilitates affiliations among banks, securities firms and insurance companies ("Financial Organizations"). These Financial Organizations are able co

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

Group.

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

structure such affiliations through a new type of bank holding company ("BHC") called a financial holding company ("FHC"). Undet the Act, FHC's are granced the authority co engage in activities or affiliate with companies that are engaged in activities - referred co as "financial activities" - that are not permitted for traditional BHCs.

2. Financial Activities) A "financial activity" is an activity that is (I) "financial in nature"; (2) "incidental" to a financial activity; or (3) "complimentary" to a financial activity and does not pose a substantial safety or soundness risk to the bank (these activities are collectively referred to as "New Financial Activities").4 FSMA does specifically designate certain activities as "financial in nature" which encompass mOSt traditional banking, securities and insurance business activities.> 3. Qualifications. 6 In order to qualify as an FHC and therefore engage in FSMA's New Financial Activities, all of the BHC's bank subsidiaries must be well-capitalized and well-managed, and the BHC must file notice with the Federal Reserve. Also, FHC's and their bank subsidiaries are prohibited from commencing any New Financial Activities or directly or indirectly acquiring control of a company engaged in any New Financial Activities if the bank or bank subsidiaties has a CRA rating of less than "satisfactory". These restrictions would be lifted once all such FHC subsidiaries met the minimum CRA rating. 4. Noncompliance.7 If a FH C's bank subsidiaries subsequently fail to comply with the Act's requirements, the Federal Reserve may impose limitations on the conduct or activities of the FHC or any affiliate of the FHC. If the FHC does not

correct the failure, the Federal Reserve may require the FHC to either divest control of any bank subsidiary or cease any New Financial Activities. 5. Regulation.' Through the FHC structure, banks will be less restricted regarding the purchase or establishment of securities broker/dealers and will have the new option of purchasing insurance companies. Moreover, securities firms and insurance companies will be permitted to purchase full-service banks, which will result in their being subject to regulation by the Federal Reserve. Under FSMA, the Federal Reserve serves as the "umbrella supervisor" of the holding company with the individual entities within the holding company structure subject to "functional regulation" based on the types of activities in which they engage. As such, a bank, broker/dealer and insurance subsidiary within the same FHC would be regulated respectively by the approptiate banking agency, the SEC and the appropriate state insurance commission. B. NATIONAL BANKS

1. General FSMA authorizes national banks to engage in the New Financial Activities through a "financial subsidiary".9 This authorization IS not complete, however, as financial subsidiaries are only permitted to engage in activities that are (a) "financial in nature", (b) "incidental" to a financial activity and (c) actjvities that a national bank could engage in directly.1O Furthermore, even through a financial subsidiary, national banks are prohibited from engaging in insurance underwriting, merchant banking, insurance company portfolio investments, and real estate development and investment. 2. Qualifications. I I A financial

leI. l~ Nt. l/S.ller 2000

T~e

.lrkllllJ Law)er

2l

subsidiary may be wholly owned by a single hank or it may be owned by a number of different banks. 12 In order for a national bank ro operate a financial subsidiary engaging in the New Financial Activities, the national bank and each of its bank affiliates must be well-capicalized and wellmanaged. meet certain investment and rating requirements, and have received approval from the Offiee of the Comptroller of the Curreney ("OCC") for the finaneial subsidiary to engage in the New Financial Activities.

3. Municipal Bond Underwriting. 13 Under FSMA, national banks that are wellcapitalized are also amhorized to deal in, underwrite and purchase certain municipal bonds (limited obligation bonds, revenue bonds, and obligations satisfying rhe requirements of Section 142(b)(l) of the Internal Revenue Code of 1986) for their own investment accounts).

C.

STATE BANKS

FSMA also permits insured state banks to engage in the New Financial Activities through subsidiaries. 14 To engage in the New Financial Activities, the state bank and each of its bank affiliates must be weUcapitalized; the bank must comply with the same capital deduction and financial statement requirements applicable to national banks; the bank must comply with the same financial and operational safeguards applicable to national banks; and in transactions with its subsidiaries, the bank must comply with the limits on transactions with affiliates applicable to national banks. D. PRUDENTIAl. SAFEGUARDS

Under FSMA, the federal banking agencies - the ace, the Federal Reserve and the FDIC - arc permined to issue prudenrial safeguards for banking organizacions engaging in New Financial Activities. 15 Each banking agency is given authority to regulate transactions and relationships between the financial institutions and related subsidiaries under its jurisdiction.

E.

BROKER/DEALER AcnvmES; ExEMP110NS

Under Title II, FSMA repeals the blanket exemptions banks have enjoyed from the Securities Exchange Act of 1934 (the "Exchange Act") definition of "broker" and "dealer" and replaces them with a set of limited exemptions which allow the

11

The .lrklRlls LIRfer

1'01. j~ ,I'o.l/So.mer 1000

continuation of most traditional securities activities performed by banks. 16 Thus, a bank will be considered a "broker" or "dealer" under the Exchange Act and subject to complete SEC regulation if it engages in the business of effecting transactions and securities for the accounts of others. FSMA, however, does provide several exemptions from the definitions of "broker" and "dealer". Through these exemptions, FSMA generally maintains the status quo regarding banks' securities activities by allowing banks to continue securities activities permissible under current law.

F.

INVESTMENT BANK HOLDING COMPANY

FSMA also creares a new type of SECsupervised entity, called an invesunenr bank holding company ("IBHC), that engages primarily in securities-related activities. I? This subtitle is designed to implement a new concept of SEC supervision of broker/dealer holding companies (that do not control depository institutions) that voluntarily elect SEC supervision. This provision is designed to give investment banks a practical alternative to becoming a

FHC. G.

STATE AUTHORITY OVER INSURANCE

AND PREEMPTIONS

I. Generally." Subritle A of Title III reaffirms that States are the regulatOrs for the insurance activities of aU persons, including acting as the functional regulatOr for the insurance activities of federally chartered banks. However, this fimctional regulatOry power is subject to certain preemptive provisions designed to protcct banks from discriminatory action by the states. 2. Affiliations and Activities. 19 Provisions of FSMA claruy the application of state law to the insurance-related affiliations and activities authorized or pcrmitted by the Act and insure that applicable state law cannOt prevent, discriminate against or otherwise frustrate such affiliations or actIVities. These provisions specifically prohibit the states from taking any action that would "prevent or restrict" banks or their affiliates from affiliating with Insurance compallles or engaging 111 insurance activities as authorized and permitted by the Act while concurrently reserving certain controls ro the states. 20 H. TITLE INSURANCE

National banks are generally prohibited from engaging in any activity involving the

underwriting or sale of title insurance. 21 However, national banks may sell tirle insurance products if the national bank or subsidiary was actively and lawfully engaged in such activity as of the date of FSMA's enactment or if me state in which the national bank operates authorizes state banks to sell tirle insurance. 22

I.

NATIONAL AsSOCIATION OF REGISTERED

AGENTS AND BROKERS

Title III of FSMA also sets forth a regulatory framework for uniform multistate licensing of insurance sales practices. 23 If a majority of the states do not establish uniform or reciprocal licensing provisions within a three-year period (as determined by the National Association of Insurance Commissioners ("NAIC")), then the National Association of Registered Agents and Brokers ("NARAB") would be established as a private, nonprofit entity managed and supervised by the state insurance regulators. The NARAB would provide a mechanism for uniform licensing, appointment, continuing education and orner insurance producer sales qualification requirements. State unfair trade practices and consumer protection laws, including counter-signature requirements, are prOtected from preemption. As a member of the NARAB, an individual would be entitled to licensure in each state for which the member paid the requisite fees, including licensing fees and, where applicable, bonding requirements.

J.

DEMUTUALIZATION

OF

INSURANCE

COMPANIES

For stares which have not established reasonable tcrms and conditions for the demurualization of mutual insurance companies, FSMA allows such insurance companies to redomesticate to another state and reorganize into a mutual holding company or stock company.24 FSMA preserves the state insurance regulator's authority to deny such redomestication upon the determination that the company's reorganization plan does nor meet certain reasonable terms and conditions.

K. OTHER

PROVISIONS

I. Auto Leases and Rental.

FSMA creates a federal presumption for a period of three years beginning on its enactment date, that no state law imposes any licensing, appointment or education requirements on any person who solicits the purchase of or

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sells insurance connected with and incidental to the lease or rental of a motor vehicle. 2S 2. Unitary S & Ls. Under FSMA, new unitary savings and loan holding companies are prohibited from engaging in nonfinancial activities or afFtliating with nonfinancial entities. FSMA does not restrict the rransferability of existing unitary thrifr holding companies. 26 3. PriV2CY. FSMA imposes a number of new restrictions on the ability of financial institutions 10 share nonpublic personal information of irs customers with nonaffiliated third parties. 27 The Act requires financial institutions to establish privacy policies and disclose them annually 10 all their customers. 28 FSMA also allows bank customers to "opt-out" of sharing his or her nonpublic personal information with nonaffiliated third parties, subject to limited exceptions. Under FSMA, it is a federal crime, punishable by up to five years imprisonment, to obtain or attempt to obtain or cause to be disclosed or attempt to cause to be disclosed cuStomer information of a financiaJ institution through fraudulent or deceptive means. 29 4. FHLS Reforms. FSMA reforms me Federal Home Loan Bank System ("FHLS") in severaJ important ways. MandatOry FHLS membership for federal savings associations is eliminated in lieu of voluntary membership.30 Also. small bank members are given expanded access to FHLS advances)1 Under the Act, community banks (banks with rotaJ assetS less [han $500 million) will be able use long-term FH LS advances for loans to

smaJl businesses, small farms and small agri businesses and will also be able to collateralize FHLS advances with small business and agricultural loans or securities representing a whole interest in such loans. FSMA also modifies the governing s£TUc£ure of the FHLS to give more authority to the regional FH LS banks. 5. ATM Fees}' FSMA requires ATM operators who impose a fee for use of an ATM by a non-customer to POSt a notice on me machine and on the screen that a fee will be charged and me amounr of me fee. A notice is required when ATM cards are issued that surcharges may be imposed by orner parties when transaaions are initiated from ATMs nor operared by me eard issuer. 6. CRA Agreements and Exams." FSMA requires me full public disclosure of all eRA related agreements between an insured depository insti£ution or affiliate and a nongovernmental entity or person. FSMA also grants regulatory relief to small banks and savings and loans (those with no more than $250 million in assets) regarding the frequency of CRA exams.

L. CoNCLUSION FSMA, ineluding Section 731, proceeds on the common sense assumption that money is money, investments are investments, insurance is insurance, and Americans want to obtain them aJl as conveniently and cheaply as possible. Down at the counting house. things will never be the same.oO>

END OTES I. Grunm-l.<ach-Bliley Act, Pub. L o. 106102, 113 S[at. 1338 (1999). 2. Tit. I(A) sec. 103 at 1342, Bank Holding

Company Act §4(k).

3. !d. at 1343. 4. The Federal Reserve, in coordjnation with the Secrecary of the Treasury, determines what activities meet these criteria. lit. I(A)

5. 6. 7. 8. 9. 10. II. 12. 13. 14. IS. 16.

17.

18. 19. 20. 21. 22.

sec. 103 at 1342, Bank Holding Company Aa §4(k)(a). Tit. I(A) sec. 103 at 1343-45, Bank Holding Company Aa §4(k)(4). Tit. I(A) sec. 103 at 1346, Bank Holding Company Act §4(1). Tit. I(A) sec. 103 at 1347, Bank Holding Company Aet §4(m). Tit.I(B) sec. III at 1362-66, Bank Holding Company Act §5(c). Tit. I(C) sec. 121 at 1373-81, Ti[. UGI(I) U.S. Revised S[3lUtes §5136A(a). Tit. I(C) sec. 121 at 1373, Tit. UGI(I) U.S. Revised S[3lU[es §5 I36A(a)(2). Tit. I(C) sec. 121 at 1373-4, Tit. UGI(I) U.S. Revised S[3lUtes §5136A(a)(2)-(3). Tit. I(C) sec. 121(a) at 1377-8, Tit. UGI(I) U.S. Revised StalUteS § 5136A(g)(3). Tit.I(C) sec. 151 at 1384, Tit. UGI(I) U.S. Revised Statutes §5 136(7). Til. I(C) sec. 121(d) at 1380-1. Tit. I(B) sec. 114 at 1369-71. Tit. II (A) sec. 201-202 at 1385-91, Securities Exchange Act of 1934 §3(a)(4)(5). lit. II(C) sec. 231 at 1402-07, Securities Exchange Act of 1934 § 17(i)-0). Tit. III(A) Sec. 301 at 1407. Ti[. I(A) sec. 104 at 1352. Tit. I(A) sec. 104(c)-(d) a< 1352-59. Tit. III(A) sec. 303 at 1408-9. !d.

Bank On It Continued on Page 28

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fol. l~ No. lfSullrr 2000

• • •

founder passed the bar over a century ago. We've been raising it ever SInce. • •• In celebration of our lOOth anniversary, Wright. Lindsey & Jennings would like to e>..-press Ollr sincere appreciation to those who made this milestone possible - Ollr clients. You are an integral part of our history, one to which we will remain committed as we respond to

the demands of a changing world.

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Bank On It Continued from Page 26 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

Tit.III(C) sec. 316-36 at 1422-34. Tit. III(B) at 1417-22. Tit. III(D) at 1434. Tit. IV at 1434-36. T;t. V(A) at 1436-45. Tit. V(A) sec. 503 at 1439. Tit. V(B) sec. 523 at 1448. Tit. VI sec. 603 at 1450-51. Tit. VI sec 604 at 1451-52. Tit. VI I(A) at 1463-1465. Tit. VlI(B) at 1465-70.

Habeas Corpus Continued from Page 21 record on appeal. Hence, in our example Allen had until mid-August to hie his federal habeas case and his July 14, 1999, date

satisfied the requiremems of the limitation period. SUMMARY Unlike in the movies, the vast majority of

petitioners will nor be released via a habeas corpus petition. The already imposing odds against a federal habeas corpus petitioner worsened with the passage of AEDPA, and close attention to the time requirement and the computation issues is necessary to avoid

an early dismissal of the case.$

ENDNOTES I. See emer v. Raffirty, 621 ESupp. 533 (D.CN.). 1985) and enrter v. Raffirty,826 E2d 1299 (3rd Cir. 1987). 2. 28 U.s.C, 2244(d)(l)(A). 3. 28 U.S.C' 2244(d)(l)(B-D). 4. 28 U.s.C, 2244(d)(2). 5. Houston v. Lack, 487 U.S. 266, 273-276 (l988); Ford v. Bowmox, 178 E3d 522, 523 (8th Cir. 1999). 6. Haines II. Kerner. 404 U.S. 519, 520-521 (1972). 7. 28 U.S.C' 2244(d)(l)(A). 8. Smith lJ. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998); Nichols I). Bow~rsox, 172 F.3d 1068,1072 (8th Cir. 1999). 9. Arkansas RAP-Crim 2(a)(I). 10. Grav~s v. Boon~, No. 99-7013, 1999 WL 1079626 (lOth Cir. Nov. 30, 1999); Zamora v. Lemmter, No. 99-2092, 1999 WL 997008 (lOth Cir. Nov. 3, 1999); Hullum v. Maloney, No. 99-1184, 1999 WL 1338078 (1st Cir. Sept. 16, 1999); 7illiani v. Chrans, 189 E3d 597 (7th Ci" 1999); Parkey v. Boone, No. 99-6056, 1999 WL 527731 (10th Cir. July 23, 1999); Rhine v. Boone, 182 E3d 1153 (lOth Cir. 1999); Libby v. Magnuson, 177 E3d 43 (I st Cir. 1999); Osborne v. Boon~, No. 99~7015, 1999 WL 203523 (10th C;r. Apr. 12, 1999); Dailey v. SafJk, No. 98-6287, 1999 WL 13038 (10th C;r. Jan. 14, 1999); Flanagan v. Johnson, 154 E3d 196 (5th Cir. 1998); Diaz v. Calelka,

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23. Ciria v. Cambra, 1998 WL 823026 (ND.CaI., Nov. 10, 1998) and Thomm v. Straub, 10 ESupp.2d 834, 836 (E.D.Mich., 1998), both express doubts over applying the limitation period where the petitioner is actuaJly innocent.

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No. 97-4158,1998 WL 544409 (lOth Cir. Aug. 27, 1998); and Miller v. Marr, 141 E3d 976 (lOth Cir. 1998). 11. See, e.g., Rhin~ v. Boon~. 182 F.3d 1153, 1154 (10th Cir. 1999); Miller v. Marr, 141 E3d 976, 978 (lOth C;r. 1998). 12. United Sraus v. Valdez, 195 E3d 544 (9th Cir. 1999); Willis v. Scott, No. 98-6427, 1999 WL 33970 I (10th Cir. May 28, 1999); Libby v. Magnuson, 177 E3d 43 (1st Cir. 1999); and Flanagan v. Johnson, 154 E3d 196 (50' Cir. 1999). 13. United Staus v. Valde.. 195 E3d 544, 546548 (9th Cir. 1999). 14. Sima v. Evam, 162 E3d 1174 (Table, Text in Wesdaw), Unpublished Disposition. 1998 WL 712578, 98 CJ CAR. 5305 (10th Cir. (Okla.), OCt. 13, 1998). 15 28 U.s.C& 2244(d)(2). 16. See, e.g.• Bmn~tt v. Artuz. F.3d, (2nd Cir. 1999). 17. Dictado v. Ducharm~. 189 F.3d 889, 892 (9th Cir. 1999); see, also, Tink~r v. Hanks, 172 E3d 990, 991 (7th Cir. 1999). 18. Bargo v. Lockhart, 279 Ask. 180,650 S.W2d 227 (1983) (the only issues cognizable in a state habeas proceeding are: (I) is the petitioner in custody pursuant to a valid conviction?; and (2) did the convicting court have jurisdiction?) 19. Moorev. Unit~dStatt!s,173F.3d 1131, 1134 (8th Cir. 1999). 20. Caltkron v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cit. 1997) (quoting Alvara.-Machian v. United States, 107 F.3d 696, 70 I (9th Cir. 1997). 21. Taliani v. Chram, 189 E3d 597 (7th Cir. 1999). 22. See, e.g., Toms v. Miller, 1999 WL 714349 (S.D.N.Y. Aug. 27, 1999) (petitioner's claim that limitation period should be tolled because he was legally blind and 'temporarily insane' denied due to lack of medical evidence).

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Ron Harrison - A Man with a Mission By Connie Moring

B

efore I begin this areide, please let me start by making something perfectly clear. I know what you may be thinking. You may be thinking. "This is going CO be one of those fluffY, flattery-filled articles where the author paints a picture of the perfect president with rambling tributes and an endless cascade of niceties - because it's her job. That is what she is paid [0 do." Well, you probably have the fluffY pan right - to some extent, and you'll certainly see what I hope can be considered a suitable tribute (I'll try to keep the rambling to a minimum). However, if you think the "niceties" contained within this anicle are motivated by anything but sincerity [0 describe Ron Harrison in the truest light (as I understand him), then you are mistaken. Having said that, if those of you still reading will join me, 1 would like co introduce you to our President, Ron Harrison ... When conducting this interview with the then Ptesident-Elect, I did the typical "scoping Out" of his office as we visited. As much as I would like to avoid making the cliche "this man is just like his office" equation. I simply cannot. What I see in Ron IS absolutely parallel to the environment III which he works. Comfortable. friendly. inviting. warm, serene. By golly! This man is just like his office! I hastily jotted down the descriptive terms as I took a look around only to realize Ron has surrounded himself with an atmosphere that directly reflects not only who he is, but an atmosphere that is essential to the way he relates to cliems. "I want my office to feel friendly," Ron says. "So often when clients come in, they are already tense or frustrated about their situation. I try to make them feel more comfortable so we can get down to the business of solving their problems." Ron is a self-described "smaJI town lawyer". Sitting in his favorite burger joint

having lunch, 1 noticed greetings come at Ron from all directions - they all know him. Even his firm's office building seems to reflect Ron's general style - it is a lovely brick building wtapped around a New Orleans-style courtyard - a place of serenity in the middJe of the downtown Fort Smith construction chaos. And in his office, a fireplace, photos of his family and friends, a

lovely scene sketched by his daughter framed and hanging prominently on the wall. It is all so.... real. So genuine. Genuine. An attribute that, in all its scarcity today, should be celebrated. Come on now, be honest. When was the last time it was truly a pleasure to meet someone? We say it quite often, but how often do we mean it? Having had a chance to get to know Ron

Top Right: Ron, his wife Rebecca and their son, Brandon. Inset at Right: Ron and Rebecca's daughter, Susan, and her husband Jim. At Left: At his desk in his Ft. Smith law office, Ron patiently poses for pictures.

fol.lilo.l/Sommcr mo

Thc ,Irkaosas I,a"ycr

II

THE CHRONICLE OF RONALD

and meet mOSt of his immediate family, 1 can say I know how it feels - r~ft~shing. In a society where "high-maintenance" and "egocenrric" are too often the mosr appropriate descripdve terms, it is refreshing to make the acquaintance of a family thar approaches their lives and their relationship with one another with such genuineness. Here you have a successful man, a caring and equally successful wife and two children with juSt the righr combination of idealism and ambition. It seems understated to sum up in so few words something ir took Ron and Rebecca thirty-plus years to build. Their secret? No secrer really. JUSt something too many folks have lost touch with. Devotion. Or to put it more succinctly: a state of being "connected at the hip" - a phrase I used and Ron endorsed. Quite simply, Ron and Rebecca arc connected at the hip. "We [Ron and Rebecca] spend time doing things we can do together," he says. "We don't have any interest in spending a whole lot of time apart." That also goes for twins Brandon and Susan, Ron and Rebecca's children. AJthough many miles separare them, you could say they are colJectively connected at the proverbial hip. Need 1 say it again?

Refreshing! Ron may be, in my opinion, a big softy, but make no mistake, there is nothing soft abour the way he approaches his work, his profession and [he duties he intends to fuJfiJi as President. This is a man with an agenda, and we would all do well to keep tha[ in mind because it is going to take dedication from all of us to see Ron's vision through. He approaches the office of President fully understanding that the initiatives set in motion by previous prcsidenrs must be carried through. Amendment 3, promoting a higher level of professionalism among attorneys, combating society's negative perception of the profession, and establishing a lawyer assistance program. Ron Harrison Continued on Page 35

11

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D.

lIARRISON

Ron Harrison was born in Little Rock opportuJ11t1es. Susan lives in Holly, and spent [he firs< seven years of his life Michigan with her husband Jim Riffel (the living part of the time in town and part of name may sound familiar, he is the son of the time in the country - due to the nacure Kirby Riffel, an attorney in Pochahanras). of his father's job at the time. The Susan, a graduare of OkJahoma University, "country" Ron refers to was accually me is an adoption counselor with the Humane Geyer Springs area where mOSt of his Society in Holly, and Jim is an industrial extended family also resided, and the engineer with General Motors. And as "town" extended only to Asher. Rebecca puts it, "We don't have "I used to sit in my yard and , - - - - - - - - - - , grandchildren, but we do have watch them pave the 'New cwo grandcats!" Benton Highway'. After mat For the first 12 years our was complered, I had to go of law school, Ron and his through a culvert ro get to my friend, and law school classmate, relatives' houses on the orner side Mark Hewett were in practice of the highway," Ron recalls. rogcther. "We basicaJly hung a When Ron's father was shingle and started from discharged from the military due scratch," Ron says. to an injury received in World Mark later became a War II, his father was trained via j judge with Ron serving as chair the GI Bill in me sale of dental for the campaign. Ron went on equipmenc and supplies. His father then to Jom his current law firm, Ledbetter, purchased a demist supply and equipment Cogbill, Arnold & Harrison, defending business in Fan Smith, and at the age of medical malpractice and asbescos cases and seven, Ron moved. handJing business litigation. Rebecca is a Ron remained in Fort Smith until he legal secretary with the Gilbrern Law Firm, attended college. He received his Bachelor a plaintiff's law firm in Fon Smith. ofArts degree at UALR. He then moved to Although most of his family remained in Fayetteville to complete his Masrer of Arts the Little Rock area, Ron and Rebecca's Degree and Juris Doctorate ar the mothers live in Fort Smith and Ron has University of Arkansas. one sister who also lives in Fort Smith with I[ was in IO[h gtade English class [hat het fanlily. When the twins were young, Ron was a Ron met his wife, Rebecca Langston. As the story goes, Ron sat in front of Rebecca "den mother" for Bra.ndon's scout croop in class, and due to a knee problem, and a coach for Susan's sofrball team. Ron Rebecca needed to scretch out her leg while truJy enjoyed scouring and continued to sitting in her desk. Ron wouJd reach down serve on committees and boards even after ro get a book and "inadvertently" couch her Brandon left it. It was scouting that got the leg. That's how they got acquainted a.nd family into camping - the real kind of also how Ron ended up giving Rebecca the camping - "roughin' it". Ron and Rebecca nickname "Legs Langsron". They were high still go camping cogether with friends and school sweethearts and married one year other couples. They also enjoy gardening, our of high school - that was 31 years ago. hiking and visiting the cabins at Devil's Ron and Rebecca both use the same phrase Den when time allows. They definitely to describe their relationship over the 31 want to get back to setting aside more years, "We have grown up together." recreational time, although Ron admits it is Later came the twins, Brandon and going to be a little while before he can Susan. Brandon is going into his second swing it. year of law school at University of Arkansas This year Ron celebrates his fifth year in Fayetteville - although, he never would following treatmenr for lymphomatous have guessed that would be where he ended cancer - Hodgkin's disease. It goes without up. Brandon graduated college with a saying, we're happy to have him with us. degree in psychology, and afrer careful Ron has a very busy year ahead of him, bur consideration, he decided co take on law he's ready for the challenge - another school as a way of broadening his career chapter in his chronicle.

RON SAYS IT'S A FORT SMITH "MUST SEE"!

Fort Smith National Historic Site asked Ron if he had any locations in Fort Smith that he would like to highlight as parr of this article. Without hesitation. he said, "Judge Parker's Courccoom!" It cook a little bit of finagling to gain access because the Fon Smith National Historic Site where the counroom is located was still under heavy construction at the time. But thanks to the cooperation of Julie NOfrhrip, a Park Ranger with the National Park Service, we wefe able to don hard hats and get a sneak peek at the site during irs renovation. The Fon Smim National Hiscocic Site, located in dowmown Fort Smith, embraces the remains of two frontier forts and the nineteenth-century Federal Court for the Western District of Arkansas. The site commemorates a phase of America's westward expansion and stands today as a reminder of the 80 curbulem years in the hiscory of Federal Indian policy. The park's building has served many purposes. The FederaJ Coun moved inco the former army barracks in 1872, using it as a courthouse and primitive jail - the "Hell on the Border" jail to be exact. In 1887, a new jail was constructed adjacem ro the courthouse. With the recent rehabilitation project, the historic barracks/courthouse/jail building has been converted imo an expanded visitor cemer. The renovated building has a theater, information desk, elevator and stairs, resrrooms, a multi-purpose classroom/exhibit space, bookstore and five exhibit areas. The new exhibits focus on Fort Smith's military history from 18171871, Judge Isaac C. Parker and the Federal

I

Court's impact on Indian Territory, U.S. deputy marshals and outlaws, Federal Indian policy and Indian Removal including the Trail of Tears. In the main exhibit area, a partial, fuJi-sized replica of the 1890s jail imerior has been built using the original historic blueprints. (It's really neat!) JUDGE ISAAC

C.

PARKER

The Federal Coun for the Western District of Arkansas had criminal jurisdiction over the Indian Territory as well as western Arkansas, and it was from the Indian Terrirory that most of its cases came. Many of the most desperate criminals in the United States sought and found sanctuary there from arrest and extradition. The court, supported by the U.S. deputy marshals, was the only buffer between this lawless element and the TerritOry's peaceful CItizens. The man who presided over this coun ftom 1875-1896 was Judge Isaac C. Parker, who possessed a sound legal background, total honesty and dedication to the job and a sense of fair play toward the Indians. During his years as judge of the Federal Court for the Western District of Arkansas, Parker was a tireless, incorruptible defender of justice and a strong supporter of Indian tights. He had no illusions that he could obstruct the advance of white civilization, nor did he wam to, but he was determined that whatever fate lay in store for the Indians, they would not be set upon by ruffians operating outside the law. From 1875-1896, Judge Parker heard more than 13,000 cases, of which over

12,000 were criminal in nature. Of these, 344 involved the capital offenses of rape and murder for which the United States law demanded the death penalty upon conviction, and 160 were semenced to hang. Only 79 wete hanged, but these were cited by his critics as "proof" of Parker's severity. Parker has long been termed the "Hangin' Judge", but a little known fact is that he was actually opposed to the death penalty and invoked it only as a way of following the letter of U.S. law. Critics also failed take notice of the tremendous case load of the court and the savage nature of the crimes committed. Judge Parker told one reporter, "People have said that I am a cruel, heartless and bloodthirsry man, but.. .I have ever had the single aim of jusrice in view.... Do equal and exact justice has been my morto." The Fort Smith National HistOric renovation was scheduled for completion in late June, 2000 so it should be open to the public as you tead this. If this has peeked your interest in visiting this historic treasure - or revisiting it post-renovation, check Ollt the National Park Services' special website for the project at www.nps.gov/fosm/ or call Julie Northrip, Patk Ranget, at 501-783-

3961. Special thanks to Jltlit Northrip fOr 1m gm~rous assiJtanu. "This artick contains v~rbatim aurpts from th~ National Park Suvius brochur~ on th~ Fort Smith Historical Siu.

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Ron Harrison Continued from Page 32 These are all voluminous undertakings mat Ron has witnessed the birth of and intends to push on. "Ie is difficult to have leadership that revolves yearly. It's one of the greatest enemies of completing initiatives that span several years," Ron says. "1 see the value in these initiatives. 1 respect the leaders who put them in place. And I will see to it they [the projects] continue to move forward." Ron's initial plan was to focus solely on growing these projects. The lawyer assistance program is one of those projects in which Ron has been very closely involved. However, mere was one issue he couldn't turn his back on. He felt compel1ed to take a good hard look at me ugly monster we call "lack of diversity". Ron says, "Why do we not have a greater diversity in our membership? That is a question I intend to answer and a problem I will work to resolve." When me lightning bolt of the diversity issue struck Ron, he began his research. He has worked for the past year investigating what we can do to rum our grim statistics around. I will leave the details of Ron's plan for him to reveal, bur I can tell you this: he plans to combat the issue by assembling a commission to first pin point the exact nature of me problem and men look at how to take action and resolve it. As I noted earlier, many of the initiatives already in process will take years to complete - some are even ongoing and will never realize a defmite end. Ron believes the issue of diversity can be different. "Our organization is the right size to get together and make a change in one year," he says. "This isn't about tokenism. This is about making people feel welcome. If we remain focused on that truth, we will be successful." A tall order? Perhaps. Bur like I said, it is going to take dedication from all of us to make a difference in this association according to Ron's agenda. Lets back up a little bit and take a brief look at one of Ron's ongoing projectS - the lawyer assistance program. At the time this article was written, the proposed lawyer assistance program, a joint project of the Pulaski County Bar Association and the Arkansas Bar Association, was still under consideration by the Arkansas Supreme Court. Hopefully, even as yOli read this, the program has been approved and is beginning to rake a tangible form.

The idea of assisting lawyers, judges and

law students with drug, alcohol, emotional and psychological problems is something Ron takes very seriously. From what I discovered in chatting with Ron, he intends to demonstrate his intense devotion to this issue throughout his presidency. "1 see toO much alcohol-related conditioning in the lawyer culture," he says. "I also see how much damage can be done to a life and how much good can come from turning that life around." Ron's plan is ro lead by example and focus attention on the problem by the conspicuous absence of alcohol at bar functions he and Rebecca host. Earlier in the day, prior to our discussion regarding the lawyer assistance program, I made a commem to him while we were touring the Fort Smith Historical Site (see breakout box on page 33) mat in retrospect was kind of a humorous, foot-inmouth statement. Ron said it would be great to have the first Board of Governors meeting in the newly renovated Fort Smith National Historical Site facility - to which I replied,

s

"You know, they [me National Park Service] may nOt allow alcohol on the premises, and I don't know how that wilJ go over." His response: "We'll just have to see how that goes over, won't we." Even though r feel about twO inches tall having made my comment in the first place, Ron's point was duly noted. Ron makes it very dear that the intensity he demonstrates for the lawyer assistance program is not a manifestation of personal experience. "This is not a personal crusade. I am not some SOrt of a prude or ami-alcohol. I simply believe a greater impact for the new program can be made by taking this approach." Well, Ron certainly has a full plate as have many presidents before him. Hopefully, we can all support Ron and work with him to make positive changes and enhance the quality of membership across the board. All in all, it is going to be an interesting year in a hard-working fun-sortof-way. I look forward to the ride, Ron!.;.

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Realinic Jury Service Continued From Page 17 America (ATLA) • The Defense Research [n"irute (DRI) • The Federation of Insurance and Corporate Counsel (FlCC) The International Association of Defense Counsel (lADe) The International Academy of Trial Lawyers (lATL) • The Northern California Defense Association (NCDA) Who has been against the one-day/onetrial system? A few judges and clerks who believe that the change wiU create toO much "work" for them, or those who have not really had an opporruniry to become familiar with this practice and how it has improved the administration of justice in other states. If it works in Mississippi where the judges and clerks have given it wholehearted endorsement, then why would it not work in Arkansas? The states are similar in the composition of their rural and more populous court districts. Last year, before the legislative session began, ATLA's Legislative Committee set up a meeting with the Circuit Clerk's Association in Little Rock to which the state's circuit judges and the state's sheriffs were invited. A Mississippi circuit judge and circuit clerk spoke to this group about jury service. They did a commendable job in explaining the success and benefits from M.ississippi's institution of the one-daylonetrial system. The Arkansas Judicial Council has done the same, hearing from a Mississippi circuit judge about the huge benefits of reduced jury service and the other measures that have been instituted. In order to improve the image and the process of the Civil Justice system in Arkansas, it becomes the dury and responsibility of every lawyer in the state to educate his and her trial judge and circuit clerk about the success of the one-day/onetrial system in states around the nation. The Arkansas Trial Lawyers Association is actively working with the Arkansas Bar Association's Judicial Council Liaison and the Arkansas Judicial Council Education Committee in order to bring about these Improvements. AJI la\'''yers and legal organizations must work together to restore the American public's respect for its lawyers and legal system and especially so for trial lawyers and me civil trial practice. The jury system is a

fundamental right ensured in the constitucion of the United States and it is an essential and dynamic element in the American traditions of justice. To ensure that the jury system remains a vital part of our democratic structure inro the next century, courts and legislatures must be sensitive to the changing needs and expectations of the American people and individuals called to serve as jurors. Don't be against change simply because it represents a new way of doing things. Keep an open mind about these proposals and give them the same consideration you would a client's case or a trial. Let'S give these jury service proposals a chance. ENDNOTES 1. Boatright is a research associate at the American judjcarure Society and a Ph.D. candidate in political science at the University of Chicago. The American judicature Society pmmotes the effective administration of justice at all levels. To this end, Aj$ publishes the journal and other literature, conduet5 and disseminates empirical

research, produces educational programs, and maintains an information service. AjS operates the Elmo B. Hunter Citizens Center for judicial Selection. the Center for judicial Independence, and the Center for judicial Conduct Organizations. Its Board of Directors is comprised of State Supreme Court justices, St.ne judicial Conducr Executive Direcrors, Coun Administrators, Lawyers. State Trial judges, U.S. Attorneys, Law Professors, Private Business men and women, Court derks, and the Executive Vice President of the Board of Scate Farm Insurance.

Amendment 3 on November 7, 2000

• •

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landlordlcenant dispute by having two men arrested and jailed without any proper basis; improperly used judicial stationery for personal business; • used judicial staff members for personal errands and personal business while they were on the court payroll. In resolving this complaim. Judge Rogers generally denied any inappropriate conduct and denied having anyone jailed on an improper basis. She admined to using judicial statIonery for personal and unofficial purposes after so marking the correspondence. She also denied having intemionaJly violated the Code of Judicial Conduct but understands that some of her actions might have given the "appearance" of having violated the Code of Judicial Conduct. She sincerely regrets that the integrity of her judicial office may have been called into question. The Judicial Discipline & Disability Commission has nor had a fact finding or

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drowning in debt to earning a year, praclically overnight," he says. Most lawyers depend on referrals, he notes, 001 nOI one in 100 uses a referral system. "Without a system, referrals are unpredictable, and so is your income," he says. Ward has taught his referral system to more than 2,500 lawyers worldwide, and has written a new report, ....ow 10 S300,000

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============; NEED ASSISTANCE WITH APPEALS?

.:. .:. .:.

Judge John Jennings The Arkansas Judicial Discipline and Disability Commission met to consider whether to recommend the temporary suspension of Arkansas Court of Appeals Judge John Jennings. Currently there are driving while intoxicated, refusal to submit to a breathalyzer test. and driving left of center misdemeanor charges pending against Judge Jennings. The Arkansas

Judicial

Discipline

and

Disability

Commission decided nor to recommend suspension to the Supreme Court at this time because the judge will recuse in D. W.1. and aU similar cases before the Arkansas

Court of Appeals. The Arkansas Judicial Discipline & Disabiliry Commission will continue its investigation of the faCts and circumstances surrounding Judge Jennings being issued tickets for driving while intoxicated and for his refusal to submit to testing. During the investigation. the judge will continue to serve in his present capacity. In cases of this nature. the Arkansas Judicial Discipline & Disability Commission must review the pending charges against a judge. It must then determine if those charges adversely affect

the judge's ability to perform the duties of office. If the Commjssion determines that

the charges do affect the judge's ability to perform the duties of judicial office, the Commission muSt decide if a recommendation should he made to the

State and Fedetal Appeals

Supreme

Former Arkansas Supteme Court Law Clerk Wtiting Sample and References Available

temporarily suspended from office pending the outcome of the disciplinary determination.o

CAROLINE

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III. Ii 81. llililer 2000

Court

that

the

judge

be

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Probable Cause Hearing in this matter. As Judge Rogers is redring. no funher action will be taken on this complaim by the Judicial Discipline & Disability Commission.

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.Iudil'iill .hh¡isOI} Opiuions The Judicial Advisory Opinions are written and provided by Ihe Arkansas Judicial Elhics Advisory Commillee.

Opinion Supreme Court Justice Tom Glaze The Arkansas Judicial Ethics Advisory Committee issued and advisory opinion (Q Supreme Couct Justice Tom Glaze. He requested an opinion concerning when and how a member of the Arkansas Supreme Court may commem on a criminal case in federal district court in Arkansas when the media has widely reported on testimony concerning the action or inaction of membets of the Supreme Courr. The opinion states that a judicial statement concerning evems in dispute might be expected (Q affect che outcome or impair the fairness of the proceeding. which is expressly prohibited by the express language of me Code of Judicial Conduct. Judicial comment on pending criminal matters, no matter how presented, does not promote public confidence in the impartiality of the judiciary. The opinion goes on to state that commenrs are not appropriate even after the trial court proceedings are concluded. If appeals from convictions are pending, comment might impair the fairness, or the perception of fairness, of the proceedings. The opinion also acknowledges the frustration of judges when compeUed to remain silent when inaccurate and unfounded statements are made. The opinion notes that the conclusion reached permits misstatemems [Q be made, and implications to be drawn and widely reported and accepted or believed by the public, with out any possibility of timely response or correction. Any other citizen can stand up and say, "Let me tell the people of Arkansas my side of the Story." But a judge is not any other citizen. A judge must uphold the integtity of me judiciary, avoid all appearance of impropriety, and expect to be the subject of constant public scrutiny.

Opinion Municipal Court Judge Vietot A. Fleming

opinion m Vicmr A. Fleming, LinJe Rock Municipal Court Judge, Second Division. He requested an opinion concerning writing a letter m a sentencing judge at the request of a defendant, the defendant's attorney, or someone on his or her behalf The opinion states chat a judge should not write such letters as per Canon 2(B) of me Arkansas Code ofJudicial Conduct. Any such letter does lend the prestige of judicial office to advance the private interests of others, and therefore, the Commirree thinks that a judge should not write such leners.

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I 1.1. 11.1 I If I U. III. III Ilf III 11.1 III. III Ilf I U. III IIJ III. 11.1 IIJ III. 11.1

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1'11.li NI. llSII,m 2001

ne ,IrkllllJ Law!!r

·11

THE HONORABLE H. FRANKLIN WATERS â&#x20AC;˘ By Judge William R. Wilson, Jr.â&#x20AC;˘

"Franklin waters walks across the federal judicial state, trailing clouds of glory behind him. "

42

Tbe lrkmas Llwyer

fol.l5 NO.l/Soll!r 2iOO

f ever any parents raised children who followed the biblical admonition, "Honor they mother and they father" it is Jane and H. FrankJin Waters. In interviewing all three daughters for this article. they were enthusiastic in their affection for, and admiration of, their mamma and daddy. Melissa Waters, a lawyer with Williams & Connolly in Washington, stares thar she didn't have to look around for a professional role model because she had one right in her own home. One of President Andrew Johnson's supporters and admirers in Tennessee sajd, after he left office, "Andy never went back on his raisin'." Likewise, according to Melissa, the judge loves to reminisce about his raisin' down in rural southwest Sebastian County. The Waters' dwell on their farm in northwest Washington County. One of the things he is extremely fond of is that, for years, many of his neighbors in Washington County thought he was a "regular farmer", not realizing that he had

I

a day job at the federal counhouse. Daughter Melanie Bruner's first response to my call was "You wouldn't be writing about my Daddy if it weren't for Mamma. She has been his guiding force." She confirms that the judge is very proud of his "common roots". She also commends his perpetual good humor and wit. Furthermore. she reveals that he is a wonderful grandfather (for her three sons). Daughter Denise Waters, a selfemployed technical writer in Fayetteville, says, "Daddy is still a farmer at hean - if you want to know about a tree, he can identify it for you. He was an environmentalist before being an environmentalist was cool- he loves plants and animals and nature in general." In 1978, the Warers family suffered a grear rragedy in the loss of their oldesr daughter, Donna, in a car-train accident while she was a freshman at Hendrix College. Outside the courtroom, the judge is known as a quiet and unassuming person.

On the bench he generally appears to be laid back, bur is lighrning quick with a ruling, or in rare inscance when it is needed. and admonition. Procrastination, and occupational hazard for lawyers and judges, is foreign [0 his

me

naCUTe.

While his practice was generally in the casualty defense/corporate area, he did not carry any tilt in that direction when he switched from the bar (0 the bench. In facr, nor long alter he became a judge, lawyers from all ranks were singing his

praises. To quote from the Almanac of the Federal Judiciary (which quote lawyers): H. is a rop notch judg.... H. is probably as good as there is in the Judiciary... H. had a w.alth of trial

u.s.

friends with produce and honey. Jane is quick to point our that it is the distaff member of chis parrnership who does the really hard work with the bees (srraining the honey and putting it in jars). His wife and daughters point out that, despite his farm roots and affinities, he is a gadget Icing. He loves all types of mechanical and electronic equipment. In fact, Chief Justice Rehnquist appointed him to the Federal Judicial Conference's Committee on Technology and Automation where he served ten years. Jane suggests that you not let him take a picture of you with his digital camera un.less you want your mug to appear on the Internet. Jim Blair of Fayetteville - a former parmer and longtime friend of the judge's - says he has been the victim

of the Internet photo syndrome. Jim Cypert of Sprindale, anorher former parmer and former President of the Arkansas Bar Association, says, "Frank is just an alI around great guy, on the bench and off - he's a wonderful fellow." And this is from a man - Cypert - who doesn't laugh un.less he is tickled. Back to the law. It became obvious early on in Judge Waters' judicial career that he was going to call it down the middle, i.e. he was going to hue to the admonition from the Holy Writ: Be honest and just when you make decisions in legal cases; Do not show favoritism to the poor or fiar the rich (Lev. 19:15). In all, a picrure book judge.~

exp(Tience before he sat on the bmch... He is a wonderful judge... He is courteous to the jurors, to the lawyers. to the litigants, and to the witnesits. He is firm but courteous... He does not tolerate anything unprofasional..Ht can be a /ink lough on lawya who are unprepared He rMILy expects you to be prepared when you walk in... He has no patiena If people are unpr<par<d If they ar< pr<pami, though, he lets them try their cases. He expects lawym to play by th. ruks and to know th. ruks. Cod help yOli ifyoll don't. H.; a nononsense judge. These qumes are taken from a cross section of lawyers who represent plaintiffs and defendants in both civil cases and defendants in criminal cases. One lawyer I interviewed said, "Franklin Waters walks across the federal judicial state, trailing clouds of glory behind him." Another lawyer. asked to evaluate this observation, agreed with it, but thought that it should be emphasized that the judge walks quierly. In this pan of the country. any lawyer who ever spent as much as a week on his grandparents' hum when she or he was growing up is apt to wax: bucolic when relating childhood stories. Judge Waters' "country boy" claim is whoUy legitimate. He grew up on a farm near SlatonviUe in southeasr Sebastian County (with some of the land across the Oklahoma line) raising various crops and animals. It was one of those Great Depression farms where everyone in the family had to work from "can 'til can't" to get by. Today, Judge Waters is an avid gardener and beekeeper. He provides neighbors and

, I

Ifyou would like to submit

-

.....

an article or a topic suggestion... ~

Please forward your information to Connie Moring via fax at 5011375-3961 or e-mail at cmoring@arkbar.com fll. Ii XI. I/Slller 2001

ne ,lrkllllJ I.IWW

H

tan ~'lli' IIiSl'iplillill') .\I't inns The Lawyer DisC1iJ/illllry Actions are written and provided by the Supreme Court of Arkansas' Comminee on Professional COl/duel. ORDER OF DISBARMENT IN Rf" MICHAEL A. BELTRANI UlTLE ROCK, ARKANSAS MARCH 10, 2000 Attorney Michael A. Bdtrani. formerly of Little Rock, Pulaski Couney, Arkansas, with Arkansas Bar 10 #94071, has been barred from engaging in me practice of law in this Srare for violation of the Arkansas Modd Rules of Professional Conduct. On the recommendation of the Arkansas Supreme Coun Com mine!: on Professional Conduct. the Arkansas Supreme Court entered an Order of Disbarment of Michael A. Beltrani on May 25, 2000. The Comminee's Petition for an Order of Disbarment was based upon violation of Model Rules 1.3, 1.5(.), 1.l6(d), 8.4(e) and 8.4(d) of the Arkansas Model Rules of Professional Conduct. The Petition and arrached exhibirs on file with the Clerk of me Arkansas Supreme CoUrt, rdlc:cr that on May 2, 2000, the Circuit CoUrt of Pulaski County, Arkansas, entered a default judgment against Mr. Bcltrani. The Circuit Court found that Mr. Beltrani had been previously suspended from the practice of law on three different occasions. Mr. Beltrani's conduct involved being retained by Diane Skasick to obtain name changes and new social security numbers for herself and her three minor children. Mr. Bcltrani was paid but rook no action on behalf of Ms. Skasick. In addition, Mr. Bcltrani F.liled to return Ms. Skasick's documems to her. In determining the appropriate sanction, the Circuit Court considered Mr. Bdtrani's three previous suspensions from me practi~ of law in Arkansas for failing ro file a bankruptcy petition for adient afrer he was paid, for failing ro file a divorce action for a dient after being paid and for paying for a Conrinuing Legal Education seminar with a client trust account thar was found to be "nonsufficient".

PETITION TO SURRENDER UCENSE IN RE: GEORGE NlCHOLAS WILSON UlTLE ROCK, ARKANSAS MARCH 23, 2000 Anorney George Nicholas Wilson, an attorney residing in Little Rock, formerly pr2eticing law in Pocahontas, Randolph County, Arkansas, with Arkansas 6", ID #67058, has been permanently barred from eng:aging in the practice of law in this State for violarion of the Arkansas Model Rules of Professional Conducr. On the recommendation of the Arkansas

u ne !r~lIlil Ln]ff

I'll. Ii St. llSul/r !III

Supreme Couer Comminee on Professional Conduct, me Arkansas Supreme Couer accepred rhe surrender of the law license of George icholas Wilson on March 23. 2000. Anorney Wilson's Petition to Surrender was based upon violadon of Model Rules 8.4(.), (b) and (c) of the Arkansas Modd Rules of ProfessionaJ Conduct. The Petition and arrached exhjbirs on file with the Clerk of the Arkansas Supreme Court, reflecr mat me anorney was convicted in the United Scates District Court for the Eastern District of Arkansas, Western Division. of the criminal offenses of Conspiracy to Defr2ud the United States by Tax Evasion, a Class D. Felony, in violation of 18 U C Section 371, and Aiding and Abetting Tax Evasion, a Class D. Fdony. in violation of 26 USC Section 7201 and 18 USC Section 2. In addition. the ahibirs demonstCOlte that the attorney entered a plea of guilty to a Racketeering Act, in violation of 18 USC Section 1962(e), a fdony.

NOTICE OF SUSPENSION OF LICENSE IN Rf" HAROLD W. MADDEN CONWAY, ARKANSAS MAY 4, 2000 Harold W. Madden, Arkansas Bar ID #73074. an arrorney presently residing in Conway, Faulkner County. Arkansas. was convicted and sentenced, in the United States District Couce for the Eastern District of Arkansas, Western Division, to the criminal offense of Misprision of a Felony, a Class E Felony. in violation of 18 USC Section 4. On April 27. 2000. a Judgment in a Criminal Case was filed of record in the aforesaid criminal matter, a file marked copy of which is appended hereto. The Arkansas Supreme Court Comminee on Professional Conduct. upon presentation of a file marked copy of the judgment appended hereto found mat Harold W. Madden had been convicted of a fdony and directed that disbarment action be instituted pursuant to the mandate of Section 6B(I), Procedures of the Arkmsas Supreme Court Regulating Professional Conduct of Attorneys at Law, and that an interim suspension of Harold W. Madden's privilege t'O practice law under me authority of his Arkansas law license be imposed pursuant to Sections 7E(3)(a) and (b), and 86(1)(a) and (b) of the Procedures. It is therefore ORDERED that Harold W. Madden be, and he hereby is, SUSPENDED from the practice of law within this jurisdiction immediately upon the filing of this Order with

the Clerk of the Arkansas Supreme Coun.

IN Rf" JAMES R. NOBUN FORREST CITY, ARKANSAS MARCH 14,2000 The formal charges of misconduct upon which this Order is based arose from the Complaint of Willa Dean McDaniel and her husband. Ms. McDaniel employed Mr. Noblin on May 17, 1995. to pursue guardjanship of her grandchildren. Ms. McDaniel paid Mr. Noblin $350.00 at the time he was employed. Mr. Noblin also informed Ms. McDaniel that a filing fee of $70.25 would need t'O be paid t'O get the maner scarted. Ms. McDaniel paid the filing fee. Mr. oblin sem Ms. McDaniel a lener wherein he assured her that he would endeavor to keep her regularly informed of all pertinent developmenrs by sending copies of alileners and pleadings. In January 1996. Mr. oblin stated that he needed $50.00 to subpoena two witnesses, Kathy Hess and Adalean Smith. According to Ms. McDaniel, no subpoenas were issued to her knowledge. Probate Couer records showed nothing having been filed on Ms. McDanid's behalf while Mr. Noblin represented her. In the months folJowing January 1996, there arose a dispute between Ms. McDaniel and the grandchildren's guardian regarding life insurance proceeds from a policy insuring the grandchildren's deceased father. Ms. McDaniel went to Mr. Noblin to discuss the maner and was informed that she would need. to file suit to resolve the matter. Ms. McDaniel then paid $120.00 for filing fees in the matter. Ms. McDanid additionally paid $110.00 for court costs on October 7, 1996. and also paid Mr. Noblin $250.00 for attorney fees on the same day. It was brought to Ms. McDaniel's attention mat subpoenae needed to be issued in the matter to Boyce: Hill and lina Laurence. 0 subpoenae were. to Ms. McDaniel's knowledge. issued. Mr. oblin has not offered any reason for his lack of action nor has he returned any monies paid ro him for cosrs not incurred. Ms. McDaniel employed another atrorney in March 1997, who was able to file a petition on behalf of the McDaniels within a few months of employment. Mr. Noblin was provided with a copy of the formal complaint by ce:nified mail, rescricted ddivery on October 19, 1999. A response was due (Q be filed with me Execmive Director's office on or before November 8, 1999. No response was received and, as a result, pursuant to the Procedures of the Arkansas Supreme Court

till' ~·rl· Regulating Professional Conduct of Attorneys at

Law, Section 51(4), the faCtual allegations of the complain{ are deemed admitted. Upon consideration of the formal complaint,

the F.Ulure

IIisriplinill'~

.\rtions

IN It£, TIMOTHY WAYNE TILLMAN SHERWOOD, ARKANSAS MARCH 24, 2000

IN RE, GEORGE ROBIN WADLEY, JR. JONESBORO, ARKANSAS MAY 22, 2000

respond, and the Arkansas Modd

TIMOTHY WAYNE TILLMAN, Arkansas

GEORGE ROBIN WADLEY, JR., Arkansas

Rules of Professional Conduct, the Comminee on Professional Conduct finds: I. That Mr. Noblin violated Model Rule 1.3 when he failed to file a Motion to Intervene in their grandchildren's guardianship matters on

Bar 10 #99052, an attorney pracricing law primarily in Sherwood, Arkansas, entered a plea of guilty in Pulaski County Circuit Coun Case

Bar 10 #87180, an attorney pracricing law primarily in jonesboro, Arkansas, had a formal complaint considered by the Arkansas Supreme Court Committee on Professional Conduct on May 19, 2000. lt was the decision of the Committee that a disbarment anion be filed against Mr. Wadley as a result of the conduct contained in the above referenced formal complaint. Pursuant to the provisions of

to

behalf of the McDaniels during me time in which he was employed to represent them, May 1995 (Q March 1997, and failed ro pursue any action on behalf of the McDaniels despite continuing [0 ask for funds from memo Modd Rule 1.3 requires that a lawyer shalJ act with reasonable diligence and promptness In representing a client. 2. That Mr. Noblin violated Model Rule 1.4(3) when he failed to respond to the requests for information made from May 1995 to March 1997 by the McDaniels concerning the matters they believed he was pursuing. Modd 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. Noblin violated Model Rule 1.16(d) when he failed to surrender the papers and properry belonging to the McDaniels concerning their legal matters to them and when he failed to refund any advanced payment of fees which were not earned by him or any advanced coSts paid to him. Model Rule 1.16(d) requires, in pertinent pan, that upon termination of representation, a la"")'er surrender papers and property to which the dient is emided and refund any advanced payment of fee that has nOt been earned. 4. That Mr. oblin violated Model Rule 8A(d) when he failed to act on behalf of the McDaniels which resulted in an unnecessary and substantial delay in the pursuit of their rights and remedies. ModeJ Rule 8A(d) requires that a lawyer not engage in conduct that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committee on

Nos. CR99-3707, CR99 4327, and CR99-4686 on March 13, 2000, to three (3) counts of Knowingly Exposing Another Person (Q the Human Immunodeficiency Virus, a class A Felony; seven (7) countS of Terroristic Threatening, a class D Felony; one (I) count of Failure to Appear, a class C Felony; one (I) count of Absconding, a class D Felony; and one (I) count ofThefl: of Properry, a class 0 Felony. On March 17,2000, a judgment and Commitment Order was filed of record in the aforesaid criminal matter, a copy of which is appended hereto. The Arkansas Supreme Coun Committee on Professional Conducr (Committee), upon presentation of a file marked copy of the judgment appended hereto found that Mr. Tillman had been convicted of a felony and, with all members concurnng, directed that disbarment action be instituted pursuant to the mandate of Section 6B( I), Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys ar Law (Procedures), and that an interim suspension of Mr. liUman's privilege to practice law under the authority of his Arkansas law license be imposed pursuant to Sections 7E(3Ha) and (b), and 8B(I Ha) and (b) of the Procedures. It is therefore ORDERED thac TIMOTHY

WAYNE TILLMAN be, and he hereby is, SUSPENDED from the practice of law within this jurisdiction immediately upon the filing of chis Order with the Clerk of the Arkansas Supreme Court.

an interim suspension of Mr. Wadley's privilege to practice law under the authority of his Arkansas law License shall be imposed. It is therefore ORDERED that GEORGE

ROBIN WADLEY, JR. be, and he he<eby is, SUSPENDED from the practice of law within this jurisdiction immediarely upon the filing of this Order wirh rhe Clerk of the Arkansas Supreme Coun.

IN RE, GEORGE NICHOLAS WILSON UTILE ROCK, ARKANSAS FEBRUARY 28, 2000 George Nicholas Wilson, Arkansas Bar 10 #67058, an attorney presently residing in Lirtle Rock, Arkansas, was convicted and sentenced, in the United Stares District Coun for the Easrern District of Arkansas, Western Division, ro the criminal offenses of Conspiracy to Defraud the United States by Tax Evasion, a Class D Felony, in violarion of 18 USC Section 371, and Aiding and Abetting Tax Evasion, a Class 0 Felony, in violation of26 USC Sections 7201 and 18 USC

Section 2, Case No. 4,99CR00061-001 GH. On February I B, 2000, a judgment in a Criminal Case was filed of record in the aforesaid criminal

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Professional Conduct that JAMES R. NOBLIN, Arkansas Bar ID #88144, be, and hereby is, SUSPENDED from the practice of law for three (3) months for his conduct in this matter. In addition, the Committee has imposed a fine of $250.00 for his failure (Q respond (Q the formal complaint, pursuant to Secrion 8 of the The suspension shall become Procedures. effective upon the filing of this Order.

Seetions 7E(3Ha) and 8B(lHa) of the Proeedures,

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

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email: schwartz@busvalu.com f8l.l~ X,.l/Slller

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j~

till' )'(11' nisriplinill')' 1ft ions maner, a file marked copy of which is appended hereto. The Arkansas Supreme Court Comminee on Professional Condun, upon presentation of a file marked copy of the judgmenr appended hereto found that Mr. George Nicholas Wilson had

been convicted of a felony and directed that disbarrnenr action be institured pursuant ro the mandate of Section 6B( I), Procedures of the Arkansas Supreme Court Regulating Professional Condun of Anorneys at Law, and that an interim suspension of Mr. George Nicholas

Wilson's privilege to practice law under the authority of his Arkansas law license be imposed pursuant to Sections 7E(3)(a) and (b), and 88(I)(a) and (b) of the Procedures. It is therefore ORDERED that GEORGE NICHOLAS WILSON be, and he hereby is, SUSPENDED from the practice of law within this jurisdiction immediately upon the filing of this Order with the Clerk of the Arkansas Supreme Coun.

NOTICE OF REPRIMAND IN Iffi KENNEIlI GERAlD BRECKENRIDGE

HOT SPRINGS, ARKANSAS MAY 23, 2000

Jack Davis

Sid McCollum

Bob Hornberger

Frank Hamlin

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fbI ,\rkmlll,I~Ter

fol.lj NO.l/Soller 1000

The formal complaint of misconduct arose from the complainr of Marilyn Ruth Crowe. Ms. Crowe employed Mr. Breckenridge, an anomey practicing law primarily in Hot Springs, Arkansas, for the purpose of obtaining an adoption of her children by her husband. Mr. Breckenridge informed Ms. Crowe that his fee would be $300.00 plus $100.00 for coun fees. Ms. Crowe paid Mr. Breckenridge $400.00 on April 16, 1999, and gave (Q him her and her husband's marriage license and her children's birth certificates. Mr. Breckenridge srated (Q Ms. Crowe that he would take care of the marrer in the following rwo weeks. After waiting for nearly twO months, Ms. Crowe experienced difficulties in contacting Mr. Breckenridge to check on the status of her matter. Calls made to Mr. Breckenridge's office were nOt returned. Mr. Breckenridge was served with the formal complaint, pursuant to Seerion 5E, Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law, on October 29, 1999. Mr. Breckenridge failed ro respond to the formal complaint. His failure ro respond timely to the formal complaint constitutes admission of the factual allegations conrained therein pursuanr to Section 51(4) of the Procedures. Upon consideration of the formal complaint and the Arkansas Model RuJes of Professional Conducr, the Comminee on Professional Conduct finds: 1. That Mr. Breckenridge's conduct violated Model RuJe 1.3 when he failed to take any action on behalf of Marilyn Ruth Crowe, his diem, and when he failed to return Ms. Crowe's telephone calls in a timely manner. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Breckenridge's conduct violated Model Rule 1.4(a) when he failed to keep his

l,il\\JPI' dient, Marilyn Ruth Crowe. informed of the status of her legal matter despite her requests. Model Rule 1.4(01) requires that a lawyer keep a client informed about the starns of a matter and promptly comply wim reasonable requests for information. 3. That Mr. Breckenridge's conduct violated Model Rule BA(d) when he failed to take appropriate action in Marilyn Ruth Crowe's legal matter which resulted in unnecessary delay to her case. Model Rule BA(d) requires that a lawyer nor 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 KENNETH GERALD BRECKENRIDGE, Arkansas Bar ID 0.84015, be, and hereby is, REPRIMANDED for his conduct in this maner.

IN RE, JAMES O. CLAWSON UTILE ROCK, ARKANSAS MARCH 10, 2000

The formal charges of misconduct arose from the Arkansas Suprcme Coun case ofJames Kirby v. Statc of Arkansas, CR 9B 1442, and the Affidavit of James Kirby. James O. Clawson, an attorney practicing in Little Rock, was held in contempt of court by me Arkansas Supreme Coun on September 9, 1999, for his failure to appeal his client's conviction. Mr. Clawson represented Mr. Kirby in his trial COUrt proceedings. Following his conviction on May 13, 1997, Mr. Kirby requested mat Mr. Clawson appeal his conviction. Mr. Kirby did so on at least mree occasions. Despite the requesrs, Mr. Clawson never filed a Notice of Appeal on Mr. Kirby's behalf, nor did he ever take any steps on behalf of Mr. Kirby to perfect his appeal. In addition, at no time did Mr. Clawson ever request mat the Court allow him to be relieved from representing Mr. Kirby. Mr. Clawson did file a motion for reconsideration for Mr. Kirby but no appeal. Because Mr. Clawson did nOt pursue the appeal, Mr. Kirby contacted other counsel to assisl him. On several occasions Mr. Kirby's new counsel attempted to obtain all of Mr. Kirby's files and papers from Mr. Clawson. Mr. Clawson did not comply wim me requests even though he was provided a release to do so. Finally, Mr. Kirby's new counsel filed a Morion for Belated Appeal which was granted after the trial court determined that Mr. Clawson was aware of Mr. Kirby's desire lO appeal his conviction. Upon consideration of the formal complaint, the response herein, and the Arkansas Model Rules of Professional Conduct, the Committee

Ilisriplinill} .\I't inns

on Professional Conduct finds: I. That Mr. Clawson's conduce violated Model Rule 1.1 because knowing when representing a convicted defendant who wishes to appeal, he must either file a notice of appeal or obtain permission from the court to withdraw as counsel, he F.tiled to do eimer. 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. Clawson's conduct violated Model Rule 1.2(01) since one of the objectives of his representation of Mr. Kirby was to pursue an appeal of his conviction, and he failed to take any steps to perfect an appeal for Mr. Kirby. Model Rule 1.2(01) requires that a lawyer abide by a c1iem's decisions concerning the objectives of representation, subject to paragraphs (c), (d), and (e), and consult with me client as to the means by which mey are to be pursued. 3. That Mr. Clawson's conduct violated Model Rule 1.3 when he failed to file a Notice of Appeal or take any steps to pursue an appeal in Mr. Kirby's behalf causing a substantial delay in his desired appellate proceeding. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a cliem. 4. That Mr. Clawson's conduct violated Model Rule 1.16(d) when Mr. Kirby notified Mr. Clawson that me attorney's representation of him was terminated, Mr. Clawson failed to deliver Mr. Kirby's files and papers to his designated agent. Model Rule 1.16(d) requires, in pertinent part, mat upon termination of representation a lawyer surrender papers and property to which me client is entitled. 5. That Mr. Clawson's conduct violated Model Rule 3A(c) since he was required to file a Notice of Appeal or to obtain permission to withdraw once Mr. Kirby notified him of his desire to appeal, but he failed to do so. Model Rule 3.4(c) requires that a lawyer not knowingly disobey a.n obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. 6. That Mr. Clawson's conduct violated Model Rule BA(d), to wit: (i) me timely and orderly administration and resolution of Mr. Kirby's appellate proceeding has been substantially delayed by the anorncy's lack of action in the matter; (ii) his failure to timely pursue an appeal on Mr. Kirby's behalf made it necessary for the Arkansas Supreme Court to hold a show cause hearing related to his conduct; (iii) lhe Court has been required to expend addilional time and effort which would not have been necessary but for his failure to pursue an appeal on behalf of Mr. Kirby as requested; and

(iv) me timely and orderly administration and resolution of appellate proceedings have been delayed because of the ongoing proceedings necessary due to his failure to pursue an appeal on behalf of Mr. Kirby. WHEREFORE. it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that JAMES O. CLAWSON, Arkansas Bar ID #90219, be, and hereby is, REPRJMANDED for his conduct in this matter.

IN RE, RANDALL WAYNE OrxON DARDANELLE, ARKANSAS MAY 5,2000

The formal charges of misconduct upon which this Order is based arose from the Complaint of Frank W Askew. During April 1997, Mr. Askew filed a complaint in the United States District Court alleging violations of his civil rights by various law enforcement officials. On November 9, 199B, Mr. Askew's court appointed attorncy was relievcd by the Districl Court Judge and Randall Wayne Dixon, an attorney practicing primarily in Dardanelle, was appointed to represent Mr. Askew. Mr. Dixon was afforded fifteen (I 5) days in which to make written application to wimdraw, but he did not do so. Because he did nOt do so, his appointment became final and effective. Mr. Dixon did not conran Mr. Askew after he was appointed to represent him. A Scheduling Order was entered in Mr. Askew's legal matter on January 22, 1999. The Scheduling Order provided that discovery was to be completed by March 19, 1999. Since Mr. Askew had received no communication from Mr. Dixon, he anempted to file his own discovery motions. These pro se motions were objected to by the opposing party. As a result of the objection, Mr. Askew was ordered not ro file any additional pleadings. Mr. Dixon did not respond to the objection nor to the Judge's Order. Likewise, he did not comply with the deadlines in the Judge's Scheduling Order. On May 26, 1999, me District Court Judge entered an Order instructing Mr. Dixon to file a pleading explaining his lack of adherence to the Court'S Orders in Mr. Askew's litigation. Mr. Dixon filed his pleading on June 14, 1999. Within the body of me pleading, Mr. Dixon admined that he had nOl met me procedural deadlines placed in the litigation by the Court. Following receipt of the pleading by Mr. Dixon, the Judge ordered lhal Mr. Dixon file a Motion to Wimdraw which he did. The Motion was granted on August 26, 1999. During the nine (9) months that Mr. Dixon was appointed to represent Mr. Askew, he filed no pleadings on behalf of his client and took

I'ol.li So.l/S.m.rr tODD He ,Irkmal LallJrr

17

till' )1'1' no action to further his litigation. Mr. Dixon was served with the formal complaint, pursuant {O Section 5ÂŁ, Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law, on December 8, 1999. Mr. Dixon failed to respond to the formal complaint. His failure to

respond

timely

(O

the formal

complaint

conscirutes admission of the facruaJ allegacions contained therein pursuant to Section 51(4) of the Procedures. Upon consideration of the formal complaint and the Arkansas Model Rules of Professional Conduce, the Comminee on Professional Conduct finds: I. That Mr. Dixon's conduct violated Model

Rule 1.1 when he failed to take action on behalf (0 represent him by CoUrt Order on November 8. 1998. Model Rule 1.1 requires, in pertinent pan, that a lawyer provide competent represenrn.tion to a client including the thoroughness and preparation reasonably necessary for the representation. 2. That Mr. Dixon's conduct violated Model Rule 1.3 when he failed to comply with the time deadlines set by the Scheduling Order in Mr. Askew's lawsuit and when he failed to take action to promptly pursue the relief Mr. Askew sought during the period of time Mr. Dixon was Mr. Askew's court appointed attorney. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 3. That Mr. Dixon's conduct violated Model Rule 1.4(a) when he failed (O contact Mr. Askew or provide him any information concerning the representation from November 1997 through August 1998. Model Rule IA(a) requires, in pertinent part. that a lawyer keep a client reasonably informed about the status of a matter. 4. That Mr. Dixon's conduct violated Model Rule 8A(d) since there was a substantial delay in Mr. Askew's civil litigation because of Mr. Dixon's failure to take action on Mr. Askew's behalf. Model Rule 8A(d) requires that a lawyer not engage in conduct that is prejudicial {O the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that RANDALL WAYNE DlXO , Mkansas BM ID #83052, be, and hereby is. REPRIMANDED for his conduct in this mauer.

of Mr. Askew after he was appointed

ltisriplimll')' \l't ions

IN RE, LEWIS WARD LITILEPAGE UTILE ROCK, ARKANSAS MAY 10, 2000 The formaJ charges of misconduct upon which this Order is based arose from the Complaint of Rosemary Gould. During or around March 1996. Ms. Gould hired Lewis Ward Littlepage. an anorney then practicing primarily in Little Rock, to represent her in civil litigation on a claim of discriminatOry practices against her former employer, Remington Arms. An employment agreement was presented to Ms. Gould by Mr. Littlepage. Ms. Gould provided Mr. Littlepage with a copy of the Dismissal and Notice of Rights that she had received from the Equal Employment Opportunity Commission in early February. The Notice of RightS document srn.ted that Ms. Gould had ninety (90) days in which lO sue. During their meeting. Mr. Lirtlepage discussed with Ms. Gould the time limitations involved in filing a lawsuit against Remington Arms. According to Ms. GouJd, she explained to Mr. Littlepage that she did not have Ibe required $650 retainer right then, but she would bring it (O him as soon as she had been able to save that amount. Mr. Littlepage advised her that would be okay and then further advised her that he would go ahead and file a lawsuit on her behalf. Ms. Gould believed that Mr. Littlepage was worlcing on her legal matter and had raken all precamions to preserve her rightS. Although Mr. Littlepage advised Ms. Gould that he had filed her lawsuit in a timely fashion. he had not done so. The lawsuit was filed by Mr. Littlepage on June 12, 1996, which was outside the time limit allowed to file a lawsuit alleging federal claims. Mr. Littlepage explained that the rime for the state claims had nOt expired and that was why he filed the lawsuit in Lonoke County Circuit Court alleging violations of the Arkansas Civil RightS Act. According to the attorney. the reason for the delay in filing the lawsuit was because Ms. Gould did not advise Mr. Littlepage until June II. 1996, that she wished to proceed with his representation of her. Ms. Gould did not deliver the $650 to Mr. Littlepage until June 17,1996. In August 1996, Ms. Gould's lawsuit was removed to federal court by the defendant, Remington Arms, because of the American With Disabilities Act violations alleged by Mr. Littlepage on Ms. Gould's behal( The litigation in federal court continued through June 24, 1997, when United Srn.tes DiSl:rict Judge James Moody entered an Order granting the Motion for Summary Judgment fJed by the defendant. Ir was the finding of Judge Moody that Ms. Gould's federal claims were barred by the applicable statute of limitations. The state claim was remanded back to Lonoke County Circuit

Court and continued through August 1998. Ms. Gould's state claim was denied because she was unable to show anything bur "subjective belief" that she was discriminated against because of race. Since the Order of the Circuit Judge was entered Ms. Gould has had no contact with Mr. Littlepage. She elttempted to call him but his telephone line held been disconnected. She later learned that Mr. Littlepage had moved Out of the COUntry. Mr. Littlepage explains that Ms. Gould terminated his services prior to the time thal he departed the country and took possession of her entire file contents, therefore, he did not have her address to send her notice that he was moving. Furthermore, since she had terminated his services. Mr. Littlepage did not believe that he owed her any duty to notify her that he was closing his office. Upon consideration of the formal complaint, the response herein. and the Arbnsas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Littlepage's conduct violated Model Rule 1.3 when failed to timely file Ms. Gould's lawsuit. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Littlepage's conduct violated Model Rule 1.4(b) when he did not explain to Ms. Gould melt he was leaving the country and would no longer be able to pursue her litigation. Model Rule tA(h) requires that a lawyer explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 3. That Mr. Littlepage's conduct violated Model Rule 8.4(d) because Ms. Gould's claims were dismissed because Mr. Littlepage did nOt file the lawsuit on Ms. Gould's behalf within ninety (90) days after her receipt of the right to sue notice from the Equal Employment Opportunity Commission. 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 LEWIS WARD UTILEPAGE. Arkansas Bar ID #93152, be, and hereby is, REPRIMANDED for his conduct in this matter.

IN RÂŁ, IAURAj. MCKINNON RUSSELLVILLE, ARKANSAS MARCH 30, 2000 The formal charges of misconduct upon which this Order is based arose from the complaint of Rose Mary Willis. During February 1997, Ms. Willis hired Laura J.

til\\ "PI' McKinnon, an attorney with an office located in Russellville, to represent her in a social securiry At the rime of Ms. Willis's initial matter. appointment with Ms. McKinnon, she met with Kathleen Webb, a secretary for Ms. McKinnon. She did not meet with Ms. McKinnon. Ms. Webb posed aJl of the questions and answered all of Ms. Willis's questions. AJthough Ms. Webb advised Ms. Willis that Ms. McKinnon would be in touch with Ms. Willis, she never did get in COnlaCf with her. In fuct, Ms. Willis was never afforded the opportuniry to speak with any :utorney associated with Ms. McKinnon about her legal matter. Ms. Willis did receive minimaJ correspondence from Ms. McKinnon but was never allowed the opportuniry to consult with her. Ms. Willis attended a hearing before the Office of Hearings and Appeals on July 28, 1997. Ms. McKinnon did nOt appear with her. Mr. Archie Lann did so. Mr. Lann was at that time listed as a Social Security Specialist on Ms. McKinnon's letterhead. She has since cortected this and he is no longer listed as such. On January 29, 1999, Ms. Willis received notice from the Social Securiry Appeals Council that they were not going to review the Administrative Law Judge's decision. She was also informed in this correspondence that she had sixty (60) days from her receipt of the len:er to file a lawsuit in the United States District Court. A5 soon as she received the letter, Ms. Willis called the McKinnon Law Firm. She was unable ro speak with Ms. McKinnon bur was assured by Archie Lantz that the firm had received a copy of the lener and that she wouJd be hearing something from Ms. McKinnon within the following rwo (2) weeks. Ms. WiJlis did not hear from Ms. McKinnon, although she tried on numerous occasions to contact her. Finally, on March 24, 1999, Ms. Willis received a letter from Ms. McKinnon advising that the law firm would not pursue her legal matter any further. Ms. Willis did not receive the letter until Saturday, March 27. 1999. According to the letter, Ms. Willis had until March 29, 1999, to file a lawsuit. She had no opportuniry to retain another lawyer nor pick up her file from Ms. McKinnon's office before the deadline. Ms. McKinnon admits that it was wrong for her to personally send the "we recommend you not file a federal appeal" leeter so close to Ms. Willis' deadline. She poinlS out that Ms. Willis had been requested to pay a filing fee which she had not done, but she recognizes mat is nOt an excuse for sending the letter when she did. Following Ms_ McKinnon's receipt of the formal complaint, the respondent anorney and the Executive Director undertook discussions which have resulted in Ms. McKinnon's agreement to discipline by consent pursuant to

ltisl'iplimll} \l't ions

Section 8C, Procedures of the Arkansas Supreme Court Regulating Professional Conduct of An:orneys at Law. Upon consideration of the formal complaint, response herein, the proposed Consent to Discipline, the Alternate Committee's approval of the consent proposal and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conducr finds: I. That Ms. McKinnon's conduct violated Model Rule 1.4(a) when she failed ro contact Ms. Willis during the entire time of her representation in the social security matter, despite the numerous telephone calls and requeslS made by Ms. Willis, and when she failed lO respond to Ms. Willis' requests, made between January 29. 1999 and Match 24. 1999. for information concerning when her federal appeal would be filed. Model Rule l.4(a) requires that a lawyer keep a client reasonably informed about the starns of a matter and promptly comply \Vim reasonable requests for information. 2. That Ms. McKinnon's conduct violated Model Rule 1.16(d) when she fajled to provide reasonable notice to Ms. Willis of the determination that the McKinnon Law Firm would no longer represent her in the Social Security man:ers; when Ms. Willis was nor allowed sufficient time for employment of other couosd for her legal matter; and when the papers and properry to which Ms. WiJlis was entitled were nOt returned to her after Ms. McKinnon elected to no longer represent her in the Social Security maners. Model Rule 1.16(d) requires, in pertinent part, that, upon termination of representation, a lawyer take sreps to the extent reasonably practicable to protect the client's interests, such as giving reasonable notice to the client, allowing rime for employment of other counsel and surrendering paper and property to which the client is entitled. 3. That Ms. McKinnon's conduct violated Model RuJ< 5.5(b) wh<n sh< a1low<d Kathy Webb ro conduct the initial consultation with Ms. Willis and advise her on all legal rights and remedjes and to respond to Ms. Willis's inqujries about her legal matter, all without attorney supervision. Model Rule 5.5(b) requires that a lawyer not assist a person who is nOt a member of the bar in the performance of activity that constitutes the unauthorized practice of law. 4. That Ms. McKinnon's conduct violated Model Rule 8.4(a) when she used len:erhead wh ich referred to Archie Lantz as a specialist in th< area of Social &curity. Model Rul< 8.4(a) requires, in pertinent part, that a lawyer not knowingly assist another in violation of the rules of professional conduct, with one of those rules of professional conduct being Model Rule 7A(c) which prohibits a lawyer from staring or

implying that the lawyer is a speciaJist except when the lawyer has been recognized as a specialist under a plan of specialization approved by the Arkansas Supreme CoUrt. WHEREFORE, in accordance with the consent to discipline presented by Ms. McKinnon and the Executive DirectOr, James A. Neal, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct thar LAURA MCKINNON. AJ-kansas Bar ID #84014, be, and hereby IS, REPRlMANDED for her conduct in this maner. In addition, pursuant to Sections 8A(I) & (2) of the Procedures, Ms. McKinnon is hereby ordered to pay cons in the amount of $6.61 and a fine in the amount of $350. Said costs and fine to be remincd to the Executive Direcror within rwenry (20) days of the filing of this Order.

IN RE, GENE E. MCKISSIC

PINE BLUFF. ARKANSAS APRIL 5. 2000 The formal complaint of misconduct arose from the complaint of Deborah Purifoy. Gene McKissic, Anorney at Law, Pine Bluff, Arkansas, was employed to represent Ms. Purifoy to pursue a child suppOrt arrearage owed by her exhusband. In August 1997, Ms. Purifoy sought legal assistance regarding delinquent child support owed by her ex-husband, Fred Green. Mr. McKissic filed a Motion for Contempt against Fred Green and a hearing was set for November 24, 1997. Mr. Green failed to appear at the hearing. According to Ms. Purifoy, Mr. McKissic stated that a default judgment would be entered against Mr. Green and that he wouJd send a copy of the judgment to her. In January 1998, Ms. Purifoy called Mr. McKissic's office ro inquire about the status of the judgment as she had not received a copy of it. Mr. McKissic stated that he would call Judge Hamilton Singleton, the presiding judge, to check on the marrero According to Ms. Purifoy, she heard nothing from Mr. McKissic. On February 5, 1998, Ms. Purifoy called Mr. McKissic's office again, spoke to Mr. McKissic and informed him that she had nOt received a copy of the default judgment. According to Mr. McKissic, he experienced difficulty in obtaining child support records from the Ouachita County Chancery Clerk's office, and when he did obtain the records, the records only went as far back as October 1995. As a result, Mr. McKissic could only send a judgment to the court in the amount of $5,000.00 which was supported by the available records. Mr. McKissic asserted that Ms. Purifoy instructed

fll. Ii SI. I/Sllltr 1111

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U

tiln)'fll' ltisriplinill') .\I't ions him

[0

do nothing as she did not want the

judgmem entered for only $5.000.00.

On

February 9. 1998, a cover lener and a proposed Default Judgment were prepared by Mr. McKissic and sent to Judge Singleron. Judge Singleton responded co Mr. McKissic's letter with a request for proof of the arrearage ÂŁ0 support the judgmem and proof of service as the signature on me return receipt was not signed by Mr. Green. According to Ms. Purifoy, she discovered that Mr. McKissic had not responded to the requests of the Coun when she went [0 Judge Singleton's office in April 1998, to inquire of the marrero Records from Ouachita Counry Circuit Clerk's office showed that there were no pleadings filed or any judgments entered in the matter since October 1997. Upon consideration of the formal complaim, the response herein, and the Arkansas Model Rules of Professional Conduct, the Comminet' on Professional Conduct finds: I. That Mr. McKissic's conduct violated Model Rule 1.3 when he Failed to take action to bring Ms. Purifoy's maner to conclusion in a timely manner. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a diem. 2. That Mr. McKissic's conduct violated Modd Rule 3.4(c) when he failed to provide additional information requested of him on February 19, 1998, by Chancery Judge Hamilton Singleton regarding Ms. Purifoy's maner. Model Rule 3.4(c) requires, in pertinem part, that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal. 3. That Mr. McKissic's conduct violated Model Rule 8A(d) when he Failed to take action on behalf of Ms. Purifoy which caused a delay in the administration and resolution in her maner and when the presiding COUrt was required to expend additional time and effort in connection with Ms. Purifoy's maner which would not have been necessary but for his lack of action in the legal maner. Model Rule 8.4(d) requires that a lawyer not engage in condua that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Comminee on Professional Conduct that GENE E.

me

MCKISSIC, Arkansas Bar ID #76075, be, and hereby is, REPRIMANDED for his conduct in this matter.

IN RE, CHARliE LEE RUDD HOT SPRINGS, ARKANSAS MARCH 10, 2000 The formal complaim of misconduct arose from the complaim of Lizabeth Lookadoo.

II TIe ,lrkllllJ Li~W

fll. II ,11.I/Slller 2110

Charlie Lee Rudd, anorney at law, Hot Springs, Arkansas, was employed ro represent Dana Priddy in a personal injury maner. Priddy was insured by State Farm Insurance Company. Ms. Lookadoo is an attorney licensed to practice law in Arkansas and represents State Farm Insurance Company. Mr. Rudd agreed in a letter dated September 23, 1992. to protect the subrogation interests of State Farm Insurance Company in Priddy's personal injury maner. Priddy's personal injury matter was settled on November 3, 1995 and Mr. Rudd received a check in the amount of

$19.500.00 made payable ro Dana S. Priddy. Charlie Rudd, her attorney. and State Farm Insurance Company. The check was presented to Mike Schrader, State Farm's Claim Specialist, who signed the check and returned it to Mr. Rudd. Mr. Rudd and his diem endorsed the check and cashed it on November 5, 1995. Mr. Rudd failed ro ~mit to State Farm $3,111.77 which representS it's subrogation interestS. State Farm filed suit against Mr. Rudd on October 6, 1998, to colleer the $3,111.77 subrogation interests. Mr. Rudd admitted in his answer to the suit filed against him that he agreed to protect State Farm's subrogation interestS and that he received a check in Priddy's matter. Additionally, he stated that efforts to conclude the maner with State Farm we~ unsuccessful. The Municipal Court of Hot Springs heard testimony and on March 29, 1999, entered a judgment in favor of State Farm against Mr. Rudd in the amount of $3,111.77 and court costs of $60.00, plus interest in the amount allowed by law. Mr. Rudd stated in his response to the formal complaint that he was unaware that State Farm had not been reimbursed for its subrogation interests until more than one year after his client's claim was resolved. Following his receipt of the lawsuit filed against him by State Farm, he attempted to verify that funds had been tendered to State Farm. Mr. Rudd was unable to find a receipt from the State Farm representative but was cenain that if the representative had not ~n given the proceeds in cash as he was told by his secretary, his secretary must have convened the money to her own use. Mr. Rudd hand-delivered a cashiers' check made payable to State Farm and Lizabeth Lookadoo in the amount of $3,177.77 on December 14. 1999. It was Mr. Rudd's stated belief that Ms. Lookadoo used the filing of a disciplinary complaint as a more expeditious method of recovering on a judgment than other available means. Mr. Rudd denied violating any rules of professional conduct. Upon consideration of the formal complaint, the response he~in, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds:

1. That Mr. Rudd's conduct violated Model RuJe 1.15(b) when he Failed to prompdy deliver to State Farm Insurance Company its subrogation interests after having agreed to proteer the interests from. any senlement proceeds he received in a matter in which he represented Dana Priddy. Model Rule 1.15(b) requires, in pertinent parr, that upon receiving funds in which a third person has an interest, a lawyer prompdy deliver to a third person any funds that the third person is entitled to receive. 2. That Mr. Rudd's condua violated Model Rule 8.4(d) when he failed to promptly deliver to State Farm its subrogation interests which necessitated State Farm to initiate legal action against him in the Municipal Court of Hot Springs and which required the Courr to expend time and effort which would not have been necessary otherwise. Model RuJe 8.4(d) requires that a lawyer nOt engage in conduce mat is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Comminee on Professional Conduct that CHARLIE LEE

RUDD, Arkansas Bac ID #89087. be, and hereby is, REPRJMANDED for his conduct in this matter.

IN RE, JOHN SKYLAR TAPP HOT SPRINGS, ARKANSAS FEBRUARY 16, 2000 The formal charges of misconduct upon which this Order is based arose from the Complaint ofJeff Padgett. Mr. Padgett was sued

by Billy P. Bullock d/b/a Bullock Flying S<rvice. After he was served with the complaint, John Skylar Tapp, an anorney practicing in Hot Springs, was contacted concerning representation of Mr. Padgett in the litigation. According to Mr. Tapp, it was Mr. Padgett's mother who spoke with him about the lawsuit. After agreeing to represent Mr. Padgett. Mr. Tapp filed an Answer on his behalf in the legal matter. Mr. Tapp had previously represented members of Mr. Padgett's family. Mr. Tapp offered to file the Answer if Mr. Padgett's mother wouJd provide him with a copy of the Complaint, which she did. At the time the Answer was filed, Mr. Tapp did nOt advise Mr. Padgett what the fee arrangement would be. Mr. Tapp explains that there was no fee agreement because he performed the services for Mr. Padgett's mother and so he was not going to charge for his services. Shordy, after the Answer was filed on Mr. Padgett's behalf, Mr. Padgen's wife and his sisterin~law contacted the opposing counsel concerning a possible conflict of interest in his representation of the plaintiff in this matter.

til\\ ~lll' According to them, plaintiffs anorney advised them that the lawsuit was going to be dismissed. Mr. Tapp was advised of this fact by Mr. Padgett and his wife. Mr. Tapp agrees with this faCt and explains further that he was advised on at least two occasions that the matter was resolved. Mr. Padgen inquired ofMr. Tapp what his fee was for filing the Answer. M f. Tapp advised that no fee was necessary. After Mr. Tapp was advised that the lawsuit was going to be dismissed, he took no funher action (0 follow up on mat information aJrnough he was anorney of record according to the records maintained by the Circuit Clerk's office. Mr. Tapp never removed himsdffrom the case either. Mr. Tapp admits that he never filed a Motion to Dismiss or a Motion to Withdraw because he assumed that the case was dismissed. Mr. Tapp believes, in hindsighr, rhar he shouJd have prepared a pro se Answer for Mr. Padgen instead of doing as he did and filing ir through his office. In May 1997, the marrer was ser for trial on July 30, 1997. Neirher Mr. Tapp or Mr. Padgen appeared for trial. Judgment was rendered for the plaintiff. Mr. Padgerr did not hear anything else about the lawsuit until four (4) years later when his bank account was garnished. Mr. Padgett attempted (0 contact Mr. Tapp after he learned of rhe garnishment. Mr. Tapp did not respond (0 any of the messages mar Mr. Padgerr left for him. When his attemprs to contact Mr. Tapp failed, Mr. Padgen hired another attorney, John Biscoe Bingham, to assist him with the garnishment maners. After Mr. Bingham was hired, Mr. Padgert learned that a notice of trial setting in the civil litigation had been sem to Mr. Tapp in May 1997. Mr. Tapp denies receiving the notice of rhe trial setting. Mr. Padgett was unaware of the sening because he received no notice from Mr. Tapp, and the Circuit Clerk's office wouJd not have notified hm because Mr. Tapp was listed as anomey of record for Mr. Padgen. Mr. Padgett also learned that Mr. Tapp did not appear on his behalf at rhe trial nor did rhe anorney comaa opposing counsel after rhe trial setting was sem to him. After the Judgment was entered agajnst Mr. Padgett, a copy of ir was also sent (0 Mr. Tapp. However, Mr. Tapp did nor provide Mr. Padgett with a copy of the Judgment either. Mr. Bingham tried on numerous occasions (0 contact Mr. Tapp, but Mr. Tapp did not respond to the request for information. Mr. Tapp admirs thar he did nO[ return the messages from Mr. Bingham beeaus< he believed that ifhe did, M,. Bingham would claim that he was responsible for the Judgment entered in the lawsuit filed by Mr. Bullock. Mr. Padgett has been able to secure a Judgment against Mr. Tapp for the amount of his liability resulting from the Judgment which was

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entered against him in the lawsuit filed by Mt. Bullock. Mr. Tapp suisfied the judgment on January 5, 2000. Upon consideration of the formal complaint, the response therero, the restimony of Jeff Padgett, Russell Berry, John Biscoe Bingham and John Skylar Tapp and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conducr finds: l. That Mr. Tapp violated Model Rule 1.1 when, after being advised that the lawsuit was no longer being pursued, he failed to be thorough enough in his representation of Mr. Padgett to make sure that the marter was dosed on the courr's docket. Model Rule 1.1 requires, in pertinent parr, that a lawyer provide competent representation ro a client including the thoroughness reasonably necessary for the representation. 2. Thar Mr. Tapp's conducr violated Model Rule 1.3 when he failed to derermine whether Mr. Padgerr's lawsuir was removed from the Court's docket; when he failed to make certain an Order was entered which reflected that the lawsuit was dismissed by the parties; when he failed to withdraw as attorney of record for Mr. Padgerr so thar any furure notices would be sem ro client; when he failed ro advise Mr. Padgett of the trial serting in the litigation filed by Mr. Bullock; and when he failed to advise Mr. Padgen that a Judgment had been emered against him in the civil litigarion pursued by Mr. Bullock. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness 10 representing a client. 3. That Mr. Tapp's conduer violated Model Rule l.4(a) when he failed to notify Mr. Padgett of the May 2B, 1997, trial setting issued by the Coun. Model Rwe l.4(a) requires, in pertinent part, that a lawyer keep a diem reasonably informed abom the status of a matter. 4. That Mr. Tapp's conduct violated Model Rule 1.4(b) since he failed ro explain to Mr. Padgett that an Order needed to be entered in the lawswr before ir would be "dropped" from the Court'S docket. Model RuJe 1.4(b) requires that a lawyer explain a matter ro the extent reasonably necessary to permir the dient to make informed decisions regarding the representation. 5. That Me. Tapp's conduct violated Model Rule B.4(d) because his failure to properly advise Mr. Padgett in the civil litigation led to a Judgment being entered against him. Model Rule B.4(d) requires that a lawyer not engage in conduct that is prejudicial ro the administration of justice. WHEREFORE, it is the decision and order of rhe Arkansas Supreme Coun Commirtee on Professional Conduct that JOHN SKYLAR TAPp, Arkansas Bat ID #76123, be, and hereby

is, REPRIMANDED and fined $500.00 pursuant to Section 8A(2) of the Procedures for his conduct in this matter. Mr. T2PP'S fine is payable within thirty days of the filing of this Order.

IN RE, DANNY RAY WILLIAMS UTILE ROCK, ARKANSAS MARCH 14, 2000 The formal charges of misconduct upon which this Order is based arose out of information referred to rhe Committee by the Honorable Susan Webber Wright, Chief Unired States Disrrict Judge for the Eastern District of Arkansas and the Honorable John Plegge, Pulaski County Circuit Judge. The informarion pertained to Danny Ray Williams' representation of (I) Roosevelt Joiner, Jr. in a federal criminal case, (2) Lewis White in a federal civil case and (3) Lwa Mae McGee in a criminal case in Pulaski County Circuit Couer. The Honorable Susan Webber Wrighr referred the conduct of Danny Ray Williams, an attorney primarily practicing law in Little Rock, Pulaski County, Arkansas, to the Committee after a conference with me Honorable James Moody and the Honorable G. Thomas Eisele, both United Stares District Judges for the Eastern District of Arkansas. Judge Moody was the presiding judge in Unired States vs. Roosevelt Joiner. Mr. Joiner was charged with distribution of narcotics, a violation of21 U.s.c. 841. Mr. Williams was appointed as counsel to Mr. Joiner on Oerober I, 1998. Judge Moody granted M,. Williams' Motion for Continuance and set Mr. Joiner's trial for 9:00 a.m., January 7, 1999. For three weeks prior to rhe rrial date, Judge Moody's assistant, Marge Higgenbotham, artempted to contact Mr. Williams 15-20 times by relephone and pager during the day and the evening hours without success. On December 29, 1999, Ms. Higgenbotham finally spoke with Mr. Williams. He indicated that he had not spoken with his diem, but believed the diem would plead guilty. Ms. Higgenbotham attempred to contact Mr. Williams on January 5 and 6, 1999, without success. On January 7, 1999, at 9:00 a.m., with a jury panel and Mr. Joiner present, Mr. Williams was absent for the beginning of the trial. Mr. Joiner stated to Judge Moody that he was unable to communicate with Mr. Williams. Judge Moody dismissed the jury panel, continued the trial and appointed new counsel for Mr. Joiner. At 11 :00 a.m. mat day, Mr. Williams appeared in the of the United States District Court Clerk for the Eastern District of Arkansas. Mr. Williams was directed ro Judge Moody's chambers. Mr.

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till' ~'fll' Ilisl'iplimll'~' .\I'l ions Williams apologized to judge Moody for his failure to appear, but declined to offer any otplanation for his failure to appear until such time as a show cause hearing was conducted in me contempt of court action initiated by the judge. On February 2, 1999, a show cause hearing was held before judge Moody. Mr. Williams was thirty minutes late for the hearing. Mr. WilJiams admitted he had not communicated with his client, Mr. joiner, prior to trial. The attorney admitted he had not prepared for trial. Mr. Williams stated to judge Moody that it had been his legal strategy not to prepare for trial for the purpose of causing the Court to concinue the joiner trial. Mr. Williams' had no explanation of why he had nOt filed for a continuance prior to trial. Mr. Williams stat'ed that he did not appear on time for the trial because he was in eastern Arkansas the day before the trial and had car trouble the morning of the trial while on his way to Lirtle Rock. Mr. Williams requested an opportunity to further explain himself in writing to judge Moody. judge Moody granted the request. The written explanation was due February 12, 1999. Mr. Williams failed to submit such a wrinen explanation. When Ms. Higgenbotham communicated wirh Mr. Williams 011 February 17th or 18th aboul the response, Mr. Williams stated thar "he was roo busy" to file his requested response. He went on to state thal he hoped judge Moody would not ja.il him for his behavior and that he might JUSt kill himself. judge Moody found M,. Williams' explanation "incredible" and referred the incident to the federal judges' conference for action as discussed below. On October 23, 1998, Mr. Williams filed a civil lawsuit in the United States District Coun for the Eastern District of Arkansas on behalf of lewis White against the Arkansas Department of Human Services. Mr. Williams took no further actions in the marter, including service of process. On january 7, 1999, lewis White filed a pro se motion with the federal court requesting Mr. Williams' termination as Mr. Whire's counsel as Mr. White had been unable to communicate with M,. William,. On Febmary 18, 1999, the Honorable G. Thomas Eisele, Senior United States Districe Coun Judge wrote Mr. Williams requesting his response to Mr. White's marion by March I, 1999. Mr. Williams did not respond, and subsequently was removed as counsel for Mr. White on March 29, 1999. Both federal matters were brought to the anemion of Chief United States District Judge Susan Webber Wright. judge Wright removed Mr. Williams from the list of anorneys eligible to be appointed to represem criminal defendants in fedcral court pursuant to the Criminal Justice

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Act. Additionally, Chief judge Wrighl advised Mr. Williams he had until March 29, 1999, to otpla.in to the Coun why his conduct in the Joiner and White matters was excusable and not likely to recur, otherw~ the judges would refer Mr. Williams' conduct to the Arkansas Supreme CoUrt Committee on Professional Conduct. Mr. Williams submitted twO lettcrs which were insufficient in their content. On October 26, 1998, Mr. Williams entered his appearance in State vs. Lula Mae McGee in the Pulaski County Circuit Court. Ms. McGee: retained Mr. Williams to represent hcr against the charge of first degree murder. Trial was set for March 16, 1999. On March 8, 1999, a ,''''us conference was held by judge Plegge, the presiding judge, at which time, Ms. McGee complained to him that she couJd nor contact Mr. Williams. Mr. Williams failed to appear at the hearing after notice and was relieved of the case by judge Plegge. Ms. McGee's trial was reset fo, july I, 1999. At the time sel for the de novo hearing in this maner, a proposed Consent to Discipline was presented to the Committce by the respondem pursuant to Section BC of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. The proposed Consent to Discipline consisted of an admission by Mr. Williams that he violated Arkansas Model Rules 1.1, 1.3, 1.4(a) and 8A(d), that he would receive a reprimand, and that he would be placed on probation for a period of six months under the terms and conditions set by the Committee:. Upon consideration of the formal complaint, response herein, the proposed consent to discipline and the Arkansas Model Rules of Professional Conduct (Model Rules), the Committee on Professional Conduct finds: I. That Mr. Williams' conduct violated Model Rule 1.1 when he failed to prepare for the trial of Roosevelt joiner, jr., set for january 7, 1999, before the Honorable james Moody. Addjtionally, Mr. Williams' failed to appear at the appointed time for the trial of Mr. Roosevelt joiner, Jr., averring that it was his strategy to obtain a continuance, despite the fact Mr. Williams had not filed for a continuance. Regarding Mr. Lewis civil lawsuit, Mr. Williams &iled to have summons issued and served on the defendants in Mr. Lewis' lawsuit, namely the Arkansas Department of Human Services. In Ms. Lula Mae McGee:'s case, Mr. Williams failed to file the reasonably necessary motions in Ms. McGee's behalf. Model Rule l.t requires, in peninent pan, that a lawyer provide competent r(presentation to a client, including the thoroughness and preparation reasonably n(cessary for the representation. 2. That Mr. Williams' conduct violated Model

Rule 1.3 when he failed to appear for trial on January 7, 1999, on be:half of his client Roosevelt Joiner, Jr.; when he did not prepare for Mr. Joiner's trial; when he did not respond (Q Senior Disrrice Coun Judge Eisele's request for him to respond to Mr. Lewis' pro se request to remove Mr. Williams from his case; and when he failed ro file me reasonably necessary motions in Ms. McGee's lxhalf for her trial on first degree murder and failed (Q prepare Ms. McGee for trial. Model Rule 1.3 requires that a lawyer act wim reasonable diligence and promptness in representing a client. 3. That Mr. WilJiams' conduct viohued Model Rule IA(a) when he failed to communicate wim Mr. Roosevelt Joiner or Ms. Lula Mae McGee in his representation of them in their respective criminal cases. Model Rule 1.4(a) requires that a lawyer keep a client reasonably informed about the starus of a maner and promprly comply with reasonable requests for information. 4. That Mr. Williams' conduct violated Model Rule 8.4(d) when he failed to appear at the scheduled date and time for the trial of his client Roosevelt Joiner, Jr. in federal district rourr. Mr. Williams' failure required the Judge Moody to continue the case and appoint new counsel to Mr. Joiner. Furmer, Judge Moody was required to conduct a show cause hearing due to Mr. Williams' failure to appear for Mr. Joiner's trial and to voluntarily give Judge Moody a credible explanation for his failure to appear. As to Mr. Lewis' C3S(:, Mr. Williams failure to issue and serve summons on the defendam caused an unnecessary and lengthy delay in the adjudication of his lawsuit. Additionally, Senior judge Eisele was required to remove Mr. Williams as Mr. Lewis' counsel of record. In LuJa Mae McGee's case, judge Plegge was required to conduce a statuS hearing and upon iu conclusion, cominue her case and remove Mr. Williams as her counsel of record. Model Rule 8.4(d) requires mat a lawyer not engage in conduct that is prejudicial to the administration of justice. Funher, the Comminee finding good cause therefor and believing that a probationary period would be appropriate in this matter, accepts Mr. Williams' request for Consem to Discipline. Mr. Williams' consent ro probation and the condjtions thereof are evidenced by his signature appearing in the Respondent's Consent to Probation and Conditions of Probation appended to this Order, and made a pan hereof by reference. WHEREFORE, in accordance with the consem to discipline presented by Mr. Williams, ir is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct that DANNY RAY WILLIAMS, Arkansas Bar ID #93148, be, and hereby is,

tiln ~'lll' lIisl'iplillill} \ft ions Reprimanded for the aforesaid violations and placed on PROBATION for SIX MONTHS for his conduct in this matter. Mr. Williams is therefore ordered, as a probationary condition, to obtain the agreement of another lawyer, acceptable to the Committee. to supervise, monitOr and assist him as required to fulfill the conditions of probation. The probationary conditions directed by the Committee and set out in the attached Consent to Probation and Conditions of Probation shall be effective. and the probationary term shall commence on the date of the filing of this Order.

not state or imply that the lawyer is a specialist except when he or she has been recognized as a specialist under the Arkansas Plan of Specialization approved by the Arkansas Supreme Coun. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that R. KEITH ARMAN, Arkansas Bar ID #65001, be, and hereby is, CAUTIONED for his conduct in this mattet.

IN RE, JAMES ODELL CLAWSON, JR. LITTLE ROCK, ARKANSAS MARCH 10,2000

NOTICE OF CAUTION IN RE, R. KEITH ARMAN HOT SPRINGS, ARKANSAS MARCH 14, 2000

The formal charges of misconduct upon which this Order is based arose from information brought to the Committee's attention through a newspaper advenisement. R. Keith Arman, an attorney practicing law in Hot Springs, Arkansas, under the firm name of "Lane, Muse, Arman, & Pullen", placed an advettisement in the newspaper which stated, in pertinent part, "Sherri Arman McDonough has joined her Father and the other attorneys of Lane, Muse, Arman, & Pullen in the practice of law specializ.ing in Personal Injury, Soci:aJ Security Dis:ability, Worker's Compensation Pension and Family Medical Leave Act Cases." The Arkansas Supreme Court has not approved a plan of specialization in any of the areas listed. Mr. Arman :admitted that to the allegation of the Complaint but offered that the violation was not intentional. Following Mr. Arman's receipt of the formal complaint, the respondent attorney and the Executive Director undertook discussions which have resulted in Mr. Arman's agreement to discipline by consent pursuant to Section 8C, Procedures of the Arkansas Supreme Court ReguJating Professional Conduct of Attorneys at Law. Upon consideration of the formal complaint, response herein, the proposed consent to discipline, and the AJternate Committee's approval of the proposed. consent, the Arkansas Supreme Coun Committee on Professional Conduct finds: I. That the statement "Sherri Arman McDonough has joined her father and the other attorneys of Lane, Muse, Arman, & Pullen in the practice of law specializ.ing in Personal Injury, Social Security Disability, Worker's Compensation Pension and Family Medical Leave Act violates Model Rule 7.4(c), which requires, in pertinent part, that a lawyer

eases"

The formal charges of misconduct upon whjch this Order is based arose our of information referred (Q the Committee by the Honorable Morris W. Thompson, Pulaski County Circuit Judge. The information to James Odell Clawson's pettained representation of Cory Dwayne Waters in a criminal matter. On August 17,1998, Mr. Waters appeared in the Pulaski County Circuit Court, Seventh Division, before Judge John B. Plegge, for trial in the matter of Stau ofArkamar v. Cory DwaJn~ ~tn1. When the matter was called for trial, Mr. Waters informed the court that his attorney, Mr. Clawson, was not present. According to the cou_rt's transcript, the State had witnesses present and was ready to go to trial. The court rescheduled the matter for August 24, 1998. On August 24, 1998, Mr. Clawson appeared before Judge Plegge. Judge Plegge inquired of Mr. Clawson why he should not be held in contempt of court for failing to appear on August 17, 1998, at the designated time for trial in Mr. Water's matter. According to the transcript, the coun stated that trial was set for 10 o'clock, that Mr. Clawson arrived in court at 11 :30, and that Mr. Clawson apologized to the Court for being late. Mr. Clawson offered that he woke up late, called the Court about five minutes after 10 o'clock, and informed the Court that he would be in court in about 30 minutes. Judge Plegge reset the date of Mr. Water's trial for November 23, 1998, and referred the contempt matter to another division of Pulaski County Circuit Coun for contempt proceedings. On September 7, 1999, Mr. Clawson appeared before the Honorable Morris W Thompson, Pulaski County Circuit Judge, Fifth Division. Mr. Clawson admitted that he was in contempt of court and proposed that he be ordered to pay a fine and to volunteer legal service in community service projects. Judge Thompson accepted the plea of guilty and ordered Mr. Clawson to pay a fine of $100.00 and to serve forry (40) hours of legal service to

community service projeces. Mr. Clawson's response admined that he was found in contempt and that he paid a fine and court coses in the matter. He also stated that he was to provide forry hours of legal services. Upon consideration of the formal complaint, the response thereto, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Mr. Clawson violated Model Rule 1.3 when he failed (Q appear in coun on August 17, 1998, for the trial of Cory Dwayne Waters. Model Rule 1.3 requites that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Clawson violated Model Rule 8.4(d) when, by his failure (Q appear at 10:00 a.m. on August 17, 1998 for the trial of Cory Dwayne Waters, he prejudiced the administration of justice, (0 wit: he caused the postponement of a trial in which witnesses were present and ready; he caused the coun to expend additional time and effort by continuing the matter for one week; he inconvenienced the Court and the witnesses; he caused the Coun to refer the matter to another Court for contempt proceedings; he caused another Court to expend time and effort in hearing a contempt matter; and he was found to have engaged in conduct constituting contempt. 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 Condun that JAMES ODELL CLAWSON, JR., Arkansas Bar ID #90219, be, and hereby is, CAUTIONED for his conduct in this matter.

IN RE, DAVID P. CANN HOT SPRINGS, ARKANSAS MARCH I, 2000

The formal charges of misconduct upon which this Order is based arose from the complaint of Marty Parker. During February 1999, Ms. Parker hired David Phillip Cann, an attorney practicing law in Hot Springs, to represent her in a divorce action. Two (2) days after he was first consuJred, Mr. Cann filed a Complaint for Divorce in the Chancery Court of Garland County. After Mr. Parker filed his Answer, a hearing was requested by Mr. Cann. In order to avoid the necessity of a hearing, the Parkers attempted to work out a settlement Once the Parkers reached an agreement. agreement, Ms. Parker presented it to Mr. Cann in the form of a list which she and Mr. Parker had prepared. Shortly after Mr. Cann was presented the agreement, he received a letter

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til\\ )111' from opposing counsel which contained only a portion of the original agreement. Mr. Cann provided Ms. Parker with a copy of the letter, but before they could discuss its coments, Mr. Cann responded to opposing counse:1. Me. Cano's Jeuer did not contain the corrCCt figure for alimony and the agreed amount of anorney's fees was inflared. Mr. Parker was very upset over the changes which, in turn, upset Ms. Parker. In an anempt to correct the problem, Ms. Parker wrote Mr. Cann and explained the errors in his letter. She also explained to Mr. Cann that she and Mr. Parker had agreed that alimony would be retroactive to February 1, 1999, and would be paid by direct deposit on the first of every month. At some point after he received the lener, Mr. Cann prepared a divorce decree, however, he did not discuss it with Ms. Parker before the Decree was sem to the opposing counsel After the Decree had been signed by Mr. Parker and his anorney, Mr. Cann caUed Ms. Parker to come to his office to sign it. After review, Ms. Parker refused to sign it because: there was no mention of alimony beginning on February I, 1999, nor was there any provision for direct deposit. Three days larer, Mr. Cann advised Ms. Parker that the Decree had been corrected so she went in and signed it. Thereafter, on May 24, 1999. the Decree was signed by the Chancellor and filed. Ms. Parker was not aware that her divorce had been finalized until her a-hwband informed her. When she spoke with her ex-husband, she learned that neither Mr. Parker or his attorney had been made aware of the change in the Decree before Mr. Cann submitted it to the Court. Mr. Cann admits that he made the changes concerning alimony without apprising opposing counsel. He explains that he was unable to make contact with opposing counsel so he relied on his client's statements that Mr. Parker had agreed to the provisions concerning alimony. Because of the change in the Decree, opposing counsel, Georgt: Callahan, fLIed a Motion to Set A5ide Decree. When Ms. Parker learned of the Motion, she told Mr. Cann that she would not agree ro an amendment of the Decree. However, Mr. Cann did agree to the amendment. In fua, he has admitted that he prepared the amended Decree. Ms. Parker did not learn of rhe amendment until she contacted another anomey. Mr. Cano did not inform her of the amended Decree. FoUowing Mr. Cann's receipt of the formal complaint, the respondent anorney and the Executive Direaor undertook discussions which have re.sulted in Mr. Cann's agreement to discipline by conse:nt pursuant to Section 8C, Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at

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Upon consideration of the formal complaint, response herein, and proposed consent to discipline, the Committee on Professional Conduct finds: 1. Thar Mr. Cann's conduct violared Model Rule 1.4(a) when Ms. Parker was not informed of the changes he made to the proposed sernement agreement prior to se:nding the leHer to Mr. Callahan; since he failed to advise: Ms. Parker when her Decree of Divorce was entered of record; and when he agreed to the amendment of Ms. Parker's Divorce Decree without her approval and without informing her of the same. Model Rule 1.4(a) requires that a lawyet keep a client reasonably informed about the status of a marrer and promptly comply with reasonable requests for information. 2. That Mr. Cann's conduct violated Model Rule 8A(d) beeause ir became necessary for Mr. Callahan to file a Motion for Relief from Decree since Mr. Cann changed the Decree of Divorce after opposing counsel and opposing party had signed it. Model Rule 8A(d) requires that a lawyer not engage in conduct that is prejudicial 10 the administration of juS(ice. WHEREFORE, in accordance wilh the consent to discipline pre.sented by Mr. Cann and me Executive Director, James A. eaI, it is the decision and order of the:: Arbnsas Supreme Coun Committee on Professional Conduct that DAVID PHILLIP CAN â&#x20AC;˘ Arkansas Bat JD #83034. be, and hereby is. CAUTIONED fot his conduct in this matter. In addition, pursuant to Secrions 8A(I) and (2) oft:he Procedutes. Mr. Cann is hereby ordered to pay costs in the amount of $7.05 and a fine in the amount of $100. Sa.id COStS a.nd fine to be remined to the Executive Director within twenty (20) days of the filing of this Order.

IN RE, LOUlS A. ETOCH

HELENA. ARKANSAS APRIL 3.2000 On March 17, 2000, a de novo hearing was held at the attorney's request on the Per Curiam omplaint, involving the case of K~flin Franklin v. Stau ofArkanuu. CR 99-962. Following <he hearing, the Committee, in executive session and by majority vote, found that the aHorney's conduct in this marter was a violation of Model Rules 1.3 and 8A(d) of the Arkansas Model Rules of Professional Conduct. The Arkansas Supreme Court has adopted these Rules as the standard of conduct for Arkansas attorneys. The formal charge.s of misconduct arose from the Arka.nsas Supreme Court case of K~flin Franklin fl. Stott ofArkamm, CR 99 962. Louis A E.toch, an attorney practicing in Helena, fuiled

co timely file his client's record on appeal. A5 a result of his fuilure, Mr. Eroch was required to file a Motion for Rule on the Clerk. Mr. Etoch did so and admined in the Motion that the failure fO timely file the record on appeal was his fuuJr. According to Mr. Eroch, he was preparing for the se:ntencing phase in a capital murder trial being held some distance from his office and, due to his atte.ntion to and involvement in that case, inadvertently fajled fO file the record on Mr. Franklin's behalf. The Supreme Court of Arkansas granted Mr. Etoch's Motion for Rule on the Clerk and referred the matter to the Committee on Professional on duct. Mr. Eroch's response: to the formal complaint before the Committee is the same as his admission in the Motion for Rule on the Clerk filed with the COUrt. During his te.stimony before the Committee, Mr. Etoch aplained that the error was clericaL According to him, the date for filing the record was maintained on a caJendar in the office and the sec.rc:ra.ry was to see that it was sent to the Clerk's office in a timely fashion. Because he was involved in the murder trial, he did not check to make certain that the filing had raken place and only after it was lOIre did he discover the error. His Motion for Rule on the Clerk was filed within four (4) days from the original due date. Mr. Etoch accepted full responsibility for the lare filing and advised the Committee that he has taken additional steps in his office to make sure that this type of error does not occur again. Upon consideration of the formal complaint, the response herein, the testimony of Mr. Etoch, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Etoch's conduct violated Model Rule 1.3 when he failed to t.imely file his client's record on appeal. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in reprcse.nt.ing a client. 2. That Mr. ÂŁtoch's conduct violated Model Rule 8A(d). to wit: (i) The <imely and orderly administration and re.solution of appdlate proceedings were delayed by his fuilure to timely file his client's record on appeal; and (ii) His failure to timely file his client's record on appeal caused the Court to be required to expend additional t.ime and effort which would not have been necessary otherwise. Model Rule 8A(d) requires that a lawyer not engage in conduct that is prejudicial to the administration of just.ice. WHEREFORE. it is the decision and order of the Arkansas Supreme CoUrt Committee on Professional Conduct thar LOUIS A. ETOCH. Arkansas Bar ID #89030, be, and hereby is, CAUTIONED for his conduct in this matter.

IN RE, JOHN C. GOODSON TEXARKANA, ARKANSAS APRIL 4, 2000 The formaJ charges of misconduct upon which this Order is based arose from the Compla.int of Thomas R. Ernst. Mr. Ernst's daughter, Regina Ernst Kessler, was kilJed in an automobile accident in Miller County, Arkansas on February 29, 1996. According to Compla.inant, Mr. Ernst and his son-in-law, Ronnie Kessler, met with John C. Goodson, an attorney pracricing law in Texarkana, Arkansas. Ronnie Kessler signed a contract for Mr. Goodson to represenr him in any claim pursued as a result of Ms. Kessler's death. Mr. Goodson also offered, without the necessity of a comraa, to collect any funds co which Mr. Ernst and his wife might be entitled. Subsequently, settlemem was made with the involved insurance companies. According to Mr. Ernst, Ronnie Kessler presented him with a "Full and Complete Indemnity Agreement" which srated that in consideration of (he (Oral sum of $10,733.22, Mr. and Ms. Thomas Ernst would release any and all claims they h.ad against any responsible party and itS insurance carrier. Mr. and Ms. Ernsr signed the release and endorsed two checks tOtaling $10.733.22. Mr. Kessler took the release and the checks with him and delivered them (0 Mr. Goodson. The ErnstS waited for their settlemenr funds to be delivered. After wa.iting for nearly one year, Mr. Ernst inquired about his portion of the settlemem proceeds and reported that he larer received one check in January 1999 from Mr. Goodson in the amoum of $5,246.61. Mr. Ernst made demand for the remainder of rhe funds in Mr. Goodson's trust accoum but received no other money from Mr. Goodson concerning the matter. Later, Mr. Ernst attempted to comact Mr. Goodson at his office to discuss the maner. Mr. Ernst stated that he was informed that Mr. Goodson did not represent him and that Mr. Goodson would neither calk to him or inform him of the status of Ms. Kessler's estate. Mr. Ernst learncd that a probate matter was opened by Mr. Goodson in the Miller Couney Probatc Court and that the only activity which has taken place was rhe filing of a Petirion for Appointmcnt of Administrator. The Per;,;on was filed on March 26, 1996, on behalf of Ronnie Kessler by Mr. Goodson. Mr. Goodson stated that his law firm was reta..ined to represent the Estate of Regina Kessler on March 6, 1996. He and his law partner, Matt Keil, met with Mr. Kessler and Mr. Ernst and presented the twO gentlemen with the firm's contingency fee contracr which stated what the firm was to receive for compensation in the case. The maner was thereafter settled for the limits of the insurance policy. Mr. Kessler drove to

Texarkana to meet with Mr. Goodson in February 1998, and Mr. Goodson srated that he providcd Mr. Kessler with his share of the proceeds less any artorney fees. According to Mr. Goodson, Mr. Kessler had told him that he was to receive all of the monies from the settlement. Mr. Kessler was advised to obtain an authorization from the ErostS as to what they wanted. to do with their share of the proettds less attorney fees. Mr. Goodson's legal assistant, Robyn Shumate, discussed the maner with Mr. Ernst and, following receipt of a leacr from the Ernsr's anorney from Louisiana, sent a check in January 1999, which represented one-half of rhe Ernst settlement. In Mr. Goodson's response and in a supporting affidavit of Ms. Shumate, it was Mr. Goodson's position that the rema.inder of the Ernsr's settlement was in the law firm's trust account until the issue of attorney's fees was worked out. Mr. Goodson believed that the ErnstS did nOt want to pay for the legal services provided. The Comminee requested Mr. Goodson to provide records of his client trust account before an evidenriary hearing held on January 21, 2000. Mr. Goodson provided the records ro the Comminee and appeared at the evidentiary hearing on January 21. Following the evidentiary hearing, Mr. Goodson and his counsel undenook discussions with the Executive DirectOr which resulted in Mr. Goodson's agreement to discipline by consent pursuant to Section 8C, Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures). The agreement was presented to rhe Committee on Professional Conduct for consideration, and it agreed to the terms of the proposed consent to discipline hereinafter stated. Mr. Goodson waived the filing, service, acceptance and time for a response to a new charge alleging violation of the Model Rules of Professional Conduct not previously alleged in the formal complaint herein. Upon consideration of the formal complaint, response herein, the evidence presented at hearing, the terms of the agreed consent to discipline, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Mr. Goodson admitted that he violated Model Rule 1.5(c) when he failed. to provide Mr. Ernst with a statcment showing how the senlement proceeds were to be distributed. Model Rule 1.5(c) provides, in pertinent pan, that upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written srarement sraring the outcome of the maner and, if there is a recovery, showing the reminance to rhe clicnt and the method of its determinarion. 2. That Mr. Goodson admitted he violated

Model Rule 1.15(a) when he failed to monitOr his client trust account from March 1998 to May 1998 and during that time monies which had be earned as fees remaincd in the client trust account, amounting to commingling. Model RuJe 1.15(a), in parr, requires that all lawyers hold propeny of clientS or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property and funds of a client be deposited and ma.intained in one or more identifiable truSt accountS. 3. That Mr. Goodson admitted that he violated Model Rule 1.15(b) when he deposited twO checks which totaled $10,733.22 into his client truSt account on February 6, 1998, and failed to promptly deliver to Mr. Ernst funds to which he was entitled. Model Rule 1.l5(b) requires that upon receiving funds or other property in which a diem or third person has an imerest, a lawyer shall promptly notify the diem or third person, promptly deliver to thc cliem any funds that the diem is emitled to receive and, upon request by the client, promptly render a full accouming regarding such property. As part of the consent to discipline, Mr. Goodson shall provide Mr. Ernst with the balance of the funds in his possession, $5,366.61, and shall submit to the Executive Director's office each month for a period of one (I) year, a copy of his client trust account bank statements, including copies of all checks written on the account and deposit slips. h is specifically stated that there is no finding by the Committee on Professional Conduct that Mr. Goodson misappropriated any client truSt funds. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that JOHN C. GOODSON, kkansas Bar ID #90018, be, and hereby is, CAUTIONED for his conduct in this matter.

IN RE, CHERYL KATHLEEN MAPLES NORTH UTILE ROCK, ARKANSAS MARCH 21, 2000 The formal charges of misconduct upon which this Order is bascd arose from the Complaint of Thomas E. Haney. Mr. Haney contacted Cheryl Maples, an attOrney practicing in North Little Rock, to assist him in certain legal manees pending with his mother-in-law. Mr. Haney's wifc died in ea.rly 1997. Prior to her death, Mr. and Mrs. Haney had been residing with Mr. Haney's mother-in-law for over twenty (20) years. During the course of that time, Mr. and Mrs. Haney had accumulared certain personal property co which Mr. Haney was denied access following his wife's funeral On

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April 10, 1997. when Mr. Haney first met with Ms. M2ples. he provided her with various receipts and canceled ch~ks demonstr:.uing payment for the property that had 1.>ÂŤ0 purchased. Ms. Maples agreed [Q assisr Mr. Haney and charged him 5150 to begin the representation and co write a letter to Katherine Cody, Mr. Haney's mother-in-law. On April!?, 1997, Mr. Haney paid the requested amoum and Ms. Maples wrote

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what his available legal remedies mighr be in regard fO recovering his property. According to Mr. Haney, Ms. Maples told him that he needed to pay 5500 in COSts and 52000 in attorney's fees and she wouJd undertake to recover his property

for him. Ms. Maples denies that explanation of the fees and said that the entire quoted amount was $2500 with cons included, but mere was never any discussion or statement that $500 was representative of COSts. Ms. Maples received the entirety of the quoted funds by June 3, 1997. For several w~ks, after Ms. Maples cashed the check for the $2000 attorney's fee, Mr. Haney heard nothing from her. Mr. Haney attempted to call Ms. Maples on numerous occasions wim no success. According to Ms. Maples, she and Mr. Haney were in contact. When he was final1y able to reach Ms. Maples in September 1997, Ms. Maples provided Mr. Haney with a copy of a complaint mat she advised had been filed on his behalf. Ms. Maples apl.uned that Mr. Haney wu provided a copy of me complaint bÂŤ:ause she had Knt it to Ms. Cody in an attempt (0 cause her to respond f2vorably (0 Mr. Haney's wishes. Mr. Haney later learned that Ms. Maples did not file the complaim until April 1998. Ms. Maples offered that the delay was due to certain major medical conditions that she was experiencing. She added mat Mr. Haney was aware of her health issues and of the time that she was hospitalized. However, Mr. Haney reports that since contacting Ms. Maples by telephone was not successful, Mr. Haney wrote her a letter on April 13, 1998. Ms. Maples did not respond to the letter. One month later, Mr. Haney wrote Ms. Maples again. In the second letter, Mr. Haney terminated Ms. Maples' representation of him and requested that she provide his files (0 his new attorney. In addition, he requested return of any unearned ponion of the advanced f~ that he paid to her. Ms. Maples did nOt respond (0 this letter eimer. The Executive Director also conrae<ed Ms. Maples on behalf of Mr. Haney and requested that she COnt~et Mr. Haney (0 discuss these matters, bur she did not do so. Ms. Maples expresses her belief that during the course of her health problems she has not jeopardized her clients' cases and asserts that she would have followed Mr. Haney's litigation through to completion had she not been fired about six (6)

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weeks after the lawsuit was filed. Upon consideration of the formal complaint, the responK mereto, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Ms. Maples' condUCt violated Modd Rule 1.2(a) because the objective of her representation of Mr. Haney was to pursue all legal remedies available to him in an effort to recover his personal property from his mother-inlaw, and she failed to do so aftcr advising Mr. Haney that she would. Model Rule 1.2(a) requires, in pertinent pan, that a lawyer abide by a dient's decisions concerning the objectives of representation and consult with the client as to the means by which they are to be pursued. 2. That Ms. Maples' conduct violated Model Rule 1.3 when she did nor file a lawsuit on Mr. Haney's behalf for almost a year after she was paid to do so and after filing a lawsuit on Mr. Haney's behalf, she took no other steps to pursue the matter on his behalf. Model Rule 1.3 requires that a lawyer act with reasonable diligence and prompmess in representing a client. 3. That Ms. Maples' conduct violated Model Rule 1.4(a) because for several months after Mr. Haney hired her, she failed to k~p him informed of the staws of the marter for several months and failed [0 respond to Mr. Haney despite the numerous requests for information made by him. Model Rule 1.4(a) requires that a lawyer keep a client reasonably informed about the StatW of a matter and promptly comply with reasonable requests for informarion. 4. That Ms. Maples' conduct violated Model Rule 1.16(d) because, sin(X her representation of Mr. Haney was terminated, she has failed to return to him the unearned portion of the advanced fee [hat he paid her and she has not returned to either Mr. Haney or his new legal counsel the papers and property in her possession relating to his legal matter to which he is entitled. Model Rule 1.16(d) requires, in pertinent part, that, upon lermination of reptesentation, a lawyer take steps 10 the extent reasonably practicable to protect a client's interests, such as surrendering papers and property to which the dient is entitled and refunding any advance payment of fee that has not been earned. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that CHERYL KATHLEE MAPLES, Arkansas Bar ID "87109, be, and hmby is, CAlITlO ED for her conduct in this matter.

[N Jl.E, CARL FREDERICK MOYER GREEN FORESf. ARKANSAS MARCH 2[.20000 The formal charges of misconduct upon which this Order is based arose from the complaint of Edward and Francine Thompson. Carl Frederick Moyer, an attorney primarily praCticing in Green Forest, Carroll Counry, Arkansas, assiSted the Thompsons in the preparation of three separate bankruptcy petitions. On April 13, 1998, the Thompsons sought legal counsel from Mr. Moyer due to a judgment rendered against mem for S1,428.78 in the Eureka Springs Municipal Coun. The judgment creditor had already insrituted collection processes against me Thompsons. On May 4, 1998, Mr. Moyer advised that bankruptcy was the Thompson's only option. On or about June 1,1998, Mr. Moyer aided the Thompsons in the prepar.l.tion of a pro se Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Western Districr of Arkansas (Case No. 98-13249). On June I, 1998, he personally delivered the perition to be filed with the bankruptcy clerk's office located in Fayctteville, Arkansas. On that same date, the United States Bankruptcy Clerk issued a deficiency order addressing the deficiencies in the bankruptcy petition. The petition lacked a list of secured creditors, a list of executory comraclS and unexpired leases, a Chapter 13 narrative plan and a noti(X of opponunity for creditors to object to the plan. These deficiencies were to be cured by June 16, 1998. The deficiencies were nor addressed, and on July I, 1998, the bankruptey petition was dismissed due ro the deficiencies. On September 4, 1998. Mr. Moyer aided the Thompsons in the preparation of another pro se Chapter 13 bankruptcy petition (Case No. 9813417). On September 8, 1998, rhe bankruptey clerk issued a deficiency order stating thc petition lacked the narrative plan and the notice of opportunity to object. These deficiencies were to be cured by September 21, 1998. The deficiencies were nor timely cured. The petition was ultimately dismissed on October 30, 1998, due to Mr. Moyer's failure to pay the filing fees as required by the bankruprey clerk. On ovember 10, 1998, in the Thompsons' behalf, Mr. Moyet filed a Chapter 7 bankruprey (98-13520). On thar same date, the bankruprey coun issued a deficiency order requiring the filing fee be paid, an attorney disclosure of compensation, an application to pay filing f~ in inStallments and a voluntary petition signawre page. On April 14, 1999. the Chapter 7 petition was dismissed with prejudice for failure to pay the filing fee. The dismissal with prejudice barred the Thompsons from filing a bankruptcy petition for

til\\ ~'fll' 180 days. Upon consideration the formal complaint, response herein, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Mr. Moyer's conduct violated Rule 1.1 of the Model RuJes of when he agreed to assist the Thompsons in the preparation of their bankruptcy petitions. Each time Mr. Moyer prepared the bankruptcy petition for the Thompsons. it was deficient in some aspect as determined by the United States Bankruptcy Clerk. Each time M r. Moyer was notified of the deficiencies, either by the Court or his clients. Each time he failed ro timely cure the deficiency. Model Rule 1.1 requires that a lawyer provide competent representation to a client, including the skill, thoroughness and preparation reasonably necessary for the representation. 2. That Mr. Moyer's conduct violated Rule 8A(d) of the Model Rules when he agreed to assist the Thompsons in the preparation of their bankruptcy petitions. Each time the petition prepared by Mr. Moyer was deficient in some aspect as determined by the United States Bankruptcy Clerk. Each time Mr. Moyer was notified, either by the Courr or his clients. Each time he failed to timely cure the deficiency. On the third dismissal, the Thompsons were dismissed with prejudice which barred them from filing another bankruptcy petition for 180 days. Each dismissal delayed the adjudjcation of the Thompsons' bankmplCY. Model Rule 8A(d) requires that a lawyer not engage in conduct that is prejudjcial to the administration of justice. WHEREFORE, jt is the decision and order of the Arkansas Supreme Court Comminee on Professional Conduct that CARL FREDERICK MOYER, Arkansas Bar #90067, be and hereby is CAUTIONED for his conduct in this matter.

IN RE, JON ALAN WILLIAMS PARAGOULD. ARKANSAS MARCH 20, 2000 The formal charges of misconduct upon which this Order is based arose from the Jon AJan complaint of Katrina Thurmond. Williams, an anorney practicing law in ParagouJd, Arkansas, is the attorney for the Estate of John Ramsey Cross. The Estate is pending in Greene County Probate Court and has been since 1993. Ms. Thurmond is one of the heirs of the estate. She is the daughter of the deceased. Ms. Thurmond's step-mother, Joyce Cross. was appointed Administratrix of the Estate on October 19, 1993. Mr. Williams was hired by Ms. Cross to represent her in the Estate matter. After several years of inactivity in the Estate, Ms. Thurmond hired Constance Grayson, an

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.morney from West Memphis to advise her and to assist her with the Estate maners. Ms. Grayson wrote Mr. Williams about the estate mauer on janua<y 23, 1998. She specifiea1ly asked him about the Inventory and Accounting required but not yet filed. With no response, Ms. Grayson fLIed a Motion to Compel the Administratrix to FiJe an Inventory and Accounting. 0 response was filed by Mr. WiUiams although he was served with the Motion. On May 18, 1998, the Probate Judge entered an Order requiring that the Inventory and Accounting be filed within thirty (30) days. Thin)'-six (36) days I.,er, Mr. Williams filed the Inventory but not the Accounting. Ms. Grayson wrme Mr. WiUiams two additional times about the accouming. Mr. Williams did not respond umil August 3, 1998. At that time, Mr. Williams explained that he was still drafting the Accounting. His subsequent correspondence on September 17, 1998, advised mat he was finalizing the Accounting but had been able (Q complete it because of a capital murder trial. As of the date of the service of the formal complaint. Mr. Williams had still not completed and filed the Accounting. Mr. Williams does nOt dispute that he has violated the Arkansas Model Rules which are included in the formal complaint. He has assured the Committee that he is attempting to clear up the matter and finalize the Estate as quickly as humanly possible. He accepted full responsibility for any and all action in the estate even though at times, he received less than full cooperation from his c1iem, the Administratrix. FoUowing Mr. Williams receipt of the formal complaint, the respondent attorney and the Executive Director undertook discussions which have resulted in Mr. Williams' agreement to djscipline by consent pursuant to Section Se. Procedures of the Arkansas Supreme Court ReguJating Professional Conduct of Attorneys at Law (Procedures). Upon consideration of the formal complaint, admissions herein, the terms of the proposed consent to discipline hereinafter stated, the

Alternate Comminee on Professional Conduct's approval thereof, and the Arbnsas Model RuJes of Professional Conduct, the Comminee on Professional Conduct finds: 1. That Mr. Williams' conduct violated Model Rule 3A(d) when, despite an Order Granting a Motion (Q Compel to File Accouming in the John Ramsey Cross Estate which required him (Q file an Accounting within thirty (30) days, he failed to file the Accounting in the Estate. Model Rule 3A(d) requires, in pertinent pan, that a lawyer not knowingly disobey an obligation under the ruJes of a tribunal. 2. That Mr. Williams' conduct violated Model Rule 8A(d), to wit: (i) since the opening of the Estate ofJohn Ramsey Cross, deceased, on September 3D, 1993. he failed to file an Accouming in the Estate, despite the annual reporting requirements of the Arkansas Code Annotated and an Order Granting a Motion to Compel to File Accounting, entered May 19, 1998, which required the Accounting to be filed within thirty (30) days, and, (ii) his lack of action in the probate maner has led (Q a substantial delay of over six (6) years in concluding the maner on behalf of all the heirs. Model Rule 8A(d) requires that a lawyer nm engage in conduct that is prejudicial to the administration of justice. WHEREFORE. in accordance with the consent to discipline presented by Mr. Williams and the Executive Director, James A. Neal. it is the decision and order of the Arkansas Supreme Court Comminee on Professional Conduct that JON ALAN WI LLIAMS, A,kansas B., ID #83181, be, and he<eby is, CAUTIO ED for his conduct in this matter.?

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Judge Thomas Franklin Bun. recemly retired Chancery and Probate Judge of the Arkansas Founh Judicial District, died May 20, 2000 at the age of 83, in his home in Fayeneville. At the time of his retiremenr in March of this year, Judge Burt was the oldesr sitting judge in Arkansas and, at 50 years on the bench, the longest sitting just in Arkansas history. Judge Bun, born March 26, 1917, was a native of Eureka Springs, where his father practiced law for 77 years and served as mayor and state legislator. Judge Bun was the sevemh and last child of Festus Orestes (EO.) Bun and Essie May Cox Bun. He graduated cum laude from the University of Arkansas School of Law in 1938 and was admined to the bar at age 21. For the nexr twO years, he practiced privarely in Fayeneville and served on lhe faculty of the University of Arkansas School of Law. Commissioned as a second lieutenant of infantry at graduation, Butt was called to active dury in 1940 and spent the next six years in the U.S. Army as an infamry training company and battalion commander in the U.S. before shipping to Europe in 1944 as a legal specialist in foreign claims. After leaving active duty as a major, he remained in the Army Reserved, retiring after 34 years as a brigadier general in the Judge Advocate General's Corps. He held me mobilization designation as chief judge of the U.S. Army Judiciary, receiving the Legion of Merit in 1970. Judge Burt was first elected chancery and probate judge in 1949, after his brother, Chancellor John K. Burt, was killed in an

automobile accidem. After taking office on January I, 1950, he was re-e1ected each six years (hereafter and served continuously for 50 years unci I his retirement. Chancellor John Lineberger said, "He's my idea of what a judge ought to be. He's a gencleman, a scholar, and he has all the patience in the world... As a lawyer, you would not think abour taking something sloppy in for him to sign." Judge butt's career has been distinguished by his service to the bench and bar, as me first chair of the Arkansas Discipline and Disability Commission, president of the Arkansas Judicial Council, a 14-year member of me Supreme Court Committee on Rules of Civil Procedure, chair of the Bar Probate Law Committee, Executive Council and House of Delegates of the Arkansas Bar Association and delegate ro the Arkansas Constitutional Convention in 1979. His lifetime achievementS were recogniuxl by the American Bar Associarion when it selected him in 1996 as one of three [rial judges nationwide to receive irs Award of Judicial Excellence. According to U.S. District Judge Franklin Waters, "You never had to wonder when you were in his COurt whether you might be at a disadvantage because he might like someone or one of the lawyers berrer than you. He called chem like he saw them, and char's all you can ever ask." On March 28, 2000, more than 450 friends, family members and colleagues gathered ro celebrate Judge Butt's career. Arkansas Supreme Court ChiefJustice, Dub Arnold, read and order from the Arkansas Supreme Court: "He has rouched the life of thousands, and in doing so, has made his portion of the earth a better place to live."

Presidenr Clinton wrote: "Your distinguished career and your commitmenr to me law have set an example for so many, and your work has been a (rue investment in the furore of our scate. A5 your remarkable tenure comes to a close, you can be proud of creating a lasting legacy of public service." Governor M ike Huckabee also sent a lerrer congratulating Judge Butt for his good works, and Mayor Fred Hanna issued a proclamation declaring March 28 "Judge Thomas E Butt Day". The Universiry of Arkansas School of Law dedicated a plaque, and the Washington County Bar Association announced a scholarship In Judge Butt's honor. Circuit Judge William Storey said of Judge Burt, "I think you meet three or four exceptional people in your life, if you're lucky. He is one of those people... His integrity is flawless. He has always been able ro set aside his personal feelings and rule based on me law, which is, of course, what a judge shouJd always strive ro do." Judge Burr is survived by his wife, Frances Trotter Burt, whom he married on August 31, 1997. He was preceded in death by his first wife, Cecilia King Butt in 1991 and his son, Marrin Andrew Butt, in )969. Survivors include sons Thomas King Burt of Richmond, CA and William Jackson Butt, II of Fayetteville; and five grandchildrcn, Andrew Martin Butt and Daniel Ryland Butt, bmh of Richmond, CA, and Mary Claire Burr, Anna Kathleen Butr and William Jackson Butt Ill, all of Fayetteville.

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WIWAM JENNINGS SMITH

William Jennings Smith, Age 91 of Little Rock, died Tuesday, May 2, 2000. He was born in Spurgeon, MO moving to Arkansas in 1909. He received his law degree from Cumberland University Law School in Lebanon, TN. which is now Samford University School of Law, and was admitted to practice law in Arkansas in 1937. In 1946, he fotmed a law firm with Pat Mehaffy and John Williams, Mehaffy, Smith and Williams, which is roday the largest firm in Arkansas. From 1963 until his retirement in 1974, he was the managing partner of Smith, Williams, Friday, Eldridge and Clark. When he retired to be of counsel to the firm, it took the name, Friday, Eldridge and Clark. Nong with the law, Smith was involved with shaping public poliey in Arkansas. He assisted Governor Bailey in labor and worker's compensation legislation and Governor Adkins in legislation afFecring veterans. He handled all legislative programs for Governor Laney. Governor Cherry and Governor Faubus. Governor Carl Bailey appointed him to the state's first Worker's Compensation Commission and Governor Faubus appointed him Justice of the Arkansas Supreme Court in 1958. He coauchored, with Frank Story and Julien Hogan, the first Arkansas Stabilization Law and General Accounting and Procedures Law. For 20 years, Mr. Smith served as professor of medical jurisprudence at the University of Arkansas medical Science Center. He was a Fellow in American College of Trial Lawyers, A Fellow of the Arkansas Bar Foundation. and chairman of

the board of directors of the Federal Home Loan Bank of Little Rock serving Arkansas, Lou isiana, Mississippi, New Mexico and Texas. His community involvement was limitless. He was president of the Little Rock Chamber of Commerce and chair of the Administrative Board of First United Methodist Church. He served on the boards of the Mettopolitan YMCA, Arkansas Heatt Association, March of Dimes and Metropolitan National Bank. He was a founder and life member of the University of Arkansas Medical Sciences Foundation and a senior member of the Fifty for the Future. Mr. Smith is survived by one daughter, Kay Smith Patron and her husband, William of Little Rock; one sister, Elizabeth Smith Palmer and het husband, William of Little Rock; thtee granddaughrets, Holly Parton Beineman and her husband, Donald, Ann Dickinson Parton, Katherine Parton Matthews and her husband Pat; and (wo great-grandchildren. He is preceded in death by h.is wife, Irma Holloway Smith. who died in 1998. BRANCH TUCKER FIELDS

Branch Tucket Fields, 85, legal counsel for 20 years and claims adjuster for 36 years for the Aetna Life and Casualty Company in Arkansas, died Sunday, May 14, 2000, in a Little Rock hospital. A resident of Pawleys Island, SC for 13 years. he was visiting a son and daughter in Little Rock when he suffered heart failure. He served on the North Little Rock School Boatd from 1958 ro 1963 and was irs president in 1961. He was president of the Arkansas Christian Civic Foundation, He was also a member of Selective Service Board No. 60, the Downtown Little Rock Lions Club and the Arkansas Arthritis Board. He served in the Navy from 1934 ro 1938. His membetship in the Arkansas Bar Association dates back to 1950. He was a charter member of the Lakewood United Methodist Church in Notth Little Rock. Fields was born in Greensboro, NC the son of Dr. and Mts. Branch Tucket Fields. Fields was preceded in death by a sister, Florence Fields Ward, and by his first wife Ruth Johns Fields. They were mattied for 40 years. Survivors include his wife of20 years,

Helen Barnert Fields; (wo sons, Branch Fields, Jr., M.D., Williamsburg, VA, and Pat Fields, M.D., Lirtle Rock; twO daughtets, AnnieBelle Fields Weymark, Belleville, Ontatio, Canada, and Candy Fields Wright, Mabelvale; a sister, Roberta Fields Carruth, Raleigh, NC; two brothets, Harold Rives Fields, Vancouver. WA, and Edwin Saundets Jotdan, Ellicott City, M 0; twO stepchildren, Kathy Barnett Thompson, Saluda, NC, and Brandy Barnett, Concord, NC; 16 grandchildren; and one greatgrandson.

Th~ Arkansas Bar Foundation acknowkdg~ with graufitl appreciation th~ r~uipt of m~morialgifts and scholarship contributions given in m~mory of th~ following indilJidua/s from March J, 2000 through June 5, 2000.

IN MEMORY OF JUDGE TOM BUTT

William A. Martin David Solomon

IN MEMoRY OF Gus CAMp

W. Christopher Barrier

IN MEMORY OF MRS. WYUE CAVIN

Judith Gray

IN MEMORY OF DOROTHY ORSINI JONES

Judge John A. Fogleman

IN MEMORY OF HENRY B. McKENZIE

James McKenzie Family

IN MEMORY OF Gus itEMMELL

Judith Gray

IN MEMORY OF HAROLD SHARPE

David Solomon

IN MEMORY OF WIllIAM J. SMITH

Judge John A. and Annis Fogleman

1'01. li So. l/S,â&#x20AC;˘â&#x20AC;˘er 1000

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Appellate Practice Continued from Page 13

President's Report Continued from Page 60

decide the case if the exhibit cannot be abstracted in words, unless it is impossible to do photocopy and attach a copy of the exhibit. Conry v. Stat<, 319 Ark. 709, 894 S. W.2d 583 (1995) (affirming a conviction of attempted murder because the abstract did noc reproduce the three photographs appellam camended should nor have been admincd). When it is impractical co reproduce such an exhibit and attach a copy. always file a motion asking the appellate court to waive the abstracting requirement. â&#x20AC;˘ Always remember that the goal is to abridge the record so the judges have what they need to decide the case but not more than they need to decide the case. â&#x20AC;˘ If you omit something that shouJd have been abstracted, always file a motion for leave to supplement the abstract. Supreme Court Rule 4-2 (b)(2), adopted January 29, 1998, effective July I, 1998.

we have already contacted co begin co work with us in this quest has said "yes". If yOll ate nOt called individually, call us and volunteer. There is a place for everyone on the train. The Arkansas Bar Association has been honored with a grant of $5,000.00 from LEXIS Publishing and Lawyers for One

f1ilssit'il'll .\IIH'l't isinll ~

7. Two Miscellaneous Observations to Keep You from Falling into a Pit: The Supreme Court Clerk can, by telephone. extend the due date for fUing a brief by seven days, provided no

wriuen motion for extension has previously been filed. The Clerk cannot extend the deadline for filing the record on appeal.

If you want to argue oraJly, you must request oral argument in writing in a letter separate from the briefs or a cover letter tendering briefs. The (ecrer must

be filed with the Clerk at the same time as your brief. Within 15 days afrer the letter requesting oral argumem, counsel must send a Icncr to the clerk stating dates when they are unavailable. Supreme Court Rule 5-1 (a). It might be dangerous to rely on anomer party's request for oral argument because that party could withdraw the request after the time has expired for you to make a request for oral argumenr.oOo

America co assist us in the work of our diversity commission. Only seven such awards have been made this year throughout the entire United States. How proud we are [Q have received this recognition and gift. We dedicate our efforts this year and in the years to come to protect the promise ... "and justice for

all... Patchwork homemade quilts are my favorites. I don't care much for the new high-tech blankets. I like white buck shoes. the music of Nat King Colc. homemade biscuits with sorghum, Souchern-fried everything, and family cook-outs. I am a little old-fashioned. Someone said I probably would prefer to have practiced long ago when lawyers wore wigs and robes. I don't know about the wigs. but I think the robes might have been prerty nifty. Chief Justice Arnold, Don and Judith, do you suppose we could .... no, I guess not. Thanks for granting me the opportunity to serve you. Allow me in this closing moment to say "Thank You" to Bucky and Anita Jones for their service on behalf of the lawyers of Arkansas. What a pleasure it has been for Rebecca and me to spend time with this very special couple during the past year. Please take an opportunity to express your appreciation to them and also to Chris Barrier. our past Chair of the Executive Council, for the time they have devoted to our Association. There is much to be done and much for which we can be very proud. Right now. .. at this time and in this place ... it is an honor to be a member of this noble profession.o)

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ENDNOTES I. A complete guide, Handling AppeaLr in Arkamas, has been published by the Arkansas Bar Association.

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The Arkansas Lawyer magazine Summer 2000