The Arkansas Lawyer - Fall 2007

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A publrcatlOn of the lli'

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Arklll/\(l\ Har ,\\wC/lIIiol1

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The Arkansas

EDITO R Anllil Hubbard EXECUTIVE D I RECTOR KII"II K. HlluhlflJ

awer

ASSOClATE EXECUTIVE D I RECTOR us'- R. Hnu/tTJ(J1I EDITORIAL BOARO Philip 1:.. Kaplan, Chair

vol. 42. NO. 4

Judge Wiley A. Bnnlon, Jr. Michelle Il . Cauley Millon Fi ne. 11 William O. I laught

features

Jim L Juli:.m Mary Ik lh M:mhews Gordon S. R:nher, Jr. ChrislOpher Tnvis

10 Tort Reform Cases in the Arkansas Supreme Court Jess Askew 11/

David H. Williams Teresa M. Winebnd

OFFICERS Prcsldent Ricba rd L. Ramsay ~rd

of Governors Chair

D avid B. Vande:.-gtiff I'resident-Elect Rosali nd M . M owe:r Immreliue

PUI

Prt'Sident

J amd D. Sproll Sccrelary-TTCUUm" WiltilUII A. M lmin

14 A Plaintiffs' Attorney's Perspective on Act 649 of 2003: What is it Really?

Brian Brooks

l'artiamenlari.;c,1l

J. Lwn Johnson Young Lawyers Section C hair Amy Frttdntan

BOARD OF GOVERNORS

' 'omu

M. Carpenter Niki T. Cung

,

Richard C Downing Causley Edw;lrds

David M. Fuqua Ch.;c,rld L H.;c,rwdt Amhony A. Hilliard Cokllc O. Hononblc Jim LJuli.iln

20 The Charitable Immunity Doctrine Where are We Now? Michelle H. Cauley

Scan T. Kcith Roy Bc:lh Kdley Hmy A. Light Chalk S. Mitchell Dollll.il C. Pelt us Charles D. Roscopf, Jr. Todd M. Turner John T. Vines

Eddie Ii. Walker

18 Practice Tips It Isn't Just in Federal Cases, Anymore Todd L. Newton

Dennis Zolpcr

UAlSON MEMBERS Kam1 K. Hutchins Slc:vm W. Qu.;c,ltkNum Jack McNulty

Zane A. Chrisman

J~Jobn Dan Kemp

Carolyn B. Witherspoon

Judge Michael Robinson TIN .tn./lUU u .yrr (USPS S46.(40) IS publUhfd quutrrly by the Arbn~ ~ Af4oaatoon. r~lC"b posug<' pard al Lillo: Rock, A.ka~ 1>QSTM.AS'fER; KJId ~rCSI dungc:s 10 77H A'*-_ u~, 222-4 CoIlorwbk u ...., Luk Rock, i\rbnw; 722Q2. Suhknptoon pr>CI: to non ·n~f>lbm the- i\rbru;u Ibr Auocu.liOf1 $.35.00 pn yeu_ Ally opinion e>:pl'QJftll>emn is llul or lhe aUlhor, and ~ nco:uanly tlul of (he Al-i<uu:u ~ ~1I0n or TIN A"10.",,,.., ~"'Y"' CAnrnbuuonl 10 7l.r .......... IUU u -;yn an: wdromc and IMuid be ~'n 10 Anna Ilubban!, FAi ...., ahub-

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I>:..rd(hrkba •• oom. AU inquI/i(s rtprd""lIdvenislnll should be toll EdItOf. n.. A ....._ ~IIIJ'", a l (he ~ :odo:irQt.. Copyripll 2007, A,ufWIo Ba. Astociauon . All r.g.IJ~.

24 Arkansas Supreme Court Historical Society Noteworthy Arkansas Jurists: Three Men Named Holt Jacqueline S. Wright Walker

28 Book Review- Lost Kingdoms by Phillip McMath Vic Fleming

10

Contents Continued on Page 2

/

The Arkansas

awer Vol. 42. No. 4

in this •Issue CLE Calendar

25

Arkansas Bar Center Memorial Border

26

Lawyer Community Legacy Awards

29

Judicial Advisory Opinions

30

Lawyer Disciplinary Actions

31

In Memoriam

50

Arkansas Bar Foundation Memorials and Honoraria

51

columns 5

Classified Advertising

52

President's Report Richard L. Ramsay Young Lawyers Section Report Amy Freedman

9

CO!D •

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On the Cover Photography by Andy Taylor and Tasha Sossamon Taylor

Arkansas Bar Assoc:latlOrl

Cottondale lane UtIle Rock, ArkafTh<l::' 72102

HOUSE OF DElIGATES Delegate Db.trict loSE: Robert F. Thompson, III

Delegate Olstric12-SE: lerric Grady

Delegate District 3-$£:: Barbara A Halsey. Mark Mayfield. Brant Perkins Delegate District 4-SE: Kathie A Kimbrell Delegate DIStrict 5-5£: Delegate District b·SE.: Marshall Wright Delegate OislricI7-SE.: Buck Gibson Delegate District 8-SE: TIm A. Bbir Delegate District 9-5E: Brian Miller Delegate District IO-SE: Anthony A Hilliard. Brandon Robinson OdcgJLc Oislrlcill-SE: Phillip C. Green Delegate District 12-SE: TImotl!Y leonard Delegate 015Irlcll3-5E: Mattht.'w Shepherd. lames McMcnis Delegate District I4-SE: Matthew Kimmel. Amy Freedman Delegate District 15-$E: Bryan T. McKinney. Tom Curry

Dcleg~lIe

District 16-SE: lon:lthan D. Jones. Jacob Hargraves

Delegate District 17-SE: Sam Gibson Delegate District I-MV: Usa L Kelley. Jason 6. Kelley. Stephen Geigle. Vicki Vasser Delegate District 2-NW: IJrock Showalter. Buddy Ch:ldick. David ,. Whitaker. Charles Harwell.

Tim Tarvin. Jason B. DUffy. Debby Thetford Nyc. Paul D. Reynolds. W. Marshall Prcl~yman. Bob Estes Delegate District J-MV: Stephen Smith. lames O. Cox. An!y Click-Harada. Kimberly frasier. Rita Howard. Farrah Reider Dclc!rtc OI<;lri("1 4-NW: Patrick McD:mici Delegate District 5-NW; Steve B. Davis Delegate District 6-NW· Roy Beth Kelley. John

c. Riedel

Delegate DistricI7-NW. Stephan Ilawks. Charles E. Clawson. III Delegate District 8-NW: lerry Patterson Delegate District 1-(: V~lIerie Kelly. Gregory L Crow. Gwen Rucker. Randy Bueter. Mitch Berry. Sieve Bingham. lacy Kenn<.:dy. C. Tad Bohannon. lerry larkov\,ski, Brian Vandiver. Mark McCarty. lay Taylor. ludge Beth Deere. leon Johnson. Rebecca Denison.

Michelle Cauley. David Glover. lay Shue. Elizabeth Smith. Brad L Hendricks. loci M DiPippa. i(h3)Y"Jnl Edding!>. Christian HarriS. Ka TIna I-lodge: lefT Wood, Gill A Rogers. Mark Hodge, Brett Watson. Patrick Spivey. Danyelle Walker I..aw Student Representatives: lacey larue. University of Arkan~a~ School of law: Allison RantisJ. UAlR William H. Bowen School of law

2

The Arkansas lm'1'er

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President's Report

by Richard L Ramsay

Horizon Lines, Scouting and Safe Eddies

As I write rhis article, I am sitting in the President's Office of our new and spectacular Bar Center, my temporary ho me away from home. Two of th e waUs of this office are glass and my vi ew today is of an early

sunrise reflecting on

me downrown

build-

ings as rhe river rolls past our headquaners towa rd dowlHown Lirtlc Rock and on into Arkansas' Delta. It is a unique and inspirationa l view. The inspiration for me is (0 continue the analogy likening thi s bar year (Q a river trip.

H o ri.z.o n Li nes When a whitewate r boater sees a horizon line, he or she knows so mething different and , usually. difficult is abo m to happen. A horizon lin e is th e view you get when you see the river JUSt disa ppear. m eaning a steep drop is in your immediate future. The problem that is created by a horizon line is th at you have no idea what is JUSt ove r the lip of the wa terfall , m akin g it imposs ible to know which direction to go.

Until now, our long range planning consisted of a snuJl mecring of key people at john Stroud's cabin on Lake Greeso n. It is a wonderful retreat and Judge St roud's hosp ita lity is un equaled. We are ab le ro plan our cou rse of actio n for the coming yea r at this m eeting. The best idea from this year's meetin g was Immediate Past Presidem jim Sprotf's suggestion that we increase our effo rts at lo ng range planning; to be more focused and more ÂŤ'o ng range." I have, through lhe So uthern Co nference of Bar Presi delHs, beco me fri ends with j anct Wa rd Black, current Pres ident of th e Nor<h Carol in a Bar Association. Through this connection, we had Ms. Black make a presen{arion at ou r rece lH Board of Governo rs meering which was held at Th e Lodge o n Mount Magazine. Shortly afrer her impres-

me

sive presem ad on, our Board of Governors authorized me to form a lo ng range planning committee consiscing of Governors from the three bar distri cts, as wel l as representatives from the House of Delegates and other bar leade rs. Just as a river changes. the world an d the practice of law is changing rapidly (pun intended ). I have asked Jim Julian of Little Rock to lead this important commirree.

Under his lead ership , I am confident that th e Association wi ll choose the ri gh t course as it navigates its future .

Scouting Additionally. In order to travel m e diffi cult and unknown section s of a Stream successfully, a river runner often StOpS, gets out of his/her boa t, and scou rs a panicularly chall enging rapid . This is a safety precaution that allows the paddler to eva luate the risk, determine th e options on how to run the rapid and assign rescuer positio ns to ensure safe passage.

Once again. rhe river analogy fits. Every few years, me Association co nducts a survey of iu membcrs to evaluate whar we are doi ng wel l and where we need imp rovement. Since th e last survey. mken in 1998, the legal profess io n has changed greatly. For that reason, [he time has again co me to do so me sco ming. John Vines of Hot Springs. serving as the C hairman of our Member Benefits Committee, will head up a new survey planned for this year.

Speaki ng of changes, this survey will be torally online and probab ly in a series offoUT separate inscallmenrs. Please be on me lookOut for this survey and respond promptly.

Our Association is membe r driven. It can only be wha l you make it. This means of "scouting" will go a long way lOward improving the future of dlC Association. My goal is ro make this great o rganization even better.

Safe Eddies In the paddling co mmunity. th ere is an ed ucatio nal process used to equip our paddl ers with the knowl edge abom how to lise the river's obstacles to their advamage. One of these rools is rhe safe eddy. Paddlers are taught how to use techniques that allow th em to find a spor of calm water when the river is raging around them. It is a co mforrable feeling to have thi s knowledge and use it. I n short, educa tion prevcnts prob lems.

Again, rhe analogy fits. Youth in our society today are faced with problems and temptations far beyond what most of us realiz.ed and enco unrered in our young li ves.

As the wo rld grows smaller, and more and more compl ex, young people are exposed to the potential for persona] problems on a regular basis. Former President G lenn Vasser first approached the idea of ramp ing up rhe Association's involvement with law related educatio n. Immediate Past President Jim Sprott helped organize this effort and , durin g thi s yea r, we hope to get it off and running. Mark H odge of Little Rock is chairing this effort.

This program 's goal will be to expose young peo ple to th e princip les of freedom - ho pefull y making (hem more informed and bener citizens - to help them find the "safe ed dy" as they pick and choose th eir way (hrough (hese difficult years. It wi ll be taught by local lawyers to students in their co mmuniti es. Programs like Law Related Educatio n make me proud of ou r profession and proud ro be an Arkansas L1WYCr. Recognizing horizo n lines. learning to sco ur and finding safe eddies. Knowledge helps young peopl e ro successfully navigate life's difficulties, and helps us to deal with th e changes, and chall enges, of our hono rab le profess io n. â&#x20AC;˘

Vol. 42 No. 4/ Fall 2007 The Arkansas Lav,y cr

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Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer

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Young Lawyers Section Report

by Amy Freedman

Arkansas Young LawyersServing the Community with Enthusiasm

Ralph W aldo Emerso n once said thac " nothin g great was eve r achieved witho ut enthusiasm." I think this quote aptly fi ts th e Arkansas YLS. Fro m literacy projects [ 0 o ur new d ivers ity youth project, we vo lunreer O Uf tim e wi th passio n. sin ceri ty and grea t enth usias m [0 help o ur co mmuni ty.

The Ark.1J1 sas YLS Execurive Council began the bar year with a ban g at o ur annu al fall retreat held on September 7. The C ou ncil is blessed this yea r with "veteran" members who arc extremely ex perienced in rh e YLS-Gwcn Rucker, Co unney C rouch, H . Wayne Yo un g. Paul Benllen , Eddy Do mall , Farrah Fielder, Bill H orron , KaTina Hodge and To ny Jun ea u. These seasoned membe rs of O Uf Council offer grea t leadership and ex perience. Likewise, we are equ ally fort unate m have o ur newest Co un ci l members, Tas ha Sossa mo n Taylor, Wi ll C rowder, John H o useal, Vicki Vasse r and Brendan Monaghan. Each new Council member brings fres h ideas and energy m the Council, which will take us into the future.

At th e afternoo n lo ng retrea t, we discussed a fu ll yea r of communi ty se rvi ce projects, ideas for future projects and ways m make o ur scctio n bette r serve the needs of its mcmbers whil e wo rking hard to meet the goals of the Arkansas Bar Assoc iation .

After th e lo ng day, we had a fa bu lo us recepti on with good food and beverages followed by an excell ent dinner at T he Brave New Restaurant. It was a tjm e for o ur Council to break bread mgether and have a time of fellowship and fun mgc rher after wo rkin g hard o n Co un cil busi ness.

In last mo nth's column, I un vei led to yo u the newest Arkansas YL5 project, "Choose

L,w: D iversity Outreach," which is being funded with a grant from the American Bar Associatio n. This project is extremel y timely in light of the 50th annive rsary of the Centra] Hi gh ex perience and th e moving tribute to the Littl e Rock Ni ne. W ith the YLS D ive rsity Outreac h project, we will be reaching o ur to min o ri ty high school and co Uege stu de nts in an effort to show them that law is a profess io n fo r al l peo ple.

Plans are under way to brin g this project to the fo ur co rn ers of Arkansas at local hi gh schools. We wi ll a1so have programm ing at the University of Arkansas at Pine Bluff. If yo u are in terested in volunree ring for thi s worthwhi le project, please co ntact KaTina Hodge, Di vers ity Project C hai r at KaTin a.

Hodge@a rkansasag.gov. This is such an impo n anr project, and we wa nt to get yo u in volved.

Lookin g ahead, th e YL5 bar yea r is ex tremely active. In September, we bega n our fifth year with the Arka nsas literacy project in Texa rkana, Arka nsas. T his project ori gi nally began duri ng the year that Mark H odge was the Chair of Lawyers fo r Literacy. The project involves young lawyers "ado pti ng" an entire fourth grade class at Fairview Elementary Schoo l. Th is yea r, th e students are chal lenged to read th e book, "Charlo n e's Web" ove r the course of th e school yea r and pass a proficiency tCSt. In the spring, the students wi ll be rewa rded with a pizza party and a viewing of thc mov ie. h is a project that the young lawyers loo k forward to every yea r since it insti lls a lifelo ng love of reading in the chi ld re n.

T he Arkansas YLS hel ped host th e So uthern Co nfe rence of Bar Presidents o n Octo ber 11 ,2007. Brendan Mo naghan and

Will Crowder arc the Co-Chairs for th e YL5 H ost Com mittee and actively recrui ted vo lunteers. The yo un g lawye r vo luntee rs picked up the inco ming bar pres idents and their spo uses or guests at the airpo rt and transported them to the Ca pi ta l H otel.

We we re pleased to play such a vital role in hosti ng these folks. The YLS rolled o ut the Arkansas '" Razo rback Red" carper and showed o ur gues ts the fi nest in hospitali ty.

O n Nove mber 2-3, 2007, the Arkansas YLS will hold the an nual "Bridging the Ga p" C LE co urse at th e UALR Bowen School of Law. This C LE co urse is the mOSt impo rtant training for new atto rneys in Arkansas. It is designed to help the new lawye r learn what to expect in the real world of practicing law. T he program also establishes a standard of un ifo rm excell ence in the practice of law fo r Arkansas atto rneys.

In this way, all new attorneys know what is ex pected of th em as th ey enter new legal jobs. Th is year, Eddy Doman and H . Wayne Young have wo rked hard , alo ng with Bar staff, to pu t together a dynami c curriculum with two tracks of programmi ng. " Bridging the G ap" follows the Arkansas Professio nal Practicum held o n November I, 2007, and is an extremely worthwhile co urse. I encourage yo u to attend.

I n sho rt , the YLS is a ball of energy and enthusias m. Thro ugh o ur many projects, we will impact the lives of childrcn and the less fo rtun ate in a positive way. We also ho pe to do tremendo us se rvice [Q the Bar. T he YLS is yo ur "home" after law school, during those early years of practice where yo u will undoubtedly make lifelong fr iends. Do n' t wait; get in vol ved now! We are ready to get to know yo u and get yo u in vo lved ! â&#x20AC;˘

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer

9

Altho ugh the adoptio n of [O rr refor m legislari o n in Act 649 of 2003 crea ted a StO rm of passio nate and far-reac hing argum ents among lawye rs and legal co mmenrato rs,l the su bsequenc course of litigatio n in the Arkansas Supreme Court has been marked by restrai nr and careful selecti on of cases and issues. Several Act 649 cases have reached the Court, bur o nly one, Summerville v. ThrolJ)er,l has been decided o n the merits of an Act 649 iss ue. This arricle will repon o n the cases that have reached the Sup reme Court because this is where the law of Arkansas wi ll be made; federal courtS have ruled o n Act 649 iss ues and will continu e to do SO,3 but those decisio ns will o nly be educated predi ctio ns abo ut what th e Arkansas Supreme Co un may ul timately decide on those q uestio ns. of

The Supreme Court's Selectivity in Tort Reform Cases A wee k before han ding down its opinio n in Summerville v. Thrower, the Supreme Co urt d ismissed an appeaJ in McKinlley v. Bishop,' a case th at anempted [0 ra ise th e same issue presented in Summerville as well as seeking a declaratory jud gment that additio nal secti o ns of Act 649 were "unconstitu tio nal or otherwise in valid." The plainriff had named te n "John Doe" defendants and had failed to o btain a fi nal ord er o n the claims against those ano nymo us defendanrs. Even tho ugh no parry raised this issue, the Supreme Co urt addressed the lack of a final judgment as a barri er to its own jurisdicti on, and it 10

The Arkansas Lawyer

WW'IN.arkbar.com

dismissed the appeal witho ur prej udice. At that time, Summerville v.

Thrower had already been argued and was under submiss io n.

Simil arly, in Shipp v. Frtlnklin,6 the Co un dismissed the plaintiffs challenges to Act 649 as moO[. T his rul ing requ ired ca reful analys is of (he posm re and histo ry of the case. T he plaintiff had sued twO alleged joint ro rtfeaso rs, Fran klin and Sanders, and argued that the limitatio ns o n joint and seve rall iabili ry in ARK. CODE ANN. ยง 16-5520 ) were unco nstituti o nal. The plai ntiff also argued that her med ical bills were $44,497. 19, buc chac ARI<- CODE ANN. ยง 16-55-2 12(b) limi ted her evidence of medical bills to $ 16,478.64 as th e amount paid by her or o n her behalf, o r which were unpaid and remai ned the li abili ty of th e plai ntiff o r a third parry. Before trial, the plai ntiff had serried with Sa nders, and Fran klin retai ned third -party claims agai nst Sanders. At tri al. the jury fo und Sanders co be 100% at fa ult.

T he Court decided th at reviewing th e co nstituti o nal questions would have no practical effect o n the case. Sanders was the o nly party at fa ul r, and rhe mod ifi catio n of joint and several liabili ry in ยง 16-55-201 did nor man er beca use twO o r mo re peo ple mu st be liable in [O rr fo r the plain tifPs injuries fo r th e change to co me into play.

On the iss ue of proof of medi cal bills. th e plai ntiffs settlement with Sanders and the jury's exo neration of Fran klin ended any chance of a retri al where rhe question co uld come up.

These decisio ns re Aect that the Court is exe rcising great care and

deliberation in revi ewing issues under Act 649' In view of me constitutional tensions between the Supreme Courr and the General Assembly thar surfaced in Summ~rvi"~, this is a wise course.

Substance v.

Procedure in Summerville Summerville rai sed a question conce rning the consticutionaliry of the reasonabl e-cause affidavit requirement of ARK. CODE ANN. § 16-55-209(b)(3).

Section 209 in general is concerned with establ ishing reasonable ca use in any action for Illedjcal injury. If ex perr testimony is required in th e case, [hen § 209(b)(i) scares that reasonable cause may be es tablished only by an affidavit of an expert in th e same type of medical care as the defendant, and § 209 (b)(2) requires th e affidavit to scate with particularity the experr's qualifications and familiarity with the applicable sta ndard of care, how the standard of care has been breached. and how the breach resuIred in injury or deadl.

Section 209(b)(3). th e provisio n at issue in Summervill~. requires that the affidavit establishing reasonable cause be filed widlin 30 days after the complaint is filed. Failure (0 fil e th e affidavit within 30 days after the complainr is filed subjects the party or lawyer who signs the co mplaint to sa nctions under § 209(a) and req uires dismissal of [he complain[ under § 209(b)(3)(B).

Tomosa Summervi lle's co mplaint alleged daim s for medical injury against an obstetrician and a li censed nurse practitioner. She fa iled to file a reasonable-ca use affidavit within 30 days after her complaint was filed. In response to a morion to dismiss, her lawyer submitted an affidavit asserting that the lawyer had researched the medical issues and was co nvinced that the plaintiff had a valid cause of action. Her lawyer also stated that the plaintiffs obstetrical expert witness had agreed to testify but had been [00 busy to prepare a reasonable-cause affidavir. The trial Co urt upheld the 30-day filing requirement of §209(b)(3)(A) and di smissed [he action under § 209(b)(3)(B).

Arkansas lawyers will recognize in the dismissal requiremenr an echo of a rule from the Medical Malpractice Act that the Supreme

Court struck down in Weidrick v. Arnold. s Weidrick addressed the sta(U(ory requiremem that a plaintiff provide 60 days' advance notice to a medical malpractice defendant before filing suit. The Court rejected this StatU(ory requirelllem as in direct conAic( with Rule 3 of th e Rul es of C ivil Proced ure, which governs the commencemcnt of a civil action. Tomosa Summerville argued that Weidrick required the same result in her case.

The Supreme Co un made short work of the 30-day filing requirement, rejecting it as a violation of th e separation of powers doctrine of the Arkansas Constitution. All seven justices found th e filing requirement un constitutional. Justi ce Brown, joined by Chief Justi ce Hannall and Justices Co rbin. Gunter and Danielso n, held the 30-day filing requirement unco nstitutional for co nAicdn g with Rul e 3 on the commencement of a civil action, app lying th e reasoning used in Weidrick. JUSt as Weidrick rej ected the 60-day-advance-notice req uiremem as "an added encumbran ce for filing a co mplaint," th ese five justices co ncluded that the 30-day post-commencement filing requirement was a "legislative encumbrance to commencing a cause of action that is not found in Rule 3."10 Justi ce Imber, joined by Justi ce Glaze, co ncurred in the result because they found the requiremem of mandatory dismissal inconsistent with the provisions of Rule 1 1. They reaso ned that the reasonable-cause affidavit of§ 209 in general mirrors [he reasonableinquiry requirem ents of Rule II without con fli cting with it, bur that the mandarory dismissal req uired by § 209(b)(3)(B) is a panicular sa nction thar co nAicts with the discretionary range of sanctions avai lable to a trial court und er Rul e 11 , and that the statute provides no opportunity to withdraw or cure th e pleadi ng defect, in co nfli ct with the cure opporrunity provided by Rule J I. Both opinions starr from the same premise. If a procedural matter is governed by one of the Rules of Civil Procedure, (h en the General Assembly has no power to pass a statute that conAjcts with the Rule.

From a constitutional sta ndpoint, this reaso ning is unassailable in light of the adopdon of Am endmenr 80. Section 3 of Amcndmenr 80 gives th e Supreme Court exclusive power [Q establish rules of pleading, practice and procedure in the sta te courts. 1I The exdusive power of the Supreme Court in this area is more firmly established under Amendment 80 than ie was when Weidrick was decided in 1992.

The d.ifficul ty is not in stating this principle of the separation of powers, but in applying it. Justice Im ber's concurrence neatly found twO direct conAicts between the Statutory filing requirement and Rul e I I of the Rules of Civil Procedure. The conAic[s are stark: the seature compels a specific sanction of d.ismissal Jess Askew III isn member o/Williams a-A"deNon PLC ,uhere he speciaLizes ill business Litigation. employmellt law and medinlaw.

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"Whether an unconstitutional conflict requires actual inconsistency or a simple legislative trespass may be an issue of constitutional doctrine that the Court will develop in future cases."

where rh e Rule provid es broad discretion ro dlC [rial court, and the stature provides no opportunity to cure where rhe Rul e does.

Because of these direct co nflicts. rhe supremacy principle embedded in Amendment 80 favors Rule 11 and overrides th e statuce.

The confli cr with Ru le 3 is nor so direct. The s[acute does nOt es tablish any additional co ndition to the comm encement of a lawsuit und er Rule 3; Ms. Summerville was able to and did file (a nd merefore commen ce) her lawsuit under Rul e 3 without a reasonable-calise affidavit. The statute did not add a filing requirement that was inconsistent with the rul es for commencing a lawsuit und er Rlile 3, and the defendants in Summerville argued this as a reaso n to distinguish Weidrick and uphold the post-co mm ence ment affidavit req.uiremem. The iss ue under the statute arose 30 days after the action was co mmen ced. justice Brown's opi nion addressed this argu ment forthri ghtly: "There is linle, if any, practical difference in this court'S mind between :1 mandarory legislative requirement before commencing a cause of action like we had in Weidrick and a mandato ry requirement within thirty days immediately after filing a co mplaint such as we have here. Both procedures add a legislative encumbrance to co mmen cin g a (;;.tu:,c or action that is nOt found in Rule 3 of our civil rul es."1 2 The Co urt mad e dear that its co ncern was with th e «gotcha" effect of the statuce; a properly comm enced lawsuit would have to be di smissed if the reaso nable-ca use affidavit were not filed wichin 30 days. "The co nscitucional infirmity in § 16-114 -209(b) is me provisio n for dismissal if the affidavit does nOt accompany a complaint within thirty days. "13 Is the post-commencement filing requirement of th e statute reaJly in co nRict wim the co mmencemenc requirements of Rule 3? Not for the first 30 days after commen cement, but on th e 31 st day me starutory requiremenr functions like a conditi o n subsequent, or a poison pill, that requires dismissal and therefore defeats the proper commencement of th e action. The majority co ncluded that me sratucory requirem ent mUSt fal l to Rule 3 bec.1 use the statute adds an "encumbrance" to filing a lawsuit that "is nor found in Rule 3."1.

This notion of conflice is slighrly different from me one inherent in Jusrice Imber's opinion. A statute ca n add to the requirements of court ru les without comradicting them , as justice Imber observed in her co ncurrence with respect [0 those portions of § 209 mat are consistent wim Rule 11. Bm justice Brown's opinion rejected the staUltory requirem ent as an encumbrance rhat is not found in Ru le 3. justice Imber's notion of "conRict" seems to involve actual

12

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inconsistency bct\vecn the statutory requiremenr and [he judicial rule of procedure. so that it is necessary to determine which of the twO in cons istent rules is supreme. Justi ce Brown's nOlion of"conAicr" seems ro turn on whether the General Assembly is legislating in an area that is reserved (0 the COlin under Amendment 80. Whether an un col1sri[Udonal connil.l requi res actual inco nsistency or a simple legislative trespass may be 3n iss ue of constitutional doctrine that the Coun will develop in future cases.

Lessons?

It is toO soon to try to draw lessons from th e Court's treatment of Act 649. Certainly the Supreme Court has been careful in exa mining the cases that attempt to raise ques tions about Act 649, and it is appropriate ror the Court to review its jurisdiction closely before it accepts 3n iss ue where a party wanes it to annul an Act of the General Assembly, especiaJly when the challenge involves dle rul e- making power of th e Supreme Court itself. The Court should be cautious when it has an interest as both rule- maker and ultim ate arbirer of:1 dispute involving one of i[5 rules.

The co nstituti onal doctrine in volving Amendment 80 bears more development. Is legislaeion unconstiwtional simply bec.111se it trespasses on terrirory reserved exclusively to the Supreme Court for rule- making, or will the Court look for actual inconsistency between the legislative and th e judicial rules , so that it is necessary to determin e which is supreme?

Finally, the narrow decision in Surnmervili~ sheds no light on the numerous orner co nstitutional chall enges bein g mad e on the provisions of Act 649 in the trial courts by its opponents. Even on the isolated question of whether a provision of Act 649 co nfli cts with me Amendment 80 power of the Supreme Co urt to regulate statecourt practice and procedure, Summerville leaves many qucstions unanswe red. For example, the much -mali gned punitive-da mages bifurca tion requirement of ARK. CODE A NN. § 16-55-2 1 I is often assumed to be Ull co nstiwtional as in conflict WiUl ARK. R. eiV. P. 42(b), whi ch provides discretion to order separate trials. Bur Rule 42(b) deals with separate trials, while § 21 1 addresses the order in which the finder of fact shal l determine issues co ncerning punitive damages. These are different matters. Even if they were th e sam e matter, it is likely that many trial courts will exercise discretion to order a separate trial on puniti ve damages under Rule 42(b) in order to minimize the prejudice of punitive-damage evidence. Justice Glaze has suggested such a bifurcation may be mandatOry, nor jusr discretio nary: "Upon remand , should me court conclude that the prior convictions are admissible pursuanr to ARK. R. EVID. 403, it would be necessary to bifurcare the punitive-damages phase of me trial pursuant ro ARK. R. elV. P. 42(b)."I $ If Rule 42(b) requires biFurcatio n of punitive damages in a case, men there co uld be no co nflict with the statutory bifurcation provision. It is for reasons like these that it is not poss ible ro read rhe tea leaves from Summerville.

Endno tes 1. A brief bibliography of th e articles is included here for the Endnotes continued on page 46

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A Plaintiffs' Attorney's Perspective on Act 649 of 2003: What is it Really?

By Brian Brooks

s

ecrion 26 of Act 649 of2003 in essence claims th at so me degree of "tort reform" is necessary lO Sto p medicalmalpractice li ab ili ty carriers from leaving Arkansas. While the va lidiry of rhar clai m is suspect, what is more troubling is thar Acr 649's provisions seem lO have Ertle or nothing lO do with medical-malpractice rares and coverage. The entire practice of personal-injury law was transformed by the enactment of this single piece of legislation. "The Civil justice Reform Act," which is anything but, is unlike other legislative reform measures that came berore ir in that in rouches every personal-injury case filed in any coun in this state. What that has to do with medical-malpractice rares is a mystery yet to be explained.

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Ie seems appropriate, therefore, ro examine [his so-called "ton reform " measure and set ferch what it actually is and does. At the outset, however, biases must be revealed. I am almoS[ exclusively a lawyer for injured plainciffs. While I was in law school, 1 clerked for a man who eventually became Chief Justice of the Arkansas Supreme Court. In one of his fatherly lectures to me (and I mean that in [he very most complimentary \'V3y) he expounded on the differences between lawyers for plaintiffs and lawyers for defendants. The short version of the story is that [he two categories of lawyers do, indeed, thi nk differemly, and their viewpoints and 3nirudes about the law reAect those differences. The words that follow come from an admitted and unabashed attitude as a lawyer for injured plaintiffs.

ACf 649 OF 2003: What it Does Act 649 o f 2003, emirl ed "An Act to Provide Co mprehensive and U nifo rm Civil Justi ce Reform ; and fo r O ther Purposes," and sub-

tided. "The Civil Justice Refo rm Act of 2003" was enacted by the Arkansas Ge neral Asse mbly and was signed into law by the Gove rno r on M arch 25, 2003. In summary fOfm , here is what the Act d oes:

Effecti vely abolishes joint and severalliabili ry; rea tcs a new system of dividin g fault amo ng severally li abl e

defendants, diminishing recoveries by plaintiffs; C reates " no n-parry" fault (creating an "empty chair"

•

•

defense); Limits puniti ve damages recoverable; Rai ses rh e burd en of proof needed ro eS[ablish cmirl emcm [Q punitive d amages; D ic(3 cCS evidenriary standards in proving puni tive damages; Requires co urts to bifurcate proceedings in pun itive damages claims; C hanges venue rules in unfai r ways; C hanges burden of proof and limits adm issi bili ty of certain evidence favora ble co plaintiffs; Requires morc lISC of ex perts and di ctates evidentiary standards regarding experts; and Requ ires ex pert affida vits as a preconditio n of filin g medi cal malpractrice actio ns.

When o ne thinks o f "refo rm ," notio ns of a balanced critique of th e law and alteratio n of outmod ed rules causing illogical and unwarranted res ults come ro mind. " Reform s" in th at sense affect all sides of an issue equall y and appropriarel y. Acr 649 manifestly is no r "reform " ofrh ar type. Wh ar sho uld stand Out about rhis summ ary is rhat every provisio n in Act 649 works agai nst rh e injured victim and in favo r o f th e co rrfeasor. T hus, Legislative euphem isms are pe rvasive in Act 649. The tid e is "The C ivil Jusrice Refo rm Act" when it is nothing of th e SOrt. A ben er titl e would have been "The Impedim ent ro T o rt Recovery Act" o r "The Impedim ent to Public Safety Ac(. " The pervas iveness of Act 649 should aJso stand out. Much o f whar is set fo rth above has no thin g at all co do wi th th e sta ted purpose o f Act 649 contained in Sectio n 26. These measures to uch every type of person al-injury suit, fro m car wrecks co toxic spills.

This reality sets Act 649 apart . Arkansas has endured prev io us rorr-reform measures, blH none so all-encompassin g as Act 649. Th e medical -malpracti ce act is torr reform in that it ahers the pracrice o f personal-injury law in acti ons for "medical injury." Th e Wo rkers' Compensa ti o n Act and changes ro it pushed through the legislature in the 1990s are "tort refo rm " in thar they altered the previous methods fo r assessi ng and compensa ting for wo rkpl ace injuri es. " Refo rms" such as the medical-malpractice act and the wo rkers compensa tion act, however, "refo rmed ," o r erected obstacles fo r injured people, o nl y in discreet areas of the law. Act 649 reaches beyond th ese previo us "rorr reform " meas ures.

The pervasiveness of Act 649 can be seen fro m a cl oser exam in ati on of so me of its p rovisio ns. Sectio n I of Act 649 el iminates jo int and severalli abili ry fo r all practi cal purposes. W hil e Secti ons 3 and 5 ostensibly restore jo int li ability in certain situ atio ns, th ey are o f no real effect. Secti o n 3 all ows less than full re-allocation o f liabili ty when th e share of liabil ity o f o ne of mulriple dcfc ndal1 cs is no r "rea-

so nably collecti bl e." Sectio n 5 maimai ns joi nr-a nd-seve ral liabili ty in the cl assic, but unusual, situatio n where persons enter into a co nscious agreement ro pursue a common plan or des ign to comm it an in tentio nal ro rr.

Secrio n 2 req ui res courrs [0 adjudi ca re rhe fa ult of perso ns who have nor been made, o r who could nOt have been made, parries to the actio n. Sectio n 2 thus requ ires the co urts of Arkansas ro adjudi cate the responsibilities of phanto ms. It req uires the courts (Q find facts witho ut benefit of adve rsary prese ntatio ns fro m th e nOI1 parries. Secti on 2 acknowled ges th e way it weakens th e ad ve rsariaJ system by precluding those faaual d eterm inati ons fro m being given any evidentiary value in other proceedings.

The headin g for Sectio n 1 refers to it as a "modifi catio n" o f joinrand-several liabili ty. That's no nsense. T o refer to sectio n 1 and the secti o ns immedi ately fo ll owing as a "modifi ca ti on" o f joint and severalli abiJi ty is like saying Mark Marti n's srock ca r is a "modificati o n" of the Ford he dri ves arou nd Batesville. Act 649 eliminates joint and seve ral liabili ty; it does n' t "modi fy" it. And it eliminates it in every personal-injury and property-d amage case in the state.

Section 15 of the Act is anoth er exampl e. It reads as fo llows in its emirery: SECfION 15. Compensa to ry damages. (a) This act does not limit co mpensatory damages. (b) Any evidence o f damages fo r th e costs of any necessary medical care, treatm ent, or se rvi ces received shall include onl y those COStS actually paid by, o r on behalf of, rhe plaintiff or which remain unpaid and for which the plain tiff or any third parey shall be legally responsibl e.

Section 19 of Act 649 co ntains a seco nd aheration o f th e collateral-so urce rule for medi cal-malpractice cases. That secti o n reads as follows: SEcrlON 19. Arkansas Code § 16- 11 4-208(a), concerning d amage awards in actio ns fo r medical injury, is amended to read as follows: (a)(J)(A) The damages awarded may incl ude compensari on fo r actual eco no mic losses recognized by law suffered by th e injured person by reason of medical injury including, bur nor limited to, the COSt o f reaso nabl e and necessary medi cal serv ices, rehabilitatio n servi ces, custodiaJ care, loss of services, and loss of earnin gs o r earning capacity; (B) An y evidence of dam ages for th e cost of an y necessary medical ca re, treatment, or se rvices received shaJJ

Brian G. Brooks is a solo practitioner wbo fOClISt!S Oil npJHllate practice atuJ complex legal researcb, writi1lg alU/advocacy fortbe plaintiffs bar.

Vol. 42 No. 4/ Fall 20 07 The Arkansas lawyer

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include on ly those costs actually paid by o r on behalf o f th e plai ntiff o r which remain unpaid and fo r which the plaimiff o r any third parry shall be legally responsible.

(2) T he damages awa rded may incl ude co mpensati o n for pain and suffe ring and o rner no neco nomi c loss recogn ized by law.

8 m h secti o n 15 and sectio n 19 co mmit the sa me wro ng. T hey va rio usly purport nO( t'O "limit co mpens3t'O ry damages" and allow the recovery of "the cost of reasonable and necessary medical services." Each sectio n th en removes what it bes[Qws by prevelHing any recove ry for th e full value of chose se rvices by limiting the "evidence" of their cost to the amOUlH "actually paid by o r on behalf of the plai lHifT o r which remai n unpaid and fo r which the plai lHifT o r any third party shall be legally respo nsible." Under this statutory scheme. a plai nti ff may nOt recover fo r rhe COS( of med ical care when his insurance co mpany negmiares a reduced rate with a provider. when Medi care o r M edicaid negotiates a redu ced rate wi th a provider. when the plaintiff is unable to pay th e full cost and a medical-ca re provider writes a po rtion of it off o r is simply unable to collect it, o r wh ere 16

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the ca re is provid ed as a gift o r by charity.

Th is reali ty is a significant change in me law of evidence and the law of damages beca use, prio r to the passage of Act 649. the precise o ppos ite result wo uld obtain. M ontgomery Ward 6- Co. v. And",oll, 334 Ark. 561, 976

649 reaches well beyo nd actions that would have any bea ring o n medi cal- malpracti ce liab il ity insurance. It re.1ches all (o n cases in the state. Seco nd. ir has nothi ng to do with "reform " in a [rue sense. It is directed solely at the plai nti ff's case.

S.W.2d 382 (1998).

Of course, th ese provisions have been successfull y chall enged o n constituti o nal gro unds in many cases aro und the state.

T he reaso n why is simple. Secti ons 15 and 19 very clea rly limi t damages fo r injuries in violatio n of Article V, section 32 of the Arkansas Co nstitution. But that discuss io n is fo r anoth er day and another articl e.

The po int. fo r present purposes, is that secti o n 15(b) rears its head in virtually every personal-injury case. "Perso nal injury" usually results in "necessary med ical care, treatment, o r services'" fo r the injured victim.

Mosr ofren the valu e of th ose services is di scounted beca use of an agreement with an insurance company, an agreement with the gove rn ment. chari ty. o r rhe victim's simple inabili ty to pay the full charges. Under Act 649. the amo unt' paid. no t the damage do ne. is admi ss ible. Th is difference can be signi ficant.

I n any event, th e rwo po ints of this exami nation should now be apparent. First. Act

ACf 649 OF 2003: What it Is So, what is this rhing euphem istically referred to as "rorr refo rm "? Cen ainly, it is m uch mo re man an attempt to curb malpractice insurance rates beca use it appl ies to things that don ' t have an y relationship to medical malpracti ce. Likewise, it isn' t "refo rm " in th e se nse that it attempts ro co rrect illogical and irra(ionai results in antiquated laws. It is focused directly on the plaimifF's casco "T o rr reform " in th is sense is a really nice way to descri be legislation mat makes it harder fo r injured peo ple to recover fo r the wrongs do ne th em and easier fo r [hose who hurt them to escape res ponsibili ty fo r their harmful actio ns. "T ort reform" is really an effo rt to erect obstacles [Q recovery fo r to rtious actio ns, and often those obstacles are artificial , having no thing at all to do with proving an injury and who is responsible fo r it.

Plaintiff Attorney continued on page 48

AMERICAN CO LLEGE O F T RI AL LAWYERS The Arkansas Fellows of the American College of Trial Lawyers are proud to anllounce that the 0110 wing Arkansas triallalVyers have been illducted inlO the Fellowship: B ill W. Bristow - J onesboro David M . Donovan - Little Rock M ark A . M oll- Fort S mith William A . Waddell, Jr. - Little Rock

J . Michael Cogbill - Fort S mith Mariam T. H opkins - Little Rock J ohn E. M oore - Little Rock W. H. Taylor - Fayetteville

Th e American College of Trial Lawyers,jounded in 1950, is composed of the best of the trial barfrom the Ullited States and Canada. Fellowship ill the College is extended by in vitation only, after careful investigation, to those experienced triallalVyers who ha ve mastered the art of advocacy and whose professional careers have beell marked by the highest standards of ethical conduct, professionalism, civility alld collegiality. Lawyers lIlust have a minimum offifteen years trial experience before they can be considered for Fellowship. Member· ship in the College cannot exceed J percellt of the total lawyer population of any state or province. Fellows are carefully selectedfrom among those who represent plaintiffs and those who represent defendants in civil cases; those who prosecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issu.es affecting the administration ofjustice. The College strives to impro ve the standards of trial practice, the admin.istratioll of justice, and ethics of the trial profession.

Th e Arkansas Fellows of the College cOllgratulate the new members and welcome them

10

the Fellowship.

A rkallsas Fellows of th e A m ericall College of Trial Lawyers Overton S. Anderson, 1/ . LillIe Rock · Donald H. Bacon, Little Rock · Woody Bassell, Fayetteville · R.T. Beard, III, LillIe Rock • Da vid 1-1. Blai,; Balesville • James B. Blair. Springdale · Eugene Bramblell, Camdell • Phillip Carroll, LillIe Rock • Rober, M. Cearley. Jr., Litlle Rock · Eddie N. Christian, FOri Smith· Catlzi Compton, Uttle Rock · Walter Bany Cox. Fayelleville • Sidney P. Davis, Jr.. Fayetteville · 10/111 C. Deacon, Jonesboro · B. Michael Easley, Forrest City · Jolm R. Elrod. Fayetteville • Johll C. Everell, Fayelleville • Spellce G. Fricke. Lillie Rock · Johll P. Gill. Lillie Rock · Johll Robert Graves, Lillie Rock • William M. Griffill, III, Lillie Rock · WaYlle Harris, Fort Smith · Robert (Skip) L. Hellry. III, Lillie Rock · Jack W. Holt. Jr. . Lillie Rock · Michael D. Huckabay, Sr., LillIe Rock · HOIi. Bradley D. Jessol/ , Fort Smith · Robert L. Jones, III. Fa)'elleville • Philip E. Kaplall, Lillie Rock · Judsoll Kidd. Little Rock · Charles R. Ledbeller, Fort SlItith • Johll G. Lile, Lillie Rock • Ed LolVther, Lillie Rock · Stephell A. MatthelVs, Pille Blulf · Hubert S. Mayes, Jr.. Lillie Rock · Austill McCaskill, Sr.. Lillie Rock • Bobby McDaniel, Jonesboro · James Bruce McMmh, Lillie Rock · Toney D. McMillall , Arkadelphia · Palll McNeill. Jonesboro • Han. James M. Moody. Lillie Rock · Nicholas H. Patton, Texarkal/a • John V. Phelps, Jonesboro · Odell Pollard, Searcy • Gordon S. Rather. Jr.. Little Rock · Ellol/ A. Rieves, III. Wesl Memphis · KeJ1l J . Rubel/s, Wesl Memphis · DOl/aM S. Ryan, Little Rock · Dellllis L. Shackleford, EI Dorado · James M. Simpsotl, Lillie Rock · Douglas O. SlItith , Jr., Fort SlItith • David Sololltoll.

Helella · William H. SUIIOII, Lillie Rock · Rex M. Terry, ForI Smilh • Floyd M. Thomas. Jf:, £1 Dorado · Frederick S. Ursery, Lil1le Rock · Eddie H. Walker. Jr., Fort SlItith • Richard N. Watts, Lillie Rock · /-1011. Williallt R. WilSall. Jr., Little Rock · Alall G. Wootell , Fort SlItith • 7ildell (Chip ) P. Wright, III , Fayetteville · Charles R. Zierke, Not Sprillgs Village

Vol. 42 No. 4/ Fall 2007 The Arkansas Lm'Yer

17

Practice

It Isn't Just

In

Federal Cases, Anymore

By Todd L. Newton Several yea rs ago, there was a television comme rcial advcn ising Florida o range juice. As it played up the great msre and health benefits of drinking o range juice. rh e comm ercial ended with the sayi ng, " Florida orange juice: it isn't juSt for breakfast anymore." In rhe near future, I suspect we'll all be say in g something simi lar about rhe rules governing electronic discovery. Let me see

if I can explai n.

In Dece mber 2006, am endments [0 th e Federal Rules of C ivil Procedure we nt into effect cove ring how el ectronic evid ence is to be dealt with in federal cases. Since char time, we've all been gcning versed in the nuances of "el ectro ni ca lly scored information ," "clawback agreements," "safe harbors," and mo re. For those less enthusiastic ahom rhe amendments, I've often heard th e following: "Those rul es only apply in federal cases," and "We don ' r have ro wo rry abour any o f m ar stuff in srare co urt."

As comfo rting as those rhoughrs may be for so me, rh e reali ry is that el ectroni cally srored infor mati o n isn't going anywhere.

In f.'lct, the sta tistics all point out th at electronic evidence will co nrinue ro increase.

Co nsequ ently, states are gea ring up to dea l with it, and Arkansas is no exception.

On M ay 27, 2007, [he Arkansas Supreme Co un published pro posed amendments to Rul e 26(b) of [he Arkansas Rules of Civil Procedure and Rul e 502 of th e Arkansas Rul es of Evidence. These co mpanion amendmen tS are designed ro prorect parties who inadvenendy disclose marer iai protected by either pri vil ege or rh e wo rk producr doctrine. These am endments generally mirror their federal counterparts and are designed to prov ide some rel ief when an inadvertem disclos ure of information takes place - particularl y when dealing with volumes of elecrronic ev idence. As the Reponer's Notes sra te, "Lawyers do their best to avoid mi stakes, bur they so metimes happen. Discovery has always posed the risk of the inadvertent production of privileged o r protected material. Th e ad vent of elecrro ni c discovery has only in creased the risk of inadve rtent disclosures. This amendment addresses th is risk by creatin g a pro18

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" ... the reality is that electronically stored information isn't going anywhere. In fact, the statistics all point out that electron ic evidence will continue to increase." cedure to evaluate and address inadvertent di sclosures, including disputed ones."

The amendm ent to Rule 26(b) adds a new paragra ph ('5) that specifi caUy crea tes a mec hanism for asserting a claim of pri vilege o r artorney wo rk product after the material in question has already bee n produced.

Proposed Rul e 502(e) provides that the disclos ure of info rmation covered by either the attorney-cliem privi lege or the workproduct doctrine does nor wa ive th e privilege as long as rhe di sclosi ng party follows the procedure se t out in Rule 26(b)(5) and the Court makes the requisite findings.

So, under th ese rules, how do you ensure that yo ur claim of pri vil ege is not waived beca use you inadvertently disclosed privileged or prorected info rmat ion ? First, within fOllrree n (bys of di scovering the inad vertem di sclosure, you mUSt nori fy the o pposing party by specificall y identifying the material or informati o n disclosed and assertin g the pri vilege or doctrine protectin g rhat mate ri al or inform at ion. Seco nd , you must amend any responses to written discovery acco rdingly. The receiving party then has fourteen days afre r recei pt of the norifi ca rion to rerum , seques ter, o r des troy thc materials, including cop ies. H owever, the receiving party may also chall enge the claim of privilege o r protection, including the (imeliness of the noti ce or other circum stan ces d emonstrating a valid waiver.

In determining whether a waiver has occurred , the cou rt must consider four factors: ( 1) the reasonableness of the precautions that th e di sclosing parry rook to preve nt inadvertem djsclosure; (2) the scope of discovery; (3) rhe ex renr of disclosure; and (4) the interests of justice. It is worth notin g that th e first factor makes its clear th at a wholesale rel ease of inform ation wirh o ut

reasonable review to prevent an inadvertent disclosure will ce rtainly weigh aga inst a disclosing party's subsequent attempts to claim a privilege. In chis regard, the rule speci fically provid es that an artorney can testjfy abom rhe disclosure and the steps taken to prevent an inadvertent di sclosure without having to rerminare represenrarion in the case.

At thi s time, these proposed amendments have not been adopted by the Arkansas Sup reme Co urt. The d eadlin e for commen ts was August I , so we will have to wait CO see how the court responds to any of th e feedback co ncerning these amendmems.

However, while we wait for that decision, it makes se nse to start raking sreps now to ensure that should an inadvertent disclosure occur at some point, we're ready to promprly respond.

First, we should be learning now about the types of information our clients are rerainin g and what their reco rd retention policies are so rh at we can be p repared to respond to a discovery requ est seeking electroni cally stOred info rmation. Second, we sho uld wo rk with o ur clients to qu ickly determine what electronically stored informarion may be pri vileged or subject to protection , includin g segrega rin g th at information in ad va nce if poss ible co ensure that it does n' t get disclosed in the heat of the di scovery process. Third, once th e discovery process com m ences, we should keep track of the steps taken during the review of materiaJs prior co disclosure to ensure thar an in advertem disclos ure does not happen so thar we can es tabli sh for the co urt later, if necessary, that the re was no intentional waIver.

By bei ng proactive, we can take advan rage of th ese amendments and ensure th at we don 't waive any privileges. That's a good safety ner to have beneath the tight rope of electronic discovery; assuming the Arkansas Supreme CO lirt adoprs th ese proposed am endm ents, this safety nct won't be just for federal cases anymore .â&#x20AC;˘

Todd L. Newton is counsel for Mitchell Williams i ll Little Rock.

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Vol. 42 No. 4/ Fall 2007 The Arkansas I.<Jwycr

19

The Charitable Immunity Doctrine /'

ere Are We No

By Michelle H. Cauley

In the Beginning

F

o r ove r 100 years Arkansas has reco gniz.ed the doctrine o f c haritabl e immunity. Su, Fordyce I). Women Christiall

s

N II/ional Libraryksn, 79 Ark. 550,96 S.W. 155 (1906).

T hat is no r ro say th at the doctrine has remained the sa me

since 1906. In fact, during rhe last fi ve years alone [he donTine has go ne thro ug h several inrerprerations [h at o ne could arguabl y say

have turn ed the doctrine on its head onl y [Q have it set back upright in rhe last couplc of years.

To unde rstand these twists and tu rns, o ne sho uld fi rst have a bas ic

understand ing of the doctrin e of charitable immuni ry. The bas ic principle of the doctri ne is that [he property o f a charity ca nn o t be sold unde r executio n issued o n a judg ment re ndered fo r rh e no nfeasance, mi sfeasa nce, or malfeasa nce o f its agem s or trustees. Fordyu

v. VVomens Christiall N ntiollfll Library Ass'n, supm. Th e th eo ry behind rh e rule is rhar rh e assets of a charitable trust may no r be sold

20

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by executi o n sin ce do ing so wo uld defear (h e purposes o f the trust and thus the donor's c haritable inte nr.

AJrho ugh the charitable immuni ry doctrin e has been chall enged o n several occas io ns, the protection affo rded by the doctrine has been affirm ed rime and agai n ove r the last 100 years. Su Hot Springs

School Dist. v. Siste" of M <rcy, 84 Ark. 497, 106 S.W. 954 (1 907); Cttbbinm v. City of North Lin!< Rock, 228 Ark. 356, 307 S.W.2d 529 (1957); HalOn II. Sistm oIM<rcy oISt. jos<pbs Ho,p., 234 Ark. 76,35 1 S.W.2d 129 (196 1); Marioll Ho,p. AsslI v. wllpbi<r, 15 Ark. App. 14,688 S.W.2d 322 (1985); Mastersoll v, Stambllck, 32 1 Ark. 39 1, 902 S.W.2d 803 (1995); Georg< v. j<ffirson Ho,p. Assn, 337 Ark. 206, 987 S.W.2d 7 10 (1 999); Low v. !m llrallu Company ofNortb Am<rica, 364 Ark. 427. 220 S.W.3d 670 (2005); Sowders v. St. j osephs M <rcy Healtb Crr., 368 Ark . 466 (2007). In doing so, rh e Arkansas Supreme Co urt recog nized early on thar rh e doctrin e

works in favor of charities, bur ex plained that il also benefits th e genera l public: It may be said that under this ruling hard cases must occur. . .. On lhe odler hand, still hard er cases would occur und er rhe opposite ru le, by which the wi ll of charitab le donors would be defeated, and the public imerest would be thwarted.

Very many of the greatest charities of the presem day have grown from very obscure and feeble beginnings. If rhey had been sold out in their infancy for some trivial sum on accOllnt of the C~\felessness of an agelH or the mistake of a trustee, th us preventing the co nstantly accumu lati ng benefits of centurics, it could nOt truthfully be said that the public good was promotcd by th e sacrifice.

FordJu 11. \\7omt'l1J Christian National Libmry Ass 'II, 79 Ark. 550, 569, 96 . W. 155, 162-63 (1906).

Applying the Doctrine The charitable immunity doctrine is capable of being applied to several different types of organi1..ations and businesses. In fact, rh e doctrine has been app lied to a wide range of charitab le entities such as rhe North Litde Rock Boys C lub, a library associarioll, and, na[Urally, churches. Su, e.g., Lt'may v. Trinity LUI/UrdU Church, 248 Ark. 119, 450 S.W.2d 297 (1970) (church); Cabbinm v. City of Nort/' Little Rock, 228 Ark. 356, 307 S.W.2d 529 (1957) (boys club); fordyct'l1. \-tromen sCbristiall National Library Ass 'II, 79 Ark. 550, 96 S.W. 155 ( 1906) (library).

Charitable immunity has aJso been applied to hospitals. Su, t'.g., Georgt v. Jeffirson Hospital Ass'n, 337 Ask. 206, 987 S.W.2d 7 10 (1999); Marion Hospiflll Ass'n v. Lanphier, 15 Ark. App. 14,688 S.W.2d 322 ( 1985); Williams v. Jeffirson Hospital Ass!I, 246 Ark. 123 1, 442 S.W.2d 243 (1969); Htlton v. Sistm of Macy of Sr. Josep", Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961 ). It is in thi s cOlHext that most of the more recent li tigation has ari sen.

In 1995, the Arkansas Supreme Coun adopred a number of (.1Crors designed (Q address whether an emity is created and maintained exclusively for charity. These factors, which were first announ ced in Mastersoll v. Stambllck, 32 1 Ark. 39 1, 902 S.W.2d 803 (1995), are co be used to determine whether an emity is cnrided to rhe doctrine of charitab le immunity. These factors are illustrative, not exhaustive, and no single facto r is dispositive of charitabl e 5[ams. George v. Jeffirsoll Hospital Ass'II, 337 Ark. 206, 212, 987 S. W.2d 71 0, 7 13 (1999): (l )Whether the organization 's charter limits it to charitable or eleemosynary purposes (2)Wh ether the organization's charter contains a unot-forprofit" Ijmitation A non-profir co rporation 's anides of incorpo ration will likely address rh e flrst (wo facrors. It is interesting to notc, howeve r. th at wh ile the enriry as a who le must he non-profit, ils sub-emiries may be "for profit." For example, in G,org' v. J,ffirsoll Hospital Ass'n, 337 Ark. 206, 987 S.W.2d 7 10 (1999), the hospital owned and ran a number of for-profit clinics and a collection agency. The emire hospital associatio n was non-profit and whatever profits were realized from the for-profit entities went back ilHO rh e institution to he used for its benevolent purposes. The doctrine of charirable immunity

was held to apply. 337 Ark. at 2 17, 987 S.W.2d at 7 15.

(3) Wllether the organization'S goal is to break eve n A charity's goal may not be to break even but co have so me surpillS at [he end of th e yea r lO rerum ( 0 lhe charity. This has been co nsidered by rh e courts [0 be good stewardship of charitable funds and docs not defeat a claim of charitable immunity. For examp le, in G~org~ v. J~ffirson Hospital Ass'n, the coun stated that "{mJodern hospirals are compl ex and expensive, rechnological, economic and medi cal enterprises [hat can ill afford to co me shorr of even in their finan cial integriry." 337 Ark. at 213, 987 S.W.2d at 7 13.

(4)Whether the organi7..ation earn ed a profit A surplus should nOt be co nfused with a profiL If an individual or an oU[side entity (such as a city or the sralc) ea rns a profit, [his facror will nor be meL Su, OUllcbitfl Wilderness Institute v. Mergen, 329 Ark. 405, 947 S.W.2d 780 ( 1997); Mastmon v. Stambllck, 32 1 Ark. 391,902 S.W.2d 803 ( 1995).

(5)Whether any profit or surplus must he used for charitable or eleemosynary purposes An imporrant factor appears to be how any surplus is app lied.

Where all excess revenue goes back inco the organization for operations, sa1aries. and capital purchases to maintain and improve the charitable entity, rhe doctrine app li es. Su, G~orgt' 11. }t'ffirson Hospi!lll Ass'n, 337 Ask. 206, 987 S.W.2d 7 10 (1999).

(6) Whethe,r th e organization depends on contributions and donations for its existence This f..1.cro r has nO( been given great weight. In George 11. jeffirsofl Hospital Ass 'n, 337 Ark. 206, 987 S. W.2d 7 10 ( 1999), on ly 6% of the hospitaJ association's enrire revenue was from donations. The court nored [hat with a modern hospital , it wou ld be impossible ro be wholly or predominantly run on donations.

(7}Whether the organization provides its services free of charge to those unable to pay A hospiral that is "free to all who arc not pecuniarily able, and supported in parr by pri va te comributions and pardy by fees from patients, [andJ producing no profit, is a purely public charity." \Villiallls v. Jeffirson Hospital Ass'n, 246 Ark. 1231, 442 S.W.2d 243 ( 1969), quoting Hot Springs Sc/'ool Dist. v. Simrs of M"cy, 84 Ark. 497,106 S.W. 954 ( 1907).

(8) Whether the directors and officers receive compensation Salary. bonuses, and normal pay for working employees do not preclude a claim of charitable immunity. Ir is not necessary for {he charity to have an enrirely vo lunteer slafT or managemenr. See, George v. Jeffirsoll Hospital Ass'n, 337 Ark. 206, 2 14, 987 S.W.2d 7 10,7 14 (1999).

Michelk Cauley is a member of MitclJt!11, Williams, Selig, Gates 0Woodyard, P.LL C. where she specializes ill defellding hospitals and medical p,.ovitle,.s (",d is a membe,. ofthe /;"m 's new 111/0" ",atio1l Mmlflgemetlt alld Secu,.ity pmctice gro up.

Vol. 42 No. 4/ Foll 2007 The Arbnsos LO"Yer

21

Tbe Clayborn and Scamardo Years Beginning in 2002 th e Arkansas Supreme Court addressed the question of whether charitabl e immunity actually prohibits suits against a charitab le organi zation o r simply prohibits the executio n on a judgment. Prior (0 this inquiry, once an organization was deemed charitable, a plaintiff was prohibited from bringing su it against it, The first case ro quesrion this fundamental priIH...iplt: and ra ise a possible distinction in the charitable immuniry doctrine between " immunity from suit" and "immunity from li ab ili ty" was Clnyborn v. Bank", Standard In.r. Co., 348 Ark. 557, 75 S.W.3d 174 (2002) .

The Clayborn case was fo llowed a cou ple of years later by Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 31 1 (2004).

In C layborn, it was pronounced that charitable organizatio ns are only immune from execution against their property. In so holding, the Sup reme ourt stated that th ey "have neve r said that chari tab le organ iza tions are alcogether immune from suit." Clayborn, 348 Ark. 557,566,75 S.W.3d 174, 179. The COUrt in Ci4ybom clarified the charitable immunity doctrine by stating "[ol ur analysis indicates that a charirable organi7..3tion may have suit brought against it and may have a judgment emered against it, bur such judgment may not be executed against the property of rhe chariry." Clayborn. 348 Ark. 557,566,75 S.W .3d 174, 179- 180.

In Scamllrtio, the Appel lant asked th e Arkansas Supreme Court [Q overrule its deci sion in Clnybonl. The Court declined to do so and stro ngly su pported its holding in Clayborn that a charitable organiz.·uion may be sued even though thei r assets are immune from execurion. SCfllflardo, 356 Ark. 236, 247, 149 S.W.3d 311, 317. A5 a resu lt, fo llowing Clayborn and Sramardo. rh e prevailing imerpreration of the charirab le immunity doctrine was [hat the charitable emiry was required [Q be a named party throughout the lirigalion even rhough rhe plaintiff may not recover damages from the charity if rhe doctrin e is held ro app ly.

Prior to these decisions, mosr plaintiffs would institure a lawsuir against a known charirable emiry by suing Ihe emiry's insurance carrier under rhe direct action statute. Su ARK. CODE ANN. § 23-79210(3) . After Clayborn and Scamnrdo, however, there were se riolls dispures among litigants as [Q whether or not suits insritured so lel y against (he charity's insurance carrier were subject to dismissals with prejudice if rh e actual charitable entity wasn ' r nam ed as a parry prior to the expiration of the statute of li mitations.

Back to the Beginning One such case caught in [his crossfire was heard by the Arkansas Su preme Court in 2005, and brought to light the seve re break th at Clayborn and Scnmllrdo had taken from a very longstanding doctrin e in Arkansas law. In Low I). / llSlIrfll1U Compa"y ofNorth Amn-icn, 364 Ark. 427, 220 S.W.3d 670 (2005), the Appellants originally filed suit against both a charitable emiry (the Boy Sco uts) and irs insur· ance carrier. The claims agai nst rhe Boy SCOutS were first dismissed prior to Claybom and Scamardo based o n the circuit court's understanding of the charitable immunity doctrine whi ch had long been interpreted to mea n that chariti es we re not subject to suit. Then, after the decision in Clayborn and SCllmnrdo, th e circuit co urt also dismissed Appellams' direct action claims aga inst the Boy Scoms' liability insurance carriers on the basis that the Boy ScoutS were the only properly named entity. As a resu lt, the Appellams argued th at the decisions in Clayborn and Scamardo left th em with no remedy at all through no fault of theirs or of their cou nsel.

The Low decision ultimately reversed Clayborn and Scamardo and held that these decisions had been based on an erroneous interp retatio n of the history of the ch:uirable immun iry docrrine. In particular, the Coun held that the distinction berween "immuniry from liability" and "immunity from suit" in [he COntext of the acquiredimmunity doctrine was mistakenly applied to the charitable immunity doctrine. As a result, Clayborn and Scarmado rep resented a sharp break from Arkansas's well-serried inrerprerarion of rhe charitable immunity doctrine and direct action statute.

The Arkansas Sup reme Coun has re-affirmed its holding in Low eve n more recently in Sowders t). 51. Joseph's Mercy Health Ctr., 368 Ark. 466 (2007). Acco rdingl y, under Low and Sowders charitable entities are immune from suit and may nO[ be named as defendants in a lort action. The real question now becomes whether cases mat have been filed before or during the Clayborn and Scannardo period may be amended in light of the Low decisio n. In cases where there is no nature of limitations co ncerns, this question is easy to answer.

In the majority of those cases, however, the plaintiffs are left with a si tuation where they are anempring (0 amend their pleadings afu::r the statute of limitations has long since passed.

These attempts are generall y made pursuant to ARK. R. CIV. P. 15(c) which allows an amendment of a pleading to relate back (0 the date of the original pleading when: ( I ) the claim or defe nse asserted in the amended pleading arose ou( of the co ndu ct, transaction , or occurrence set forth or attempted to be set forth in th e original pleading; or (2) the amendment changes the party Prices or the naming of the parry against whom a claim is asserted if the foregoing provision ( 1) is sa ri sfied and, within rhe period provided by Rule 4(i) for service of the summons and complaint, the party (0 be brought in by 3111endmem (A) has received sllch notice of rhe insti tution of the action that the parry will not be prejudiced in maintaining a defense on the merits, and (8) knew or should have

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Charitible Immunity continued on page 49 22

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23

Arkansas Suprcmc Court HistoriGlI Socic~y

,

Three Men Named Holt

By Jacqueline S. Wright Walker

Three men named Holt have served at various times on the Arkansas Supreme Court.

Jamcs Seaborne Holt was the first, He was followed by his first cousin , Joseph Franklin Holt; th en Frank's ncphC\v, Jack Wi lson Holl, Jr., se rved. All were originally from Boone Counry. Bur the yen for statewide office was felt first by Frank's older brother, Jack Wilso n Holt, Sr. A1th ough Jack Holt, Sr., never so ught office on rhe state Supreme Co un , he was the political trailblazer for the others; th erefore hi s Story also will be told.

E..1.c h of th ese four men received his undergraduate ed ucation at the University of Ark.1nsas in Fayetteville. Three received their law deg rees there. Seaborn e took his J.D. at the University of Virginia. They each pracriced law in Arkansas. Seaborne practiced in Ft. Smith, and the others ended up in Little Rock.

Jack Wilson Holt was born in Harrison, Arkansas, in 1903. In 1928, the year after he was admitted to the bar, he was eieC[ed prosccuring anorney of (he 14th judicia1 disrricr and se rved in that office until 1935.

During rhat tim e there was a feud in Searcy Co unry berween ('wo families. A member of olle family bushwhacked a member of the other family and ki lled him. The murder case was [0 be tried before C ircuit Judge J. F. Koone at the Searcy Co unty Co urthouse in Marshall. O n the day of trial the defendant's family rod e in with their ho rse pistols and dismi ssed rhe jury. They saw 110 need for a trial. Judge Koone co uld not get coo peration frol11 local law enforcement; th erefore the trial ended.

Prosecuting Anorney Jack Holt did see a need fo r a trial in this case and announced that he would run for circuit judge (a res rore law and order ro Searcy County. After he was elected in 1934 , he called on the governor for help frol11 the Narional Guard.

The Harriso n guard unit did nOt have any aml11unition, so rhe governor mobilized the C larksville Guard, wh ich ca me to Marshall by (rain. The defendant was co nvicted with 24

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Judge Jack I-Io lt presiding.

In the next ge neral election Jack Ho lt ran for Anomey General. A popular candidate. he se rved forsix yea rs from 1937 until 1943.

Although he never won another statewide office, his ea rl y popularity with the vorers set [he smge for the other members of his family.

The nexr Holt to seek statewide office was Jack Holt's first cousin, James Seaborn Holt', who ran for the Arkansas Supreme Court and was elected in 1938, the yea r after Jack took office as Attorney General. Little known outside northwest Arkansas, Seaborn tOok with him rhe unanimous endorsement' of rhe Fr. Sm ith bar. Nineteen yea rs Jack's seni or, Cousin Scab had a distingu ished ca ree r in FI. Sm ith . He se rved as Assistant U.S. Artorney of [he Western District of Arkansas for three years, 19 I 7 to 1920, and was given a temporary appointment' as U.S. Anorney for 1920 ro 1921 . I-I e campaigned hard for the state high court, visiting all bur ('\\,10 counti es. But he also had the Holt name.

Listed on rhe ballOt, nOt as James Seaborn, bur as J.S. Holt, he won a narrow victory over his opponenr, Justice W. R. Donham , who was serving on the Supreme Co urt by appoinunent to fill an unexpired term.

The liming of Scab's appearance on the political scene may have been precipitated by his cousi n's success, but his decision to seck jud icial office was 11m a new id ea. As a college stud ent he was befriended by OIlC of his professo rs , Charl es Hillman Brough, an economist, who remained hi s friend rhroughoul their lifetim es. Brough , who entered politics and served as governor from 1917 to 1921, presented him with a book in 1930, with the inscription , "To James Seaborn Holt, a furure Arkansas Judge.

From hi s friend , Charles Hillman Brough. " Sea born was a studious, intellectual man of slight build . H e was quiet but outgoing and generolls. He and his wife had no children of their own, but they menrored many young men. Five of them at variolls rimes lived

III the couple's home whi le attending high school and co llege. Seaborn also gave office space and legal coaching to a number of yo ung lawyers juSt starring out in [he legal profession. j. Seaborn Holt retired from the Arkansas Supreme Court in 1961. after serv ing as Associate Justice for 23 years. An Arkll11Jm

Gn.utu editorial pr;,i <;cd his inrelligenc co n-

servatism. He died in an automobile accident in 1963.

[The legal careers or Joseph Franklin I-Iolt and Jack W ilso n Holt, Jr. , will be covcred in the next issuc. J Sources:

Arko11SfI,s Gnu/u, Wednesday, May IS, 1963, p. 6A. Berry, E.ul. Piollur Liftond Pionur Famili~s oftl" OZflrks, C hapter VII, "Pioneer Boone County Fami li es." Cassville, MO: Eml Berry, 1980.

Wi lliams, Fay. Arkansans of the Years.

Linle Rock, AR: Allard & Associates, 1952.

c.c.

Wright, Jacquelin e S., IlHerview with former C hi ef Justi ce Jack Wilso n I-Iolt, J r., Jul y 8,2007.

jacqueline S. Wrigbt Walker is II graduate of Ibe Ulliversity of Oklnboma 5cbooL ofLaw in Nonnall, Okln.iJoma. Sbe retired as Director of tbe Supreme Cou.rt Library ill 1998.

This article is provided by the Arkansas Supreme COlin Historical Society, Inc. For more infor mat ion on the Society contaCt The Arkansas Supreme Co urt Historical Society.

Justi ce Building, Suite 1500, 625 Marshall Srreet, Lirrle Rock, Arkansas 7220 I; Emai l: rod.mill er@a rkansas.gov; Phone: 50 1-6826879.

elE elE elE elE elE elE elE elE

2007-08 CLE Calendar Immigration Law N ovem ber 16, 2007 C larion In n Fayettevi lle Health Law November 30, 2007 UALR Bowen School of Law Litrle Rock Seven Keys to Winning Performance in the Courtroom December 6, 2007 Northridge Country Club Texarkana, TX December 7, 2007 Crowne Plaza Horel Litde Rock

Federal Tax Institute December 6-7, 2007 Embassy Suites Litrle Rock Mid-Year Meeting January 24-25, 2008 Peabody Hotel Memphis, TN Annual Meeting June 11-14,2008 Arlingron Hotel H ot Springs Best ofCLE June 19-20, 2008 Fayettevi lle June 23-27, 2008 Litrle Rock For more information contact Lynne Brown or Virginia Hardgrave Arkansas Bar Association 800-609-5668 or 501-375-3957 Ibrown@arkbar.com or vhardgrave@arkbar.com

OR CHECK OUT THE CLE PAGE at www.arkbar.com

Vol. 42 No. 4/ Fall 2007 The

Arkansas

Lawyer

2S

Arkansas Bar Center Memorial Border For over three decades, the home of the Arkansas Bar Center was located at 400 West Markham Street, on the south side of the Arkansas River in downtown Little Rock. We recognize the generosity of the many attorneys, families and other individuals who made the dream of the bar center Markham property a reality.

As you may recall at the 400 West Markham property, at the entrance of the glass stairwell was a Memorial Border, marble completing the perimeter of the entrance, and a marble cube, listing the Patrons. These marble pieces were re-Iocated to our new bar center home.

In honor of our heritage as we moved to our present location, the marble Memorial Border is now prominently displayed along with the Donor Wall and Memorial Wall in the lobby of the new Arkansas Bar Center. These names represent attorneys who were memorialized by their families and friends. A list of the attorneys recognized in the Memorial Border is included in the donor book. You will find these same names along the perimeter of these two pages.

Also found on the opposite page is a list of the Patrons whose contribution of $2,500 each made the Markham bar center a reality. These individuals, whose names are engraved in marble, are now displayed on a special Patron's Wall located on the first floor across from the Visiting Attorney's office.

It is with great pride that we display these important pieces and honor those who made the previous and this current bar center a reality. We invite you to come see these beautiful pieces in our new facility located at 2224 Cottondale Lane, Little Rock, Arkansas 72202. If you have any questions, please feel free to contact Ann Dixon Pyle, Executive Director of the Arkansas Bar Foundation, at (501) 375-4606 or email atapyle@arkbar.com .

new Arkansas Bar Center

Patrons E. J. Ball Joe. C. Barrett William H. Bowen Brooks Bradley Richard C. Butler Leon B. Catlett Billy S. Clark Howard H. Cockrill John A. Cooper Courtney C. Crouch Edward L. Cullum, Sr. John S. Daily John C. Deacon Thomas E. Downie E. Charles Eichenbaum

W. A. Eldredge, Jr. John D. Eldridge Oscar Fendler John A. Fogleman Herschel H. Friday, Jr. James W. Gallman N J. Gantt, Jr. Edward Gordon, Jr. Nathan Gordon James T. Gooch P. H. Hardin Marion Steele Hays Willis H. Holmes Max Howell Alston Jennings

W. Horace Jewell Sam Laser Edward Lester Robert S. Lindsey J. Hugh Lookadoo, Jr. Herbert H. McAdams E. L. McHaney, Jr. Sidney S. McMath H. Maurice Mitchell William S. Mitchell, Jr. William Nash Walter R. Niblock Wayne W. Owen Gerland P. Patten Fred M. Pickens, Jr.

N. Dale Price Heartsill Ragon Louis L. Ramsay, Jr. Bruce H. Shaw Robert Shults William J. Smith David Solomon Henry E. Spitzberg C. Randolph Warner, Jr. John T. Williams J. Gaston Williamson Henry Woods Edward L. Wright Elizabeth G. Young Paul B. Young

Patron Wall at the new Arkansas Bar Center

Book

Little Sins Less Burdensome Than Great Virtues Review of Lost Kingdoms by Phillip McMath (Fayettevi lle, Ark.: Phoenix International, Inc, 2007), 517 pages.

by Vic Fleming

In Lost Kingdoms, by Little Rock's Phillip M cMath , we have a rich mpesrry. woven in the finest of literary trad itions. Through it and throughout it, the author deftly balances the tension of oppos ites: heroism and cowardice, righe and wrong. comedy and tragedy.

Grieving the Joss of her and husband Co nrad's on ly so n, in circa 1976. Elizabeth Shaw goes, as orten she does, to the Ephesus Cemetery (in fictional Warccnsaw County), where "Christopher was backhoed ima earth, in his oblong little eell." Once there, "standing among her dead at last, . .. alone and lost in this dark wood mixed with light," she reminisces:

For, in his travels, DeSotO was "bu rd ened with a following of fri ghtened slaves and a swa rm of ever-co pulating swine .......

Swamps and stumps, gnarls of cypress roots kn eed Out of the mud to trip and impede al l

me

Strange how it all worked, she thought. Linle dramas swirling everywhere, close by and we don 't even kn ow. Blind we are and blind we remain-bljnd [Q those closest to us, blind to the truth. others, and ourselves; we live as the blind in a half-blind world. The depths and shadows always stand nearby, in and out of the lives and souls of others, and we never know or see them.

McMath. th e om ni scient narra[Q r, then seizes co ntrol and takes us on an enj oyable ride, full of lists, twiSts. hot times, internal rhymes, alliteration, al lusion, and alleluias. as he gives the English language a heartpounding workout. It is. primarily, an 1860s tale of fitmi ly, politics, war, and religion, no o ne of which is ever fu ll y divorced from the others. Elizabeth 's biological family, led by great-gran dmother, Medora McDade Pilgrim, and husband, Co nfederate Army Colonel T itus Pilgrim, are the focus. Bur an adopted family member-Dagmar Pilgrim, a one-armed Confederate soldier-srea1s the show and also readers' hearts.

At times, McMath seamlessly ships us back ro th e 1500s, so that Hernan do DeSOto's exploits may be appreciated centuries later. Did you know that, but for DeSOto, Arkansas might nOt have had such a population of razorback hogs as to merit th e naming its university's athletes for them?

28

The Arkansas Lav.ycr

www.arkbar.com

but rhe ever-fecundate, agile pigs . .. . The num ber of pigs increased, even while the number of horses. dogs, and men declined

.

Provi ng the om nipresence of levity. even in times of deepest struggle and moral dilemma, McMath craftily employs hum o r devices. For example, he repeatedly engages in personification in his treatment of the Pilgrim fami ly mule, Ulysses, aka "Useless: O ne can be sure that deep in the recesses of his mule mind was a growi ng real ization th at somethin g important" had happened, but unlike Calvin, who was Reb to the bo ne, Ulysses was totally apolitical; and with a wisdom unique to his race, he would worry about it in a half-comic, half-serious way, then lay it al l aside as one more insignificant piece in the great puzzlement of human folly.

Su rely the essence of mule wisdom is accep tance.

semry gree ts them at the edge of the city: " H air! Who goes th ere?" ca me so mething so unding like a shout.

T hi s was a quest ion for which Medora had no ready answer.

Useless, however, even though the Germanic soundi ng wo rd "halt,n spoken in a strange lo\.\'a cornfield dialect, was ali en to his long "BootH eel M isso uri" cars, guessed its meaning. H e stopped. Swingi ng his head rou nd, he stared at Medora for reassurance, . ...

Medora leaned forward, set the brake for no obvious reason, and dipped a little sn uff- her o ne permissible vice. She was, afte r all a Presbyterian.

Medora's miss io n is complicated by their arrivi ng one day after the arrest of teenager David O. Dodd as a Confederate spy.

Dodd's story thus becomes the first of many to play itself out in these pages with precise detail. Larer, other events, especially battles. will be recounted with poignancy and sprinkled through with educ:trio n::. 1 nuggeu not likely to be taught in school.

Of particular nOte is a passage JUS t past the midpoint of the book. The year is 1865. Emperor Maximilian 1 of Mexico is involved in a civil war against insurgents led by Benito Juarez. Colonel Pierre Jean Joseph Jenningros, an "absinthe-addicted" henchm ::. n of the em peror is so ught our

by Confederate officers who have Aed [Q Monterrey rather than accept the U ni o n vic[Qry. Among these is Major General Orville Joseph helby, who sends his rider, Co rporal Dagmar Pilgrim, to deliver a message to Jenningros. The colonel asks if other C..onfederate soldie rs are like Dagmar. who rep lies, ''I'm the only one-armed still a-fighti n' that I know of, si r. " The miss ive from Shelby reads:

In the winter of 1863, Medora and Useless travel from the family plantation, Arcadia, to Little Rock, in search of medical assistance for 12 year-old H omer Joe. A Union

Preferring exile to su rrender, I have left my own country to seek service Book Review continued on page 49

I

Lawyer Community Legacy Award The Arkansas Bar Association is proud to recognize lWO new recipiems of the LAWYER COMMUNITY L EGACY A WARD, Two awards are presented hi-annually by rhe Association to 3norneys and judges who have performed volumeer public services ou[ of 3 sense of dury, professionalism, and a genuine desire co give back La the community. Recipients were selected by the Public Information Comm ittee after considering the nominations received by the deadline.

Judge Richard L. Proctor

Frederick S. " Rick" Spencer

Judge Richard L. Proccof has spent the past four decades serving rhe legal profession and his commun ity. He has dedicated countless

Frederick S. "Rick" Spencer, like his ra,her and grandfa[her before him, has consistently devoted his rime, money and efforts serving his community and the legal profession. As an active member of his community and his church. Spencer not only sought seeks {Q discover the needs of peop le, he fi nds solutions. He is actively involved in the Mountain Ilol11e Bible Church as elder and an active supporter and member in the Gidcons International. Spencer has taught Su nday school fo r 40 years and heads the Jr.Varsityl Varsity AWANA Program for approximately 2S teenagers in Baxter County. He has assisted his church financially by recently providing twO school buses. one of which is handicap-accessible, a new grand piano. Schulmerich hand bells as well as numerous other audio-visual devices. He has served as an active member in the 4-H Club in Baxter County and also as a parr-rime area director in North Cen,raI Arkansas for [he Boy Scours having been a recipiem of Eagle Scour and God and Coumry Awards as a yourh. The Baxter County Courthouse is decorated each year by a life-size nativity scene, 20foo, ligh,ed [fee and life-size Sama Claus dona,ed by Spencer. Also Rick and his wife, Brenda, 3re responsib le for the annual Christmas tree lighting ceremony that kicks ofT the Christmas parade every year in Moumain Home, Additionally, he donated eight new Dell computers co Baxter County Library. In addition to his own law practice, the Spencer Firm donates many hours to help ing indigenr and elderly clients, and Spencer was recently asked to serve on the Board of the Arkansas Volunreer L.1wyers for the Elderly.

Spencer ruso volunteers his time as coullselor and lawyer to many area churches as well as KCMH Christian Radio Station, which he helped found . He has also served on the Bar Association's House of Delegates and is a past president of the National Organization of Social Security Claimant's Representatives. Spencer has also been a governor and board member of ATLA for the past 20 years and a recepient of the Roxanne Wilson Advocacy Award. When asked for his response to this award, Spencer said, "Probably most of the lawyers in [his Scate do as much if not more than myself. Yet I am very grateful for this and will do my best to live up ro this honor."

hours of public service

(Q

me communiry of Wynne with special at-

(cntion to lhe future leaders of me community-the youlh. He has practiced law in Wy nne since his grad uat ion from me Un iversity of Arkansas School of Law in 1968, beginning his career practicing with his father, Everen Proctor. Since 1976, Judge Procto r has served Cross Cou n ry as D istrict J udge,a nd he also cominues a so lo law practice where he devotes many hours to pro bono work. He currently serves on rhe Board of Directors of Pip/Chedroc, dba the Boys and G irls C lubs of Cross County, Arkansas, an organization [ha[ he helped es<ablish along wi,h o,her community leaders. Judge Procror also serves on [he Board of the Cross County Economic Development Comminee. For over twenty years. with [he help of his wife Irene. he provided a Criminal Law Education Projecr for [he 5[h grade children of Wynne I",ermedia,e School. He has [augh, Sunday school a' ,he Wynne Bap,i" Church since 1969 and worked with [he church's youth program in various capacities including traveling on several mission trips and serving as a deacon.

Judge ProclOr served ren years as a trustee of Midwestern Baptist Theo logical Seminary in Kansas City and currenrly serves on the Board ofTrusrees of Mid America Baptist Theological Seminary in Memp his, TN, He has served as president of rhe Cross County Bar Associadon and has served on the Association's House of Delegates.

He was past president of the previously named Arkansas Municipal Judges Council, after serving as district board member, treasurer, secretary and vice-president. In addition, Judge Procmr served on [he Cross County Hospital Board of Trustees and is past president of me Wynne Ro,ary Club. He has been married 36 years ,he former Irene Nix, also of Wynne. Humbled by the honor of this award, the F.lther of three said, "I am a part of a community [hat believes in its youth, believes faith and service are a part of daily life, and is committed to building a strong and wholesome environment for its citizens. There are so many people in Cross County that deserve recognition Illore than me."

'0

A ny persoll may "omil1ate a lawyer orju.dge by completing the Nomillatioll Fonll and turning the Fon", illto the A rkallsas Bar Associatiol1 office on or before the 110mi1latio1l deadline. Nomil1ation deadlilles are jallu.ary 3 1st and Jllly 3 1st of each y ear.

Nominatioll Jonlls and gu.idelines for the aWIII'd are available at lUwlu.arkbar.com or by contllctillg the Association.

Vol. 42 No. 4/ Fall 2007 The Arbnsas l.a.,),er

29

Judicial Ad\'i~oly Opinion~ Judicial Advisory Opinions are written and provided by the Judicial Discipline and Disability Commission.

Full text is available online at www.state.ar.usljeac.index.html Advisory Opinion 2007-01 April 2, 2007

Advisory Opinion 2007-02 April 17,2007

The Arkansas Judida! Ethics Advisory Committee iss ued an advisory opinion [0 C ircuit Judge Jam es A. Cox afFort Smith. Arkansas.

Judge Cox req uested an opinion as to wheth er it would be permissible to serve on the University of Arkansas at Fort Smith Board of Visitors commince. He S[ated th at the committee is an advisory body that exiscs [ 0 support the University and that members of the committee are not co ncerned with issues of fact or policy. He stated that the committee serves to co mmuni cate the perceived needs of th e communi ty co the office of the school's chancellor.

T he Arkansas Judicial Ethics Advisory Committee iss ued an advisory opinion to Judicial Candidate Cathleen Compton of Little Rock, Arkansas. Ms. Co mpton requested an opinion as to whether it would be permissible to send a campaign co ntribution to the Cam paign of Senator Mark Pryor. Ms. Compton had agreed prior to announcing her candidacy to be a co-host of the Senato r Mark Pryor campaign. Co-hosts were asked to contribute $ 1000.00.

The Judicial Ethics Advisory Committee stared that Canon 5 of

The Judicial Ethics Advisory Committee stated that Canon 4(C) (2) of the Arkansas Code of Judicial Conduct says that a judge

candidate shall refrain from inappropriate political activity. Section

"shall not accept appointments to a governmental commince or other governmental position that is concerned with issues of fact or policy," with the exception of matte rs of law or the judi cial system.

However, the co mmittee notes that Canon 4(C)(3) permi ts a judge to serve as a trustee or adviso r of an edu cational organization not cond ucted for profit.

The Committee concluded that th e role of a member of the Board of Visitors is "more ed ucati onal th an governmental " and for reaso ns

the Arkansas Code of Judicial Conduct states that a judge Ot judicial 5A(I)(b) states all judges and candidates for election or appointment for judicial officc shall nOt publicly endo rse or publicly oppose a candidate for any public office. Finally. Section 5A(I)(e) states a judge or judicial candidate should not solicit funds for, pay an assessmem to or make a co ntributi on to a political party or candidate.

The Co mmittee co nclud ed that based upon restri ctions in the Code of Judicial Conduct, Attorney Compcon may not honor the cam paign promise made prior to an nounci ng her candidacy for a judicial position.

set forth in J EAC Advisory Opinions 95-03 and 2001-0 I. the committee believes that Canon 4(C)(3) is the controlling provision.

It is the opinion of the Committee that Judge Cox may serve on the Board of Visitors of the Uni versiry of Arkansas at Fon Sm ith.

Arkansas Lawyers Assistance Program ArLAP Helping Lawyers and Judges Find Personal Solutions ... Now Fall Support Groups Group l -Women's Group Group 2-Men's Group Would you benefit from participating in a Support Group? oAre you a lawyer. judge. or a family member/significant other of a lawyer or judge? oAre you repeatedly challenged by certain situations?

000 you have a vision of how you would like those situations to be in the future? oAre you tired of struggling alone with these situations? oAre you willing to explore new directions to achieve your vision? oAre you willing to participate in a confidential supportive group to learn how to accomplislfh~y~o~u~ rv ..i.. si~ 0~ n7~ . -~~~~~~""'iI ArLAP Provides a Safe and Confidential Atmosphere to Discuss Your Challenges and Concerns Receive Peer Support Break Away from the Isolation of Practice Experience Laughter and Camaraderie

30

The Arkansas Lawyer

www .â&#x20AC;˘ rkbar.com

Contact Sarah Cearley. PhD. LCSW Director of Client Services SOl -907-2529-Confidential sarah@arlap.ora-Email www.arlap.ora-Website 2 Van Circle, 5te. 7 Little Rock. Arkansas 72207

La\\)'cr Disciplinary Actions Filial actions from July 1, 2007, through September 30, 2007, by the Committee on Professional Conduct.

Summaries prepared by the Office ofProfessional Conduct.

Full text docm1U!1lts are available on·line at http://courts.state.ar.u.slcourtslcpc.html.

[Note: "Model" Rules refers to the Rilles ofProfessional Conduct as they existed in ArkatlSaS prior to May 1, 2005.

"Arkansas" Rules refers to the Rules as they exist in Arkansas from May 1, 2005.J SUSPENSION: W I LLIAM SCOlT DAVIDSON, Bar No. 8 1044, ofJonesboro,Arbnsas, wassuspclldcd for one ( I) month , effective November 1, 2007, by Co mmittee Conse nr Findings & Order filed August 20, 2007, in Case o.

2006-155, on a complaint filed by Ms. Jessie King (formerly Vinson). for violation of Rules 1.2(a), 1.3, and 1.4(b). This macrer was originally brought [Q the ancmion of the Office of Profess ional Conduct (O PC) on January 9, 2006, when Ms. King filed a grievance against Mr. Davidso n for failing (0 rake act ion in her behalf on her pending

joint Chapter 13 bankruptcy case,

0.01-

bk-32360, with her former husband Terry Vinson. ope had multiple contacts with Ms. King and Mr. Davidson and monitored the matter until a comp laint was received from Judge Evans.

Using anomer a.trorney, Mr. and Mrs. Vinson filed a joint C hapter 13 petition on ovember 29, 200 I, as No. 01-bk-32360.

Their plan was confi rmed and payments were made on it for several years. After they divorced, Ms. Vinson moved ro M iss iss ippi and remarried. Mr. Vinson remained in Arkansas and cominued to make their plan paymems. The Vinson's original anorney was permitted to withdraw from their case on October 19,2005.

After her divorce, Ms. King desired to co nve rt her C hapter 13 case to a C hapter 7 liquidat ion casc. She employed Mr. Davidson for that purpose and paid him his requested fee of $350.00 on September 29, 2005, but he rook no anion for her. On January 24, 2006, OPC wrote Mr. Davidson, copyi ng M s. King, informing him of the filing of Ms. King's grievance against him. He took no action in her maner that she knows of from September 29, 2005, until January 30, 2006, when he filed a Notice to Convert to Chapter 7 for her in the origi nal case, No. ol -bk-32360.

Major cha nges in the bankruptcy laws became effect ive on October 17, 2005 , complicating and restrictin g the ability of

debtors to make such conve rsions, accord ing to Judge Evans's comm em s in the August 30, 2006, hea ring. Unable to obta in satisfactory actio n rrom him , and after he asked her for another $ 1SO ro co nverr her case from C hapter 13 (0 Chapter 7, o n March 5,2006, Ms. King wrOte Mr. Davidson and asked him (0 refund her $350 if he did not want 1'0 be her anorney, and asked ror a reply within ten days. On May 16, 2006, Ms. King e·mailed Mr. Dav idso n and directed him ro discominuc any actions that might currently be in process. Eight days later, and aga inst her specific instructions, on May 24, 2006, Mr. Davidson filed a Motion to Deconsolidate Chapcer 13 case for Ms. King in No. l -b k-32360. The Motion was granted May 25,2006, and Ms. King's nowseparated Chapter 13 case co ntinued under a new number, 06-bk- 12088. Mr. Davidson failed to file a corrected mailing address for Ms. King, so all court documems were being sem co her old Jonesboro address, burdening her ability to receive these documents and track activity in her fil e.

By lener dated August 15, 2006, to Mr. Davidson, the C hapter 13 trustee informed him thar Terry Vinson's C hapter 13 Plan, in No. 01-bk-32360, had a major problem, in that his plan would not pay our in the allowab le sixty months. H is plan had (0 be modified by September 14, 2006, to meet ,he "sixty momh" requirememofbankruptcy law or be dismissed. Mr. Vinson ch en obcained new cou nsel, Joe Barren, in ea rl y September 2006, to represem him in the needed Plan modifi ca tion. On September 12, 2006, Mr. Barrett filed a Notice of Conversion ro C hapter 7 for Mr. Vinson and filed an amendment to add creditors on October 9, 2006. Mr. Vinson 's meeting with creditors was co ndu cted on October 27, 2006, and he received his Chapter 7 discharge on January 5,2007.

I n her new sepa rate case, o. 06-bk12088, an Order Regarding Deconsolidation Deficiencies was emered May 26, 2006, directing Mr. Davidson (Q take the actions noted thereon, including filing Ms. King's

°

schedules and statement of financial affairs, or her new case wou ld be dismissed. The Ce nifi ca te of Service fo r the Orde r shows Ms. Vinson's old Jonesboro address Still listed as her add ress of record with the court. A clerk's docker sheet for the period May 26 - Jun e 26, 2006, made availab le for this case, notes contacts be [Ween members of the clerk's office and Mr. Davidson that add detail and insight inco what was being co mmunicated at the time.

Ms. King's case was di smi ssed byOrder fi led June 26, 2006, for fuilure to timely file her schedules and staremenr of financial affairs.

On August 10,2006, Ms. King filed her pro se Motion ro Set Aside Order Dismissing Case, with six exh ibits attached. Her Motion outlines and documents her efforts co deal with Mr. Davidson on this maner since she paid him ,he $350 in September 2005. An earlier version of this Motion had been filed on July 27, 2006. At ,he AuguSt 30, 2006, hearing, a( which both Ms. King and Mr. Davidson testified, the Court granted her motion and reinstated her separa te Chapter 13 case, No. 06·bk- 12088, to active status, fi li ng its Order to that effect on September 15, 2006. Thereafter, Mr. Davidson again failed to file (he required schedules and statement of affairs for Ms. King. and the case was dismissed again on October 10, 2006, the StatuS in which it remains. Mr. Davidson entered imo a thirry (30) day license suspens ion from another Committee case on Novembe r 1,2006, so hc was unable ro perform any legal services for Ms. King after (hat date and until he was reinstated ro good standing by (he Committee on December 7, 2006.

Mr. Vinson has received a Chapter 7 discharge. Ms. King is left our of that case and her new, separate case is now twice· dismissed due to Mr. Davidson 's fai lure (0 perform for her. Mr. Davidson made a $350 refund to Ms. King at ,he AuguSt 30, 2006, hearing.

KETRlNG-BEUCH, A. BARBARA Bar No. 97074, of Norrh Little Rock,

Vol. 42 No. 4/ Fall 2007 The Arbnsas lalVyer

31

La....Yer DisciplinalY Actions Arkansas, was slispend ed for six (6) momhs

by C omminee Findings & Order filed August 1.2007. in Case No. 2006- 170. on info rm ac io n provided to [he Co mmi ttee by

or

C ircuit Jud ge AJice Gray, tor vio lation Rules 1.1 . 1.3. 3.4 (c). 4.4(a). and 8.4(d). M s.

Kcrrin g- Bclich rep rese nted Jakce ra Young in a divorce proceeding, Pulas ki C ircuit No. DR-2005-3584. sryled Jakeeta L. Young v.

Dav id C. Yo un g. before J ud ge Alice G ray.

Mr. Young was represented

by James W.

Stanley. At a fina l heari ng o n May I 1.2006. which Ms. Ketring-Bcuch attend ed with her cl ient. Judge G ray granted a divorce to DefendalH/Counre r- Plaimiff David Young and made certain rulings regardin g prope rry issues. Mr. Sta nley promptly prepared a proposed Decree of Divorce and mail ed it ro Ms. Ketring-Beuch on May I I. 2006. for her approval, alo ng with an enclosed Q uitcl aim Deed for her d iem ro execute and his trust check #42 I 3 for $ I 1.395.33 from Mr. Young. paya ble (0 Jakecr3 Young and M s. Kerring- Beuch, for Ms. You ng's share of the equiry in the Young ho me. Ms. KetringBeuch f..1. iled [Q approve and rerum th e Decree of Divorce and the properly executed Quitclai m Deed. The check was endorsed by M s. Youn g, Ms. Ketring-Beuch, and Leonard Boyle, Ms. You ng's brother, and was give n

by M s. Ketring-Beuch to Ms. Youn g to be negotiated. which she did , receiving all rhe funds represented by rh e check. On Jun e 6, 2006, Ms. Ketring-Beuch acknowled gt:d lilt: signature of Ms. Young on the Quitclaim Deed and th en stuck rhe deed in her office fil e, where it remained lIntil December 7.

2006, when she di scovered rh e deed and delivered it [Q Stark Ligon at the Office of Pro fess ional Co nduct, afrer he contacted M s. Kerrin g- Beudl abom the Young matte r.

Mr. Li go n then fo rwarded the o riginal d eed to Mr. Sta nl ey for hi s client's use. On May 30. 2006. Mr. Stanl ey sent the proposed Decree of Di vo rce [Q Judge G ray, with copy co Ms. Kerrin g-Beuch, under the "fi ve days to o bject" rule. O n August 29. 2006. Mr. Sran ley wrote Ms. Kerring- Beuch requesting approval and reUirn of th e Decree and Deed immediately, after a hea ring o n rhe nonentry of th e Decree. Faced with no res ponse from Ms. Ketring- Beuch. with the approval of Ms. You ng. o n October 10. 2006. Judge G ray appointed arrorney C arro l Ann Hi cks to rep resent Jakeeca Youn g for (he pu rpose of getti ng a dec ree approved and em ered. Ms. 32

The Ark:ms(js lmrycr

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Hicks conferred with Ms. Young. approved th e proposed Decree earlier prepared by Mr. Stanley, and submir-ted the Decree to Judge Gray by letter dated October 26. 2006.

Judge G ray app roved the Decree of Divorce on November 20, 2006, and caused ir [Q be filed th at sam e d ay. O n November 22. 2006.

Judge G ray referred th e matte r and Ms. Ketring- Bellch ro the Com mittee for action, based o n her failure to represe nt her client co the com pi er-ion of the divorce matter.

DAVID F. MORE H EAD. BarNo. 89 143.of Pine Bluff, Arkansas, was suspended for rwo (2) mo mhs. fined $ 1.500.00. an d ordered (Q pay $4 10.00 restitution by Commirree Findings & Order filed September 28. 2007. in Case No. 2007-046, on a comp laint from Jo hn Franks. III . for violatio n of Rules I. I. 1.3. 1.4(a)(3). 1.4(a)(4), I. 16(d). 3.4(c).

5.5(a) . 8.4(c). an d 8.4(d). Mr. Franks employed Mr. Morehead to file a C hapter 7 bankruptcy. and paid $2 I 0.00 for the filing fee and $200.00 for the artorney's fee o n Augll sr I and September 12, 2005, respecti vely. Th e Petition was filed, as No. 05- bk-24533. o n October 6. 2005. and an

O rder was so ught and obrai ned allowing Franks to pay his filin g fee in installm ents. even though Morehead already had received th e filing fee funds. In filings with th e courr. Morehead also certified thar he had received "$0.00" fu nds from hi s client as of thar d are, a false starement. The first meeting of creditors ("34 1 meeting") was set for November 17.2005. Morehead fai led to l'imely pay a filin g fee for Fran ks. On November 25, 2005. an o rder was entered dismiss in g Franks's case, th e file was closed, and rh ere has been no actio n o n hi s behalfin bankruptcy courr since then. H is filing fee was never paid. H e co ntacted Morehead 's office several times thereafter, unsuccessfully anempring to ob tain information abol!{ the stams of hi s case. Fa iling to ob tain rel ief and protection from bankruprcy. GMAC auctioned off his truck and is now pursuing him fo r a deficiency judgment of$ I 6.265.00.

Morehead has not refund ed Franks's unexpended $2 I 0 filing fee M o rehead has held sin ce November 2005. or any un ea rn ed porrion of the ano rn ey fee he was paid to handle th is matter to co mplerio n.

M orehead fa il ed to pay his 2006 Arkansas

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As a resuh of th ese act ions, hi s Arkansas law license was in auro mati c suspension status

from March 2 - June 6, 2006. an d sin ce March 2007. H e practiced law in bankruptcy court during these periods. [M r. Morehead has a mo do n fo r reco nsideration o n hi s three cases pending before r.he Committee at

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DAVID F. MOREHEAD, Ba r No. 89143, of Pine Bluff. Arkansas. was suspended for [wo (2) mo nths, fin ed $ 1,500.0, and o rdered to pay $209.00 restitution by Comm irrce Find ings & Order fi led September 28,2007, in Case No. 2007-048, o n a co mplai n{ from Jillian Parker for vio lation of Rules 1. 1.

1.3, 1.4(a)(3), 1.4(a)(4), 1. 16(d ), 3.4(c), 5.5(a), 8.4(c), and 8.4(d). Ji ll ian Parker and her mother, C heryl Parker, wenr to Mr. Morehead in September 2005. seeking represenrario n for m eir fin ancial situ ation.

H e advised both to file ror C hapter 7 bankruptcy protection and seek a discharge order. H e £o ld them thac he requi red a $208 or $209 filing fee from each of th em and wou ld only charge $250 for legal services to each, for a tota] fee of $500. C heryl Parker paid $209 cas h then for Jillian's case filing fee. Ar another meering a sho rr time later, C heryl paid $208 for her fil ing fee.

O n October I S, 2005, Morehead fi led for Ji ll ian as No. 05-bk-28354 . On October 16,2005, he filed for C heryl as No. 0 5- bk28486. C heryl later paid the $250 for her lega l fee. C heryl's case proceeded without incident. Morehead paid C heryl's $209 filin g fee to the cl erk on January 12, 2006.

She received her discharge order o n january 24.2006.

Morehead failed to pay Jilli an's filing fee and her case was di smi ssed by order fued November 25, 2005, for failure to pay the fili ng fee. The reafter there is no reco rd in jiJlian's case of his having taken any acti o n £0 reopen her case or refl le for her, or having paid any fili ng fee for Ji ll ian. Jill ian and Che ryl co ntacted his office several times fo r informatio n abo ut the stams of jillian's case, bur th ey received no report, other man it was being worked on. Morehead was co ntacted by lerrer dated Dece mber 20, 2006, by the Office of Professio nal Conduct about jillian's case, and others. In early Janu ary 2007, he contacted jillian and £old her he was wo rkin g on her case, would get it refi led, and she wo uld owe him no more mon ey for the matter. There has bee n no activity in her ban kruptcy fi le since December 6, 2005. By nOt taking any action in jillian's case since December 6, 2005, he abando ned her as hi s cliem and effecti vely term inated th e anomey-clien t relationship. H e fa il ed to refund any unused part o f the $209 fi ling fee he received, hur did nor pay to the clerk, for

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer

33

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Actions Jillian.s case.

Morehead failed ro pay hi s 2006 Arkansas Sup reme Coun atto rney's license fee. due by March 1,2006, umi l June 6,2006. H e fai led co pay his 2007 Ark.1 nsas Supreme Court artorney's li cense fee. due by March 1,2007.

As a resuh of these actions, his Arkansas law license was in automa ti c suspension S[atuS from March 2 - June 6, 2006, and from ar least March 2 - Apri l 9, 2007. H e practiced law in co un durin g these periods.

DAVlD F. MOREHEAD, BarNo. 89 143, of Pine Bluff, Arkansas, was suspended for two (2) months, fined $ 1,500.00, and ordered to pay $209.00 restitution by Comminee Findi ngs & Order fi led September 28, 2007, in Case No. 2007-058, on a complaint from Evely n C row fo r violatio n of Ru les 1. 1, 1.3, 1.4(a)(3), 1.4 (a)(4), 1.16(d), 3.3(a)(I), 3.4(c), 5.5(a), 8.4(c), and 8.4(d). Ms. C row went to Mr. Morehead about filing a Chapter 7 bankruptcy case. She was told the filing fee would be $209.00. She paid $100.00 o n October 12, 2005, and th e balance of $ 109.00 on Janu ary 3, 2006. She gave him all the perso nal and fin ancial info rm atio n he requested. On October 13, 2005, in dme to be under the old bankruptcy law wh ich was exp iring on Ocrober 17, 2005, he filed her petition and sched ules as No. 05-bk-26 197.

She was notified of rwo co urt dares for her meetin g of cred itors. Mo rehead o r hi s offi ce to ld her to disregard the first date and co go on the second dare. When she went to court on mat date, believed co be December 15, 2005, she was told her case had been

dismissed. She well( to his office on January 13, 2006, and paid the $ 109 balance she owed on her filing fee. She underscood he was goi ng ro refile her case.

She went to his office seve ral times up to mid -2006 checki ng o n her case. She was usua lly told he was worki ng on it. He reemered her information in [he computer on the case, but she neve r received any lener about goi ng ro co urt. She call e(1 his office a number of times abom her case, bur received no return calls. She wenr to his office on February 15, 2007, but was rold he was not in and she was not provided any information abom her case. The same thin g happened ro her on February 26, 2007. Ar this time, Morehead still has her papers and her $209 for the fi ling fee, which he never expended for her case, and Ms. C row has no case.

Mr. Morehead failed to pay his 2006 Arkansas Sup reme Court anorner's li cense fee, due by March I, 2006, until June 6, 2006. He failed to pay his 2007 Arkansas Supreme Court ano rn ey's license fee, due

by March I, 2007, unti l May 16, 2007. As a result of these actio ns, his Arkansas law license was in automa ti c suspension status from March 2 - June 6, 2006, and from March 2 - May 16,2007. He pracriced law in bankruptcy court during th ese periods.

PETER E. MORGAN, Ba r No. 87121, of De nve r. Colo rado, was recip rocally suspended for six (6) months by Com mittee Findings & Order filed July 20, 2007, in Case No. 2007-07 1, for vio latio n of Colorado Rule

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8.4(b) (engagi ng in criminal aces) and Rule 8.4(h) (engaging in cond uct thac directly, intemionally, and wrongfu lly harms others and that adversely reflec ts o n a lawye r's fitness to practice law). In his proceeding in Colorado, Mr. Morgan stipulated that he was admitted in CO in 1973, mat he was a recovering alco holic benveen 1977 and 1998,

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Vo l. 42 No. 4/ Fall 2007 The Arkansas la'IYer

35

Lavrye when he began drinking again during his divorce. and lilac he drank aJmos[ daily from 1998 [Q june 2005. when he became a1coholfree. On Jun e 11 .2005. he was invol ved in a mawr vehicle accident at a rim e when he had been drinking. On September 29. 2005.

he was charged with hir-and-run injury, fa ilure (0 give noti ce of an accident, failure to Tepon an accident, and careless driving in this incident. On February 16. 2006. he pled guil ty to ca reless driving, was fin ed $ 177.00, and (he charges WCTe dismissed.

Also on Jlin e 1 I, he was in volved in an alterca ti on with a motorist at a McDonald 's drive- through , afrer he " rammed" his vehicle

into rhe forward vehicle. Morgan rhen used very bad words (0 me female driver, and she called for 91 1 and rhe police. Morgan grabbed her hair an d hit her in rhe face. A female bysta nder who cried co assist rh e other driver was hit and knocked to th e ground.

Morga n th en lefr rh e scene and awoke later o n a grassy median strip surrounded by office rs and paramedic. Morgan was charged and (Ti ed. H e was co nvicred on April 17, 2006, of assa ulr and di sturbing th e peace and sentenced to 365 days in jail, with 305 days suspended. 50 days of electroni c monitoring, fined $ 1,266, and placed on rwo years supervised pro bation. Ir also ca me our lhat Morgan had received a one year deferred judgmenr upon his conviction of mi sdemea nor assault and disturbing che peace: ill 2001 and that he had fa il ed to report chat co nviction as required by law.

REPRJMAND, j.1'. ATKJNSON. jR.â&#x20AC;˘ Bar No. 76003 . of Fon Smith, Arkansas, was reprimanded and fined $750.00 by Committee Co nse nt Findings & Order filed july 20. 2007. on a Complail1r filed by james Kelly H ay nes in Case No. 2007-030. for viola tion of Rul es 1.1 . 1.2(.). 1.3. 1.4(a)(3). 1.4 (a)(4). and 3.4(c) . During june 2005. Mr. Atkinson was appointed by th e Ci rcuir Court ro represenr Mr. Haynes in his Rule 37 Petition proceedings. The Rul e 37 Petition was denied by the C ircuit judge. Foll owing rhe hea ring on Augusr 11 , 2005, Mr. H aynes asked Mr. Atkinso n if he was goi ng ro appea l for him. Mr. Arkinson advised thar he wo uld nor do so. However, on August 25. 2005. the C ircuit judge appointed Mr. Atkinso n ro pursue the appeal ro th e Arkansas 36

The Arkansa~ La"ycr

www.arkbar.com

Supreme Court. Mr. H aynes heard nothing about the appeal for several weeks after chat appoimmenr. On October 18. 2005. Mr. Atkinso n wrote Mr. H ay nes and provided him rhe office address. That was the lasr coml1luni carion Mr. Haynes had with Mr. Atkinso n. The Co urt Reporter requcs red an Extension of Time to prepare th e rranscripr

in December 2005. The Court gramed the requ est. A Second Order was entered on December 20. 2005.

On j anua ry II. 2006. Mr. H aynes wrore a leuer ro Sue Newbery, Criminal justice Coo rdinaror, co ncerning Mr. Atkinson and his failure to respond ro rhe leu ers Mr. Hayncs had sem . The following day, Mr.

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Actions Haynes wrote a lener CO the Ci rcuir Judge in Forr Smith and requ es ted new counsel.

Judge Marschews ki deni ed the request.

Mr. Haynes se nt M r. Atkinson an Inmate Phon e Call sys tem sheet fo r Mr. Atkinso n to co mpl ete, bur he neve r se nt it back. On February 7, 2006, Mr. Haynes wrote Mr. Atkinson agai n but he did not res pond to rhe

Icn er. Ms. Newbery wrote Mr. Haynes o n May 5, 2006, and advised that no transcript had been lodged pen aining to the denial of the Rule 37 Petiti o n. Mr. Haynes wrote Mr .

Atkin so n agai n o n Septem ber 8, 2006, bur he did not res pond ro that lencr eith er. Ms. Newbery sent other leners to Mr. Haynes on Ocmber 26, 2006 , and o n November

ÂŽ

17, 2006 , confirming that there was no appeal pending on th e denial of th e Rul e 37 Petition .

On February 2, 2007, the Sebastian County Ci rcuit Clerk sent a letter to Mr. Haynes advising that a transcript had been fiJed and that the man er was now before th e Arkansas Supreme Court. After rece ipt of th e iencr Mr. Haynes agai n wrote Ms. Newbery.

In her letter of response, she advised th at th ere was no record of the trial courr record bei ng tend ered ro the Clerk of th e Arkansas Supreme Coun. After rhe Court Repo n er filed th e transcript with the C ircuir C lerk's office. Mr. Atkinson rook no action to perfect the appea l eve n though he had been appo inted to do so. until he filed a motion

for belared appeal on April 20, 2007.

Mr. Atkinson admitted the co nduct as se t fonh in (he form al di sciplina ry co mplaint.

He also admitted that he had experienced previous problems in handl ing pOStco nviction proceed ings such as this one involving Mr. Haynes. There was aJso an adm iss ion by Mr. Atkinson that he did not keep Mr. Haynes informed of the status of the matter nor did he inform him that no

appÂŤ.J had been pursued. Following rhe filing of the formaJ di sciplinary complainr.

Mr. Atkinson 's Motion for Belated Appeal in (h e Haynes' maner was granted by the Arkan sas Suprem e COUT[o As a result, Mr. Haynes is aJlowed the ap pellate review he requested.

W ILLIAM SCOTT DAVIDSON , Bar No. 81044 , of Jonesboro, Arkansas, was reprimanded and fined $500.00 by Committee Findings & Order filed August 17, 2007, in Case No. 2006- 157, on a complaint fil ed by Unired Srares Chief Bankruptcy Judge Audrey Evans, for viol arion of Rule 8.4 (d). Mr. Davidson represented Larry Gene Hawkins in a C hapter

H

7 bankruptcy case filed Ocrober 16,2005, as No. 05-28385. One of Hawkins' creditors, Daedong-USA. lnc., represented by attorney John Peel, filed an adversary proceeding (rhe "AP") on Jan uary II , 2006, as No. 06-ap01025. The cases were assigned ro Judge Evans. On February 22, 2006, the AI' case was set for triaJ before Judge Evans on May

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3 1, 2006. O n May 12,2006, Judge Evans enrered her Order conrinuing the trial of the

AI' case ro November 8, 2006. On O crober 3 1, 2006. M r. Davidson filed a motion for

Vol. 42 No. 4/ Fall 2007 The Arkansas lawyer

37

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co nUllu ance, staring as Arkansas law lice nse was ro be slispend ed fo r a mo mh begi nning the nex t d ay, November I, 2006, as a res ul t o f a sa nctio n against him 2005-085. Mr. in Commi ttee Case No. Peel fi led a respo nse. Th e Co urt granted rhe Ill otio n by Order enrcred November 9, 2006. and referred the mafrer ro rhe Co mmittee.

C PC 2005-085 was a co mp lailH by G lenda Tippitt aga inst M r. Davidson. At a public

crc

hea ring co nducted on August 18, 2006, the Panel ann o un ced that it wo uld impose a one 111 0 nth suspensio n of lice nse on M r.

Davidso n, to o nl y become effective almost cwo and one half mo nths lacer, on November I , 2006, as a courtesy to hi m and his dients, [0 give him rim e ( 0 ge t his practice affairs in o rder and (0 protect rhe inreres rs of his clients w ho had m atters th at miglH have hea rings or tri als in th e few mo nths after August 18, 2006. Mr. D avidso n apparentl y failed ro noti ty either Mr. Peel o r the Co urt prior ro Ocrober 3 1,2006, th at his law license was to go inro suspended srarus the next day.

T IM OTH Y MARK HALL, Bar No. 96043, of Huntsvill e, Arkansas, was reprimanded and fi ned $1 ,000.00 by Commirree Findings & Order fil ed September 10,2007, in Case No. 2007-04 1, o n a co mplaint by Kenneth Braswell, fo r violarion of Rules 1.1 , 1. 2(. ), 1.3, 1.4(a)(3), 1.4(a)(4), 1. 5(b), 8.4 (c), and 8.4(d ). Mr. Braswell hired Mr. Hall ro help him wi th a matter in volving his fo rm er employe r, who had not paid Mr, Braswell the funds he believed were due him. Me HaJl met with Mr. Braswell and discussed the maner and then advised Braswell that he owed no funds fo r the meeting and that he sho uld try to handle the matter o n his

ow n. M r. Braswell set up a meetin g with his fo rm er emp loye r. M r, H all advised that he would go as a fri end. Me Braswell 's form er employer refused to meet with Mr. H all in the roo m, so H all left the meeting.

M r. Braswell th en co ntacted M r. H all after the meeting to let him kn ow that he would need represe ntati on, M r. H all agreed to se nd a letter to the fo rm er employer and (Q handle all other matters in volved up ro the poi nr o f filin g a lawsuit fo r a fee of $750, There was no written fee agreement presenred to M e Bra5\vell , and there was no expl anati on of rh e rate or basis of the fee (Q be charged. Mr. Hall did no t se nd the lerrer ro the fo rm er empl oyer as agreed upo n with Mr. Braswell. He did no t return telepho ne calls or messages left for him. After he was termin ated, he [Old Mr. Braswell th ac he had a lor of cime in me matter and thar he charged $ 125 per hour for his work. H e also sea ted th at he had prepared the letter, but he did not give Mr. Braswell a copy of it. M r. H all fa iled to file a res po nse to the Co mp laint.

ROY C. "BILL" LEWELLEN , Bar No. 82093, of M ari anna, Arkansas, was reprimanded and fin ed $5,000 by Comm ittee Findings & O rder fi led September 24, 2007 , in Case N o. 2007-0 56, o n a complaint filed by Marsha Warren, for vio lation of Arkansas Model Ru les 1.1, 1.3, 1.4(a), 1.5(c), 1.1 6(d), and 8.4(d). In September 2002, Ms. W arren of N orm Lird e Rock employed Mr. Lewellen ro represent her in her claim fo r injuries received when bitten by a dog owned by M atthew Ho lder o n Auguse I , 200 2, in so uth Texas. She did not recall eve r signing a contract or agreement

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for legal services and has no copy of one, bue recall ed th at Mr. Lewe llen rold her his fee would be 25% of an y recovery. Thereafter she had co neacts fro m time-to- time o n her matter with Mr, Lewe llen and with G ary Austin, an atrorney who worked with him.

She had in creasin g diffi culty contacting Mr. LeweJlen abo ut her matter and obtaining informatio n about its status. H er avai lable lo ng distance telepho ne reco rds fcom November 2002 - Augusr 2004 reflect at least 12 1 calls to Mr. Lewellen's numbers in M aria nn a. M ost o f these were very short calls in which she left a cal l back. In frustration , Ms. W arren sene Mr. Lewellen a lener on May II , 2004, termin aring hi s se rvices as her attorney and requesting m e rerum of al l her documents. The letter was se m certifi ed mail and retu rned undelivered .

On September 23, 2004, Mr. Lewellen and Mr. Austin fi led suit for her in the United Scates District Court in Hel ena, as No. 04CV- 173, againsr M m hew H old er, d escri bed as a res ident of Texas. Se rvice by mail was obtained o n M r. H older. O n October 29, 2004, Mr. H o lder's m o rn eys fi led a

Vo l. 42 No. 4/ Fall 2007 The Arkansas Lawyer

39

La\l'ijer Motion (0 Dismiss and Brief, alleging lack of jurisdiction over him in Arkansas. On ovember 22.2004 , Ms. Warren's attorneys filed a Res ponse (Q rhe Motion CO Dismiss.

She h:td always li ved in North I.irde Rock. and did not live in any place that cou ld be co nsidered as in [he Helena Division of the Eastern Distri ct of Arkansas, whi ch is where Mr. Lewellen filed her lawsuit.

O n November 27, 2004, she wrote Mr. Lewellen again, informing him she was termi nating his servi ces and [Q se nd her rhe file. The "green card " for cc nified mail was signed for on November 29. 2004. In spire of bein g terminated by her earlier, on December 7. 2004. her attorneys filed a Motion to Transfer her case to the United States District Coun in tile South ern District of T exas.

Galveston Di vision . She was not co nsulted about this befo re they filed ir. On December 2 1, 2004, her ano rneys flied a Morion to Voluntarily Non-Suit her Arkansas case. She was nor co nsulred abour this move befo re th ey fi led ir. That Motio n was gra med by th e Court's Order fi led December 29,2004. M s.

Warren only learned abom this O rder some rime larer.

After she learned of th e "non -s uit ," and that it mea nr she had o ne year from December 29, 2004, within which to refil e her case so mewhere, and that it did not appear Mr. Lewellen was go ing to reflle ir in Arkansas o r Texas, she so ught a new anorney. No anorney she consulted would lake her case witho ur a lener from Mr. Lewellen that he was 11 0 longer involved in it and th at he wo uld not' claim a fee from her claim if a

recovery was obtajned. Ms. Warren requested Mr. Lewell en rerum her file. To date she has not received the file or a copy. She requesred that Mr. Lewellen wr ite a letter fo r her use that he no lo nger represented her and would claim no fce trom her case, so she cOllld rry TO engage anQ[her lawyer to handle this matter.

To date she has received no such letter.

In lare Occober 2005, she fi led a complainr aga inst Mr. Lewel len with the Com mittee on Profess io nal Conduct. On November I S, 2005, the Office of Professiona l Condu ct wrote Mr. Lewe llen about her comp laint and situation. Mr. Lewell en d id nOt respond to the lener. In late 2005. Ms. Warren tried ro co ntact th e insuran ce carrier for the dog owner about settlement of her claim. By [hen rhey wo uld nor tal k with her, probably because they knew her case was "dead," nOt having been refil ed within one year afler lhe non-s ulr.

Mr. Lewellen res ponded that th e Warren file was handled by his associate, Gary Aust in, who supposedly misled lewel len inro think ing th e Warren maner was being properly handled. Lewel len claims he was no r aware of the suit fi led for Ms. Warren and did nor sign same. In rebuttal , Mr. Austi n vigo rously disagrees with Mr. Lewellen's vemon of what happened in the Warren maner.

JIM ROSE, III , Bar No. 79247, of F3yeneville. Arka ns.,~. was reprimanded

by Co mmittee Findings & Order filed August 17, 2007, in Case o. 2007-049. on a co mpla int filed by Pamela E. Fischer,

for violation of Rules 1.1. 1.3, and 8.4(d).

On Ap ril 3, 2002, Mr. and Mrs. Fischer hired Jim Rose, III , an attorney practicing prima rily in Faye nevi ll e, to represent them co ncerning an in vestiga rion being pursued by th e Internal Reve nue Service and :my appeals arising out of any criminal charges which might be fi led. Mr. Rose and anmher anorney. Ri ck E. Woods ofFaye[tevilie. were pa id a tOtal of $30 ,000. The check cleared the Fischers's bank the day a.fter it was wrinen. The Fischers we re refe rred to Mr. Rose and Mr. Woods by Harry McDermott, another anorney pract icing in Fayettev ille.

When Mr. and Mrs. Fischer flrsr mer with Mr. Rose and Mr. Wood to discuss their situation. [he arto rneys comacred the IRS . The Fischers were info rm ed that the $30.000 covered investigation. [rial and appeab. T here was o ne meering with rhe IRS and both Mr. Rose an d Mr. Woods an ended . During O<.--ce mber 2003, Mr. Fischer was charged with inco me ÂŁax fraud.

Mrs. Fischer was never charged.

In early May 2004, Mrs. Fischer's husband was advised to take a plea deal beca use rhe case was so huge and blatam that, if he did nor take the dea l, the government would fi le th e charge of obstruction of justi ce against Mrs. Fischer. C harges were not filed against Mrs. Fischer. The se ntence imposed after entry of the plea was harsher and nor whar had bee n ex plained to Mr. and Mrs. Fischer, and they were ext remel y upset. As such, Mr. Fischer wanted an appeal of the se ntence ro be pursued by Mr. Rose.

Mr. Fischer filed a post-co nv IctIon

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Lw\ycr DisCiplillJI)' Actions proceeding after being se ntenced (0 a much grea ter amount of tim e than he was informed by hi s anorneys, Mr. Rose and Mr. Woods.

The hearing on [he post-convictio n pleading was held on November 15, 2005. Following the filing of rhe post-hearing briefs by bmh sides, Magistrate Judge Beverl y Stites Jon es scm a request thar bmh sid es submit briefs on dlC iss ue of a requested appeal.

Magistrate Judge Stites deni ed the Section 2255 I11mion filed by Mr. Fischer. Judge Jimm Larry Hendren filed his Order in rhe matrer 0 11 Ocrobe r 1 I, 2006. Judge Hendren specifically found that Mr. Fischer clearly con veyed his desire [Q appea l and that his anorneys (Rose and Woods) did nor fil e a timely Nor ice of Appeal. Based upon thi s, the Coun found that Mr. Fischer received ineffective ass istance of counsel. Based upon his findi ngs, Judge H endren set a rese ntencing. Following me re-se ntencing, Mr. Fischer's rime of incarceradon was reduced from 46 momhs to 35 momhs. The fin e and th e restitution remained me same.

In responding to the formal disciplinary complaint, Mr. Rose denied that he fai led to file a timely Not ice of Appeal and explained that his diem , Mr. Fischer, never clearly conveyed hi s desire to ap peal. Acco rding to Mr. Rose, the only time me word "appeal " was used was when his client asked immedia tely foHowing senrencing "can we appeal this." Mr. Rose replied that "yes ," Mr. Fischer cowd, bur thar then was nOt rhe time [0 discuss it. Mr. Rose offered that he explained the fmiliry of an appeal to Mr. Fischer and th en suggested that he come to his office to discuss it further.

Mr. Rose advi sed th e Committee thar Mr. Fischer never came to his office or called him [Q discuss an appeal after th ey left th e se ntencing. Mr. Rose averred thar he wo uld have filed a Notice of Appeal if Mr. Fischer had eve r requested him to do so.

Mr. Rose dispured the infonnal"ion provided thar Mr. Fischer co macred his office three times following the sentencing.

M r. Rose said that, if that had occurred, he would have returned the telephone cal l. Mr. Rose also explained that he did nOt remember making the statemenr that Mr. Fischer "no doubt wanted to appeal" during an interview with the Federal Public Defender and their investiga tor, as testified to by Mr. Woods and the inves tigamr during the evidemiary hea ring in November 2006. Mr. Rose stared

[hat if he did make the statement, he was only [Q say it was evidenr two (2) years after that sentencing hea ring that M r. Fischer had wanred to appeal.

In co ncluding hi s response, Mr. Rose offered that Mr. Fischer is actuall y betrer off than he would have been if an appeal had been fli ed.

There is no doubt in Mr. Rose's mind thar had Judge H endren 's decision nor to accept

the plea bargain and {Q go with the new high er loss been appealed, it wou ld have been affirmed because {here was norhing faulty in the reasoning or decision. However, because Mr. Fischer filed [he pleading he filed and was able to ge t back before Judge Hendren, he was gran red a new sentencing hearing and Judge H endren reduced Mr. Fischer's rime of incarceration. Wh ile remaining res pecrful

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer

41

of Judge Hendren's decision, Mr. Rose did nor agree with it, and cominued to maimain mat Mr. Fischer did nor convey his des ire to appeal.

ROY EDWARD THOMAS. Bar No. 73 122. of Batesville. Arkansas. was reprimanded and orde red to pay $ 1.200.00 in restitution by Committee Findin gs & O rder fi led August 24. 2007. in Case No. 2007-025. on a complaint fi led by Fred Jo nes. for violation of Ru les 1.2(a). 1.3.

1.4(a). 1.16(d). 3.4 (c). and 5.5(a). Mr.Jones of Ba tesville, who was rhe Pres ident of T he Electric Company, inco rporated, consulted with Mr. T homas in March 2004 abo ut fil ing a business bankruptcy. Mr. Jones paid Mr. T homas his requested fee of $ 1.200.00 for the bankruptcy service on May 13, 2004. Thereafter. Mr. Jones did not hea r from Mr. Thomas directly about th e status of this matter, although he d id anempt [0 obtain information from Mr. Thomas and his office. A search of bankruptcy records fo r rhe Eastern District of Arkansas via PACER reveals no bankruptcy case filed for either Fred D. Jones or The Electric Company.

Inco rporated, by Mr. Thomas or anyone else. Mr. Thomas did nOt communicate with Mr. Jon es afte r May 2004 that Thomas wou ld not represent Jones in this matter, nor has Thomas refunded [0 Jon es the unea rned fee. In mid-2004 . Sanders Plumbing Supply.

Inc. a major credi[Or of the co mpany, filed suit against Mr. Jon es and The Electri c Company, Inc., on a busin ess debt that Mr. Jones intended to have discharged in th e

bankruptcy that Mr. T homas was employed to fi le. O n August 13. 2004. the cred itOr obtained a default judgment against Mr. Jo nes and the corpora tion fo r over $65,000, wh ich Mr. Jones was unable [0 satisfy.

CAUTION:

Q. BYRUM HURST. JR.â&#x20AC;˘ Bar No. 74082. of Hot Springs, Arkansas , was cautio ned, fined $500.00, and ordered to pay restitution of $2.2 12.36 by Commi ttee Fi nd ings & O rder fi led September 24 . 2007. in Case No. 2007-070. on a co mplai nt fi led by Lee Jablonski. for violation of Arkansas Model Rule 1.l 6(d). Mr. Jablonski was a parry in a divorce in Jab lonski v. Jablonski. Faulkner County C ircu it Case No. E-97-73. which became final in Ju ly 1998. His appeal to me Arkan sas Court of Appeals, as No. CA99-1089. was affirmed as modified and reversed in part on Se ptember 6, 2000.

Since September 2000, there have been num erous Petitio ns for Comempr filed against him and Citations for Comempt entered against him. In July 2003. he employed Mr. Hurst to sue his ex-wi fe for the harassmenr of the num erous Petitions for Contempt. Jab lonslci and Hurst entered intO an agreemenr fo r representation on Ju ly 22. 2003. for a rerainer of $ 10.000. againsr which Hurst wou ld bill at the rate of $200 per hour. The engagement le(ter a1 so stared dlt: $ 10,000 f(:rain(:f was "no nrefundable."

Jablonski paid H urst th e $10.000.

Afrer July 2003. Mr. Jab lonski wai ted for Mr. Hurst ro fi le sujr for him. On August

31. 2005. Jablonski signed a Complaint prepared by Mr. Hurst. No suit was fi led.

Mr. Jab lonski made telephone calls to Mr. Hursr at his office to fi nd out abo ut the status of his case, bue he received no real substantive co mmun icat ion fro m M r. H urst.

By Ju ly 2006. Mr. Jablonski. despairing of M r. H urst's inaction , co ntacted Hoc Springs atrorney Byron C. Rhodes about raking the maner. Mr. Jablonski signed a Fee Agreemenr with Mr. Rhodes on Ju ly 10. 2006. and paid Mr. Rhodes a $10.000 retainer. On August 16.2006. M r. Jablonski mai led a grievance against Mr. Hurst [Q th e Office of Professiona1 Conclu cL Letters and documents were exchanged between the Office and Mr. Hurst from November 28. 2006. th rough April 2007. In February 2007. M r. Hurst provided a copy of his Jab lonski file to Mr. RhuJc;~ ro r his use in representing Mr. Jab lonski. On April 24.2007. Mr. Hursr provided M r. Jablon ski his first accounring for the $ 10,000, which showed $2.2 12.36 to be unearn ed. Mr. Jablonski has received no refund fro m Mr. Hurst. M r. Hurst claim ed Mr. Jablonski clearly agreed ro a $10,000 "nonrefundable" retainer for me representation. The written agreement berwee n th em is uncl ear on its face, and under the circumstances present, upo n M r. Jab lonski's term ination of Mr. Hurst's services, a refund of the un earned fee paid is requi red pursuant to Model Rule 1.\6(d).

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Lavryer Disciplin:'lIy Actions cautioned and fined $1,000 by Commitree Findings & Order filed September 19,2007, in Case No. 2007-027, o n a com plaint filed

by Wi lson McCrackin, Jr., for violation of Rules 1.2(a), 1.3, 1.4(a)(3), 1 .~(a)(4), 3.4(c), and 8.4(d). In December 2006, Mr. Oliver was appoimcd [Q represent Mr. McCrackin in his appeal [Q the Arkansas Coun of Appeals. Mr. McCrackin's first appellate attorney fil ed a Motion ro Withdraw and for Substitution of Counsel in November 2006, specifi call y req uesting that O liver be appoimed. and Mr. O liver was mailed a co py of the MOlion. W hen the Court of Appeals granted the Motion, the Per C uriam Order was mailed to Mr. Oliver and it included the January 15, 2007, due date for Mr. McCrackin's brief Oliver did not file a brief hy that date. nor did he request an extension of time ro file a brief. H e rook no action.

Mr. McCrackin wrote to the Supreme Court'S Crim in al Justice Coordinator and asked abo llt the brief. In her response ex plaining that no brief had been filed, she co pied O liver so that he would comact his cliene He did nor do so. Mr. McCrackin's prison records demonstrate that he was all owed to call Oliver and leave a message.

Mr. O li ver did nor rerum the message. The Smte filed a Motion to Dismiss the appeaL Mr. O liver did nor respond despite being served. McCrackin filed a response and let the Cou rr of Appeals know that Oliver had nor been in touch with him. The Coun of AppeaJs denied the Motion to Dismiss, removed Mr. Oliver as co unsel of reco rd and appointed other counsel for Mr. McCrackin.

THOMAS A. YOUNG, Bar No. 92236, of Marion. Arkansas. was cautioned and fined $300.00 by Commi"ee Findings & Order filed September 28, 2007, in Case No. 2007066, on a compl ai nt filed by Terry J. Nichols. for violation of Rules 1.1 , 1.2(a), 1.3, 1.4(a) ( I), 1.4 (a)(3) , 1.4(a)(4), 3.2, and 8.4(d). In Jul y2003, Mr. Nicho ls contacted Mr. Young to represent him in claims for injuries fro m an auto accident in which he was rear-end ed .

Young agreed to rep resent Nichols on a conti ngent fee basis. The accident occurred on July 18,2003. The litigatio n to be fil ed Involved a case of obvious li ab ili ty beca use Nichols was rear-ended by another ve hicl e whose driver and passenger were illegally attempting ro repossess iellols' vehicle.

Nichols' vehicle was totaled and he susmi ned mjuries as a result of the accident.

Young filed Nichols' Complaint on ovember 28. 2005, aga inst Defendants Chrisry Miller, Jerry Caner d/b/a J&C Repo. AM Cash Fast, and Tennessee Title Loans. According to Young, he tried numerous searches as well as other resources to locate th e defendants to serve them with the Complaint.

After being served with the Co mp laint.

Practical Venrures, LLC, d/b/a AAA Cash Fast filed an Answer on December 27.

2005, denying that proper service had been accomplished. However. its Answer also co nrai lled an admission t11at it had remi ned J&C Repo O&C arc the initials of the first named defendants) which appeared to effecti vely adm it that the driver was an agem of that company. Young explained that he

was on vacation when the Answer was filed

by Practical Venrures LLC and one of his secretaries filed it without showin g it to him .

On Jan uary 25, 2006, Young obtained an Order of Volunrary Dismissal withom Prejudice of Defendant AAA Cash Fast.

H e never took any act ion to amend th e com plaint to name Practical Ventures.

LLC as a defendam after di smiss ing AM Cash Fast. Young never discussed the non suit with Nicho ls. nor what effect it might have on recovery for his claims for injuries.

Tennessee Title Loans had apparently previously made a loan o n the vehicle and been paid in fu ll and was inappropriately named as a defendant in the lawsuit. Young all owed the statute of limitation to expire as to one of [he proper parties. leaving Nichols with no lega l recuurse agaj nst a parry who could be held accountable and liab le for his injuries and property damage.

On March 8, 2006, Young filed a Motion for Extension of Time to Obtain Service on C hristy M ill er and Jerry Ca n er. Young stated that Nichols fired him o n March 13, 2006.

There was no Motion o r other pleading in th e fi le demonstrating. that based o n his belief that he had been fired, Young took any action to be rel ieved from representation . H e remained as cou nsel of record for Nichols on the matter lhroughout the entire time the maner was pending.

On Morch 14,2006, Tennessee Tide Loans filed irs Answer to the Complaint. Young filed no other pleadings in the case file nor sought any discovery. On July 24, 2006,

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Lal."':}'Cr Disci pi ina ry Actions Young filed anorher Motion for Extension of Time to serve Chrisry Mi ll er and Jerry Curer. Young asked for and received umil November 23, 2006, to perfect serv ice on Ch risty Miller and Jerry Carter.

Young pres umably was unable to loca te the driver and her business parmer. Ca rter is a co nvicted child rapise Attached ro the forma l di sciplinary co mplainr was the primout from two differclH web sites li sting information from the Tennessee Sexual Offender Registry with information including an address for Mr. Can er. So me law enfo rccmcnc agency or the information conrained in these on-line registries could have ass isted Youn g in locaring Can er, had Young followed throu gh with req ues tin g information.

Young rook no action to fi le a Warning Order in o rder to perfect service after he was un able to obtain service through mail or personal se rvice. The time for obtaining service expired before Young rook any other actio n. On January J 9. 2007. witham discllssing the marrer with Nichols. Young fil ed a Mmion to No nsuit the cause of action. The O rder was enrered that dare as well. Nichols learn ed aLi of this by going to the C rincnden County Ci rcuit C lerk's office and reviewing the file.

During the period o f tim e after Young filed the Co mp lainr and he finall y dismissed the maner. Nicholsdid nm have com muni catio n with him. Young did not rcturn telephone call s. On (wo occasions when Nichols vis ited the office he was unab le [0 speak with Young. O n March 8, 2006, N icho ls wrote Young an d delivered th e letter [0 him. asking Young [0 release the fi le ro him. Young did nm do so. nor did he COntaCt N ichols afte r receiving the lener.

N ichols again wrote Young in January

2007, requesting that Young release the file, witham lien. N ichols offered [Q pay You ng $500 to cover his out of pocket expenses.

Nichols included his cell phone number along with his address so Young wo uld be able fa reach him . It was after Young received m e Icner that he flied the Malion co No nsu it and obtained the Order graming the same. Nichols was grea tly concern ed that Young's actions and inaction have ca used him to lose any opportu ni ty he may have had to recover for his injuries.

Young denied that he was responsible for any prej ud ice to N ichols because he djd not believe he had any obligation co N ichols afte r March 13, 2006. H e placed the blame for the maner bein g barred with Nicho ls for nor picki ng up his flle in a timely mann er in March 2006 . •

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Vol. 42 No. 4/ F,,1I 2007 The Arbnsas I.'mycr

4S

Sizing Up a M ulti-Party TonftfIJor Sui' in Arkansas: A Tille ofTwo Laws - How Fau/t Is, and Shouft{8., Distributed, 26

Endnotes continued from page 12

reader's conveniem reference, and some observations are jnduded to demOIlSITatc the passion mat the debate has engendered . Note, Arkansas's Civil j ustice R<form Act of 2003: Who; Cheating Who? 57 A RK. L. REv. 65 1 (2004) (generally predicting doom for (Of(

reform , and arguing that "Act

649 is certain to much every civil lawsuit in Arkansas in some way," id at 695, which is a vast overstatement); Robert B. Leflar, How the Civil justice

Reform Act Chongf!5 Arka!lSilS Ton Law, 38 Aruc LAw 26 (2003) (conduding that Act 649'5 provisions create "significam changes but n Ot a revolution in Arkansas tort law." Id at 28); Janet A. Flaccus, joint and Several Liability and Pannmhip Law, 2003 ARI" L. NOTES 79; Recent D evelopmems, Civil }ustiu Reform Act of 2003, 56 Aru" L. REv. 703 (2003); Note, To Truly Reform W. Must 8. Inform.d· Davis v. Parham, the SeparatioTl of Powers Doctrine, and

th. Constitutionality of Ton Reform In Arka!lSilS, 59 ARK. L. REv. 78 1 (2006) (attempting (Q predict how the Court will approach Act 649 issues based on ics decision in Davis v. Parham, 362 Ark. 352 (2005»; Robert B. LeAar, Th.

Civil justi« Reform Act and the Empty Chair, 2003 ARK. L. NOTES 67; Survey of Legiskltion, 26 U. ARK. Lrrn.E ROCK L. J. 44 1 (2004); Joseph A. Falasco,

46

The Arkansas Lawyer

www.arkbar.com

2.

3.

U. ARK. LnTLE ROCK L. J. 25 1 (2004) (an exceUem review and analysis of the history and doctrine of liability tn multi-party cases in Arkansas); ste also Ark. O p. Atty. Gen. No. 2005-014 (April 2 1, 2005) (answering the questions presemed, which dealt wi th the limitations on joint and several liability. and then speculatin~ on how "equi table considerations might conceivably bear on the determination of liability" in a footnote).

Summerville v. Thrower, __ Ark ~ No. 06-50 1 (Ark. S. Ct. March 15,2007).

T hrough August I, 2007, the repo rted federal cases are: Dalrymple v. Th. Ha"is Waste Managanmt Group, Inc., 2005 WL 2456239 (E.D. Ark., Oct. 4, 2005) (case accrued before effective date of Act 649; held that "the legislature left no doubt that the statute does nOt appl y rerro~cti vely") ; P"')' v. Ethicon, 2006 WL 3445250 (E.D. Ark., Nov. 28, 2006) (refusing to consider constitutional challenges because Arkansas Attorney General did not receive sufficient notice); Moss v.

American Altunative Ins. Corp., 2006 WL 3 147438 (E. D. Ark., Nov. I , 2006) (applying Act 649's standard for award of punitive damages without discussion); Whuler v. Cor/ton, 2007

4.

5.

6.

7.

8.

9.

10.

I I.

12.

13.

14.

15.

WL 3026 1 (E.D. Ark. , Jan. 4, 2007) (same).

Sr<, e.g., Soillt! Regina Colkg. v. Russell, 499 U.S. 225 (1 99 1), discussing the busin ess of federal-court decis ions on issues of state law under the Erie Doctrine.

M cKinney v. Bishop, 2007 W L 700956 (Ark. March 8, 2007).

Shipp v. Franklin, 2007 WL 17 1327 1 (Ark. June 14, 2007).

In one other case, Yeakley v. Doss, 2007 WL 1560550 (Ark. May 3 1, 2007), the Supreme Coun cited and applied Act 649's defini tio n of the standard required for an award of punitive damages in decidi ng an issue on the admission of evidence.

3 10 Ark. 138, 835 S.W.2d 843 (1 992).

Summerville, slip op. at 8.

Id. at 10- 11.

ARlc CoNST. amend. 80, § 3 provides cllat the "Supreme Coun shall prescri be the ruJes ofJleading. practice and proced ure fo r courts; provided these rules shall not abridge. enlarge or modi fY any substantive right and shall preserve the right of trial by jury as declared in this Constitutio n."

Summervi!k, s~p op. at 10- 1 I. Summervi!k, slip op. at I I. Summerville, slip op. at II. Y.akley v. Doss, supra n. 7, s~p op. at 10 (G laze, J ., co ncurrin g) (e mph as is added) . •

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Dawson served as a U.S. Commissioner and state representative for Jefferson County. In 1954 he won the seat of municipal judge and since then has served on the bench in various capacities.

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Plaint iff Attorn ey continued f rom page 16

The most notable exa mple spri nging from these previous " tort-reform " measures is the inclusio n of the " locaJ iry ru le" in the medi ca l-malpracri ce act. It's a mindless obstacle with no legitimate purpose that simply gives med ical rortfeaso rs a way to avo id liabi lity if the hurdle is not overcome. This hurd le is all the more difficult to overcome in light of th e implicit (a nd someti mes expli ci t) agreem ent between doctors nOt to testify against othe r docrors in their home state.

Act 649 took this ru le a step further in a provision th at does actually focus on medj cal malpracrice bur is nonse nsical. It is the same-specialty require ment in Section 18.

T his alteration of the ex pert requirement in medical-malpractice cases dee ms that o nly an expert "in the sam e specialry" as th e d efend ant is qualifi ed to give an opinion.

Thus, if a dermatologist moo nlighti ng in an emergen cy room bOtches an e merge ncy delivery of a baby and is sued , only ano th er d ermato logist may testify against him .

T hat's senseless. If o ne intends to build ho uses, he should first become competent to build ho uses. If one imends to delivery babies, he should firsr beco me co mpetent to deli ve r babies. Wh at his "s pecialty" is should be besid e the poi nt. Juri es need to hea r fro m experts who kn ow how to build houses and deli ve r babi es irres pecti ve of their d es ignated "specialties."

A less obvious res ult of this provisio n is thar it erects a finan cial bar to man y pl ai ntifFs cases. Under this provision , multiple ex perts may be required w here on e ex pert wou ld do. W henever defendants of differing specia lties are parties to the case, an expe rt fo r each spec ialty mUSt be retained whether rhe practice of th at specialty has anything ro do with the case. Whether this fin ancial bar was intended or nor, it is real.

Is this fo cus on the plaimiffs case appropriate? O ne of th e purposes of the tort system is to shift the burden of an inju ry fro m the person injured to th e pe rson causing the inju ry. The elimination of joi ntand-several liabili ty discussed above undercurs that goal significa ntl y. Th e who le idea behind mi s type of li abili ty is tha t multipl e w rongs co me together to create an indivisible injury. If any "all ocation" of the degree of harm a particular defend ant is liabl e for is done, it sho uld be between the wrongdoers

48

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nor (h e victim .

Act 649 ends this process. Of co urse, defendants w iJI cla im that it is unfair to them to sho ulder a greater harm than what they "ca used." This logic igno res two realities: both defe ndants "caused " all the harm and it is more fair than requiring the plaintiff w ho has lost a leg, an eye or his life from sho uldering that harm. This red uction in damage is at the core of the plaintiffs problem with Act 649.

Concluding Thoughts A Tennessee trial judge once commented while ruli ng on a Illotion that how one looks at th ings in cases often depends on how one feels about tort law. In h is view, o ne rcason we have tort law is to make soci ety safer. To protect people.

Regardless of the perspective one has, all sho uld agree th at Act 649 do~.. just th e oppos ite. I t undermin es the tort sys tem previo usly in place and shifts costs to the injured parry. It creates barrie rs co recovery that a re artificial , havi ng nothing to do with the merits o f th e case. It docs far morc than make cases hard to try. It makes o ur society a less safe place to be . •

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Book Review co nti nued from page 28

a nati o n of th ieves and cutthroatS he goes devo utl y to mass, endows hos pitals, says his praye rs .... " . .. "Still, Maxim ilian is. indeed. a man of virtue?" said Smith ponderously.

"O h. yes, General," Jenningros parried, "he is th at ... but I find th at little si ns arc so metimes less burdensome th an grea t virtu es."

Dupin chuckl ed, Smi th frowned , Shelby smil ed. but Dagmar. eve r undiverted •... qui ckl y thru st imo th e space trai ling (his witticism, saying.

"So. Ju arez will win?"

Now it was Jcnningros's turn to be taken aback. He stopped laughing, ... then in a subdued but sincere voice said , "Yes. of course."

"And so me good em pero r wi ll lose

in thar held by hi s Imperial Majes ry, dIe Empero r M aximilian. ShaH it be peace o r wa r between us~ If the fo rmer, with yo ur permissio n, I shall enrer yo ur lines at o nce, clai ming at your hands the courtesy d ue from o ne so ld ie r to ano ther. If th e latter, I propose to attack you immed ia tely.

Jenningros allows Shelby's forces to join him . O ver dinner a day later, as war stories are being shared, Dagmar asks Jenningros po im-blank his assessment of Maximilian.

Jennin gros describes th e emperor as a poet and scholar and wine conn o isseur who "cannot kill as we Frenchm en do" and who "knows nothing of diplomacy. In

his lcingdo m?" ... ... " M y dear corporal .. . all kingdo ms are lost," he rejoi ned ."

T his is a fine piece ofliterarure. a co mme ntary o n history in general and the history of the Somh in panicul ar. As to ld, it is a tragic tale of a place in time and space th ar has di ed. BlIt, in myth s and drea ms, and even, I think , in reali ry, death is nOt imrinsica1 ly bad , onl y necessa ry. N ecessary to make way for so mething new and , in that vein, I fi nd co mfo rt in the last wo rd of the novel. "res urrected. " •

Vic Fleming is a district judge for tbe City of Little Rock. He also teacbes Law lIud Literature lit fbe Willillm H. Bowe" Sebool of Law.

Charitibl e Immunity continued from page 22 known that, but for a mistake co ncerning the identi ry of th e proper parry. th e actio n wo uld have bee n brought aga inst the parry.

Ark. R. C iv. P. 15(e) In Low. the Court allowed the am endm ent to rel are back to the dare of th e o riginal

co mpl ai nt, bur in do in g so seemed to rely heavil y on the fact that th e defendant had no t co mpl ied with th e d irect action stature's req uirement that charitable o rganizat ions infor m the plai mi fT abo U[ their li abili ry coverage. See ARK. CoDE ANN. § 23-79-2 10(b) ("Any of th e organiza tio ns or enti ties no t subject to sui t fo r [O rt • • • u po n the req uest of any perso n so injured o r damaged shall disclose the ex istence of any liabili ty insur-

anee ... ." (e mphas is add ed)). Therefore, ir is unclea r how the appellate collns would rule o n a situatio n where a charitable emi ry had properly identified its insuran ce ca rrier and the amendm ent was attempted after the sm(lI[C of limitatio ns.

Followi ng th e decis io ns in L OlU and Sowders, rhe doctrin e of charitable immuni ty is back to where it starred. In short, if after an analys is of th e eight (8) facto rs illustrated by George v. j effirsoll Hospital Ass'n, mpra, an o rga nizatio n is deemed charitable, a plaintiff ca nnot bring suit agai nst it. If th e chari rable o rga ni7..atio n carries insurance. howeve r. a (imely action may be filed aga inst the insurance ca rrier pursuant to th e d irect actio n statu re, ARK. CODE ANN. § 23-79-2 10.

Whil e plaintiffs have chall enged th e

charitable immuni ty doctrine on innum erable gro unds fo r many years, me Arkansas Sup reme Court has stOod firm in upho ldin g the doctrine, findin g that "[wJ hatever pri vileges or exceptions may be gran ted [Q such chariti es by th e state are no t gratuities; for without schoo ls, hospicals, churches and libraries we sho uld soon rela pse inca a srate of se mi -barbarism, whi ch would nO[ be for [he public good." Fordyu v. \\7omens Christian Nlltiolllli Library Ass 'no 79 Ark. 550,56 1,96 S.W. 155, 159 ( 1906) . •

'Special tlJlmks to Micbelle Ator of Fridoy, Eldredge & Clnrk for "Umvillg me to utilize her extremely well-written mnterinls 011 tiJl! history of tlJl! dmntnble ;,mmtnity doctri"e wbicb she origi1Ullly prepored for the Arkallsas Ass0cU,tiOIl ofDeft",se Collllse! itt 2004.

Vol. 42 No. 4/ Fall 2007 The Arkansas lawyer

49

In Memoriam

Ben Core Ben Core of Fo rr Smith died August 15, 2007, at the age of 82. He served in the U.S. Army Air Corps du ri ng World Wa r II as a radi o o perato r and side gunn er in B- 17 Bo mbers, Aying 24 combat missio ns. H is plane was sho r down over Ge rmany, and he was wo und ed during rh e ju mp while exiting the b urning pl ane. He was m en captured on the ground and held as priso ner o f wa r fo r over six months. His med als incl ude th e Purple Heart, the Ai r Med al with Oak Leaf C luster, rhe Euro pean Afri can-Middle Eastern Th eater Ribbo n with Bronze Battle Star and the Prisoner of W ar Med al. H e grad uated from the University of Arkansas at Fayc[(cvill e and earned his juris d octorare degree from rh e University of Arkansas Schoo l of Law. H e entered law practice in De Q uee n where he was elected as prosecutin g atto rn ey. serving two ter ms, before movi ng co Fo rt Smith in 1964 ro become a partner in th e law firm of Dail y and Woods, later changed [0 D ail y, West, Core, Coffman, and Canfield, where he was managing partner fo r a number of years. H e had a d istinguished career in law fo r 52 years, retiring at the age of 78. He was nam ed a di sdngui shed alumnus of rhe U ni versicy of Arkansas Schoo l of Law where a scholarship was es tablished in hi s hono r.

H e was the fo und er of the Arkansas Defense Research Counsel. H e was a member of the Arkansas Bar Associatio n where he served as chair of the Ethics Comm in ee and se rved o n rh e Lawyers Ass isting Military Perso nnel Commi[(ee. H e was a Sustaining Fellow of th e Arkansas Bar Fo undati o n and m e Arkansas Bar Association. H e is survi ved by his wife, Polly Anna Co re; and his chi ldren, M ichelle Co re, Dr. G rad y B. Co re, and Patrick K. Core.

Charles uChuck" Ray Roberts C harl es "Chu ck" Ray Ro berts o f Fayetteville died Ju ne 26, 2007, at ehe age of 48. He graduated from T exas C hristia n U ni ve rsicy and earned hi s juris doc[Orate degree from m e Universicy of Arkansas. H e was an Air Force Veteran. He was a member of me Arkansas Bar Associati o n where he served o n the Fam ily Law Sectio n. He ope rated Roberts Law Firm in Fayetteville.

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H e is survived by his pareIHs Billie G. and Mary H . Ti ede Ro bercs; and a b rother BiJli e "Robb ie" Robercs Jr.

Howard Templeton H oward Templeton of Jo nesboro died September 3, 2007, at the age of 69. He recevied his bachelor's degree from Arkansas State Univers icy in 1963 and earn ed hi s ju ri s doctora te degree from m e Universicy of Arkansas Schoo l of Law. H e was in the pri vate practi ce o f law fro m 1966 until his electio n as chancellor and probate judge in 1976. H e was a past-pres ident and pas t member o f m e board of direccors of the Arkansas Judicial Council. H e was a memher of m e Arkansas Bar Association and he served in the U.S. Army Securi ty Agency fo r three years. He is survived by his wife, Carol T empleton; and daughte rs, Karen Buder, Sharon Mc Daniel, and Elizabeth Vo nen e T empl eto n.

James F. Sloan III James F. Sloan III of W alnu t Rid ge di ed AuguSt 7, 2007, at the age of81. H e served in m e U .S. Army Air Corps from March 1944 un til May 1946. H e remained in the U.S. Army Reserve as a commiss ioned offi-

ce r until 1960. when he resigned wi th th e rank of cap ta in . H e grad uated with a bachelor of science degree from Arkansas State Co llege in 1949 and fro m th e Unive rsity of Arkansas School of Law with an LL. B degree in 195 1. H e began practicing law in W alnut Ridge in 1952 ae the o ffi ce of J udge Percy C.unnin gham and conti nmed to practice law until 1995. H e was a city atCO rney fo r H ox ie, a depu cy prosecuti ng atto rney fo r Law rence Co un cy and fo rme r juve nile co urt judge fo r Lawrence Coun ty. H e was a m ember of m e Arkansas Bar Associa tion, the Ame rican Bar Associati on and was a past p resident of the Rando lph/Lawre nce Coun ty Bar Associatio n. He is su rvived by his wife.

Elzine O. Sloan; and two so ns, Robert Dan e Sloan and D avid C lay Sloan . â&#x20AC;˘

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