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"ABICLE seminars keep me in tollc h wilh (he law and Ihe Inwycrs."

J. G ary Pate Circull Judge 10th Judicial C irculi

of AIl'l blllllU Bi rmi ngham. Alrthnmn

TH[ UNIV[RSITY OF

ALABAMA SCHOOl

lAW

Call ABiCLE 3t 1.800.62i.6514 0, 205路348路6230 for program information.

1~eAlabama JulV 2(;()() On the Cot'f!r Wildlife Management Mell. near Ihe Hobert COllnt1. Alabama

Ilent')' l,(lCk &

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Lowodel

- /VlOtogruph bll Pulll Crawford, JO

IN THIS ISSUE Alm-tORS OF AL\nAMA: A LooK AT m& DNERSE WORK Of' TflE STATE'S A1'1'ORt\~tS

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APJI'g CONTRIBIJI'IQNS TO Ti lE U:CAL PROfESSION ENRlCll LAW $cIIOOtS Oy /krl S. N{l/lles alXl Amy I.ynn Slucdcmllll ................ ,.,., . . . , • , , .. 268

BOOK R.:vtt.w. LAltYERS IN II NEW SOIIf'If em' .......................... 272

ALABAMA STATE BAR

What's New • PubliclllioN • On·Llne Dircctory • Lellal Link. • a.E Q1 lend~ r • Contllct Us

268 ~ UU ~"""'~ ' O

Publlshod aovon tlmo. D ~"'r (t~ Juno IflUO II II bllr dl,oetory *d itlon) by thO A1ab/lma SUl lO Bar,

(Con!(mHd (rom /N1f.1112/11)

DEPARTMENTS

P.O, 8oJC 4156, Montgorl'laly, AIOb/lrl'103610t -41 56. Phona (334) 269· 1515 ' 'NWW.OIOb/lr.org Robert A. H..tIaklr . ............................................................................................................................. CIItI. & ElI~or SuNn SnlfOOlII o.~ . "... ".,,, .... ,.,,,,,,,, ...... "........... ,.... ,,, .... ,,,,,, ...... ,, ..................... v~,·C~' $ ~IO £dilor David B. Cnampjln .......... ......................................................................................................... _Vlca-Cnal" FInIInca sualn H. A/IrIrll " .. "".w •• "." •• "." ... " ............... """ •• """",, •• ,, ............... ".511" LJaiIon & Com"llunicIUon. Ol..c1or Ma~"t L M",IJ/Iy . ...... ........................................... . . .......................... $la" UIIIIO' & MlolPIf!9 Edllor SNlnnon EIIkln ,......... , .............,,""" .",." •. " ...." ..."'.. " ............ ,.,.,CommvnIcaUon. & fIutllI(:allolll ....1I.lanl BOlIn! 01 EdtlOfI

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Executive Director's Report

226

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....... Vlcw,P,ooident

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B. N<>rr'l"lllfl. MO<\l(1(111\f1fy BOIIrd 01 Comml ••

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I" Cin:Ut. e. Marl< ~ . 1IuI1tr. 2nr.1 Cirl:Ut. F"nk A. Hk:Iurwt. O,....,......3rt! CIt"t\Il, Wililm I. On.Clb. It. EuIIwIII. ~III CIfM. PI'OIIO HenlY Pt\s, StIm/I, 5111 CIteuI!, ErnIIIlne S, SIIlP. ~, 6111 CIrouII. ~ No. I. W. SOOI! QonakIJon, "!\.otr;aIoou. 811 CIrwIt, P'-cI No. 2. J. Do\JolA' MIlEiv)', "!\.otr;aIoou. 7th Cin:lIJt, WIIIIIm H. ar-, AnnIIlon. alii an:uIt. WIIIiIm E. SIWIn. oK•• DIcIt",. 9th 0feuIt. W.N. WatJan. Ft Payne. IOttt Circu1L PIIOI No. I, M!I"oOI'Iy A.JOMpII. 6k"*'O'Wtm 1011> CIrM. I'ItOt NO. 2, T, ~ sao.~. Ill.~. l OtI ClrcuII. PIIoot No. 3. J. Marl< Wl-J\o , ~. lOrn CktMI, P\aoII No. 4, CharlH R..lOI"IIInIM. til, BIm*\gIIam. lOt! CIrculI. PIIOI No. 5, EdwIIJd I':~, Blfrrlngl\am. 10lIl CIrWI, F"IIcI No.8, Mac B. O_lIjrmlng/llm. IOtttClrcull. PIIOI No. 7, S~ A. AowI, BIrmIr"9IIom. 10th CIrwIt. "'- No. a. Male C.I'opoI. Jr.. BJrmlng/llm. 10th CrQ.Jit. P1aao No.8.

~lc mo r ials

CI\~ H. S_''I. Birml'lgllan"l, ~ Cut·OII. oooroe M, HI(rOInbo\I'am, BMMmtr. 1111"1 CIrculI. RoOetII.. Gonet. ~ t2l!l CIn>,It, JtIItryW. ~, e~. 13tII ClroJII, ~ No. 1, WoHf ~ r.r~. 13Ih CMwIt,

230

PIIOI No.2, !IiIy C.~, MobiIIt. 13111 CimJ/t. PIIOI No. 3, caIr\II O·R....., 111, MatilI. 1311"1 CircUt. PIIOI No. •.

'.111

CtIiII J. CoIIoI. Mobile. CIrwII, I"NIIp P. Ne4eOr\, JlIQtt. 15", CIrcuIt. PIIM:I No. 1, RobI<t 0 8Igrt!l, MOnIgOn"Itry. 1~Ih 0n:uIt. ~ No. 2........... H. AntItrIOn. MotI~. 15m CIIwi. ~ No. 3. JarneIII!. WiIWno., t.IMtgomery. 15th ClrcuII, FIIIcI No. 4, Thomu J , MetlMn. 1donIgorntry. 15th ClraJII, PiIoI No. 5, DIYId R. Boyd, Montgomery. 1111/1 ClrcuI1, Georgi P. I'ord, Oadtdtn. 17tII CirwIt. ~ T. Pwny, Jr.• DtrnopoIIe. 18th CIn;uIt. JQhn E. Mode ... Pohom. 19th 0m.0iI. JoIln E. EnIkK1. WIPlur"nIlkII. 2O!h CI!cuIt. A.. MOntI. 00!tIIIn. 21., CIrcuit, E~e A, PIIOt,.)f" 61MOIl, 2:/n(I CItQ.oIt, Elil V. JohnIoQo, Arw;ItbJM , 23t\I CIrWI. PIIM:I No. I, ~ S, P'IO,

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Bar Briefs

233

H~. 23rd CIrwIr, PlIcG No. 2, Patrldc H. a ........ , Jr., HUIltMle. 24th CIra..Wt, CIIarfoI A. ~ Fayette. 2S1n 0feuIt. 0IiYIIf Fn!IdI<Idc Wood. HamiIIan. 26It\ CIreuII. Home< W. Corneft • .II•. I'IlInIx CIty. 27IIt 0In:uII. JoIln Co GuIII"Iom. MJtr1YIIIt, Z8th ClrwII. E.E. BIll. e.y Mlnen.. 2V(h CIrcuIt. R. 91liioi t..f.l:tr'Iby. "~. :3OtI"o CiroJl. Wr .... J . TiutMI, I'I1II Ciry. 3 1111 CIreuIr. ~ r<. HIwtIIt, ~ 32nII CirQ.iI. """ W. Wililtnl, .II•• CUlmen,

33td atcuIt, Henry F. L.., 1lI,~. 341/1 Clrcuit, I.IIkI E .

About Members, Among

~'irm s

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am.. •

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ALAUAMA STAn; HAII 1U:ADQUAIITI> IIS STA.'I-'

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Classified Notices

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Di~dpllnary

246

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Opinions of the Ceneral Counsel

242

BuildinA: Alab.ltna'S CourthOU5es

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236

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4 f tRESIDENT'S PAGE this is my last "President's Page" in I Shaveince been somewhat undecided on a The Alabama 拢OWl/if,.,

topic with which to cnd my year,

During my term of office as president, which begM in July 1999, [ have attempted to reporl on i~sues which I

felt were of either important or passing interest to the general bar membership, In many ways, , am glad that my year as president is coming to an end. As July i1pproaCh拢5, I am better llnderstanding why my good fri end imd past President Vic LoU obtained such 1I spllrklinl:l per-

sonality during his hut two months of

office. In a few short weeks, I will be able to go back to full 路time work in 11 profession I love. Also, I intend to spend

Swan Song for A Lame Duck

222

~ULV

2000

a great deal more time on various and sundry golf cou rses Ihan r have spent ovcr the lasl 12 months, Quitt fr"nkly, my ytilr \IS presidenl has been a very pl ~asilnt experience and I will l'I'Ii$8 Illy C(/llstant cont,let with the slate bar slaff, Since 1 had served under and with 14 bar prtsidenls during my years of service as Abar commissioner and as president.elect. I certainly knew whM] Wil5 getting into as state bar president. Each president under whom I 5erved was a dedicated professional who look his Itadcrship role seriously and had the best I nter~sts o( the entire bar membership OIL heart when difficult decisions had to be made, Th(:St presidents. as well as other presidents before Ihem, have laid a strong foundbti on of service to the bar ""hich I have tried to contin\le during my lerm, r have also been tqually impressed with the professionalism and dedicaled service of membeu of the board of bar CQrnmissioners with whom J have come in contact from 1982-88 and (rom 1991 -2000. I do not believe that rank and nle members of the Alabama State Bar fully appreciate Ihe time and effort that these commissioners have 10 allocate serving on disciplinary pands, bar committees and task (orces in addition to alttnding

regular commission meetings and miscellaneous bar functions, I cannot complete myn nal remarks without noting that our bar indeed is fortunate to hi""e an exe~u t ive director the c",liber of Ktllh Norman. "he National Conference of B.1r Presidents holds meetings in eonjul'lctiorl with meetings of the National Association of Bur EXecutives und I hu\'e persotlul1y observed how bar executives in other slates hold Keith and h i~ staff in the highest res~ct. or coune, Keith was well trained fo r the position of executive director by Heggie Ihmner, who served as executor director before Keith fo r 25 years. In a number o( ~p~eclll~s which I have made ItS president arOUlld the state to local bar associations, I have tried to pay the ultimute compliment to Keith when I have referred to him as II "kinder, genller Reggie Hamner:' Those of you who know both I~eggie and Keith understand that the context of my stalement lind this comparison is indeed complirntntary. There are certain things that I am going to miss as my ye~r drllws to II close. These include the following: The pleasant telephone voice ,md upbeat a\litude of Stephanie Ogle&by, receptioni$t at the $tatt bar headquarters. J hope th~ ! the state bar never alteml)!! to go to IlIl automated answering system that directs a caller to punch in num路 bers in order to gel to someone's voice mail. I hate voice mail. 2. My loss of contacl with General Co u n~el Tony Mclain and his nne 5taff who constllntly kept me updated and Informed ItS prtsidtnl on matters of professional responsibility. Vivian Freeman , $ecretary to Ihe general counsel, Wa! particularly helpful ilnd ilccessible on occasions when r needed to get in contact with Tony or someone else in the gerlcral Cou r'l$cl '~ office, However, 1 I.

will not miss having to sign off on private reprimands or the administering o( public reprimands to attorneys who have fallen short in their profeulonal responsibility and ethical conduct. Uke my predecessors in ofrice, I understand that this is part of the duties of the president. but it is certainly not something Ihat I ha~ relished doing. No longer bfing :.ble to poke fun at Ed "allenon, director o( programs. about his lengthy reporti ng and his litany o( bad joku which he allegedly pulls 0(( of the Internet. Ed has done as out5tanding job durlnlj: the past year and he Is sometimes under-appreciated fo r his work. f.1y close work with the various program directors including Ju nne Marie Lu lle (Alabama Lawyer As.slstance Program). Laun CallowllY (I.aw Office Management Assistance Program), Linda Lund (Volunteer Lawyers Program). Dilne Loch (Membership Services). and Tracy Daniel (Alabama Law Foundation). These directors and their respective staff personnel run professional, effective and efficient programs of the highest Quality wilh the added help and assistance of the many lawyer volunteers around Ihe Slate who dedicate their lime and services. My associat ion with Susan Andrei , director of communications and public information, whose full ·time service over the past several years has often gone unnoticed, Susan serves as our primllry contact with the news media for information concerning the Alabama State Bar. Her duties also include drafting public service reports and announcements for public:.tion. Susan doel an outstand· ing job promoting the good things that the organi%ed bilr and its individual members do in seTYing the public. Until I assu m~d o((ice, I was not aware that the president of the stllie bar had the responsibility of personally signing V1luchcrs for each and every expenditure made by the bar, I was somewhat shocked on my first visit to the state bar, after becoming president, 10 be handed a giant pile of vouchers to review and sign. I appreciate Cale Skinner, as bookkeeper for the state bar. getting theK vouchers to me in reasonable increments for my execution and I am lIoinll to miss my association and contact with Cale. Not being able to use my slatus as president of the Alabama Statt Bar to get hearings and trials cOrltinued and reset to other dates. Before I started my term in July of lasl year, I Ilersonaiiy contilcled circuiljudges in Ole Wiregrau area of Alabam,1,lIld U. S. OislriCI judges for the Middle District of Alabama. before whom I regularly practice, and requested that they plea.«: try to work with me to resolve connicls between my bar obligations and court appeilrances during my term as president. I have tried hard not to abuse this one·time prlvl1ege. These Judges and most of my attorney colleagues have been V(!ry underslIInding of my connicts and have been quite gracious in acquiescing to my requests. This hM allowed me to fulfill my duties as presIdent and maintain a fairly stable law practice. Unfortunately, with all of the trials and other hearings which I have had pul of( during the past 12 months, I am already dreading my schedule for lhe coming fall , winter and spring terms of court.

WI. but nOlleilsl, I am going to miss not being able to irritate Margaret Murphy, slate bar publiClilions director, who hM periodically sent me harassina telephone meso sages and e-mails over the past year reminding me that I am late again in sending her my bl-monthly "President's Pilge" article for Th, AIQDdmfl IAwIIBr . l'>1argaret reminds me of some of myoid junior high and high Khool WIchers who dem,mded Ihill homework be finishtd and turned In on time. I also believe that Mnrgaret was a "slave driver" back in one of her former live5 during the days of the old I~omlln Empire. llowtver, as much as I hate to publ icly admit it. Margaret and the CClmmunications lind publications administrative assistant. Shannon Elliott. probJbly deserve gold metals in putt ing up with procrastinators like me in their efforts to timely put out The Alflbama IAW~ and other bar publications.

With Sam Rumore and my friend and law school chus· mate, LarT)' Morris, strving as tht next two bar presidents from Jul)' 2000 to July 2002. I am sure that the Alabama State Har will be in the hallds of good effective leaders, As with past bllr presidents, such as Vic Loll and Jla, Howe, who were always available with wit Ilrld wisdom to help and coun· sel me, I will be available to them (or consultation or simply M someone who understands their plight, It has been an honor and a privilege to have served as president of the Alab3mll State Oar and I am looking fo rward to continuing my service to the bar as a past president. •

For an Expert Business Appraisal, Knowledge and Experience Make the Difference . . • RuucU h nandal t'OII'ultJIIII. In, " mn indtpc'nd~nc ~r ftintd rnuft.n",nbl f,,", ~~ilh1.:jnllll tllJ\;nf" _ppOO\II\ t klrdn: Ku~>.elJ, V'-'ner. h",1hc- r ~~rience nnd ree· Qg'llu..! mo.lu)11) Cn:""Jltl~l, thai prmidc the highn1 Ijllllihy. ~~ tl('rt \lIluUl0n~ fl.r bll ~i ncsSC:5 IIml I'fOt C,\\l(,nul 11fa:tlcel. ller l1rm1l1Ll0n wllh the Amcrican liUJi n.. '!) DoIo • • !D..II. __ AI'Pl'1l1,>.('l'lI Nc1wN~, u na1i onal WlIlition of uldependem hll~lllC~~ ul'l'ml!t.rs, expllnd~ her rcWllrtCS tn offer a wide mnge of hll~nlc~~ llppr:oi ~n l ncc<h .

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ALABAMA STATE BAR

ARBITRATION .t\.GREEMENTi?.

The ,

Consumers Perspective

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umberland School of Low

Samford" Universiry

Uirmingham . Alabam a

EXECUTIVE DIRECTOR'S REPORT fly Keith /J, Norman

he Al<1bamil State Bar Volunteer

who are signed up to participate in a

Lawyers Program (V1.P) has experi-

pro bono program. Notably, six counlie~

t ilted II vcry

~ ucce$5rul

year. Afler

Implementing many of the recommendations of the Acceu to Legal Services Committee report last ),CII Y, efficiencies were increased and the program wi t路 nessed a sharp rise in the number of cases rc(erred to private volunteer lawyen across the state. Nearly 1,200 low income citizens with Itgal needs were helped. This mo re than triples the number of cases handled statewid/! last year by the VI.!' and docs not include

Pro Bono

the services rendered by the local pro bono programs in Jefferson, f>ladiSOIl and Mobile counties. Naturally, this dramatic increase would not be possible without the ~lron g participation of the private bar. S(tme 25 percent ofth\: prilcticing bilr participate in Jl'O bonQ programs ei ther with the ~tate bar'$ VLI> or in the local programs mentioned above. Leg:!1 SelVices. which screens most of these clients for the programs. is unable to meet the overwhelming need of civil legal services of Alabamil's poorest cili路 zens. Consequently, the Access to Legal Services Committee is working hard to get more lawyers involved in these programs so the civil legal needs of more clients can be handled. There is certainly room for adding more lawyers. Cu rrently, there are four counties with no lawyers participating. and two counties with significant lawyer populations-Madison and Shelby- that have le$5 than 10 percent of their lawyers

And Then Some

K e ith B. Norman

_f!'' I$,!!.

have 50 percent or more of their IllwytrS who have sigrled ulI to take referrals. They are: Barbour, 62 percent: Choctaw, 57 percent; Geneva. 55 percent: Marengo, 56 percent: Marshlll!, 50 percent; and 1>10bile. 53 percent. If you h<lve nol signed up to be a VLI' participant. I encouralle you to do so. You may visit the bar's Web site at 1IJ1IJ1IJ.afalwr.org to learn more about the VLP and how to be a VLP hero. We are very proud that the Nlltiorlal Association of Public [nttresl Law (NAPIL) has selected our VLP as one of 60 sites nationwide to host a summer NAPI UVISTA Summer Ltgal Corps fe llow. We received resumes from outstanding law students across the nation. After conducting severa! telephone in t elVlew~, Metlua Uulch ~ n 8 , a University of Alabama law student, W<l5 selected. We are very fO rtunate to have fo1elissa with us this summer. She has a master's degree in socioJol{y and is a top law student. We are delighted that she chose to spend this summer working with VLP Director Linda Lund to help initiale the Vl.P路s legal edUCillion program for low-income individuals. 1\vo examples wh\:re lawyers are rendering pro bono selVlcu that benefit the bar and the legal profession are worth mentioning. First, the AJ<lbamll State Bar WIlS named as a creditor in a bankru ptcy pending in Nashville, by a lawyer whose Alabama State Bar license i5 suspended. In his bankruptcy petition

...... :==-------------------------------

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the lawyer sought to have the publication costs of his !Uspension discharged. We had also been alerted that a former client of this lawyer would be seeking indemnification by the Client Security fund for a defalc~tion of settlement proceeds that had been collected by this lawyer on the clitnt's behalf. I sought the assistance of bar member Woody Woodruff who is a member of the Nashville firm of Waller, Lansden, Dortch & Davis. Although Woody does not h;mdle bankruptcy matters, he arranged for David Lemke of the firm to protect the interest of the Alabama State Bar aT\d the Client Security Fund pro OOno. Needleu to SOIoy, we are grate· fu l to Woody and David lind the Waller. l.ansden (jrm for their help. The other example inyolye5 the work of Mobile lawyers to bring to a close OT\t of the worst cases of lawyer ddalclltlOT\ eyer in this state, The to1obile County District Atlorney'5 Office seized all the lawyer's files, which were in lhe thou· sands. Now that the lawyer has been proseculed. these thoUSOloT\ds of files finally can be destroyed. Bdore doinll so, a tealll of lawyen guided by Sam

Stockman of Slocknun & Bedsole has reviewed each client me to make sure all files with an original of an important document are preserved and returned to lhe d ient if po~ib l e. eiving thei r time to auls! with this worthy endea\IQr are! Candace O. Johnson. Adams & neese; Craig O. Martin, Armbrecht, Jackson; William C. Hamilton and Norman M. Stockman, Hand, Arendllll: Katherine P. Nelson, Johnstone. Adams, Bailey, Cordon & Harris: Philip A, Stroud, 1.)'Q115, Pipes & Cook: and Wendl B. Molz, Miller, Hamilton, Snider & Qdom. Because of the dl!dication of these eight lawyers, important documents belong. ing to clients of II disbarred lawyer, that would h:we in all likelihood been destroyed, will be preserved and returned to their owners. 1"lwyers who take VLP referrll15, the lawyers at Waller, Lansden In Nashyille, and the eillh\ Mobile li\wyen are not required to render pro boliO service. Bul, out of a sense of professionalism and public urvice. they haye done so lind they arc the examples of those lawyers who render IlSsistarlcC each day to olhers without regard to payment. •

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MEMORIALS John F. Mandt he Birmingham Oar lost one of its most disT tinguished members throvAh the death of John E Mandt on January 12.2000. at the age of 43. Associlltion

John Mandt was boro in Kingston, New York on Jllnuliry 2, 1957 and grew up in Huntsville, Alabama. John received a bachelor', degree in 1979 from the University of Al/Lb;lma and was awarded his Juri! Doclora.te In 1982 (rom the University or Alabama School of Law. While in law school. he served as editor-in路chid of the Alabama lAw Review, was an M. Harrison Scholar and earned membership in the Order of the Coif, John joined Bah;;h & Bingham, LLI' as an associate upon his graduation from law school and became n parlner in the Orm In 1989. J-Ie practiced with Balch & Blnllham through. out his enUre career in the areas of corporate and project finance, mergers ;md acquisitions, and securiliu regulation

and was recognized nationally as an authority in the areas of antitrust counseling, compliance and appellate litigation. John exemplified the best qualities of a member of the legal profession and was dedicated to his firm and iu clients. John was a loving and devoted husband, fa thu, son and brother /lfld a loyal friend. He is survived b), his wife, Patricia Ttou M8ndt; their children. Jennifer, David and fotnggie fo1andt; his parents. Richard and Jeanne Mandt: and his broth. ers. I~ichard and David foland!. John will be remembered by his famil)" friends and colleagues nOl onl), for his professional accomplishments. but "Iso fo r his sense. of h\lmor, compassion, sel ne~sne禄 lind Integrity. -

S, Shay Sa mpills. president Bin"/fluhu/II &1' AuOt:/atioll

George Chester Batcheler, Sr. eorge Batcheler passed away on February 11 , 1999 at the G age of 70. lie was committed to the cause of justice and had devoted his life to insuringlhal Justice would prevail. fo1r, Hatcheltr Wi1$ a member of the Alabam.l State lJ.lr and the Blrmlnghrnn BIlr Association and M:rved for m.lny years as an assistant in Ule United States Attorney's Omce for the Northern District of Alabama and, prior to thltt, he was an assistant district aUorne)' for Ule 10th Judicial Circuit in Birmingham, Ceorge BIItcheler w;u 11 memDer of the ~'irst United

Methodist Church of Ilinningham where he was a member of the administrativt: board and the Wesley Sunda), School Class, In addition to the innumerable friends who mourntd his passing, he left bl!hind a loyal and devoted wife, l'el1!& C, B.1Icheler: daughter Cinger Kiscla and her husband, John; wrl George Batcheler and his wife, Freida; and grandchildren Andy, Koby and Kat)' Kisela lind Christopher and Michelle Balcheler, - S. Shay SQmpltls, ptYsldiwt, BIrmIngham /Jar Association

Mayer Ullman Newfield he Birmingham Bar Association lost one of its most disT tinguished members through the death of Mayer Ullman Newfield on };muary 9. 2000 al the age of 95, fo1ayer Newfield was born in Birmingham on April 5, 1905, and W;IS the son of nabbi folorris Newfield lind Leah Ullman Newfield, lUld the grnlld~o n of Slunuel Ullmnn, a Blrmillghllm civic leader and poet. l ie was predeceased by Bertha Lehman Newfield, his wife of 35 years. He is survived b), !.oretta, his wife of 21 ~ars; his two dllughters, Jane Newfield of Houston and fo1elanie Newfield Seigle of Bouston: four grandchildren, Cia),. Laura, Emily and Daniel Seigle; two step-granddaughters. Sara Rose and Chelsea Ostrow; and his brother.in.law, William Schneiderman and his wife, Ann, of Cincinnati. Mr, Newfield graduated from Samford University in 1927, attended Ilarvard Law School in 1928 and 1929 and received IlIl LL.B. degree from the University of Alabama School of Law In 1931, lie was a member of the Alabama State Bar and the American Bar Association and was lldmltted to practice before the Supreme Court of the United Stales. He began practicing law in 1931 in Birmingham, and in 1934 and 1935

""---

serwd as supervising attorne)' for the Home Owners Loan Corporation, a New Deal agency, From 1935 until 1947, fo1r. Newfield serwd in various positions with the United Slatu Sec\lTlties and Exchange C(lmmission in Atlanta. Washinglon, Philadelphia and New York Cily and, in 190\2, was a co路author of SEC Rule 10B-5, ]-Ie relurned to Birmingham in 1948, where he became an assistant attorne), for the City of Birminghllm and served in that c.1pacit)' until 1956, when he opened a general law practice, He became of counsel with the firm of $irote & l'ermutt in 1973 and continued in that capacity unlil his death, Mr. Newfield was involved in man)' civic activ tin, including serving as president of the Birmingham Civic Opera A$$ociation: variou5 offices with the National Conference of Chri ~lIans and Jews: president of Temple Emanu-EI: president of 8'n.. i 8'rllh of Alabama; president of the Jewish Commurlit)' Center: and member of the Board of Directors Ilf the I1lrmlngham Music Club and the American I.ung /Usceiation, - - S. Shuy Sumpl,s, pNls/dellt, Bll'millgham Uar A.ssociatiall

Orville Campbell rville Campbell was called by his maker to his eternal OOrville reward on June 17, 1999 al the age of 56. Campbell was member of the Alabama Stale Bar II

and the 8irmingham Bar Association and, at the lime of hi5

death, WIlJ practicing law in Birmingham. In addition to hb legal urviet. he was an Air Force veteran lind a long.time volunteer firenun in Cullman County. In addition to the many friends who mourn his pauing, he

len. behind his loyal and devoted wife. Gloria Wright Campbell: sons 1}IIVId Campbell and his wife, Ki tty, and Dilniel Campbell lind his wife, Kalhy; sisters Jeanine MeCal')'. f.1arie l.awrence and Eamestine Cook: brothers Cene Campbell, Uuford Campbell and Stanley Campbell: and grand· children Christian, Cinny. Joshua and Leland Campbell. - S. ShUll SOn/plu, president. Birmingham Bor Associllliun

Frank Wood Hanvey r. was born on M Januilry 10, 1927 in Heflin. Alabama. Ie died on January 24, lllUlVCY J

2000 at SI. Francis Medical Center, He was a Navy veteran Qf World War II and a member of the American Legion I)ost N13. f-1r. Hanvey graduated from Snead College in Alabama and recei\-ed his Juris Doctorate from the University of Alablma School of Law in 1952. He WilS a member of the pi Kappa Phi Fraternity, the Alabama State Bar for 48 yeMs and the Louisiana State Bar Association. "1r. !!anvey was II Haster MilSon and a member of the Caldwell Lodge 11502 of Ileflin. He was a member of the Order of the £astern SUr Mangham Chapter 11 152. Mr. !Ianvey retired as a division.11 claims superintendent from Slate Farm Insurance Companies after 32 years. He served as district governor of Toastmasters International and a loaned executive with the United Way. lie practiced law in

Monroe. Louisiana with Anzalone. Parker, Noel & Hanvey (or 15 yean. On June 5. 1999, he received the Cross of Military Service Number 14025 from the United States Daughter! of the Confederacy. Mr. Hanvey was a 30'year member of the ParkYiew Baptist Church where he served as a deacon, trustee. parliamentarian and a member of the Baptist f-Ien. and served on the Children's Ministry. Survivors include his wife, Hazel Marie Sellers Hanvey of Monroe: daughters Angtla Sellen Hanvey Hales and husband Myrt Tilman l'lales, Jr. of Rayville. Louisiana: and Dr. Jan Kathleen Hanvey Pairchild and her hU5band. William McCray Pai rchUd, of Denhnm Spring$, L()ui~iana; "Daddy ~'rank's" grandchi ldren. Myrt Tilman Hales. [[[. Jan M<lrie Hales. Klithleen DeLacy Fairchild and "' 31tie Louise FlIirchild; two sisters, Inez Hanvey Cill and Louise Hanvey Cill, both of Hemn; and special friends, John Sears and Carol}" P()und~ Casey and family, and Myrt Tilman and AlSie l\-1ae 1-llIles and family; lind numtrous nieces and nephews. - Mllrl T. /lol.s, Jr.

Murray Cobb Hollis, Jr. urray Cobb [lollis, Jr.. a reApected member of the M M<lrion County Bar, passed away on March 23, 2000. With his death, Ihe Winfield area also lost one of ils most beloved civic leaders. Murray Cobb I lollis, Jr. was born in Marion County in 1914. to Dr. Murray Cobb 1-lolli5 and Ida Cuin 1·lollis. He attended Winfield sc.hools and graduated from Winfield High School in 1931. Later. Mr. I-Iollis earned a degree in education from Auburn University and ~ervcd M principal at Madison County High School for several years. J Ie then returned to his native Winfield, where he ran a popular restaurant and bee/lim active in civic affairs. In 1948. after scrvinJi one term on the Winfield City Council. Mr. Iiolib WilS elected mayor at the age of 32, mak·

ing him the youngest mayor in the State of Alabama. He served as mnyor of Winfield from 19-18 until 1956 and was instrumental in re.building the elementary school building and establishing the Winfield City School System At the age of 45. Mr. Hollis earned his law degree from the University of Alabama School of ~w and practiced law in the Winfield area for the next 32 years, including 14 rears in which he served as Winfield's municipal judge. ,.'urray Cobb 1·lollis. Jr, was noted for the gentlemanly manner and kind nature he displaye'" throughout his many years of public service. - 6nllIJt C. /lellter /11//1 M. Lionel Leuthers, Murion CO lllltll B/1r AssociatiOll ~u ...

""'"

I 231

Walter J. Merrill 1. W attorney and member of the al ler

Merrill,

prominent

Calhoun-Clllburnc County Bar Association and the Al<lblH'lltt State

Bllr. died F'ebruary 22, 2000 In An niston at the age of 87. Walter Merrill hailed from one of Alabama's most prominent families of legal scholan, inducting his father, Judge Walter a. Merrill. and hi~ brothers, the lale A»ociatc Justice Pelham 1. Merrill and forme r Cleburne County District Attorney Carl Merrill. Merrill grlldualed (rom Cleburne County High Sl;hool and the University 0( Alabama, and received his I.. w deg ree from the University of Alabama School of Law in 1935. While attending the University of Alabamll, he was recognized for

his scholarship and leadership by his election to Phi Beta Kappa, and numerous other scholastic and honora ry sod · t!tit!s. Walter Merrill commenced his practice of law in Anniston with the firm of his uncle, the lilIt! ]'Iligh D, Merrill , Sr., and then. in 1941, entered the service of his country where he served In highly se n ~i t ive and $l.!crCl intelligence work in the field of cryptogr'mhy as a.n officer of the United State$ Army/Ai r Force. After serving in various theat~rs of operation around the world, Mr. Merrill en\erged from the war In 1945 with the rank of lieutenant colonel. Following his discharge from the service, Mr, Merrill joined the firm of KnOK, Jones, Woolf & Merrill (now Dillon, Field, f.10nk & Stedham) in Anniston, where he distinguished him·

Cameron, GilOI'fII! William, Jr. Montgomerv Admifled: 1950 !)led: l'/a,V 3, 2000 Oowling, 8r1a/l W'!lteroolt Dothan Mmif(ed: 1976 Died: April 13, 2000 lIolm,s, Richard L. MC)IIlgomerv Mmilted: /961 Died: May 2, 2000 lIughes, WUlium Wlnsto" Winter Patk, Plorida Aclmilled: 1952 Dilld.: Julv 26, 1999

Jl1l1ltlllS, lIerb,rl, Jr. Bimlingliam Mmifled: 1961 Died: /)(!cember 31, 1999 Neilson, Felix Marshall Bimliftflllam Mmilled: 1936 Died; September 28, 1996 Newfield, Mall,r Ulima" Birmingham Admitted: 1931 DiL,(/: January 6, 2000 Sizemore, Mary Elle" 'TUllaSS€tJ Admitted: 1938 Died: April 28, 2000

self and the fi rm for the next 50 years. He was recognized during his (:,ITeer as one of the most respected and talented trial attorneys in the S tat~ of Alabama and as a t ru~ted legal repre5entatlvt and advisor for numerous public officials, pri· vate parties and public hulitulions in norU\cll!it Alabama, including Jacksonville State University, Northeast Alabama I~egi onal Mediclil Center and Commercial NlitiOrlll1 Bank (now AmSouth Bank), During his career, Mr. Merrill served on numerous committees of Ihe Alabama State Bar and the State of Alal).lmil, and participated in the formulution of the Alabama Rules of Civil Procedure. Walter Merri ll was honored as a Fellow of the American College of Trial l.awyers, Mr. Mt rri11 developed a love of spor15 in hi~ early year~ in I'lenin, where he and his brothers played organized baseball h\ the old Geol'gilllAhlba.ma Ba.~cball Ltague at Hdlin, He was also an avid sportsman who enjoyed bird hunting. tennis, University of Alabama foolbal1 and sports of all kinds, Mr, Merrill was loyal to his church, Parker f.1emorlal Baptist Church in Anniston. and was a long.time member of the Anniston Rotary Club and the Anniston Country Club, He was preceded in death by his beloved wife, Pol1y f.kCarty Merrill. and is survived by two daughters, Martha f.1errill ~ n d Mary Merrill, ;lnd two grandchildren, Sarah Williams and Matthew Williams. Walter 1. Merrill ptrson i fi~d the very best attributes of a citizen and lawyer and set a high tx.ample to which <Ill lawyers should aspire, - Grt!fj(Jry N. NOrtoll, presidellt, CalhOlI/l·Clebum, County Bar As!loc/atioTl aTld Will/am H, Brooml1, bor commls!l/onl1r, SeVlnth Judic/al Circuit

StoU, BarbaI'll Norris Binnlnullam Admilled: 1979 DiI.,(/: Nouember 5, 1999 Thomas, Dan/fli II. Mobile Admitted: 1929 Dled: April 15,2000 Thomas, Johll R., Jr. IJirmingham Admitted: 1958 Dk>d.' March 18, 2000 Weut/t'r, Walltll1 Hamptotl Nu/evvillc Admill(!(/: 1947 Died: Novembet 21, 1999

Zoghby, Guy AllthollY Niceville, Florida Admitted: 196.5 Died: Ducembcr, 1999

BAR BRIEFS

The BI.I is held annually in Chicago for incoming officials of local and state bars, special constituency lawyer org.1nizations and bar fou ndations. The scrnl nar provides the opportunity to confer with ABA officials, bIlr leader colleagues, uecutiye staff, and other experts on the operation of such MsocialiOr\$. • WlIIlam T, Stephen. of Montgomery has devoted count· less hours oyer the past 20 years to Lillie League BasebaJi and recently had II blUeblili field named in his honor. The Bill Stephens field is located behind Dannelly Elementary. Stephens, who was admitted in 1969, servfS as depuly direclor and counsel for the Retirement Systems of Alabama.

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• Cumberland School of Law', Iri .. 1team won the national championship in the American 'IT!a] Lawyers Associ:.!ion Nock Trial Competition In West Palm Beach on t'olarch 24·26.

The team, co m~osed of Mall Abbott , Chad Creer, Dianne Gamble and Marc Ju kolka, succcu fuJJy competed Mlains! 25 other law schools. including I-Ilirvard, Baylor, The University of Alabama and, in the final round, Howllrd UniVfr~ity. • Samuel A. Rumore, Jr. of Birmi ngham joi ned some 280 other emerging leaders of lawyer organi. zations at the American Bar Msociation's Bar Leadership Institute in March. Rumore is the president.cltel of the Alab:am:a State Bar and will take Scm! HumoN, A.SIJ ~'I.ft«t. (ol;nthu over as president &mwtl, ~ Pf'fS/dtt11~. and PDuJ, this month. """ prIISidIoli

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• Jerry C. Old. hue, Jr, of Rosen, Cook, Sledge, O.wis, Cade. Shattuck, P.A. in 1\Jscaloosa was admitted to membership in the Commercial Law League of America. The CU., founded in 1895, In North America's premier organization of bankruptcy and commercial law professionals. • S. Shay Si mples, of the Birmingham firm of Hare. Wynn. Newell & Newton, has been Inducted as a Fe llow into the International Academy of l'rial Lawyers. • RodnC)' A. Max, of Sirotc & Permutl of l3irmingham, has been elected vice-president of the American College of Civil1'rial ~l ed ia ton. a national association of attorneys who are distinguished by their skills and professiona l commitment to civil trial mediation. Members haye been selected as a result of achieving substantial experience in their fi eld, as well as professional recognition fo r their accomplishmenu. • 'hzewell T, Shepl rd, III of lIunt5vi11c has been appoint. ed to the I'resident's AdviSOry Committee on lhe Arts. • The Pro Bono Committee of the r.10bile Bar Association appointed Ann Glthlng. as dirtctor of lhe bar association's Ilro Bono Program, a systematic effort of the Mobile Oar to provide legal help to those who can'l afford it. This year, over 1.000 clients will be /Wisted by the program through the participation of 525 Mobile attorneys, •

ABOUT MEMBERS, AMONG FIRMS

1) 11. to the hUf/f IIIc"*/lIII1 I,, flotlce, (or "About Mftttlbers, Amollg Flmlll, " Thl! Alabama IAwger wlflllQ /ollger Pllb/lit h addnt.Ufl$ alld tell/photll! mmr· InJrll IIII/(JU tit, an llollllClimen/ Nlta/es /0 th, OP.III/119 Of Udt/fllll! chat/gil of II fir.", or solo prattlclI. PltllJllll co"lImlfl to /n amlOUI/Cfllllfl,lt, alld/or

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uddl'l1sS t:hullgu to the A(aboma Siule Oaf Membership ikJHIrtflllmt. at (334) 261-63 10 (fax) or P.O. Box 671, Montgomfl'1l36101 ,

Among Firm. Chril topher Lawrence KoUke, who received the Meritorious Service Medal (rom the United States Air Force. has joined the firm or Whelchel &. Dunlal). LLI' in Gainesville. Georgia. 8n1dley AnIni ROle &: Whlte LLI' announces that Jamu F. Archlbald, Ill , Douglas A. Eckert, K. Wood Iterren , JUIUn T, McDonald, Kenneth M, l'efT)', John W. Smith. and Arnold W. Umbach. III haW! become partners in the I1rm, Uril ltman &. l\ini{ln, P.C. announces that Chrilt N. Coumanls has become a member of Ihe firm.

F. Tim McCollum announces the opening or his office IIl3 12 Montgomel)' Street, Suite 210, r.lonlgomery, 36104. Phone (334) 262-

9100. W. Roscoe Johnlon, III announce5 the opening or his office lit 340 S. 2nd Street. Gadsden, 35901. Jonathan Cross announces the opening Qr his office at I J 17 22nd Street, South, Birmingham, :l5205, Phone (205) 939-0000. Patrick J. Ballard announces the opening or his solo practice at Suite 909. Frank Nelson Building. 205 20th Street. North. Birmingham. 35203. Phone (205) 321·9600. Manhall A. En leiliano announces the opening or his o(fice at 600 Lurleen Wallace Uoulevard. Courthouse Plaza. Suile 150, Thscaloosa. 35401. Phone 9205) 752· 1202.

Clmble, Camble. Calame &: Wliion. t..t..C. annOuncU thilt the firm name has changed to Colombie, Gamble, &. Calame, L.L.C. and that Valerie KIsor Chittom has become an l\.S$OCialt of the fi rm,

Berkowitz. Ltflroo.'itt, hom &. KUl hner. I'. e. announces th.'lt ,+,nn Reynoldl h/l$ joined the fi rm as an l\.S$OCiate, Wallace, Jordlln, Ratliff &. Brandt, L.L.e. announces that Clenn C, Waddell and William B. Stewart have joined the nrm as members and that Jay U. Clark has become a member. Kevin A. McNamee has become an aS50· ciate at the fi rm.

Vol~, PTt.twood Hanan, I'.C. announces that Judy II . Ral'J(lnler has become a partner in the firm and lhat Jl mie A. Durham has become an /1$$0date or the firm.

Copel.nd, FRIlC:o, Serew. &. CIII. I)A, announces that Shannon L. 1I 01ll ~ has joined the rinn as an associate.

John' ton, Barton, I'roctor &. Powell, I..I..P. announces that Ci1rk R. Uammond has joined the firm aJ a part· ncr lind that S. Shelton ron has become a550tiated with the firm, Karen N. Dice and Sleycn P. Gregory. I'.C. announce the formation of DIc ~ &: Gregory. L.L.C. Offices are located at 2824 Seventh Street. ThlCaloosa, 35401. Phone (205) 758·2824. Baker. Johnl lon &. WllJon L.L.I'. announces that Mathew A. Aiken has joined the firm as an auoclatt. r l rmer. Price, Hornsby &. Weatherford. L.L.I'. annoonces that D. Lewl. Tel'\')'. Elizabeth D, Clugow and J. Vincent Edge have become partneY$ in the firm lind that Cathey E. Berardi has joined the fi rm as an associate. Con,langy, Brooks & SmUh L.L.C. announces a merger with the offices or Malnlano, Campbell &: OIckinlon of Florida. Brandon D. Jackson and Robert 8. W. Mc:Laughlln llnnounce the (ormlllion or JackAon &: MclAughlin, l..1.. C. Omces Me located at SouthTrusl !)ank !)uilding. 61 51. Jo~c ph Street, Suile 510. Mobile, 36602. Phone (33-1) 433· 11 00. Ualch &. Bingham. L.L.P, announces that C. Bartley lAlftin. III and George A. Smith haW! joined the firm's partnership, Olen &: Nichol... P.C. announce5 that S. Runell Copeland hasjolntd the firm and the firm name has betn changed to Olen. Nicholas &: Copeland. r.c. J. Allen Schreiber and P. Mark Petro announc:c: tht fOl'mlltion of Schreiber &.

Petro, I'.C, Offices are located at 1Wo r-1etroplex Odve, Suite 107, Hirmlngham. 35209. Phone (205) 871 ·5080. Wend), Brook. Crew & Auoclates ann ounce~ that S)'bl1 Corle)' Howell has become an associate of the fi rm. Gorham &. Waldrep. I'.C, announces that John A. lentine has become a partner in the firm. Thomu 1-: Campbell and G. Richard Baker announce the (ormation of Campbell & !laker. L.L.I·. Bert J. Milino is an associate. Offices are located at 150 Financial C~ n teT. 505 N. 20th Street. Birmingham. 35203. Phone (205) 278·6650. DISlnll. Wahon & C'PUII announces that Frank C. WII"on. III has become associated with the firm. The fi rm is located in Boone. North Carolina. Edward, &. Edwards, P.C. announccs that CI)'de T. Balky, III hall joint'd the fi rm all an associate. Mane)' & Stoher. ".C. announces that Marcie A. Lanier hall joined the firm as an associate. Harrill & Harrh. L.L.P. announces that Clyde O'Neal Wtllbrook has joined the firm as an associate. 1I01t. Cooper &. Upshaw announces that Kelll Hogue.Mlluro has joined the firm as II partner. K. Stephen Jachon and John M. Fniey IInnounce Ihe formation of Jackllon & Prale),. I'.C. Thorn .. S. Moore, Jefr S. Daniel and Charles C. Dawllon. Jr. are au ociates with Ihe firm. omcn aTe localed al 1740 Oxmoor Road, Suite E, Birmingham. 35209. Phone (205) 870·9797.

Simon norden L.L.P. announcts Ihal Fern Slnll:er ilnd Frances Heldt have becomt' partners of the firm and Ihe new firm name is Simon, IJorden , Singer & IIcldt L.L.P. Hobert 1'. Reynoldl. ".C. announces that Robert D. Reynolds and Jacbon E . Duncan have joined Ihe firm 115 part· nc r~ . The firm name Is now Re),noldB, Reynold. &. Dunun, I'. C. Hardwick, lIau.e &: Segrest announces that Thomu M. Little has become lWOCialed with the fi rm. Evanll, Jones & Reynolds announces that William Lee lIorn has become auociated with the firm. Phelp., Jenkins, Glbllon & Fowler, L.L.P. announces (hili Stephen E, Snow and W, David Ryan have become part· ners of the firm . Panonll, Lee & Julilno, P.C. announces that Mlrjorie P. Slaughter has joined the firm. The Mlluhlllf Couni)' Oiltrict Altorne)'·. Omce annOUflces that A. Scott Hulthu has joined the office u an assisUnl dist rict allome)'. Brellt I.. Crumpton. H. Arthur Edge and W, Brian Collin. announce the formation o( Crumpton Edge. Offices are located at 925 Financial Ctnler, 505 N. 20th Street, Birmingham, 3520:1. I'hone (205) 324·1846.

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Chulu H, Glllenwaler' lInd Braxton Blllke Lowe announce the (ormntlon of Gillenwalen & Lowe and that John F.

Scroggin. h:u joined the firm as an associate. Offices are located al 214 Calhoun Street, Alexander Cil)'. 350 II. Phone (256) 234-0724.

Capell & lIoward announCt$ that Kenneth D. Walis, II has become a member o( Ihe firm and thai Christine U, Oean and Wyndall A. h't)' joined the firm IISlI$SOCiates.

Miller. IIl1mllton , Snider &. Odom, L.L.C. announces thai Kenneth A, Walion h:u become II member of the flrll'llind that Klrk:llnd A. Reid. Wendl B. Molz. Uope. T. Stewart, Giles G. I'erklna. Benjamin II. Hllrrill, III , and W. K)'le Morrla have become associated with Ihe firm.

lIukeli. Sillughter & VQunil I"L,C. announces that J. Vernon Palrick, Jr. has become of CQWts4!/lo the firm .

Pitt. &. I'IUII announcU that Rkkman E. William., III has become a partner in the firm. •

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JULY :GIIIII

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11111

LEGISLATIVE

WRAP-Up

By Ito/)ert L.. McCurley, Jr.

he Alabama Legislature adjourned the 2000 Regular Session ~ay 15th. There wtre 1,571 bills introduced, bul only 512 bills pasUd, with 322 of them considered

appropriation, sunUI or locallegisilltion. Eighty-three bill$ will app ly to lhf stale allarge. or these 83 bilts, the following

IIrt those thai are mosl likely to be of interesllO lawyers:

uw Instltute·Dr.tted Bill. SB·201- l'lergen and Conlolldatlon of BU81nell Enlilies Sponsored 611 $ellulors ROflCr Ikd(ord, Stew French and J, T. Wugg(}IIt'r; alld RepfI.!SImlaliw /Jill Puller This Act provides it convenient, simple way for different kinds of busincM entiUes (or profil lo convert or merge with each other. Sec A{uiRJma /.I/IIJVtlr, November 1999. This Act will become effective October I. 2000. IIB-391 - Prlnclpal and Income Sponsored by &lIa/ors Rodgcr Smithermall and Zcb Llffll1 and Reprcsen/ative Mike Rogers

This Act revi:;es Alabama's 1931 law that will allow persons to dcsignate in their trust$ how principal and income will be di~tributcd to We beneficiaries and to remaindermen,

See Alabama IAIIlVtlr, November 1999. This Act will become efftctivt January 1,200 1. SB· 129-Detennlnatlon of Duth Spollwred 611 Sena/on Thd WI/e, George Clay lmd I.urry Dixon and Rcpl'ts(mtatillf!$ Mark Gailles and Bill Fulillf

This Act provides II comprehensivt legal ba.sis for determin· ing death. This amends Alabama's current law I 22·3 1· 1. This uniform act is already the law in 4\ statn. including Ceorgia and ~1ississippi. See Illabama lAwyer, November 1999. This Act became effecti . . e July 1, 2000. Oth.r O.n.r•. Act. S8·22- TaxpJy(!r Ad . . ocate This act creates lhe position of taxpayer IIdvocAte, with lIulhor· it)' to prOlJide relie{ to the taxpayer when .. t.lx ha! been erro. neously assessed and collected or when /I refund has been erroneously denied. It Is intended to set minimum procedures for refund. § 40·2A·2 through -4, (Continued on page 238)

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The Compllny'lOu Keep.1)11 /fIglt'ellill A'~"'''f Sou/It Suit, 100 Hlrml"Il~lIm, M. )S20S 10mJJ·O)Ol

The Intelligent Phone System • • ·buslntn solutions for unall to mld·slnd (ompanirs • (omblnlng the convenienct of ~our tt lt pnon. with the intelligence of ~OUt (ompu1ef

SH-149- Automoblle Insunonce, 55 Yean of Age or Older This Act provides that when lhe principal operator of an automobile who is 55 yean of age or older successfully completes a motor vehicle accidence prevention course, the certincate of complHion will be the b<l~i5 for a reduction of automobile insurance premium~ for a three-year period, s n-183-Com munlly NotlOcation Act Amendment This amends Ala, Cod/! § 13A-6-67 and § 15-20-26 tl) pl'I)Vide f(lr the prl)hibiti(ln on establishing of residence or accepting employment by adult sexual offenders, SU-193- 0Istrlct Attorney Spouse Fund The District Attorney Spouse Pund is repealed and transferred to lhe Alabama District AUorney's A.uociation. 58-218, HB-I 03-Crcdll Cards The use of credit cards is authoriited for any payments made to a county or municipal ofnce, department. a~ency, board, or commission when authorized by the county commi55ioner or municipal governing body. SB-22 1- Cuardlan of Adult Mentally Retarded Child This amends f 26-2A-I02 to provide an informal procedure for the custodial parent of ,madult child who i$ inCilPilcitated by reason of menial retardation to

SH-300-Faml!)' Court Section 12-17-24.1 is amended to provide that counties that do not have juvenile courts to provide (or Ihe appoint. ment of juvenile COllrt judges and to establish in all counties f"mily courl divisions. It fu rther repeals § 12-15-3, SB-329-Secretary of State Corporation Fees Sections 7-9-403 lind 10-28-1.2 are amended to provide an increase in fees fo r expedited services fo r corporations and documents in the Office of Secretary of State and also fo r expedited service for filing of UCC security instruments. SB-337-Safl! Fouds Ad This prevent! the sale and delivery of out-of-dMe foods, It provides thM the Department of Agriculture may bring an action in circuit court. S8-339- Telephone Fraud Schemel Section 8-19-5 is amended to add an additional deceptive trade practice of making telephone communications which are knowli to be fal~e III'Id whlch offer a gift, award or prize. SB-34S-Domeltic Abuse Insurance Protection Act This act provides that insurance lind health benefit plans cannot deny or exclude coverage of victims of abuse and provides the conndentiality Qf records, § 10-4-1 15_

b~ aPJloint~d gu~rdian.

SU-224-80mb Thrull This amends Ala. Code § 13A-I I-Ilto provide the offense of (alse reporting o( a bomb is a Class C felony. SB-23S-Uulldlng I'ennlis Ala. Code § J4-14A-13 is amended to require builders, when requested by the issuing munici~ljty, to submit II list of the 5ubcontract(]TSwho will be involved in the construction project with the subcontractors' physical addresses and phone numbers within 15 days of the i~uing of the building permit. ShOuld the builder add other subcontractors to Ihe project, the builder will submit those names within three working days of hiring. S I1-299-T~rTorlllt

Threat

This act makes it a crime to make a terro rl ~ t threat.

S8 -415-Raptl by Female

Sections 13A-6·61 and -62 are amended to provide Ulat femlllES IlIlIy rommit the crime of rape in the nrst or second degree_ 58-422- 0 Ilcovel')' ot Healthcare Providers Section 6-5-551 is ~mended to provide that in suits against he.althcare providers fOr breach of care, the Alabama Medical Liability Act gOVt rn~ discovery. However, an), amendment to a claim must be made at lellst 90 days before trial, HB-3-Bulldlng Codes Section 41-9-166 i$ amended to provide thai any municipality may adopt any building code published by the Southern Building Code Congr~s~ International and the National Ele<trical Code published by the National Fire I'rotection

its municifJ'll ordinance <IS it relates to private buildings, schoolhl)uscs, hotels, public alld privllle hospitals, and moving picture houses.

~oci<llion M

1111-7- 1'011 Watchers Po!] watchers are required to be residents and qUlllified elector~ of the ~ ta te, thereby amending ft 17-6-8. ItB- IS-Domestlc Violence This act creates the crime of domestic violence in the first, second and third degree. Domestic violence in the first degree is II Class A felony, second degree a Class B fe ll)ny, and third degree a Class A misdemeanor. ItB-30-Habitual Offender Law Alabama's Habitual Offender Law is amended to provide that for the habitual offender law to apply for third or fourth offenses, at least olle of these offenses must be for a "violent offense." [t amends §§ 13A5-8 through -9. HB-76-Courtbouu Pay Incrtue Pay hlcre3.$C$ are prl)vided for probate judges, county commissioners, sheriffs, tax assessors, tax collectors, revenue commissioners, and license commissioners, and increases are also provided for probate fees, H6-S2- 0UI This bill amends the Cllrrent DUI I,lw to bringlt intI) confonnity with federal guidelines, e~pecially on tht second offense where a person mwt perfonn 30 days of community service (up from 20 days), It establishes a separate offense and a new code section, 32-5/\·191.4, for the fourth conviction, which is a felony, The punishment is one to len years with a minimum of 90 days if this is the person's nl1it felony offense, othcrwi«! II yc:ar al\d II day minimum. Prior offenses mwt be pled and proved. TIle circuit court has exclusive jurisdiction OVfr fourth offense DUls. UB-83-Sentenclng Commlulon This act establishes within the judicial branch a Sentencing Commission Advisol)' COllOCil to study criminal sentences, provide a staff and report back to the legislature before the 2002 legislative ses~ion. (Conti/wed 0/1 page 240)

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tlB· I05-Flreamll A county or city is prohibited from m· ing suit again51the manufacturer of firearms or ammunition for damages. abatement or injunctive relief resulting from or relating to de~ign. manufac· ture, marketing or unlawful sale of firearms or ammunition. [t further makes a legislative intent that a firearm does not constitute an "unreasonably dangerous activity and is not inherently dangerous." [t furthe r repeals the waiting period and registration of pistols, § 13A-II ·77. IIB. 112- Rlghl-of-Ways SecUon 11-88- 14 is amended to require that to use the right-of-ways of IIUblic roads by water, sewer and nre department authorities each must con· tain the consent of the governing body. whelher it be the municipOlmy or county, and to post bond in the amount required to re5tore to the pre-used condition whcn excavation or other work is done as required by the county engineer. IID-115-Abandoned Babln When newborns are aballdoned at hospital emergency rooms. the hospital has the authority to take possession of the child. The parent who volUntari ly leaves the infant cannot be prosecuted fo r abandonment. HO-119-Credlt Cards Settion 13A-9-14 i$ .. mended to expand the definition of illegal possession of credit ca rd~ or fraudulent use of a credit card to Include welfare cards or electronic benelit transfer cards. HU· 126-I·robate Judge Retirement This bill amends § 12-18-113 to provide a new form ula for calculation of retirement benefits for probate judges. IIn-130- MullJ-Counly Competitive 81d Law "hi ~ amends ilia. Code § 41 -16-21.1 10 allow two or more counties, that are not adjoining, ( 1) enter into joint pu rchaSi ng agreements subject to the competitive bid law. HK. 134-Mandalory liability In, ul1lnce Thi$ creates a new § 32·7A· I IQ requlr~ proof of molor vehicle liabUity 240

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insurance prior to registration and licensing of vehicles.

Technical corrections are made to Act 99-665 Plused in th~ 1999 Special Sc.uioll.

nU-182- Exlreme Cruelly 10 Animals This e~tablishes the crime of cruelty to dog~ or cals where there is intentional. extreme cruelty to a domesticated dog or domesticated cat.

118-677- Mental Ueallh Covenge Health benefit plallS mllst cover mental illness with in-patent day treatment lind out-patienl services.

HB -196-P~temlty

This amends § 26-17-6 to extend the statute of limitations for bringing an action II} dellirmine paternity. IIB-200-Domeatic Violence Before a person is released from Jail, after having been arrested for domestic violence crimes, a 12-hour cooling-off period is provided. HD-293- 0pen Containen In Motor Vehicle [\ is unlawful (or a person to poS$(ISS an open container of alcoholic beverages in the passenger are3 of a motor vehicle. 110-308-Ten WONt Delinquent Child Support Obllgaton This provides for the publication of the photographs of the ten most delin· quent child support obligators in each county. This publiC<ltion can be on the DHn Web site and in newspapers Mound the state, H8-31 I- Foreign Language Inlerpr\!ll!n In any stage of a criminal or Juvenile proceedirlg, if the ddcrldant informs the cou rt that he or she does not speak or understand English, the court must appoint an interpreter. f18-360-Medl c~ 1

Clinic Immun Ity This repeab § 6-5-339 and provides limited immunity (rom civil liability to medical p rof~S$ ional$ who volunteer their services at free medical clinks without compeflsatiofl.

UH-690-Adopt!on Records Amended arc §§ 26-9A·12, 31 and 32 of the adoption code relating to birth certificates and identifying Information for adopted peuons born in Alabama and to provide procedures for obtaining copies of the original birth certificates. uB·798- Tobacco Mulir Settlement Agreirnenl This bitt prOVides tobacco manufacturers not participilting in the M a~ le r Settlemenl Agreement to pay fund s into escrow in the state. IIB-955-Corpol'l'l.te Income Tax Amendments T hi~ bill makes technical corrections in Act 99·664 as it relates to tax exempt status of limited liability entities. Annu.1 Meeting 01 the Aleb.m. UW Inatltute The annual meeting of the Alabama Law Institute will be held 1\1 ll n.m. OIl July 14th at the Perdido Beach [{esort in Orange l3each, In conjunction with the ASB Allnual Meeting. For information about bills and the current legis[ative term. go to www.lcgislalurc.slale.al.Us. For more informiltion concerning the Institute or any of its projects contact Uob McCurley, director, Alabama Law Institute. at P.O. Box 86 1425. 1\I5caI005\1351\86-0013. fb (205) 34884 11 . phone (205) 348-74 11 , or Web si te, www.law.ua.edulall. _

Robert L.

McC"rI.", ..Jr.

IIB.519- Nunlng !lome Re.ldent. Being a resident in a nursing home is prima lacie evidence the person is a "protected person" which allows the Oepilrtment of Public. Health to invt:stigale rcports of physical abuse and neglect.

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Oil the toUowlng grounds:

1. You Ulay be paying too much tor your liability coverage.

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ttornoys' AdvM~ i)roftlfl8ionn! LiAbility Inaumnoe orrol'll brood ocweragu... up to $10 million in limits. Program bcnonUJ illQhlQe;

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Don't dolayl !"o r more T InformaUon, Inoludlng 1\ no-oollgation quotation. call today. 1)lus you'lI recoive a !'roo copy of 7'/10 Q(l/truw Hour, t.ho nowslOl\i.tr ro r At.torlluya· Advanta.go In8ureds lhat conllLln8 uaol'ul. pra.ctlCllI Infornlo.tlOIl on WayH to ml.U1l1ge rl!ilk In you r prtwtloo. Profculonal L1ablllly Ln.ura/loe, hl o. 300 Dolawnr8 Avo n utl • P.O. UOx 228'7 Wllm lu rtoll. DE 19899

Projessi()11111 Lillbilily II1SII" (OICt, I l1c.

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B UILDING ALABAMA'S COURTHOUSES By s.~mutl A, Humore, Jr.

Front ~icw.

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Coffee County Established : 1841

The following continues a hi.~/ory of Alabama's county courthousestheir or~qil1s and some of the pear,le who conlribuled /0 their growth. If ./1011 have any photographs of early

or present courthouses, please for· ward them 10: Samuel A. Rumore, Jr., Miglionico & Rumore. 1230 Brown Marx Tower, Binningham. Alabama 352o:J,

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ColT... QxmlJl CourlhOlIH, t,'/1Hl

Coffoe County · Part I

he territory that would eventually become Coffee County, Alabama P<15sed through a Ion" list of jurisdictional chan"es. At fir.; t it was part of immcn~e Adams County in the Mississippi Territory, e5 tabli ~ hed on April 2, 1799. Theil it was included in Washington County created on June 4, 1800, still part of the Mississippi Territory, On December 21,1809, the territorial legislature reduced the area of Washington County from approxi. mately 27,500 square miles to iI more manageable area of 1,640 square miles. They placed most of f\llure Alabama, including Coffee County, in what was called Indian country, making it for a lime 11 non-couZlty area. On June 29,1815, the Mississippi Territorial l..egislature designated approximately 21.500 square miles o( the non-county area as ~1onroe County. The future Coffee C()(mty, incll,Jded in

Monroe COlmly, bec.1me a part or the Alabama Territory when it was created on March 3, 1817. On l~eb ru .. ry 13. 1818, the arca was removed (rom Monroe County and IN!came a part of Conecuh County. A furllur subdivision

took place on December 13. 1819 when the nrcli Wll8 placed in

l·h~llry

County.

Another division cre<lted Dale County on December 22, 1824 which included the future Coffee Count)', Finally, on December 29, 1841, the Alabama Legislature created Coffee Co\lnly, The original Coffe e County bounti.lry extended to the Florida line. The legi~llI lure reduced the 10111111rea of U\e county by more than one-third when It created Geneva County on December 26, 1868, from parts 0( Coffee, Dale, <lnd Henry counties, The county area has remained basicilily unchanged since the 18705. Coffe e County was named for General John Coffee, a hero of the Creek Indian

.-",,""~7.:;::,~::::;,. O_ =:-------------------------------

War of 1813-1814 and lhe Battle of New OrlCllns in 1815. Coffee was born in Prince Edward County, Virginia on June 2, 1772. His falhc:r wa$a Revolutionar)' War officer. In 1769, Coffee and his widowed mother moved to D:lVidson County. Tennessee. He worked as iI merchant and a surveyor. In 1813 he led the mounted troops undc:r Andrew Jackson that fought in the Creek Indian War. lie sel'\led at the decisive Battle of Horseshoe Bend in 1814. The next year he led the cavalry, Mlain under Andrew J:lckson. ill the Baltle of New Orleans. Following his mililar)' service. due to his experience. 115 well as his friendship, with the politicllliy innuential Andrew Jackson. Coffee was appointed surveyor of lhe northern distrkt of lhe r-1ississlppl Territory. l it later became Surveyor-General of the Alabama Territory. Upon moving to Ala!11Ima, Coffee resided in J-Iur\lAvllle. lie then became a shareholder and the mostllctive member of the Cypress Land Company whkh founded the town of Florence. l ie relocllted 10 l.auderdale County. Alabama. and remained there as II surveyor and land developer until his death on July 7, 1833. Coffee 15 burled in lhe Coffee Cemetery l'lear FlorCl'lce. Coffeeville on the Tomblgbee Rivtr in Clarke County is also named (or him. The early setllen of the future Coffee County arrived in the 18305. MMY of them came from Georgi:! and South Carolina. They were small fa rmers who established homesteads In lhe Ailibama wilderness, growing colton. which soon beClime the principal crop of lhe coul'lty. The Alabama Legislature created Coffee County on December 29. 1841 from the western portion of Dale County. The Act est.. bli~hing the county named a five路member commission to select the county Ullllocation. The members were Britton T. Atkinson. James Claxton. Thomas Cote, John B. Cruise, and Amos Wiggins. This com路 mission was authorized to secure II scat of Justice 1'101 to eltceed 160 acres and located not more than six miles from the geographical center of the county. They were also to erect a courthouse and jail. The remaining land was to be divided into lots and sold. The lcA:i5lative act ca.lled for the election of county officers. Ilowtver, there

SiJtt ukw ofprumt.oa, CoI1N Ctiunl, COOrl~ (拢IIJa}. 1M /ocJtth routll,~

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was a provision that Dale County officials who resided in the territor)' that became Coffee County could hold office 115 Coffee County orAcial5 until their terms eXpired as though they had been duly elected in that county. The Act of December 29, 1841 also mandated that the county seat site would be called Wellborn. This name was to honor General William Wellborn who servl:d in the Creek Indian War in 1836-1837. The first courts were probably held at the courthou$t for Dale County loc:.ted at Daleville.

The orlglnllilaw autho r i~ing the selection of the county sca.t was amended on Februllr)' I. 1843. This Act directed the sherif( to advertise an elcction to be held on the first r-londay In "by 1843. lhe purpose of which ~a5 to $elect II seat of justice for the county. The results of this election are not known. However. on January 23, 1845. the Alabama Legislature appointed commissioners one more time to seltct a coun路 ty seat 10000tion within one mile of the center of lhe county. The silt selected became Wellborn, 10000ted approximately JULY 201tD J

~4'

12 miles east of Elba. rhe con'U1'1issil)nCf$ ItiSTOI{ Ie COURT SOUA I{ E ~o ld Iou lind Uled 1 h I' fir'.' C"H,'t' CuuI,ty C" urU,..usc wus "I the proceeds to build Wellh"rn .,'><\ hur","! In !fISl. ThIs ,lie ",tvl'n lIy .juhn II SI,n.npn, ",1I,'n non ""'15 s dl·,tl'd till' a log cou rthouse and ,nu nt y ,,·.,t ", •• lItll 'J 5t1 It,,,re V"''" "I"" Indl'J" jail in 1846. A post H",,,I '\ IInt"nvtt"' j In • C,'U llty "kell,,,, cm offi ce was established ,}d,'h' T 5. 1II!i2, nw " r~ 1 hull,111"1 l·r.. ~· t cd on a\ Wellborn that Illh .,It ., wr" " 'wu story fr ;. rnc ~Ir u clur, " Uf" •. 1 10y w:'f, f s IlAld er!. Sl'p t ~· rnl", r;\. mr.:1 same year. .\ n,'w ' -'''H·lh •• u sc WAft c"m",l"h'd In IHI:7. Thh The choice (j the l'ulhli'''J '.,'Tn" \ C"rh-l' ("",Illy unlll IUUI 111 ,,1 county seat was not '", ,, 5 ~'''' I .tt ,u c lll)n_ \ t hlr, l huildlnq compklc<1 " 1111\: ".IS I'nl;.r<Jl',1 In 1t1',1,I, r:,lllr"J 10 mel' l overwhelmingly ' IIC Ih·,',I '. ,· f Co fk c C"UIIIY. It "'ro.' r"VI"C"<1 II~' accepted and there ; IIC p r.' , ,·1I 1 ,,'u flh ousc In 1<)03. 11.,,,,,. In Ihl' remained dissatisfac'bllonrll 1(.-'Ji ' l,' r of Hi storiC r l;lcco. tion over the location, due in part 10 INS/Qric murhr al !:'//xJ CQlIrlhQUH the inaccessibility of Wellborn from the population centers of the counly. In March 185 1.1he court01'1 rebruary 2, 1841. Thi1 r'rttr'r're was house burned to the ground. Though changed on June 20. 1850 to no cause of the fi re was actually deterBentonville in honor ofThoma.s Hart Benton, the senator (rom Missouri, who mined, iIr~o n .....as suspected. On December 16. 1851, the legislature had seTved in the Creek Indian War in authori1.ed II county tax for the purpose of 1813-1814 with both Andrew Jackson rebuilding the courlhouse. Then, on and John Coffee. January 30, 1852, the legislature passed a The first settler at the site of the (r,lture Elba was Ephr,.im King who new Act t.llling for im election to be held recorded his claim on ~~ebruary 17, on the fi rst Monday in August 1852, for the pu~e of 5C1ecting a permClnent 1836. [n 1840 he $Old h i~ I~nd to John county seal. Three towns sought this B. Simmons l!.nd hh brother-in-law honor- Wellborn. Elba and Indigo ]·Iead. Cappa 1'. Yelverton. These two men The tOWI'l sclecled had to provide thc organized the first store In the commucounty with a suitable courthouse and jail nity, the Simmons Mercantile Company. free of charge to the county. This first John B, Simmons became the postmaselection eliminated Wellborn. ter fo r the town in 1850. The post office was located in his Slore. The runoff took place on October 5. 1852. The election was q(lite close but In late 185] , after the courthouse had in the end elba had 491 votes, while burned at Wellborn, the citizens of Indigo Head (later called Clintonville) Bridgeville, now called Bentonvi lle, received 433 vot e~. Elbll hlld II 58-vote decided that Ihey ntedcd to rcname majority and the election commillee their town again with a name suitable (or a county $caL They could not decide declared Elba to be officially selected as on a proper name so every voling age the permanent county seat o( CoHee County. male submitted a name. The names After this election, Wellborn began a were placed in a hal (rom which the steady decline. By 1866 the post office winning suggestion would be pulled out was closed, Soon the town disappeared during a public ceremony. from state maps altogel her. Today it is a John r.t Simmons had recently read a dead town o( A~lbama and it contains biography of Napoleon. He saw a simionly a few broken graVI: s ton ~s at a larity blllwCt:n Nap(rleor'l'$ i~ l and (If e~i l e cemetery to indicate the location o( this and the location of h i~ town at the conformer county seat. nuellce of the Pea !liver. Whitewater Elba began its existence as a (erry Creek and Beaver Dam Creek. The locacrossing over the Pea I~ive r. A Mr. tion was nearly surrounded by the Mclane started his fe rry service some streams, iThis fact would have a signifitime in the early 1830s. The locale was cant impact on the lown's future.) By chance, Simmons' wggestion of El ba fi rst "iven the name of Oridlleville. A post omce Wit1j ~$tab li $ hed at Bridgeville was drawn oul of the hat. Henceforth, 244

~ULV

2000

Bentonville became known as Elba and Elba becar'r're the 'oullty seat of Ihe county in 1852. After the selection of Elba as the new count)' seat, the town suffered an outbreak of yellow fever. The town fathers decided to locate the tOVon cenler back (rom the river approximately one-half mile to give Elba room to grow and to reduce the potcnti:l1for future yellow fever epidemics. John B. Simmons donated the land (or the courthouse square and the lot (or the jail. ~: M. Cannons, Nicajah Harper and James N, Caulhen served as a building committee (or the erection of a courthouse and jail which had to be furnished to Ihe county without charAe. f'yivate donation~ for the construction were necessary beeau$e the towr'l wM not yet incorporated. A successful incorporation vote took place on Hay 7, J8S:J. The fi rst courthouse at Elba was a two·story. while frame building located in the center of the town square. A painted rail (ence surrounded Ihis building. garl)' records show that the county paid $2 per week (or $awdusl service. Since this was an era where tobacco chewir'lS was common, the presence of bllrrels of s,Mdust (or use on the courtroom fioor was an absolute necessity. Title 10 the courthouse was conveyed to Coffee County on September 12, 1853. At the outbreak o(the Civi l War, Ihe probate judge o( Coffee County was Pierre Darcy Costello, <tn Irishm(ln who had been born in Dublin, educated in New York, served in the Mexic<tn WIlT, and then ~etlled in Alabama. Costello studIed law In Elba and was the first probate judge to be a la~er, In 1861 he organized local volunteers into Company K of the 25th Alabama Infantry Regiment. which fough t in Mississippi. Tennessee and Kentucky. Costello WllS wounded on Janu(lry 1, 1863 at Mur(reesboro, Tennessee, and died there on January <1. 1863. Whilt many men went o(f to war, a Home Cuard protected p~ople and thei r properly in Coffee Counly. Unfo rtunately. a group of northern raiders and deserters, known as Ward's Raiders, burned the county courthouse on September 3, 1863. Amarker is locilted on the courthouse grounds honorini:! Thomas P. I.<!rk in~, a member of

the Home Guard, who was killed while defending Ihe Elba courthouse against the raiders. Many county records were burned that day. though some were saved. Arter the raid. the county had no courthouse unlil 1867. Hoom~ were rented for use by the county from C. S. Lee and R. P. 3rooks. The rent paid was $20 ptr month to tach. l3y April 1866, the counly commissioners appointed a building commiltee to lel a contract for a new courthouse. Members orthe committee were J. B. Si mmons, J. W. Harper. A. V. VauJllm. 13. A, Cummingll, and ~: M. RushinJl. who would later serve as probllte judge from 1892 to 1904. They contracted with Major B. II. Lewis 10 construct a new courthouse for a price of $4,600. l ie completed tht courthouse on June 4, 1867. This building was another twostory, frame structure. In May 1881 , the county commission determined that the county needed a new courthouse. The existing structure could no longer be "SIIllsfactorily repaired," In Augusll88l , the county treasurer was directed to sell the old courthouse to the highest bidder. who then had to remove the structure by September 15, l88!. The building was w id for $150. The counly commi.ssion next entered inlo a contract with M. M. 'J'ye for the construction of Coffee County's first brick courthouse. Tye had also designed and built the Bullock County Courthouse at Union Springs In 1871. The new Elba courthouse was completed in August 1882. The county paid for the building by levying a 5 mill property tax. Another similar tax, levied in 1884, paid for the construction of a new brick jail in Elba, complc:ted in 1886. In 1893 the county bought a fire -proof vault fo r the courthouse lit II cost of $1. 100 and later added an annex at a cost of $2.800, In 1899. the courthouse needed additional space and the Jail needed repairs. The counly i55Ued "Courth ou~e Improvement B(lnds~ to pay for an addition on the east end of the courthouse and "Jail Building B()nd5~ to pay (or thc: jail repairs. These bonds were paid 0(( by the county on f>1mh 17, 1923. Coffee County experienced a dramatic population growth In the late 19th and early 20th centuries. In 1880 the population recorded by the o(ficlal census

WIIS 8,119.

This figure ""3$ Ius than the 1860 cc:n~U$ total of 9,623. By 1900 thc: population had more than doubled to 20,972. In 1910 it had grown to 26.119. Oue to this growth. the c(lunty needed another new courthouse. This time plans ~'e re drawn for an elaborately desiJlned structure. bcl1tting a growing county. to (m the court square. The resultinA edifice continues to serve the county's needs. Tht cornerstone of the present Coffee County Courthouse in Elba was laid on Augusl22. 1903 during the administration of Probate JudAe ~'. f>1. Rushing, The building is II two-story, nomanesque structure. The dominant features of the building are twin turrets which flllnk a square d ock tower thaI rises majestically betwe(n them. The front entrance of the courthouse apptars almo.d castle·like. The semicircular turrets project from the bulldinl{ and are topped by conical roofs and finials. Elich turret has two large rectangular windows on tht first floor that match lhe first floor windows throughout the building. Each turret has three arched windows on the JCcond floor and these likewise match the second floor windows throughout the structure. A bricked archway above the tl)trance connects the turrets. Above the entrance-way is a baloony with a plain balustrade. OpeninJl onto the balcony is a double door topped by a three-paned fan window,

The center clock tower ristS above the entmnce and bakony, It contains three arched ribbon windows and a non·functional balcony. Aci rcular clock is found on each side o( the towH. The clock faces are set in circular patterned brickwork. The clock lower is Clipped by II pyrllmidal roof topped with II finial. The buildinll is constructed of red brick lind is rectangular. It has I!. hipped-onhipped roof. The d,trk roof. contrasted with the white trim of the building, gives the structure an appealing appearance. This 1903 courthouse not only continues to serve the re$idellts of ~;Iba, but stands IISl\ symbol of continuity with lhe town'S early history. It was named to the National I~egister of Historic I>laces on May 8, 1973. •

(To be continued)

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OPINIONS OF THE GENERAL COUNSEL 011 J. Anthony NcLuin, gelleru/ counsel

Qu •• tlon:

"This is to foll ow tlj) our conversation of last week in which we discussed my firm's position in a lawsuit in South Alabama. Please accept this letter as my law firm's request for guidance on the question of whether Yo'£! may ethically withdraw from the case III this point. II bdef rendition of the filets of the case may be helpful to )IOu. In May of 1991. my law firm tecame involved in a laW5ult in ABC County, Alabama. We

Uncooperative Client is Grounds for Permissive Withdrawal

J . Anthony MeL.ln

_tl":!"i!!._

TlMAilI/III""'/~.",

filed suit alleging, among other things. breach of conlr,u:t. fraud, and environmental damage. The facts which gave rise to lhe law~uil lIrc ll~ follow$: At onc time, our cI !enL~ were the owners of a 250·a(re

Iud of properly nUT the City of Anywhere, Alabama. Our clltnu fe ll into financial difficulty and found it necessary to sell thil tracl of land. The defendant in the ABC Count)' lawsuit is the purchaser of the property. The defendanl purchased the enti re tract with the exception of a one·acre parcel which sits in the middle of the tract. Our clients' dwelling sits on Ihis oneacre parcel. Our ditnu havt accus 10 his property by way of an access tMtmtnl which runs from his onc acre to lht public highway. A rough sketch of the Ilroperty is enclosed to aid you in visualizing the area. Al part of the conveyance. our clients negotiated a right to repurchase the property within three years of the sale. There is some queslion as to whether our d ient~ will evtr be In a position to exercise the opti!)n due to their financial condition_ Subsequent to the snle of the property. the defendant began to do II considerable cleanup operation on his newly pur· chased property. The defendant began to tear down a number of old, rotted chick·

en houses which werl! on the property. The defendant also destroyed and com· pletely rebuilt II dam for II large pond on the property. Fu rthermor~, the defen· dant cleared a good deal of whal he con· sidered 'trash' trees from lhe property. During his cleanup operation, Ihe defen· dant began to dig large pil5 on the property. Old tires were trucked 10 the property ,lnd thrown into the pill along with trash generated from the learing d()wn of the chicken houses and dearing of the trash trees. All 01 the materials in the piu were lherl Stt afire and allowed to burn (reely. These pits with burned refuse in them amount 10 an iIlCgill dump under ADEr>1 regulations. Thus. we filed a law· suit against the defendant because of this alleged fraud and breach of conIract. Our throT)' is that Ihe illegal dump amOlrnl$ IQ an unreasonable and bad faith interference with our dienu' right to rcpurchau Ihe properly within th ree year~. Subsequenl lo our filing of lhe lawsuit. one of our clit'nts began what amounts to a feud with tht defendant. Our dient has become ilWOlved in sev· eral petty disputes wilh Ihe defendant. which in our view. has materially diminished our ability to represent him in Ihis case. The firs t indication of a problem came to us several months ago when our dient was accused of malicious mischief in the second dtgree. The defendant alleged that our client had maliciously damaged a cattle gate which he hlld placed up on his property. The gllie was also at the point of the be~innill5l of my client's ICCesS easementto his reserved one acre of properly. lIowtver, allhal time. the defendant had not placed a lock on the g/lte rlOT had he restricted my dient's access to

his property in any way. Dcspite: this fact, my client admitted that he had taken Ihe gate off the hinges and had bent its hin"es in 5uch a way as to prevent its being rehung. This case was eventually tried in XYZ Municipal Court and our client was convicted of mali· cious mischief. Mer this incident, I explained 10 our client that he must refrain from these pelty squabbles with the defcnd.1nt. I told him in no uncertain terms that if he had a problem with the defendant he should call me first before he did anything. I~ecently. I received a call from the defend'lnl's attorney, I-Ie informed me that the defendant's "ate had been left open and that the defendant's cows had been allowed to wander away from the property, This creMed a signil1cant ha:ard to area motorists. I confronted my client about this Incident. He did not deny that he left the gate open and allowed lhe defendant's cows to escape. I-iowever. he did state 10 me Ihat he would not 'recog· nize' Ihe defendant's right to put up tI gate on the property because he considered it to be an unreasonable interfer· ence with his access easement. My client contends Ihal he owns lhe prop· erty which ;5 described within the bounds of the access easement. Duplte my best efforts to ClIplnin to him the rights of an easement owner, he con· tends that he owns the area described within the easemenll\nd will tolerate no Interference with it. Mter this latest incident with the defend/lilt's cows, the defend,ml's lawyer Hnd I discuMed a compromise whereby the defendant would be allowed to put a lock on his gate so that he would know it would be secure, Ilowever, the defend.,nl would provide my client with a key to the lock so that he could freely have acce.5S to his property. I relaytd this proposition to my client and he natly refused to go along with it. He still contend~ that he owns the easement property and that he should not have to have a key to get onto his own property, At this point. it 15 obvious to me that my client does not wish to heed my advice nor does he intend to cooperate:. in my firm's representation of him. On the contrary, it is obvious to me that my client intends to continue hisiletty feud with the defendant. II is obvious to me

and my partners thai our case hM already been materially damaged by our client's actions thus far. Our question is whether we may ethically withdraw at this point because our client refuses to cooperate with us or follow our ad\lice,~ Anawer.

You may ethically withdraw from rep· resentatlon of your client at this point due to your client's refusal to cooperate with yOU or follow your advice. Dlacuaalon:

The applicable ethical principle con· cernin" your fact situation is found al nule 1,16, Alabama Rules of Professional Conduci (ARPCI, speci"C<llly, sub.s«:tion (b)(3), which slales as fGllaws: Mnule 1,16 Declining or Terminating Representlltion (b) Except as staled in paragraph (c), a lawyer may withdraw from representing a client If withdrawal can be accomplished wllhout material adverse effect on tile Intcre5U of the client. or it:

Consistent with your withdrawal. please heed the provisions of Rule 1.16(d) which states as follows: "I{ule 1. 16 Declining or Terminating RepresentaLon (d) Upon termination of representation.

a lawyer shall take steps to the extcnt renson;lbly practicable to pro· tect a client's interests, such as "iv. lng reasonable I\Otice to the client. allowing time for emplO'flTlcnt of other counsel, surrend(Ting papers and property to which the dient is entitled and refunding ally ndvllnce p.1yment of fee that hM not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. M

Strict compliance with the provision of the Ruin of Profeuional Conduct would ensure transitiOn for the client to possibly substilute counsel, ;md likewise conrorm )'Our conduct in these matters to the Rules of Professional Conduct . • IRO-92-O<I

(3) the client insists upon pursuing an

objective that Ihe lawyer considers repugnant or imprudent. M PursUllnt to Rule I, 16(b)(3), yOU may withdraw from rc:prcscnting the present clienl since the client has demonstrated by his past actiOnS his rtfusalto heed your advice and conduct himself in accordance with applicable law. A!; stat· ed in the Comment to Rule 1.16: "Withdrawlli i~ also juslil1ed if the client persists in a course of action that the lawyer reasonably believes is criminlll or fraudulent. fo r a lawyer is not required to be ,usociatcd with such conduct even If the lawyer does not further it" lla5ed on the prior misconduct and conviction of )'Our clien!, and his refusal 10 accept the requiremc:nts of the law appliclll)le to the property rights he pos· seuc:s, you may ethically withdraw from representation of Ihe client. This conclusion is further ~upported by your belief, based on your client's previous actions, that he will. In the future, continue to refuse to follow your advice and possibly contravc:nc: other laws ilPplica· ble to his particular situblion.

~1 1""'fe H"~I

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JUlY

~ ooo

~40

he history of II profession and a city, II collection of phi losophiclll memoirs and articles. The memo ories of an elderly man. II correspondence with the devil. II law profusor's secret past. The consequences of a dead man's sins. An eclectic literary collection? Without doubt. Vet. lhe authors of all the works described have a home state and ~ profeu ion in common. Here, the simitarities stop. ~'rom histories to fictionallhrillers, the works created by the fo llowir111 si x authors nre 11$ unique as the people who created them.

Patricia t. Rumore "I Quickly found oul th.lt when you write a history of the legal

profession, you write a history of the city.~ says Patricia B.

Rumore. an attorney who is currently administering her husband's firm, Miglionico & Rumore in Birmingham. "Lawyers are so integrally connected with everything that h'IPPI!ns. As 1wrote, the book inevitably t'\lOlvcd into tl history of Birmingham from the Ilerspective of the I~gnl profeuion." Humore WtlS recruited by the History and Archives Committee of the PuIrid<J 8. Ru_ Birmingham Bar As.sociation 10 write a history of the leg/ll profession in Birmingham. Released in "larch or this year. wwum in aNew Soufh Cill/.' A Nislorv oItlUJ 1.('fI(l1 ProIi.'SSion in !Jirmi'l9lwm goes back to the founding olthe city in 187 1. "I did a number of intelVicws in collecting information," says Ru more. "But I also went to original source$ likt lht archiw:s of tht Oirmingham Public Library and the minutes d the Binningilam Bar Association. As far as stories that IITt the 100$1 familiar to readers. the '60s is the highlight. Por tl.fry is.we, there were lawyers on each side. Your heroes depend on your perspective." Allhough created with members or the Dirmingham Har Association in mind. I~umo re says that anyone interested in history would be interested in the book. "I.!irmingham has a tremendously interesting history. Writing this book made me proud 10 be associated with Ihe Itllal profession."

t:,\. "Berry" t'llIwers, III In the words of Birmingham attorney lierry Flowers, ''I...lwyers know how to get things done. Whether he's searching the nation's libraries ror obscure philowphical arti· cles or moving to another country to be near Ihe source of his subject malter, FIOWi:rs does whatever it takes to get the job done in pursuing his literary endeavors as an author and an editor. In 1992. Flowers to-liuthored II book titled Products Uabililg IDA Loss Control, (111(/ lnwranal. "The first third FA. .~. FIouom.lII ol the book is about products liability law H

LuIl'Vffl1n II Ntw Swill Cit,: A /lalOf¥ of1M lI(JQl Prokuion In

BIrmingham

Pittidili. Rumo«

dealing with equipment." Flow-en explains. ''The next third deals with 1055 control. and the last part is about prodUCI$ liability insurance. The book was published by the National Association of ~lanufacturers (or il$ members." M an editor, FIC)V.I(:rs路, interests ."re much different. "I did not study phil()$(lphy In college, but [ slarted readinll phil()$(lphy when I got out of law school." tHty5 FIC)V.I(:rs. ~ I n my reading, I kept coming acroo the I'IIlme Ludwig Wiltgel'l5tcin, one of Ihe most inn uenlialphilosophers or the twentieth century. There was no complete biography of him at the time: hl$ biography was not published until December of 1990. Out there were some articles. and all menlioned that Leo Tolstoy's The Grupelln Brief had a great impact on him. r tried to buy a copy or this book in 1981, but r (ound out the book was out of print. Although J periodically checked at bookstores, it never came back into print. I finally found a copy through an antiquarian book dealer in 199 1. I edited the book, which was already in ~~nglish and wrote a pref. act In which I discussed the Imi禄Ct of the book on WiUgenstein. I got I\IoICl offers. but I decided to go wilil lile University of Nebraska Press because the book will stay in print longer with an academic publishtr than wilil a commercial one.~ At around the same time Flowers edited the Tolstoy book. he bell/ln writing his own work on Wittgenstein. Just liS he was geUing stllrted, however. he got the opportunity to edit .. four-volume collection of memoirs, recollections, and articles on the philosopher titled Por/rai/s ofWillgq"J/cin. ''When I was working on the book, I took a leave of absence and m(Md to Cambridge. England where Wittgenstein studied <lnd tOlught. ~ says Flowers. ~The work consists of 79 articles. I do appellate work SO r have prelly good research skills. 1was nble to track down articles I didn't have in rYly possession and get copyright tlerrni55ion from various authors and editors. My experience as a lawyer has taught me how to get things done and to work under deadlines. Working on this book was a gratifying and unique eXp(!ricnce,"

Fran k To rner U0 Uon

For Frank Ho[[on, writing was Mlmelhing he did for him-

self. He never eJlpected to be published, After writing a nOVtI while in taw school, he put the manuscript away and didn't think of it again for ten years. ~ By coincidence, I made friends

with II guy who O'Wns II bookstore," says Ilol1on. "One day, I overheard him talking with an editor about how difficult it WIU to publish a book. I eventually gOI up enough neM to tell them about my story."

The Pains of April .

Published in October of 1999 by Over

the Transom Publishing Company, [nc .. Tho ItJlTu 01 Apri! conveys the recollections of an old man in a re~ home on the Cul(Coast. The book, which is writ-

ten In journal form, covers a one-year time SPM, (rQrn the m,m's 86th birthday

in April to his 87th birthday the next April. "People often ask me why II 26路 year-Old, which Is the age [was when I "'hnrk n,tmr lhillon wrote tht book, \\I'Ould want to be thinking like an 86.year-old," SIl}1 Hollon. "Looking back over the ten yellrs that have gone by,l think I had some persona.l things happening in my life that made me wish [ had the wisdom of an older person. I asked myself what my priorities would be if I was 86 instead of 26. What would I think of my school, my girlfriend. or my fami ' I), if I was my grandfather's age? I think the theme 0( the book is that people never stop learnIng and (lC!tting betler. ~

-'~~~~'M~~~~'~'-----------------------------------------------

Hollon is in the process of working on his second book, The C.od H/e, which tells the story of a wrongfully imprisontd inmatfs attempt to rind evidence that Cod exists. ~ During tht courst of his 22.year imprisonment, Ihe inmate keeps a file , which includes smaller flies with tilles such as suicide and (ear." says I-Iollon. "Within those individual riles, he keeps notes on how he sees evidence of the existence of God, For instance, suicide is II relll option for him. He is in Ihe worst pillce a person can imagine, and he i5 wrongfully accused, Yet, he doesn't take his own ]ife." Iiollon. who I~ a partner in a law firm in Hobertsdale, Alabamll, says he tries to keep his legal career and his writing separate. "I enJoy practicing law, but writin" is my escape." "'-yS I-Iollon. ''This book is very personal to me. That's why I never actively tried to get It published. It's one thing to stand in fronl of a jury and talk about someone elsc's busi ness. It's another Ihing to talk about something personal. tr I worry about what others think. I will lose my edge. That's why I write for m)l$elf,·

Norman Jetmnndsen, Jr. Due to OIIerwhelrning personal and professional obligations, finding the time to write Is an insurmountable obstacle for mllny aspiring attorney authors. But Norman Jetmundsen mnde lime to pursue his passion. "Just before I started writing the novel, my wife gave birth to triplet boys, My new responsibilities as a (ather combined with the demllnds of maint"inin!!" full·time law pmctice lcfllilile time for anything else. I would write at night after the boys went to sleep or on plane~. I tried NurmomklmlmU1;m,Jr. not to let it interfere with work or fam· ily. but I (ound J really enjoyed writing. It was a nict outlet." Jetmundsen's Ant book, The Sou/bane Siralagem, was published in Odober of 1999 by John Huntl'ublishing in England. The book is a foll ow on C. S. Lewis's book, The ScrewlufH! IAllers about a senior devil named Screwtape and ajunlor devil named Wormwood who piotto tempt a "patient away from God. "I lived in Oxford in the early eighties and studied al Magdalen College," sayS Jetmundsen, "One day, I started thinking about Lewis's book. and I had the jdea or continuing lhe story. What j( new letters (rom Screwtape ft

and Wormwood came out? What would they say now? Lewis's book only contains lelten from Screwtape: Wonnwood never speaks. ,.11' book is II mystery thriller. Cade Brys()n, a student al Magdalen College. stumbles upon correspondence between Itoulheart. a senior devil, and SoulbMe, a junior devil. The discovery tnkes the student on a spiritual journty. He eventu· ally finds Soullmne's report to Poulh~arl , and, like the characters in The Screw/ape IAlllors, the evil characters are pleased with the slale o( the world." The dcvils' perspcctlvcs arc naturally reversed, which pre· sented certain challenges (or Jelmundsen. "Wriling from the standpoint of someone with no compassion was almost su(focat in!!," says Jetmundsen. "Tryin" to accomplish this in a way that didn't turn off readen was extremely difficult." Because The Sou/bane Slralo!Jl!m was published in England, and the story takes place in Oxford, Jetmundsen and his wire, Kelli, went to Magdalen College to launch the book. "Friends and family members got to go over with me. It was very exciting,"

Karl B. Friedman When Karl Friedman set Qut to write his novel, he had one si ngle purpose in mind-to make an unusual gift to his wife.

.' â€˘ ~.;f

'.'~ J ~ ,

"Not /I soul knew about the novel except myself, my secretary. a.nd my publi 5he r,~ says Friedman. "My wife, Cladys Friedman, has been my wife for

52 years. She had everything else she wanted, but nobody had ever wriWm a book for her."

Friedman. who works with Sirotc & Permutt.

p.e .. in Birmingham, has

been practicing law for morc than 50 years. His first work oUletio!\, The Pro/wor, was published by Black licit

nr. ~ by K.ul 8, friedman

The Law Offi(e Management Assistan(e Program The law Offi(e Management Assistance Progmm (lOMAPj Is a dearlng'house for Information on all aspects of the operation and manageme'lt of the modem law office. For more Infonnatloo Of to req.JeSt conndentlal assistance with your offIa! operations contact: Laura A. (alloway, lOMAP Director The Alabama State Bar P. O. Box 671 â€˘ 415 Dexter Avenue Montgomery, AL 16101 (334)269-1515, exl116 lcalloway@alabar.org 2M

~uU'

2000

Press on April 17 o( this yellr. "I was born here in I~irm i ngham i\ little street on the west side of SI. Vincent's 1'I 05pil,iI," $ay~ Friedman, "Behind us WII$ b black gheuo hIll of people living in the worst poverty imaginable, I wanted to report in fi ction what occurred in that conummily, The main chliTheler, Joseph Jasper Smith. is born in poverty and hunger, but beeomcs \/try succeS5(ul as an attorney, His law career is cut short 3fier 01 victory against the most powerful law firm in Birmingham, and he embarks on his second career as a law pro(usor, Eventually, a group of his students wlvu the mystery behind the reason he Q:uit practicing law and diSC(Wer5 that their professor is also thtir friend. The span of the character's life covers 100 )'tars, froOI the early 1900$ to the end of the century. A lot happens in the city during Ihis limc. I think the book illustrates some altitudes and events that people who lived through those eras will reCAll and regrcl.~ and lived on

The book is wTilien entirel), from Friedman'. own memo· ries. Some of the events in the stOI')' are based on true·life experiences of Friedman or his clients. "One of the most diffi· cult <l5pec~ of writ in It the novel was tl')'ing to get the actual facu of what happened in that cenlul')' into a timcline that would make a fictional story," 5aY5 F'riedman. "I had to move some dates. Some casu which really did happen rna)' not be in ch ronological order." Friedman says thai since 1~1(! Professor hItS been l)ubliShcd, he plans to devote his energy to his law career. a career path that has become a famil), institution. Friedman's son, f.1ark, has been practicing with Sirote & Permutt, p,c, for more than 20 years, and his two daughters, Tracy Friedman Stein and Lauren "Lolly" Pried man Miller, practice law in Houston, Texas,

Mcinnes for lIdvict. Tom tries to adllise her, but 'he can't go to the police beause she Is a runawa)'. Tht slOI') involves the illegal trade along the pllnhandle and deals with the clash between the Cuban! and lhe long-time residents." According to Stewart, the endings of his books are as big a s\Jrprise to him as to his readers. "Plotting is the hardest part of writ in" for me," says Stewnrt. "Initially, J just ~it down ilnd start writ In", I wouldn't hillle any fun jf I knew ",,"0 did it frOIl\ the beginning. At the end, when J nnd out. who the killer is, 1look back through the book and ~ee all kind! of clue~." Stewart admits that the success he has found is rare. "No one should quit their Job to write a book. [ h ~d been working and thinking about doing this (or a long time. It's vel')' unusual to make a lilling as a full ·time writer.~ •

Michael Stewart Since he was 13 years old, Michllel Stewart kntw ht wanltd 10 be a writer. Although man)' adul~ abandon their adoles· cent dreams, Stev.'art took a leap of faith and actually made his a reality, "I always wanted to tl')' to be a profession. al writer,H says Stewart, ~ I saved mone)'. I took a writing course, and' decided to go for it." Although he was first told there WilS no market for legal mysteries, he tllentUlllly found nn a.!lent who was more InlCreSltd in his wrillng Lhlln whll\ WIIj selling. Stewart's fi rst book. SillS of Ihe "'IdllJltl Sltu,,"rl 13ro/her, was a success, and lhe allor· ne)' was soon renssured that he had made the right decision in pursing his dreams of bein!! an author, I'ubllshed in October of 1999 b), Putnam, the murder m)'stel')' has Rarnered wide critical accillim. "The story is about a )'oung Mobile attorne)' named Tom f.1c1nnes whl) has just len a large law firm and gone out on his own.~ says Stewart. ~ ll t seu a phone call 10 find out his brother Is dead. Tom soon gets involved in Ihe sins (If hi$ brother as he begins investigating the murder. ~ Stewart's next book, Dog Island, is due out in October of this year, "This story centers on the same charllcter, Tom Mcinnes," lays Stewart. "On an island off the Florida panhan. die, a young girl who is wandering the beach looking for a place to sleep witnesses a murder. She goes to a friend o( Tom ~ULY

iIOOO J 211

St te Law oeal Gover ental Lia i ity: â€˘

rImer

By George W.

Jr.

awsuits against local governmen· tal entities, their officeI'! hnd employees are frequently amrt· ed UI\der federili law, i.e., 42 U,S.C. § 1983. or other similar s tatul e~. liowever, in addition to liability iuues facing local governmcnl5 under fedJrtll law, there Is a sepnrate body of law governing state law claims against local governments.

Generally:

(a) Uabilit/l of Immlcl"alltles

Section 11-47-190. COOt! of Alabama 1975. Alabama limiU the ~spondeQt sup0'iar liability af municipalities to claims arising out of "the egl eCI. carelessness or unskillfulness" f their officers 01' employees. This tTiction limiu vicarious liability c lan~ against an Alabama municipality 10 nellligence·ba5ed claims only, Intentional tort claims as malicious prosecutioTl,' civil conspiracy,' willful and reckless misrepresentation and promissory fra ud,' or outrage' may not be maintained. In llddltlon to prohibit· ing intentional tort claims, t 11-47· 190 has also been held by the Supreme Court of AJabnma to preclude liability fo r claims of wantonness against a municipality! "he supreme court has held, however, th~1 t 11 -47-190 does not prohibit the imposition of liability upon a municipali ty for "gros$ negli· gence," holding lMl '''gross' when used in connection with the word 'negligence' implies nothing more than sl m· pie negligence .... Evtn though' 11 -47-190 appears on its face to only permit the ll55ertion of negligence-based cla.ims agaimt a municipality, the Alabama Supreme

Court has held thai "negliJtent assault and battery and "negligent" false imprisonment claims may be asserted against a n\unicipality arising out of an arrest.' The court has held that where excessiVf force Is used upon a plaintiff during the course of an arrest. such can constitute an "unskillful" use by a law enforcement officer or more fo rce th:1n is called for under the circumstances.' Ukewlse, the supreme court has held that where it is alleged that a law enforcement officer is ~cart lt$S" or "unskillful" in making an a.rrest on less than probable ClIuse or under other ci r· cumstances where the arrest might be unlawful. a cause of action will exist under § 11-47-190 for f:t lst arrest or false imprisonment.' (b) Liubility of municipal omceN ulld employees

The prohibition "ll(linsl intention(ll tort claims contained in t 11·47· 190 applies only 10 lawsuits against a municipality itself. Section 11-47-190 does not prohibit the ~sse rlion of Intentionallort claims against individu:tl employees. (c) Uability of COUll ties

There is no county counterpart statute to § 11 -47-190which Ilmit$ lhe liability of CQ.unties to negligence-based claims. Accordingly, unlike municipalities. Alabanu counties may have liabill· ty for intentional. as well as negligence. based, claims of county employees. Unlike municipalitits, counties gener· ally havt vtry limited liability in the law enforcement area, In 1987lhe supreme court held In Parker tI. Amcr.ron" that an Alabama sheriff is not a count)' officer for the pUrpo$t of impoSing liabililY upon Alabama counties for actions aris·

Ing out of law enforcement activities of a sheriff. In Parker the supreme court held that an Alabama sheriff is a state, not a county, official. The supreme court in Parker slated: "A!h/:riff is nl)t an employee of II county for purposes of im])()sing liability on the county under a theory of res{JOlldeat superior."" Based on Parker, the supreme COlu t has also held thot a county has no liability for the law enforcement !tcU d a deputy sheriff." Liability of an Alabama county ari5ing out of the operat ion of the county jail is somewhat complicated. Under Alabama law, Ihe legal custody and charge of the jail is vested in Iht sheriff of the county.1l The authority of the sh~rur over the Jail is totally independent of the county commission." AJ a roosequence, an Alabama county CIlonnot be ( liable (or state law claims arising out 0 acts or omissions of the sheriff in c'f.1'neclion with the operation o( the jal!. " However. beClluse 1 11· 14·10, C!?'Ie of Alabama 1975, requires anA~aljama county to ~mai nla i n a jail" within the county, there is an affirmative duly upon the counly to Illaint:un the jail in II slate of good rfphlr.!O If a Jail Inmate suffers an injury arising out or some defecUn the physical facilities of the jail. the county can hove liability (or the injury,"

2. Punitive damages I'unltlvt damages are not recoverable against any county or municipality in Alabama "or any agency thereof" under t 6-11 ·26. Cade of Alabamll 1975. '6. 11·26 does not, however, 1m recovery of punitive da~u against individual JUlY 2000

2"'

c ____ Ilublic officers Of employees, Section 611-26 also does not prohibit the institution of wrongful death actions against counties or municipalities, Section 611 -29, Code of Alabama 1975, specifically exempts the applicability of § 6- 1126 to action5 involving wronRful death.

cap does nol apply to claims fo r "Intllnglble Injuries," $uch as a retaliatory dis· charge cillim by lin employee nlleging thllt he was wrongfully terminated from his employment for 'iling a Workers' Compensation claim." There is a $100,0001$300,000 aggregate statutory cap on damages in actions in which both the munidpal ity and its employees are joined as defend:mt$, Section 11-47- 190 provides that "00 recovery mlI)' bt had under any judgment or oombil"llltion of ju~ments. whether direct or by .....ay of indemnity or other· wise, arising out of a single occurrence, !\Q.,inst a municipalil)'. andlor any ofliccr or oflicers, or employte or employees. or agents thereof, in excess of II total $100.000 per injured person up loa maximum of $300,000 per single occurrence There is no counterpart statute to f 11-47-190 In the IIrei of county employ. ee liability. tlowever, in Smi/herm(1lljl, Marshall Coull/y CommissiOIl," the AlabMla Suprt'me Court held in n road defect case. th:1I claims against memlx:rs of a count)' commission and a the county engineer in their omcial capacities were subject to the $100,000 cap contained in f 11 -93-2. The court noted in Smitherman thnt the statutory definition of "emplOyee" under the statute

3. Statutory cap on damages Section 11-93-2, Code ofAlabama 1975, provides a cap of $100,000 on the recovery of damages ~fo r bodily injury or death fo r one person In IUly Single occurrence," There is a $300,000 aggregate cap "where two or more persons havt claims or judgments on account of bodily Injury or death arising oUI of any single occurrence.~ Properl)' loss claims are limited to "$100,000 for damages or loss to property arising out of any single occurrence." This statute applies only to slale law claims: It does not apply to any federal claims which a plaintiff may hllve IIgliinsl a governmental entity." The supreme court has held that, because of the language of Ihe cap limiting its applicability to clllims arising out of "bodily injury or death," the statutory

containing the cap included "persons acting on behalf of any gINernmentaJ entit)' in any omcial ca.pad ty~ and included elected omciliis of governmental entities. '1 Although that portion of the cap statute which established the $100,000 limitation did nol specifically refer to claims against "employees." the court held that "Itlo hold that the caps of § 11·93·2 did not apply 10 claims against the count)' commissioners and the county engineer in thei r omcial capacities would effectivtly repeal that Cot/II section, because the plaintiff5 would simply file their actions against the employees of a governmental entity instead of the governmental entil:y itself'"

4. Ante litem notices Under Alabama law, prospective tort p18intiffs must file pre-Inwsuit notices of claim with the city clerk or the counly commission within a cerlnln period of time after the occurrence of the mlIllers giving rise to the claim, Failure to do so bars any later claim. There are differing rules regarding the lime \lithin which the (III/I! Ii/em notices of claim must be filed with municipalitiu lind counties.

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(o) Claim ogainsllIlullicipalilles

Section 11-47.Z!, Code ofAlabama 1975, provides that Hall claims again.st la) municipality (except bonds and interest coupons and claims for dilmages) shall be presented to the Clerk for payment within two years from the accrual of said claim or shall Ix: b.med." With regard 10 tort claims. § 11-47-23 requires Ihat ~Ie llaims for (Jal1\llges growing out of torts shall be presented Ito the city clerkl within six months (rom the accrual thereof or shall be barred." Although § 11-47-23 requires that such claims be filed with the city clerk, the commence· ment of a law$uit within the six·month period has been held by the Alabama Supreme Court to satisfy the require· ment! of this section.''' Sectlon 11 ·47-23 only applies to actions brought against a municipality itsel(: it is inappliC.1lbte to actions brought against city employees.)! The anle litem notice provisions o( § 11-4723 apply only to stale law tort claims: 111-47-23 is inapplicable to actions brought under 42 U.S.C. § 1983 In either federal cOurt'" or stille courL'" (b) Claims againsl

COUI/ties

An ont(llitem claim must be med with the county commission within 12 months o( the accrual of the claim or else the claim is barred." Acounty com. mission has a period of90 days within which to act upon the claim, If the commission fails to act upon the claim within 90 days, the claim is automatically denied by operation of law and a lawsuit may Ulen be med.-

5. Immunity defenses available to state law tort claims (a) Absolute immlmltv

The Aillbama Supreme Court has held that because an Ahbama sheriff Is II state

officer. the sheriff has absolute immunity from monel<'lry dilmage claims under Article I, 1 14 of the Alabama CQnslitufiOlI of 1901 .- This ab!lOlute immurllty hM been held by the supreme court to bar damage claims (or false arrest and malicious prosecution,· negli· gence and wantonness in the hiring o( a jailer who Jellual1y ns~ulted an inmate," the mistaken releilSe of an inmate wOo later robbed the plaint ff$,· negligent and wanton failure to provide medical care to an Inmale.» a high speed pursuit." failure to antst a drunken driver who Illter killed a motorist,· negligcnt and bad fai th service of process." failure to maintain safe electrical fixtures in II jail resulting in the electrical shock to an inmate,lI and trcspass and conversion.· This absol\Jte immunity hM also been held applicable to deputy sheriffs, whom the Alabama Supreme Court havt determined are extensions of the sheriff and therefore, are al!lO executive officer; of Ule State of Aillbama entitled to I 14 50Vtreign immunity.· There are no reported state court decisions discussing the issue of whether a jlliter (as opposed to a deputy sheriff) has abwlute immunity under § 14 from stale law claims. The Eleventh Ci rcuit has considered this issue and have held that jailers and correctional officers serve as the alter-ego of the sheriff in the area of jail operations, in slmitar flUhlon to deputy sheriffs In the area of law enforcement, and, aJ such. are entitled to the same t 14 immunity from state law claims as the sheriff."

I ,.

this asseMment on a case by case b.'lSis.''<l The $upreme court has dC$(:ribed discrttiOIlOIry acU as "those act! las to which I Ulcre is no hard and f.l.~t rult IU 10 course of conduct th:it one must or must not take and. if there is [al clearly defined rule, such would eliminate discrimination one which requires (!)Iercise in judgment (\nd choice lind involves what is just and proper under the circumstances..... The Alabama appellate courts have reached differing condusiol'l$ on the applicability o( discretional')' (unction immunity to local governmental officials depending upon the status of the official. and the nature of the conduct at issue In McCluskey IJ. McCraw.tI the court o( civil appeals held that a county engineer had diACretiOn<lry funct ion immunity with regard to claims that he had failed to Insure thilt a bridge on a county road In the county was reasonably $IJ(c for travel. In 7UscaiOO5(J County v. lIendenon ," a

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Uncler Alabama law, Mdiscretion<lry function" immunity from "tort liability is afforded to public officials acting within the general ACope o( their authority in performing functions that involve a degree of diACretion.... ' The source of this doctrine of di5Cretionary function immu· nity is § 8951) /?estatt!r1IC1lt (!X.'COIJ(/) of 7brls which govtms inm\lnity from tort liability of public officers" In determining whether a p;!rticular action of a public offi cial constitutes tlle exercise of a discretionary function, ~lclOU'l.s mwt make

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county license inspector was sued ror malicious prmecution. defamation, abuse of procw, negligence. wantonness. and outnge, The plainliff alleged lhatthe licen$e inspector had had the plaintif( arrested (or operating a business without a license when the plaintiff was not. In (acl, ol)trating a business, The court o( civil appeals stated Ihat. with regard to the conduct at iuue, i.e., determining whether the plaintiff was opt!'llting a business without a license, the license inspector was performing only a mini5teriat function and was not entitled to diKrctionary function immunity. (c) Immunitg olXliltlble 10 law enforce-

ment officers On i\priI 26, 1994, the Governor signed into law Act No. 94-640. which is presently codified as § 6·5·338, Code ofAlalJanl(l 1975. Section 6-6-338 prO\lides th:.! law enforcement officers "shall hllve immunity from tort liability arising out of his or her conduct in the performance o( any diKretion.lry function within the line and SCOI>t of his or btr law enforcement duties." The supreme court has interpreted § 6-5-338(a) as providing "discretionary function Immunity to municipal police officers unless the officer's conduct is so egregious as to amount to willful or malicious conduct or conduct engaged in b.ld faith:'" Both the Eleventh Circuit 3nd the AI3bama Supreme Court have held that the procedural framework for analy~ing discrctionllry function immunity claims has a two-pronged Inquiry," The first prong Involves proof by the defendant officer that the officer was "engaged in lhe performance of discretionary functions at the lime the alleged torts occurred,R" If the actions complained of were discretionary acts, "the b urd~n shifts to the plaintiff to demonstrate that lhe defendants acted in bad faith, with malice Qr .... illfulnell in order to den)' them immunity."" (d) Illteriocutorl reviewobllitg 01 dltTllal 01 discfl!tiollarg functioll/mmunity .00

~ULY

.000

In federal court, a denial o( discretionary function imnnmity to a police offictT under § 6-5.338(11) Is interloculOrially llpptalable as ~ malter of right under 28 U.s.C. § 1291." In Sheth /), Webst"",, the Eleventh Ci rcuit. in hold· ing thlltlt had jurisdiction to consider an interlocutory appeal of a denial of a motion for summary judgment seeking immunity under I 6-5-338(a), staled: 'We conclude that we have jurisdiction to review the denial of discretionary function immunity provided for under Alab.1ma law."!11 Adenial of a motion for summary j udgm~n t is also inlerlocutorially reviewable under Alab:llna law. although not M a mailer of right. In Ex Parre DolI/s,D the Alabama Supreme Court held that the denial of a motion fot summary judgment based upon dis~reUonary function immunity was revie...,able on a petition for writ of mandamus, The court stilted: ~A petition for a writ of mandamus is the proper meal'lli for achieving appellate review of a trial court's denial of absolute and discretionary function immunity,....

adequate security at a city-sponsored exhibition. The supreme court held that the providing of police protection was one of the functions 0( governmental 3ctivity which would be subject to immunity under the substantive immunit)' doctrine and denied recovery. However, the sUllreme court has refused to extend the doctrine to a claim of negligent failure to provide nre protection." Other CItses in which the subst:antivt Immunity doctrine has betn applied 3rt Hilliard v. Cily of HUlltsvllle,- (negli. gence In inspecting elechical wiring in new construction) lind Rich v. City of Mobile" (negligei'll (ailure to inspect and negligent inspection o( sewer lines). Examples of cases in which substantive immunity has been denied lire Cit!! of Mobile v. Sullitxm," (negligent mi~rep resentation regarding toning coverage). and tOllg v. Jeffersoll COUllty,· (negligent maintenance and construction of sewer easement).

In certain ci rcumstances fo r local governmental entities. The Alabama Supreme Court has applied this immunity In situations in which the actions at illue relate to II public service func· tion of the local government ~to laden with public interest as to outweigh the incidental duty to individu31 citizens."" The substantive immunity doctrirle has been applied to casts in which a municipality has been sued (or failure to provide adequate polke protection. In CalogrideJ 11. Cit!! ()f,lfobile," and (;{lrrett 11. City of Mooi/e," the City of Mobile was sued for failure to provide

fa) l Ack ofliubili('1 unt!ur common f(lw

7. Effect of individual 6. Substantive immunih1 0n immunity for the liability local J{ovemof the mental entities governmental An immunity (rom tort liability entity known a$ "substantive immunity" exists If 3 local gOvtrnmental entity is claimed to be vicariously liable for the act or omillion of a public of(l cer or public employee, and the officer or employee is held to have immunity, then the local governmenta.l entity can have no liability 115 well, Under Aillbllm3 common law principles, II principal can only be held liable on the basis o( rtspond''tJt superior if liability is found on the part of the ag~nt.D This common law rule has been held to bar claims against municipalities where the officer or employte was found to h:!\It immunity."

The rule ha.$ abo been applied to bar claims against counties where liability was soughttQ be imposed arisi ng out of the act of the chairman or the county commi"ion,-

omcen were held to be entitled to immunity under § 6.5-338(01), the municipality by whom lhe omccrs were tmployed also had immunity. The court of civil appeals slated:

(b) Statutory I",munity arisillg out of pt1rformuIICIl of a disc111tiollurJllimctllm by u law enforce· III(JII' officer

[Officersl Burch and Sellers were immune from liability pursuant to § 6-5-338. ~'urlhe r more , contrary to the argument! Ii (plaintiff] Montgomery, lhe plain language of Ala. Code 1975, f 6-5..J38(b), clearly extends discretionary.funclion Immunity to the City of !'>10ntgomery, Burch lmd Sellers' employer!'

Section 6-5.33S(b) al50 tlothes /I municipality with immunity in instances where a police officer is engaged in the performance of a discretiolUu'Y funct ion, § 6-5-338(b) stateJ that "I tlhis section is intended to e)ltend immunity only to peace officers and governmental units or agtocies authoriud to appoint peace omcers,- In MOlllgomery /J. Cilvof (lto/J(gom(!ffl ,- the court of civil appeals has held that where individual police

CLE Opportunities

Judge Albritton in the Middle District of Alabllma has analyzed the liability of municipalities under f 6·5·338 and has concluded that, if it is proven that a defendant police offi cer was acting with-

The Alabama Mandatory CLE Commission continually Mluat8S and apprlMls ill,slole, 8S well as nallon· wide, programs which am naimoilled III a computer database. All are Identi· fied by sponsor, Iocatioo. dlle and spe· cialty area. For a complete listing of curfellt CtEopponunilies or a calendar, contact the MCLE CommissklO office at (3341269·1515, e~tens!on 117, 156 Of 158. Of you may view a complete listing of curr9llt programs at thO state bar's Web site, WWlN.IJ/lJbBrorg,

Domestic Violence And The Law This one-dav moar offmBd in six tocatiOll$ around the state is co·sponsored by Legal SeMces Corporation of Alabama, IhB A1a~ama Coalition Against Domestic ViOlence end the Alabama State Sar Volunt06f\.8wy'GfS Program, 11 is FREEto attorneys penicipellng ill Iho Alabama State Bar Volunteer Lawyers Program Of the Mobile Pm Bono Prt1jram.

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NafTIEI:

o Selma

July 28th. ZOOO

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[J TulCsloose

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o Gadsden o Mobile o Dothan o FIOIl1IICe

AuguSI15lh. 2O:xl

September 8th, ZOOO September. 2000 November, 21m'

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Make checks pa~8ble to; The Alabema COl lition Allll nit Domestic Vioienci

Mail completed rogistr.llion form to: Mary GIOY, Alabama Coalition Against Domestic Violence, P.O. Box 4762, Montgomery, Alabama 36101 • Please cOlltact Sandy Hemmel at (3341832·4842, e~t 15, for more inrormo!icn

~UlV

:1000120 1

in the SCOI)e of his disactionary author· it)'. a municipalit)' can have no lIabillt)' as a malter of law, rega.rdless of whether it ;$ shown that the officer WaJ guilty of "willful or malicious conduct or con· duct engaged in bad fait h." In Hardp IJ. 1bum of lIaym.'Vil/o," Judgc Albrilton held that because municipalities are immune from intentional tort claims under § 11-47·190. the second prong of the analysis of the applicllbil ity of discretionary function immunity urldcr § 6·5-338(a) is irrelevant insofar as a municipality is concerned. Judge Albritton stated: "The exception Ifrom § 6·5-338(a) immunityl which renders Individual pcact officers liable for 'wil l· ful or malicious conduct or conduct engaged in bad faith,' ... would not apply to a municipality. Municlpallth:s are immune from claims based on such conduct. Ala. Code f 11 ·47-190.BMed upon thi! analysis, Judge Albritton concluded in Hardy that "the Town of Hayneville could not be held liable for the conduct of !the police offi· cersll( the Court determines that [the offi cersl wtre engaged In discretionary functi ons within the line and scope of their law enforcement dulles."" •

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Ever had a knol in your stomach when asked to speak at your local civic club? Worried aboul Ule public image of the legal profcs.sion but don't know whal you can personally :lo 10 hdp? Plus. who has the time to plan lhe details for 1111 this ililyway? Not to worryl The answer to all of the Questions above is the ASH's TO SEIWE TilE PUBLIC V [[) ~:O I)I{~:S ~~ NTATI ON - a complete package thai incl udes an award-winmng eisht.minute video. 5]>eech points and even brochures for the audience, Every local bar association has a copy of the presentation or you can just c.'Ili the ASB (800-354·6 154) and request one. Can you imagine the impact if Alabama lawyers IIcr055 the state did JU51 ON~: presentation in their local community? That's right - thert would be over 10.000 positive messages gOing out aboullhe legal professionl

WHAT A JUST DESSERT!

70. 50 F, 8utlP. 2d .1 1202

r----------------------, I 1J@ ~~[R?W~ I I I II I I

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YES, I volunteer to present or to help schedule a presentation of "TO SERVE THE PUO LI C" to groups in my area. Contact me to make arrangements! NAME BAR ASSOCIATION PHO NE OR E·MAll _ _ _ _ _ _ __ L ______________________

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cllenVemploytr comes to your office and says that he understands that employment dis路 crimination claims are dmmatiClllly on the rise and lhlll Ihe use of arbitration to handle Ihest claims can save him timt money and cui down on his polenlililliability. Is he right ? Are arbitration agreements enforceable as they relate to federal $tlltulory t mploymcnt claims? Can arbitration be used to discourage employees (rom filing claims?

Introduction Congress en.,cted the Federal Arbitration Act ("t'M") in 1925 at the urging of the nation's business community. The FAA was enacted, in part, to combat what the busioeS$ community ptrct:ived to bt courts' hostility tov.'Ard arbitration agreements. Courts were particularly reluclllnt to enforce arbitration agreemenlJ which related to disputes which might arise after the execution of the agreement. the exact use of arbitration business leaders sought. [)espite Congress's enactment of the FAA, the courts were reluctant in their Allowance of arbitration, Cradually. however. the mood of COLlrts began to change, settin(l the stOige for the dcci$ion in Cl/mer !l, Illlerslule/Johnson I-<IIle Com,' which found tilat a claim under the Aile Discrimination in Employment Act WlL'i subject to compulsory arbitration, The Gilmer court stated: It is by now clelr that statutory claims may be the subject of an arbitration agreemtnt, enforceable pUl1uant to the FAA, Indted, in recent yeal1 we have held enforceable arbitration agreemenu relating to claims arising under the Sherman Act.... ; Sec:tlon lO(b) of Ihe Securities Exchange Act 0(

1934 " .,; the civil provisions of the Racketeer Innuenctd and Corrupt Organizations Act (RiCO) .... ; IItId Section 12(2) of the Securities Act of 1933,,,,, In these cases we recognize that '[bly agreeing to arbitrate a statutory claim, a l);11ty does not forgo the substantive righls afforded by the statutes: it only submits to their resolution in arbitral. rather than a judicial , forum .' The FAA does not specifically address employmtnt conlract.!, rather it mllndates that arbitration agreemenls are "valid, Irrevocable and enforceable" with regard to two types of COlllractJ: those relating to a maritime transaction and those involving commerce. Given the brood interpretation cJ the term in'lOlv路 ing commerce, almost any employer/employee re'ationship seems to meet this definition Many litigants and some courts now ~ppear to IIloss over the involving commerce requirement and lum their attention instead to the arbitration IIgreement iuelf,

Preserving the Statutory Purpose After Gilmer, the Court of Appeals for the Eleventh Circuit soon follOWed suit in nndlng thllt sexual hllraumenl claims and race discrimination claims under Title VII of the Civil Rights Act were also subject to arbitration. Correspondingly, M the number of federal employment claims rose. so too did the use of arbitration agreements pre路 sumably to awid such claims, The Eleventh Circuit IlCJIt turned its allention to eNuring that the dual frocral goals of encourllging arbittlltion and providing an individual meaningful relief pUl1uant to the various statutory

emplO)'lT'lCnt prQ\lisions did not become mutually exclusive, In Paladino v. Aunel Compuler 1khlU)/ogl(!s. Inc" I though the E1Mnth Circuit found Ihatthe parties' arbitration agreement WI!! specific enough to include tile plaintifrs Title VII claims. it still determIned that the agreement Wall unenforceable, The agreement prOVided Ihat Avnet and ]'aladino "oonsent to the settlement by ilrbitration of any controvtrsy or claim arising out of or relating to",[Paladino's [ employment or the termination of. , .Iher[ employment. This clause, alone, would Indicate that all claims, statutory and non-statutory. would be included within the scope of the agreement. The agreement. however, contained a second prO'lision which clouded the iuue, That clause stated that Altlht arbitrator is authorized to award damages (or breach of contract ooly, and shall have no authority whatsofYer to make an award of other dal1\llges.~ Because of this language. the court refused to enforce the arbitration agreement as it sought to improperly deprive tile plaintiff of Title VII damagu which would have been lwailable to her in a judicial forum, The court was also bothered by the fact Ihat, by not specifying that the employer would pay the cost of arbilration, the a(lreement shifted "at least half the hefty cost of an arbitration" and "steep filing fees" to the plaintiff. The court added that to Ix: (:I'Ifol'cellblc. an arbitration agreement that purports to cover statutory claims must contain terms that generally and fairly advise the parties that it, in fact, is intended to cO\ler statutory claims and provide remedies which are fully consistent with the PUrp0$C5 underlying any statutory claim, PaludlnQ also txpres.sed $erioU$ concern about the attempted use of arbitration agrtemenlS by employel1to unfairly hamper their employtes' rights to obtain appropriate statutory relief, ~UlY

1000

Drafting an Enforceable Agreement to Arbitrate Now we lurn to the practical question of how do we drafl nn arbitration agreement for ou r clll!nts that will be enforced when an employee files it statutory claim? The flrst step should be a clear communicntion to the client of what the arbitration agreement clln and cannot do. !'>1any employers !>elicve that they can usc an arbitration agreement to cut off or limit their employees' rights to bring suit againsllhem, Arbitration a.llr«men!.5 which are draft· ed with this gool in mind are unlikely to be enforced. Tht client must under.

stand that an enforceable arbitration agreement not only must be fair to Ihe emptoyeu. but may also require the employer to shoulder some of the employees' actual costs of arbitration. Let's tum now to the actual agreement itself. The first issue to consider Is where or in whal type of document the arbitration agreement should be Ioc.lted. Some employcn chOO$1! to place an arbi· tratlon agreement in their employee

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handbooks. When an arbitration agree· ment is placed within an emplayee handbook, care should be used to set apart the arbitration provision from the employer's other pncticcs and procedures. If lhe arbitration provision is incl uded in the handbook, the employee should be required to execute a spedfic acceptance of the arbitration provision. This acceptance should be sep;:lrale and 31l<lrt from any generali~ed acknowledg. ment of receipt of th: handbook ilnd its policies. [n ilutanci.'s where arbitration al!reemenLs arc included in an employ· er's handbook, an emplO)'ft may attempt to avoid the arbitration prO\lision by pointing to other provisions within the handbook which presumably indicate that the handbook i! not intended to be a bindinR contract between the employer and the emplOYee. An obvious way to avoid this issue is to have the arbitration agreement as a separate (\o(ument. New employees may be ouked to siRn the arbitration agreement prior to being employed. Existing employetS may be asked to execute lhe agreement as a condition of their continued employment. An arbitration al!reement to be used with existing employees, however, should be fu lly explained to the employ' ees prior to the time that they lire asked \0 execute the a!lr~e m ent. This CM be done through company memos detaili ng chlUlgCS In the comp.lny's dispute resolution p roce~~, training cla5S~s on the agreement, or Issuance of an updated employee handbook which sets out the details o( the agreement but which requi res the employfe to execute a sepa· rate and distinct arbitration agreement. The language of the agreement itsel( must Sd 01.11 whallypes of claims are to be covered by arbitration. Sewral couru have found that the language ~any and all disputes arising out Of the employee's employment relatlonship andlor

termlnat1on ~ encompa5$U any pOtential statutory claIms. To eliminate any doubt as to whether or not statutory claims are encompassed within the arbitration allreement the above phrase could be coupled with Ihe statement "including, but not limited to, all fede ral and state stntuto!), claims," The agreement should make clear lh/ll /In employee can obtain, through arbitratior\, ally lind all r~lid to which he would have been entitled pursuant to the statute. The arbitration agreement should also include I)rovisions concerning the manner in which the arbitration will be conducted, ~1 any arbitration agreements state that Ihe arbitration will be conducted pursuant to the rules of tht American Arbitration Association.J Such a "eneral statement covers the procedural rules needed to actually conduct the arbitration. Though the AM rules pr(Wide a method to determine the number of arbitrators to be used, this inue, as ....ell as the payment of the cosLs associated with the arbitration, are best addressed in the aRreement. In determining how many arbitrators should be used, the employ~r should keep in mind that the greater lhe number of arbitrators used, the higher the cost. This relates not only to the actual pllyment of the arbltr;.tQr'5 fees, but /llso to t h~ initial fil in" fee. The filing fcc fo r a clISe with one arbitrator is $500, while the I'llng (ee (or a case with three or more arbitrators is $1,500. Likewise, arbitrlltion with a sin· gle arbitrator requires a hearing fee of $150 per day, while lin arbitration hear· ing conducted before a multi-arbitrator panel requires a fee of $250 per day. These rees are particularly significant if the employer Is going to shoulder a substantial pOrtion of such fees i(je1f. The arbitration agreement should specifiClllly address the payment of lhe

arbitr:.t1on costs by the parties. A$ mtntioned earlier, the court will nOI tnforce an arbitralion 3gnemenl which places a disproportionate share of Ihe cost of arbitration on an employee who is unable to bear thai coSI. For an employer's mid- to lower·level employees, the eml)loytr should be prepared to shoulder a sub~lantial part. if not lIlI, of the cosl of the llrbltrlltion. Courts may not, however, be so quick to Ttqulre employers 10 pay the cost of arbitration for lis more senior executive employees, Keeping in mind that the court', overriding concern is fairness to the employee, a more senior employee could more easily afford the cost associtlted with arbitration. Similarly, in determining what amount of the cost to bear, the employer should keep in IYlind Ihat it would nol be unreasonable 10 require the emplo)'te to pay a filing fee equivalenllo the cost of filinl! a judicial complaint, An arbitration ailreement which adequately addresses the above issues should be found by the federal courts to be enforceable in the context of an employee's sllltu\ory employment claim, As a fina l caveat, before sending o(f a client with his newly drafted arbit ration agreement, be $urt that she understands that, unlike lin initial Judicial determination, lhe determination of an arbitrator is a final, non-appealable order, •

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APJI's Contributions to the Legal Profession Enrich Law Schools By Bert S. Nellles and Amy Lynn Sluedeman

n April 7, 2000.1ht Alabama

f'aUtrn luI')' Instructions

Committee (Civil) presented $50,000 check$ to both the University of

Alabama School of Law and Cumberland Law School in order to create APJI $Cholarships (or those institutions. The5e recent gifL'J wert m.lde ()QSsible by the royalties from Iht ib.les of the widely uli· Ii~cd

second cdllicn of the committee's

Alabama Pal/em Jury II'lslr'UcfiQns (C;IJi/). published in 1993 by La\Y)'crs Cooperative l>ublishing (now a sulnidilll')'

of West Croup). These contributiom are lhe latest of several which the committee hu made to our Ifgal community, The APJ/ha$ a short but active history. In 1966, The Afuboma lAwyer published

an address presented by the lalc. Judge ingram V. 13eMlcy of Birmingham during the Alabama Association of Circuit Judges' seminllr in July 1965. In his

addreu, Judge Beasley discussed the innovative subject of "Pattern Jury Chargee I-Ie observed that California had been the nrst5tate to formally adopt and publish jury instructiOO$ and lhat sevtral other states had followtd its lead. AI that time. courts were already subject 10 problems of c..ue backlog in the face of increased case mings. To alleviate this growing problem. Judge Beasley recommended published Jury instructions as part of the modernization of jury trials. and urged the creation of a committee "to inve'tj~te the improvement of our judicial s)'Stem wilh special emphasis on jury trials." In keeping with Judge BeMlcy', recommtndation, the Alabama Pattern Jury Instructions Committee (Civil) was formed in early 1967. The original committee witS developed as Dproject of the Ailibama Program ofConlinuing Legal Education under Ihe directorship of Douglas Lansford. Committee members included legal professionals from the Alabama Circuit Judges' As.sociation, the Alabama Plaintiffs' Lawytrs' Association and the Alabama Oefenu Lawyers' Association. The late Judge James N. Bloodworth of Ikcatur 5el'\led as committee chairman, lind Judge Heasley was vice-chairman. Other original committee mernDeTS were Judge Will C. Caffey, Jr. of Mobile, Judjle William C. Sullivan of Thlllldega, H. It Burnhllm of Anniston, the Illle mchard L. Jones of Birmingham, and Janie L. Shores of

Staled: Jall{~ I.. Sharu, fkckv C{upp. Jamu 0, lIu/~lI. Wilfiu", C. SulliUlm Slmu/il!tJ: /wl S. Mom!'.$, AriIJur J.llmN"!I, Jr., /Irlllm T. 0J/<mNm, Wil/ium II. AI/rln.son, 1:: n'({1IIJJ/()r, T7111mU.! A LI~II. J. Scotl L'<'U~/I. Iltll/am H. ConJon. Cllllrll'!J LV. Conrbht. CiJdloo 101oJl1tu1l. Jr., Hobnl/~ GotIrf Simtfo,d thlIwr¥III I~ $m!ka

Birmingham, who also served a5 the nut commitlee reporter. When Judge Bloodworth left the committee to become an Alabama Supreme Court justice, Judge Bruley became lhe committee's chairman. while Judge Sullivalll15sul'ned tht poSition of vice· chllirmlln. Judge Caffey went on 10 become II United State5 Referee In Bankruptcy, and was replaced on Ihe committee by Judge Reneau p, Almon of f.loulton, After Judge Almon became II member of the Alabama Court of Criminal Appeals (and later II justice on Ihe Alabama Supreme Court), Judge Edward N. Scruggs of Guntersville filled his vacancy. In 11.& early yea.rs lhe committee met for II full day once a month lind undertook the daunting lask of drafting jury instructions which were leg.1tiy accur<lle, unbiased. and understanclilble to laymen. Afew years later, the cQmmitlee reported its undertaking to the Alabama Supreme Court, providing the Cqurt with a prepublication manuscript of Alabama Pollern Jury Instructions in Civil Caw. The formation of /I permanent committee ....'a5 recommended 10 review these instructions and develCfJ additional Instructions as needed. On April 19, 1973, Ihe supreme court issued an order acknowledging "Ihe painstaking care, attention to delail and TTklny hours of work and study" put into the: instruc-

lions, nnding thaI the instructions would serve as "an invaluable aid to trial judges of Ihis Stale in charging juries in civil cases.- and recommending use of Ihe instructions "by bench and bar." Further, Ihe court ordertd the publicaUon of the hlWuCliolU, as Wfll as the creation of II permanent committee to re\'lew and improve upon these Instructions. At the lime of the Alabama Pattom Jury Ins/ructiolls' nul publication in 1972, committee memDef5 were Judge Bell5ley (chairman), JudA:e Sullivan (vice-chairman), Judge Robert ~;. I•. Key of Evergreen, Judge George Murphy of Cadsden, Judge Scruggs, II. R. Burnham, Richllrd I.. Jones, Sonny Hornsby of Tallassee, and Professor Janie Shores. or Ihese members, Jones lind Shores laler became justices of the Alabama Supreme Court. and Hornsby a chief juslice. On Aullust 10, 1973, Ihe committee was incorporated as a nonprofit organb.ation, and has continued 11$ such through the prcsenltime, Justice Janie Shores, who resumed her current oommitttt position alter leaving the bench, recalls that befort the nrst set of instructiolU was published, ~ It was a real burden for trial judges and lawyers to get charges preP3red.~ The instructions, she sa}'5. proved to be "a vilSt improvement OVtr the old SY$lem." Judge Sullivan. who served on Iht original commiltee and who has acted as commit~Ul"

1000 I 2GG

1..11; William C. SlJIIt'Qtl, t hi.Jlmt0I, AJobanld f\!/iBn J"fJI htJlrut:lions Ctlmmfllff ,,""011). ~tlng S50.()()() th«k ttJ Jo/lII Sa.ton. pruidmt rJ IIrtI /JnkWlil, ()/ .cabramu I..- FounWrlofl

tee cMirm.,n fOf the past2S yean, remembers being giV(!n only a few stan· dIlrd jury instructions when he first began hearing CMU. To him, the introduction of the PlIltern instructions "made all the difference in the world." Current member Ted Taylor, who has a \\'ell -e~tab lished plaintiffs' practice. remembers a time when plaintiffs' attomey$ shied away from requc.stinll any ch."ges because plaintiffs' verdicts were frequently revened on appeal due \(I erroneous instructions. 1':1ylor credil$ the ANI for Ihe fact 1M! plaintiffs' attomt'}'S now customarily requi'St the pattern instructions without fea r of \'erdlct upheavals. EVi:ry year after the firs t publication the committee has produced a supplement to the in$\ruction$, Judge Sullivan explain~d that ''because the 1992 supplement had more pa"es than Ihe first edition. the committee produced !\ two-volume uI," Alabama Pal/em Jury fnstruclions (CIVil).

Since iu initial publiChtion, APJf has 11551sled judges and atlorneys by providing straightforward, understandable lind accurate Inst ructions which savc judges and lawy(!rs subst.lntial time and headaches In preparing for and conducting trials. ItPJI I'IM also become rellarded as an indisperuable research tool. Judge Sullivan finds lhal "nut to theA/abama Code, the Alabama Pattern Jury Instructions is the mosl useful re~.1tch tool to own. l..awyers can pick upNlJf and quickly find the tltmenlS of a cause of action.fl He adds th:Il the 1993 volumes and their annUlll supple!YIenlS nre aV<lilllble in di$k format. making Ule ~econd edition even more user-friendly Ulan the first. Substantial efforts havt' been made by

l.dt: 'fhom(u A ~tI• .n-chDirmon, AI~nId l'ulllm Ju" fr lSlrut:I/otu ())mml tlH (Civil), prnmlill(l S1iC,()()() t/wfk to Ju_ N. tMt.. /r" IJkw.dNn, . .'fiotmttnl UtHllllfmlnbltul/(Jill ~mNrkmd

Sd!ooI oIl.uut, SIImfotd /lnk'mll~

committee members in authorinA both APJ( editions. Becky Clapp, law librarian

and professor of lawai Cumberland, who has served 8S the committee's reporter since 1978, and to whom Judge SulHvan "can't give enough prnlse: explains that "the committee h35 continut'd to, met! once a month since its inception." Cumberland has always bee!\ home to the committee, and the members now mUltheu in the Friendship Room of the law library. Professor Clapp t.ays the instructiOn drafting process begins with Judge Sullivan giving draft Msignmenu to members wilhin Iheir i1reas of interest and expertise. Current committee member Judge Robert B. ]Iarwood. Jr. describes thai ntxt. "£xtensive leAill research by one or more committee members prtcedes the present.a.tion of il proposed instruction lo Ihe whole com· miltee, and the proposed instruction is then subjected to intense study and peer review by lhe committee, often involving a number or redrllfls over U\e course of several months, before receiving nnal approvnl." Surprisingly, both current lind former members overwhelmingly ngree Ihal despite there being bro;ld-based representation on the committee. everyone reml\ins unbiased and focused on the committee's goals_ Current comlnillee vice-chairman Judge Thomas A Woodall. first appointed to the commillee in 1985, obS(!rvts. "The most amazinllthing to me is how h.~ rd everyone on the committee has worked to make the charges actu· ratc." Last year's Birmingham Bar Association Presidenl and former AIlJI member Britt Coleman. who primarily

re.pr(!5ents defendanli. attests that the committee has always tried "to givc the bench and bar useful and uniform 10015 fo r instructinll the jury." Ted Thylor believes Ihat '·the attornC)s leave their plailltiff and defense badgu at the fron t door when we come Inlo Iht meeting." This iSllOllo say that the committee never engages in whal Coleman. who served on the committee for approximately a decade. describes as "lively debatefl about proposed instructions. However. an instruction is not approved unless and until there 15 a solid consensus thill it is presents a clearly correct st.1lcment of Albbama IILW. The committee aUributes much of its success in reaching such agreemcnli 10 Judge Sulliyan. Vice-chair Judge. Wood.r.ll states lhat, "The committee has benefiled gn1aUy (rom Judge Sullivan's leadership, and he deserves a lot of credit for the commillet working together as well as It has.~ The AIlJI Committee pn=sently is working on a number of draft Instructions 10 be included in tht upcoming anllual APJ/sulllllcmenl. The co,mmittee strongly encourages both the bench and bar to contact members with suggestions of new instructions and Insltuction changes which will a'iow the committee to even better HM Alabama's civil trial needs. Please send suggestions to APJI Committee Chairman William C, Sullivan. Lo\-e. I.Q\.'C & l.ovi:, P.C .• P.O. Box 517, Thlladega 35161.

Current APJI Committee Members Judge William C. Sullivan. chairman Judge Thomas A. Woodall. vice-chairman

-. ~ ~~ ~~~== ~,~----------------------------------------------

William II. Atkinson PrOfeS$or Bccky Clapp Cregory S. Cusirmno Professor Charles W. Camble Robert L. Conce Judge William It Cordon Judge Arthur J. Hanes. Jr. Judge nobert 13. Harwood, Jr. Judge C.. rlton Mayhall . Jr. Tyrone C. Mcan$ Bert S. Nettles Justice Janie L. Shores ~:. Ted Thylor Judge j, Scott Vowell I.ei l.. Hirayama WatSOIl

Former APJI Committee Members JU5lice Reneau P. Almon Professor Mable ~~ Beasley Justice James N. Bloodworth 1"1 . R. Burnham Judge Will C. Caffey, Jr. Davis Carr Andrew T. Citrin Britti n T. Coleman John T. Crowder Jurlll:c James 0, Haley

Dean Nathaniel Hansford It Benjamin Hogan. III Chief Justif;:c Sonny Hornsby Justice Richard L Jones Douglas I...lnfurd Judge I~obert E. L. Key Professor Francis E. McCovern William D. Melton Judge Josh /l1ullins Judge George /l1urphy JudJl;e Ctaud Neilson Judge l)un Patterson Profe~~()r Herbert Peterson Professor nobert I~eigtrt Judge Jilek C. Hiley Judge Edward N. Scruggs George Earl Smith Stan Starnes, Sr. Frank M. Wilson Others who have substantially contributed to the IIP}I indude Ann /lkKinney (court reporter to Judge Sutl;v(ln), Alice Bullington (secretary to Professor Clapp at Cumberland). and the many subcommittee members who h.wc <l5!Sisted UlI: committee $ince iLs cTe(ltion. as well as severnl former Cumberland law students who lWi~ted the committee in it! early years. •

Free Report Shows Lawyers How to Get More Clients C alif.- W h)' do lome ~re unpn."(iietuble . Vou mlly gel lawyers get rich .. hlle olllel"5 neW cI;ent~ Ih;s m'lllth. )'9u mRy It"'lIile to po)' thei r bill s? 001:' lie SII)'S. 'rhe ""sw~r. ucwrding 10 A referral sY't".tl. Ward anom~)'. David M. W~rd. hRI 111),5. can bt lnll III 8 sleady IIOIhl1l8 10 do I_ilh ' ulenl. slrenm of lIew diem$, monlh i:tlucR lion. hBrd wcrk. Dr ~~en "Aer mum h. yea, nnc' )'c~r, Ii'~k , " 11 reels greal 10 e"mc I" Ihe " Thc InW)'cN who make Ihe office ",'CI")' dny k""w inll Ihe bi" nl\)!I~y nrc nol n~ce5SlIril )' pliollc will ring and new bcn~r lowyc:",," he ""y5, "They bu~il1<ls' ..... 11\ be on the line." hn"" si mply ICllm~d how 10 Ward has lallahl his rcfcl'nIl mnrkellhdr ';':tviee5." sy~lem 10 ovcr 2,300 I DW)'ct~ A l u eeeuful 50le wurldwid~. nnd Il8s " 'riHen a prnclilion". who OIH:C ~l rU8ll led I1~W TCpon, " IIQ'" To Gfl I'l Rllme' elienlS, Ward credit' Morf C lofn!) In " ,\ lo nlh hi~ Ulmuround 10 a refcrml T hKn \ ' ou Nu,," {;d ,\11 m!lrkelitl8 s)"slem h~ developo:d \'ur!" which rovcal!! how Bny ~Ix ) 'CDr.i "!tU. lawyeT can U!iC Ihls '),Slclll to " I lI"ent ffom di'n~ hroke "nd lIel more clients und increase drOll"II108 hi debt 10 enml1l8 thei, ;neonl<;. $300.000 • ycar. pnactkally Aluhumu 1~W)'CIl C~!I tlCI a I'H U : e(lpy (,r Ihi$ repon by "" emillht," he 5n)'s. MU~I IIlwyeN depo:nd '.m cnilin/l 1 .800.~(j2 ."(j17. D 24. rcf~rml~, he IIOIC,. but ""I line hour i'rl:e re«ltdcd nl<;~S~ile. Or in 1 00use'R I~r~ml~J'llcm vi~i dl1 8 Ward' s web ,lie. "Wilhoul a 1)IICll. referral, h " 11:11" " "".11M~ 1(1-.'. rd.UIII1

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BOOK REVIEW

Lawyers in a New South City A History of the Legal Profession in Birmingham By Pat Boyd Rumore . Association Publishing Company, Birmi ngham, Alabama 2000 Reviewed by Robert R, Kracke n the early 19905 this reviewer and Beth Carmkhael. eKtc:utive direc路 tor of the Birmingham Sar Association. approached the leadership of the BBA with prOp()~l thai a history be written of the bar with a nrm profile section which WQuld finance lhe undertaking. There was lillie interest in Ihe project. During the administra路

tion of BM President Carol Ann Smith

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in 1991, the Executive Committee OIPprovcd the project and a History and Archi\lcs Committee was formed . The committee Wa5 chaired by Sam Humore. now presidenl-tltd of the Alabama State Bar. and I.yman Harris as co-chair. In 1998, Sam again chaired the committee lind James L. O'Ketley co-chaired it. In 1999, Harold Williams hecame the chairman and David Ward the co-chair. A thoroughly researched, well-wrillel', 130-year history of the Birmingham Bar Association, numbtring 312 pages and covering ilil aspe:cts of the association before and after it! formation, was the result of that commiuee's three-year effort The subscription fo r firm profiles and book sales, for which there was previously little interest. generated between $275,000 :lI1d $300,000, Pat Boyd Rumore, an attorney with her hu~band in the firm of Miglionlco &: numore, is primarily responsible for the high quality of authorship and prtstnlation of the story of the memhership of this bar association from its beginnings in 1885. Of course, proper credit would not be complete without II mention of the author's husband as stated In the preface to this book: " ~'i ni\lly, [want to acknowledge the contributlon of my husband, Sam I~umore . who probably is most respon~ib le for my being asked to write this book (a story too long and involved to tell here), $am is a wonderful historian in his own right. lIis lifelong avocation as a historian of Birmingham and Alabama prOVided the ruources that allowed me to include in this history more detail on more subjects than any of us could haw imagined when I first accepted the assignment. It was wooder(ul to mention a possible source to my husband and have him be able to pull it from his personal hl~tory collection in our home. It was also wonderful to be able to look to him to help me present this materilll In an orl/,lllli!td and accurate fashi on. We have collaborated many

times throughout our marriage and this book hal been one of the most enjoyable coltlloorlltions we have undertaken ,~ 'Mle labors and persistence of Harold Williams:u chairman of the Histo!,), and Archives Committee were legion. lie not only INIrticipated in the organization of the mMerial but, alol\1I with this reviewer, proof-read eve!')' draft of the book. Sam and Ilaroid and this reviC'oWr also met. along with the author, with photographic archivist of the Birmingham l>ubl:c Libra!,)" Don Vtasc:y, who in his capacity as curator 0( the photographic col路 leetioN of the Department of Archives and Manuscripts, allov.'Cd us to sift through hundreds of photographs which have hecome a significant complement to the text. For Instance, the son of the one of the pictured la\\I)'Crs. William H. Brnntley, Jr., commented to this reviewer thllt he hIId never seen the photograph of his father that IIppears in this book. Th.s is mentioned here to emphasize the resources thllt were made availllble to the committee, the author and the publisher, John Compton, who was;m integral part of the project's completion. The BBA hM certainly had some historically colorful eharac路 lers among ill membership, Luther Patrick, an lIUoroey who was also a rMlio ptrsona,1ity on Birmingham's nrsl radio station, hecame II fou r-term congressman who was truly a maverIck and a colorful lawyer. lie once composed ;mtl filed a complaint for divorce in verse which satisfied all requirements of equity pleading. This book not only features prominent past members of the Birmingham bench and bar but even CO\ll.':rs contr()vIH$ial subjects. Bull Connor and his sex scandal trial of 1952 b covered. The bar's opposition to the Ku Klux Klan in 1922 is detailed. The book contai ns a ".. .full text of lhe minutes of the meetings concerning the Klan as taken from the records of the Birmingham Ilar Association." The har was successful in requiring state and county candidates for ofnce 10 reveal any affiliation with the Klan. It was II hotly c()Ote$ted issue with a vole taken of 64 members in favor of thl! propoyl and 46 members against it. The quickie divorce scandal which was policed by the bar In the 19705 and stopped is also mentioned. Tht political schism that took place in one of Alabama's oldest and most prominent finm between Joseph ,,~ Johnston and his brother. Paul Johnston. is featured . This reviewer distinctly remembers this mlltter ap~a ring in Time magazine as an item of nlltional inlerest. Of coune, Ilugo Black. as a lawyer, a Klim memher, a senator lind II judge, apPI'!ars often in these pages. One sidebar recounulhe representation by f,1r. Black of a mur-

der defendant who was acquitted by a jury wherein the defen· dant. an irate fathtr of a d<J.ughter who married a Puerto Rican. killed a Roman Catholic print who performed the ceremony. Black ¥lIOn the cast by knowing which jurors "Ilere on the membel'$hip rolls of the Klan (a member himself), and by ~triking lhe jury to include his prejudiced members and by darkening the courtroom to make the l'tIeTto I~ica n 's skin apl)ear darker than in reality. Also mentioned, on a more pru;i. tille note, are MtOnteY5 who ha\'(! "U"ined leadership in Alabama's premier COfl)()rntions. ;IS well as promincnt memo bers of thc bench and bar. There is a scction in the book concerning female allorneys who trailblazed gender acceptance. Including "Mi»" Nina Migllonico and JU$tice Janie Shores. Also. there is proper credit lIilltn to Arthur Shores, Oscar Adams. Jr. arId Judge U.W. Clemon, with pictures and text. as black aUorneys who trailblazed racial acceptance. It abo gives recognition to those attorneys who, in years past. took an unpopular posi. tion in public affairs and are now re~red because of thei r CQllrageous action. One of these was Oscar W. Underwood, one of the fou ndcra of the Birmlnghum Bar Auociation, who probably lost his l,'nited States sen:ilorshlp becausc of his opposition to the Klan. Another was Sidney John$ton Bowie, a U.S. Conll:ressman, promoter of the 1901 Alabama Constitution and an advocate against the Klan. The firm profiles, listed alphabeticall)' in the IMler half of lhe book. tell the noT)' of not only the old established firms but the newer oneJ as well.

This reviewer hilS attempted to tell the sloT)' in this rtvitw of what appeared initially to be an impouible publishing task but which, because of the efforts of SO man), here unnamed l'lislory and Archives Committee members, became a realized accomplishment. It is the hope of the BnA that its efforts will inspi re lawyers in other, older dUes in Alabama to undertake II history of thei r bar which. because of tluir deeper roots th,.n those of Ilirminltham, could likewise l)rOOucta valuable volume of hl510rlcal permanence chronicling the achie\le· menu of attorneys and judges in their area. To say that this book 1$ a quality publication would be an understatement. It is a volume that should lind will SCTlle!lS a resource (or (ulure histodnns and a rderence o( historical accuracy. It Is /I bargain at $40 plus S8 postage and handling. and can be ordered (rom the BBA. 2021 Second Avenue, N., BirminAham 35203·3703. Phone (205) 25 1·8006. •

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Relnat.tementa • The Supreme Court of Alabama entered ,m order reinstating fo1 ontgomery attorney Hanah Leigh Stapleton to the practice of law in Ihe State of Alabama effective April 20. 2000. This order was based upon the decision of Panel I of the Disciplinary Board. • Effective February 28. 2000. aUorney David Carrell 1I00per of Montgomery has been reinstated to the practice of law in the State of Alabama. l'Ie was suspended on November 22. 1999 for noncompliance with the 1998 Mantbtory Continuing Legal Education requirements o( the Alilbilma Slate Bar. ICI.i:: No. 99·141 • Effective March 22. 2000. attorney Orrin RUluli Ford of Wilsonville was relnstilled to the practice of law in the State of Alabama. lie was sus· pended In 1995 for fallure to comply

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On December 29. 1999, the Supreme Court or Alabama adopted the Disciplinary Commission's order dis· b:lrring 1\Jscaloosa attorney John A«hie Acker. Jr, on grounds that he had been convicted of a -serious crime Acker has prl....iously pled guilty to a (elony In the U,S. Di~trict Court (or the Northem District of Alabamll. The offen se ch/lrged was conspiracy to defeat Income taxes. Acker was served with notice of the Disciplinary Commission's hearing by publication, He did not appear. IRuie 22. Pel. No. 99-021

with the 1995 Client Security Pund Assessment and the 1994 Mandatory Continuing Legal Education require. ments of the Alalxlma State Bar, Il et. 00-001: CSF' 95-02; eL.i:: 95·041

DI.b.rment. • On r.1ay 1.2000, the Alabama Supreme Courl disbarred David Lloyd Ml1Ier of Brownstown, IlI1nois in accordance wllh his consent to disbarment filed with the Disclplinary Board . Miller waslldmit· ted in the states of Alabama and Illinois. lie practiced solely in Illinois and was disbarred by consent in Illinois on January 24, 2000. Between 1995 and 1998. Miller uscd S171 ,600 of the funds o( an e$llltt which he was representing for his own personal or business puYl)()ses. Millcr optcd to consent to disbar· ment in Al<lbama rillher than go through thc reciprocal discipline p roce!S.I I~ule 25(a): Pel. 99·031

Suapen.lon. • Mobile attorney Ruthl nn Mott MtCrory .....as interimly suspended by Order Or the Disciplinary Commission of the Alabama StMe Bar effctti\li! May 15, 2000, fo1 tCrory was suspended pursuant to Itule 20(a), Alabama Rule5 of Disciplinilry Procedure. The Office of Ceneral Counsel filed II pelltlon pursuant to

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Rule 20(a) bMed upon 5WQTn affidavits (rom clients that the respondent attorney had abandoned their cases, failed to communicate with them regarding their cases and (lliled to account for unearned retainer fees lind trust fu ntk. The Disciplinary Commission (urther ordered that McCrory be reSlricted (rom maintaini"!l a trust account.IRule 20(a); llet. OO-OS J • Birmingham attorney Jerome Thc~r received n 4S-d:W suspension from the Dlsdplin.lry Iloard of the Alabmna State Bar on ~'tbruary 23, 2000. U()Y.'t\I(:r, Ole Di~iplin.lry Boord stayed the 45.day suspension and placed Thcker on prorotion (or a period of two years. Thckcr ....'M IIllpoinled 10 represent an indigent criminal defendnnt on appeal to the Alabama Court of Criminal Appeals, but failed to file a brief nner having been ootilied by Ole court that his brief w;u overdue and after having betn granted an extension of lime in which to liIe the brief. The board found Thcker's conduCl to Nwe violated Rule I.l of the Atnb.1ma Ilules of Professional Conduct which provides that an attorney shall oot willfully neglect II legal matter and nule 8.4{g), AR.P.C., which prohibits conduct that renecb adversely on an attorney's fitJ'l~ to practice law. During the probationary period, 1\u;ker is to pmclice Illw under the supervision and tutelnge of a mmtor attorney ;md must p..1rticipatt in tm Law Office Management AMistance Program. IASB No. 98.2451 • On ~'eb ruary 21, 2000, the Disciplinary Board accepted a cOI\ditiol'llli guilty pit.. from Scottsboro attorney Dennis C, Nicholl , The guilty plea resolved three cases in which clienu h:ld complained about neglect of their legal matters and lack o( communiclI\ion by Nichols. In one instance he (alled to timely respond to Ihe bar investigation. Nichol$ received 11 91 -day susl)cn$ion which is being held in abcYllnce pending his succt$s(ul completion of one year's probation. The Rules o( I'rofessionai Conduclimplicated were Rules 1.3, 1.4(a) and 8,I{b), Nichols was admitted in 1989 and

of the Rules o( Pro(ession.11 Conducl IAS8 No. 97-270(A)1

had no prior diStiptine.IAS8 Nos. 99·39(A), 99-136(A) & 99· 174(AI • "1obile attorney Clarence Chrl,lophn Clanlon was interimly suspended from the praclice of taw in the State of Alabama pursuant to Rule 20(a), Alabama Rules of Disciplinary Procedure, by order o( the Disciplinary Commission of the Alab.1rT111 State Bar dated ,.1arch 17,2000. The I)lsciplinary Commission suspended Clanton on the basis o( Information provided by the Grievance Committee o( the Mobile Bar A.ssociation to the effect that on f.1arch 14,2000, Clanton WM arrested (or the po.ssw;ion o( crack cocaine, drug paraphernalia and other Illegal suMtances. The Disciplinary Comm:ssion dctennined that Clanton's conduct 15 causinll or is likely to cause Immediate mld serious injury to his present client! and to the publlc. IRule 20(a): !'el 00-04J Public Aeprlm.nd. • IJirmlngham attomey Jerome Tucker received a public reprimand without general publication for willfully neglecting a legal matter entrusted to him, He represented II clienl who alleged that he was wrongfully terminated. Because of poor communication with the trial court and the fail · urt to me certain Ofdered exhibits, the clienl's case was dismissed twice on defend/lilt's motion (or sllmnmry judgment. The court of clvilllPpeafs rcmanded after the lirst dismissal but affirmed on the second octa$ion because of Thcker'. failure to file an appropriate post-trill motion. l-li5 conduct was in violation of Ilule 1.3

• Springfield, Mis.souri attorney Nlcholu Nagrlch (also admitted in Alabama) received a public reprimand without general publication. 1·le was suspended indefinitely by the Unittd States District Court for the Northern Dist rict of Alabama (or conduct amounting to willful con· tempt of the District Court's orders, Nagrich had been rep re~enting a plainliff In a racial dlscriminntion case before that court. He movcd from Alabama to Missouri and effectively stopped representing his clitrlt without obtaining a withdrav.'al order from the U. S. District Court, He failed to comply with di!closure deadlines and did not attend the scheduled pre.trial confuence. The court reported the matttr to Ihe bar. His conduct constituted a violntion of niles 1.3 (willfu l neglect!.1Ild 1.4(a) «(ailure to communicate). No prior discipline was involved or considered. lAS!) No, 99· 135(A)J • Birmingham attorney WIlHam Edward Ramsay received a public reprimand without general publication (or neglecting thrtt client malters and (or (ailing to communicate with the clien15 during the lauer p.."\rt of 1991 , Ramsey accepted fees in fraud, divorce and bankruptcy cases, He failed to do any significant work In the matters. On February I. 1992, he petltloned for disability Inactive status and WM transferred to that category by the Disciplin."\ry Commission, He did not nOlify his

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clients about this circumstance prior to abandoning his practice. His con· duct was found to be in violation of rules 1.3 arId 1.4(a) of the Ilules of Profenional Conduct. Cllerl t ~ wcre reimbursed fces by the Client Security ~'ul1d. Hamsay has made restitution to the fund. lASH Nos. 92· 082(A), 92- 1<l6(A) &. 92-218(A)1 • 01'1 March 17. 2000. Mobile attorney John Mark Greer received a publ ic reprimand with generlll publication for n violation of rules 1.3, 1.4(a) arId 5.3(b) of the Rules of Professional Conduct. Gr€er was retained in Novem~r 1997 to represent a client and her husband In an uncontested divorce. ru of January 1998, all necessary documents had ~en prepared, and the fee of $350 had been paid. In March 1998, the client made ~evcral calls to Greer's office in an effort to learn aboll! the status of the divorce. Creer never returned any calls and his office staff was unable to answer any questions. After calling the circuit court in March. the client learned Ulal the case had not been filed. Greer stated that his 5taff did not notify him thnl the case was ready for fil ing in January. The cast was finally m ~d on "1arch 27. 1998. After March 271h. the client called often to check on the status. and ....·as told that they wcrc awaiting a ruling from the court. In fa ct. the pleadings submitted in March had ~e n returned due to errors. This was not rectified untiiJuly 17, 1998. The divorce was finally granted on August 6. 1998.I Pri(lf discipline COnsisted of Public Reprimand with Ceneral Publiclllion (7117/94) and a Private ncprirnand (1218197).1 • Mobile attorney Mayer William Perloff received a public reprim3nd with general publication for violating rules 4.1 , 4.3 and 8.4(d) of the Alabama Rules of Professional Conduct. Perlof( represented a client In her claim to life Insurance pro· ceeds. Pertoff cngagcd in settlement negotiations with the Insurance company on behalf of the client and also on behalf of the mother of lhe deceased. Perloff represented to the mother of Ihe deceased that he WM a ~JO

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disinterested party when in filct he represented the rival ctaimant to the insurance proceeds. Furthermore. Perlorf represented to the insurance company that he was acting on the behalf of both. Perlof( al50 made (alse or unfoundcd representations to the mother of the deceMed rcgarding the amount of the Insurance proceeds she was entitled to receive. IASB No. 96·276('11 • Birmingham attorncy Edwin Ogden Itollull received a public reprimand without generlll Jlublication for violating Rule 8.4(g). Alabama Rules of Profusional Conducl During depositions. Rogers gol into a dispute wilh opposing counsel concerning Kheduling problems rclatcd to thc deposition. Upon terminlllion of the dCI}()sitions. statements were made by each attorney fo r the record. After thue statements were concluded, as Rogers was leaving the conference room. he "erupted into a very violent state" and phySically attacked opposing counsel. shouting. curSing and threatening him as he fell to the noor. Non-lawyer witncsses present for the deposition had to intervene to stop RogtrS'$ attack. Opposing counstl received physical injuries that required medical attention as a telull of the attilck.IASIl No. 97248(AII • Abbeville Mtornc~' Chrl. tollher Paul Turner WILS disciplined by the Disciplinary Board of the Alabama State Bar by order entered October 21. 1999. As pari of the discipline imposed. Thrner received a public reprimand with gtncraillublication pursuant to his plea of guilty to soliciting professional employment from prospective clients. a violation of Rule 7.3, Alabama Rules o( Professional Conducl Thrner con· tacted individuals with whom he had no prior professional or familiill rela· tionship for the purpose of soliciting them iI.$ cHents. Although 1\lrner also had a legitim~IC reason to contact these individuals. because he did nol strictly comply with the Alabama Rules of I'rofessional Conduct. he Wils dlKiplined for his actions. lASS Nos. 98-105 and 98-1381 •

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