Page 1


P ST TRA MAiflC DISABILITY STA ES: PSYCHIATRIC NO

~~~PSYCHOLOG ~t~~~ CONTRIBUTI

-Max Alden Baker, M.D.

42/Arkansas Lawyer/April 1976

S


INTRODUCTION Most cases of on-tha-job industrial injuries are transient phenomena with rapid recovery and return to the premorbid functional states. A minority of cases takes a much different course with progressive deterioration into a totally non-functional pathological state despite on-going, and often intensive, medical care. When this refractory course ensues, such injuries are associated with major personal suffering and income loss for the injured person and his family. These, injuries cause major costs to management in terms of diminished productivity, personnel turnover, and medical and legal care. The purpose of this paper is to explore the role of the patient's emotional makeup and psychiatric status in the causation or complication 01 these pathological post-traumatic disability

states. CLASSIFICATION OF PATIENTS The current official psychiatric nomenclature does not provide a precise method of classification of patients with post-traumatic disabilities. In our opinion, such patients may be divided into four major groups: GROUP I: Those who have a demonstrable organic structural lesion (e.g., the presence of a herniated disc on myelography associated with evidence of nerve involvement on physical examination and/or electromyography) and In whom there is no evidence of psychiatric disease or "functional overlay" (a term reflecting the examining physician's opinion that the patient's reaction to the injury or defect Is inappropriate or excessive.) GROUP II: Those who have a demonstrable organic lesion but who also have evidence of psychiatric illness or psychological factors which may be contributing to or complicating the condition (e.g., a coexisting severe depression, alcohol or drug abuse, psychosis, or pre-existing personality disorder). GROUP III: Those who are without a demonstrable organic structural defect and whose pathological deficit is caused by underlying uncoMClous psychological factors ("conversion reactions"). The deficit could be either a physical symptom or pain. GROUP IV: Those who are without a demonstrable organic structural defect and whose pathological deficit is caused by cORaclouI psychological factors ("overt malingering"). The deficit could be either a physical symptom or pain.

It is of practical importance that although Groups I and II represent clinically distinct categories, Groups III and IV may overlap in clinical practice ILe., may primarily be conversion reactions (Group III) but also have some component of conscious desire for compensation (Group IV).1

FACTORS INCREASING THE RISK OF PSYCHIATRIC COMPLICATIONS In our experience, psychiatric complications most commonly occur in situations in which the patient is angered or threatened by problems in obtaining Workman's Compensation benefits or by difficulties in patientemployer, Client-attorney, or patientphysician relationships. The central theme of these complications is usually one of distrust and fear that they are not being treated fairly or with respect. For example, the patient may suspect that the physician, since he is paid by the insurance carrier, will produce an opinion favorable to the company's interests so that the company will send him other patients in the future. Frecuently, these patients distrust their attorney, feeling that he is disinterested in their case or that his expected share of the award Is excessive. Another recurrent theme Is that the particular company has a bad record with co-workers who were previously Injured in that the employee was treated unfairly. Claims that thp particular company fires persons as soon as they return to work, doesn't try to work with the doctor's instructions regarding specific work limitations, allows supervisors to take advantage of employees, etc., are recurrent verbalizations expressed by these patients.

GROUP II PATIENTS: THE ROLE OF PSYCHIATRIC ILLNESS AS A COMPLICATING FACTOR II it is assumed that the incidence of psychiatric illness in a population of workers is similar to that present in the general population, between 20-30% of workers, including those who have onthe-job injuries, will have a major psychiatric illness sometime in their lifetime (Lemkau and Crocetli, 1967). if the employee has a psychiatric disturbance in progress at the time he sustains the injury, the psychiatric illness may significantly interfere with the patient's reaction to his injury, his recovery, and his response to conventional therapeutic measures, These complicating illnesses must be identified and treated in order to obtain maximal rehabilitation.

• Case example: B. Y., a 48 year old, white, female school nurse, had a history of psychiatric illness dating back to her college days when she had a severe nervous breakdown requiring her to drop out of nursing school for a year. She sought psychiatric care and fully recovered, finished school, and was married. Following the birth of her second child at age 30, she had another period of psychiatric illness characterized by elation, grandiosity, inappropriate behavior, and paranoid delusions. She was hospitalized and treated with chemotherapy, again with full recovery. She was discharged from psychiatric care after a year of outpatient therapy. She was without any further trouble until starting menopause, when she became mildly depressed, was very irritable, had trouble sleeping, lost her sex drive, and reduced her social life. The family attributed her moodiness to the change of life and attempted to be supportive. She was able to continue working, which was necessary to help support her son's college expenses. The injury occurred while she was attempting to calm a frightened child who had become agitated after a playground accident. The child grabbed hoid of her arm causing a separation of her shoulder girdle. There was soft tissue injury but no evidence of a fracture. She was treated conservatively by an orthopaedic surgeon. Despite his expectations that her recovery would be uncomplicated, she had persisting pain and limitation of movement of her shoulder. These disabilities persisted despite intensified treatment with intra-articular corticosteroid, physiotherapy, muscle relaxants, and reassurance. She grew increasi n9 ly depressed and pessimistic about her chances of ever recovering. Her attending physician recommended psychiatric care after screening psychological testing (with a Minnesota Multiphasic Personality Inventory) demonstrated the presence of significant emotional adjustment diffiCUlty characterized by depression with irritability. suspiciousness, and mUltiple somatic complaints. The patient refused to see a psychiatrist, stating that she "had plenty of reason to be depressed because of her injUry". Her family initially supported her resistance to treatment; however, as her continued on page 44 • Case histories presented In this paper are composite summaries with minor changes and combinations to prevent patient identification. MMPI profiles in AppendiX I. April 1976/Arkansas Lawyer/43


POlt Traumatic, continued from page 43 mental condition steadily worsened. they finally urged her to see a psychiatrist. The diagnosis of depressed phase of manicdepressive disease was made by the psychiatrist. Psychological testing performed earlier was compatible with this diagnosis. The patient was treated with antidepressant medication and supportive psychotherapy with progressive improvement over the next several weeks. Concurrent with her lessened depression, her physical condition gradually improved, and she returned to work. The above case is an example from Group II. Additional examples of patients in this classification include patients with neuroses, psychoses, addictions, and certain personality and character disorders.

GROUP III PATIENTS: THE ROLE Of UNCONSCIOUS CONVERSION REACTIONS AS ETlOL091C FACTORS Guze (1975), a leading authority on conversion symptoms, defines them as unexplained symptoms suggestive of neurologic disease. This definition is purely descriptive and carries no etiologic or pathogenetic implications. Guze feels that pain symptoms, such as backache, should be excluded. The literature on post-traumatic psychiatric disability states also uses psychoanolytic theory (Yochelson, 1966). Allhough it must be kept in mind that the psychoanalytic framework is only theoretical and not factual, Its components do offer mechanisms for evaluating, understanding, and treating these conditions. In psychoanaiytic theory, the process of conversion is felt to be an unconecioul defense mechanism in which physical symptoms are experienced when persons with a vulnerable personality makeup are confronted with 44/Arkansas Lawyer/April 1976

stressful anxieties. These symptoms were originally considered to be defenses against wishes which were psychoiogically threatening or unacceptable to the individual (Engel, 1970). The symptom itself may serve to resolve an underlying psychological contiict. To the degree that this succeeds. the patient's anxiety will in turn be reduced. This reduced anxiety level, an intrapsychic process, is called "primary gain". In addition to reducing anxiety, conversion symptoms may also have a "secondary gain" (e.g., weakness of the leg may prevent the patient from having to go to work and face a supervisor who has been putting pressure on him). As the process of secondary gain is also an unconscious mechanism, the reaction of the patient will usually show no awareness that such could be the case. In fact, they usually complain bitterly about their symptoms (the "disability"). Nonetheless, these symptoms serve unconscious needs and remove the patient from situations which are potentially threatening or conflictual. It is of note that in the industrially-injured patient, the secondary gain may be financial reward. The injured patient, particularly if basically insecure and self-concerned, is immediately stressed with anxiety through the fear of prolonged disability and the gloomy prospect of unemployment (particularly if the patient is poorly educated and must depend upon his physical strength and intactness to earn a living). The persistence of the symptom diminishes both the need to face these possibilities and justifies the need to receive compensation. The patient's unconecioul need for and dependence upon the symptom may be accentuated by the reaction of others. In an attempt to nurse the wage-earner back to heaith, the family may cater to the patient's needs more attentively than they have ever done when he was well. This attention unconsciously serves to reinforce symptoms as psychological dependency needs are being met. The family may also have an unconscious need to have the patient dependent upon them. Such conditions perpetuate a vicious cycle of increasing dependency upon the existence and perpetuation of the sym ptom. The professionals involved in the patient's care may also unconsciously contribute to the perpetuation of the symptom. The current system of reimbursement for medical care by the Workman's Compensation insurance carrier often necessitates that the patient "remain sick enough to obtain care". It is possible that unconscious mechanisms on the part of the physician could operate to justify the need for recommending further care. Likewise.

the attorney may reap financial benefits only if their client is sick enough to receive a disability award. This may un路 conecloualy lead to promoting negative aspects of the case. The insurance adjuster or employer may also negatively complicate the recovery by suggesting that the patient Is not disabled. Such accusations lead to increased resentment, tension, and suspiciousness; emotional states which serve only to perpetuate and intensify the unconeclou., anxietydriven defense mechanisms with increased symRtom formation and disability. In general, a conversion phenomenon has the following characteristics (DeJong, 1965): 1. There is absence of objective evidence (physical examination, X-ray findings, diagnostic tests, etc.) to substantiate the patient's subjective symptoms. 2. Presence of personality features of psychiatric illnesses which predisposes to the development of conversion symptoms. 3. Evidence that the patient's complaints had begun in association with stressful conditions. Conversion symptoms are most likely to occur In patients with conversion neurosis (hysteria) and antisocial personality; however, they may occur in a variety of other psychiatric conditions, (Guze, Woodruff, Clayton, 1971).

Case Example: A.A., a 28 year old black female, mother of six children, was admitted to the hospital after developing loss of vision after having accidental exposure to an aerosol spray used as a plastic sealant. When the nozzle on the container became frozen in the open position, she panicked, hyperventilated, and fainted. She was revived by the plant nurse but claimed that she was unable to see. Examination by an opthalmologist and neurologist failed to identify evidence of organic pathology. Her sight gradually improved but never subjectively returned to its premorbid level. The patient had a past history of chronic, complicated medical complaints involving virtually every organ system. Prominent among these complaints had been gynecologic problems, headaches, "blackout spells", and gastro-intestinal difficulties. She had had repeated brief hospitalizations to evaluate her complaints, but no organic pathology had ever been Identified. She had had a longstanding stormy marriage and her


relationship with her in-laws was often openly hostile. The patient had a less than adequate war!< history. She often was laid off because of absenteesim. She complained frequently of her poor health; griped because her husband, a patrolman, did not make enough money to support their large family; and, continually felt unable to keep up with her household chores when she did war!<. Shortly before her accident, A.A.'s thirteen year old son was arrested for stealing a bicycle. His defense led to a burden on their already strained finances as well as created an emotional strain. The trial situation was sufficiently stressful that, although her son was eventually found not guilty, she developed intense vomiting spells and had to be admitted to the hospital for two days. She recovered and reluctantly decided to return to war!< after the trial was over to help out with finances. The injury occurred several weeks later. After no organic cause for her decreased vision was found, she was given a Minnesota Multiphasic Per路 sonality Inventory which showed evidence for moderate emotional ad路 justment difficu Ity characterized by reliance on repression and denial as major psychological defenses along with mUltiple somatic complaints com路 patible with a conversion/psychophysiologic reaction. Psychiatric consultation was then obtained. A diagnosis of conversion neurosis with hysterical blindness was made. The patient was seen in regular psychotherapy with elucidation of stressful life factors. Increasing evidences of family conflicts were identified and dealt with in therapy with resultant improvement in her visual abilities. She was subsequently able to resume employmenl As soon as their financial problems were reduced 10 tolerable levels, she and her husband made a joint decision that she could quit working. They continued to be seen in infrequent outpatient counselling sessions to deal with interpersonal conflicts. She continues to have numerous somatic complaints from time to time, but has had no further evidence of visual problems.

GROUP IV PATIENTS: THE ROLE OF CONSCIOUS MALINGERING It is crucial to distinguish malingering, which is the willful, purposeful, and deliberate effort to simulate disease or injury, from the uncounscious process of conversion (Ber!<ow, 1964), Although the incidence of this action is unknown, it is thought to occur much less frequently

than conversion phenomena (Berkow. 1970). There is no special routine for the physical, neurologic or mental examination which can definitely diagnose malingering. It is essential that regular complete evaluations be carried out in careful fashion (Keschner, 1949). If organic illness is excluded and the symptom is felt to be functional, then the decision must be made as to whether or not the symptom is caused by uncounlCloua processes (conversion) or is conocloully feigned (malingering).

C... ...mple: B.V., a 27 year old, white, male furniture worker was injured when a stack of partially milled desk top panels slid off a dolly and allegedly knocked him to the floor, He told his supervisor about the incident and was sent to the company nurse. He complained of severe back pain radiating down the right leg. He was referred to the emergency room where he was examined by the company physician who took X-rays and referred him to the orthopaedic surgeon on call. The patient was complaining of intense pain. He was uncooperative with examination procedures, alleging that any movement intensified the pain. X-rays were normal. It was initially recommended to the patient that he go home; however, his family emphatically and hostilely stated that they felt that he was hurting too much to be released. In response to the turmoil, the patient was admitted for observation and additional studies. He was managed conservatively with traction, analgesics, muscle relaxants, and physiotherapy. The patient was a difficult nursing care problem, complaining abou't the level of care, slowness of responding to requests for service, and repeatedly demanded pain medication. Similar demands were made to the doctor, with persisting requests that further tests be made to "find out exactly what is wrong", Although this was not done during the first hospitalization, the complaints persisted and the patient was readmitted and an exhaustive evaluation was carried out with negative organic findings, A Minnesota Multiphasic Personality Inventory suggested attempts to present multiple somatic complaints along with a tendency toward antisocial behavior. The psychiatrist was called in for consultation, The patient reacted quite negatively stating: "I don't need you. It's the doctor who's crazy!" The climate of the referral situation was such that the likelihood of any positive therapeutic interaction was minimal.

Psychiatric interview revealed an early history of moderate antisocial behaviors. No current psychodynamic issues were identified. A sodium amobarbital diagnostic interview was recommended for additional history gathering, This was refused by the patient. The diagnosis of overt malingering was suspected. Further suspicion of the patient's motives was raised after another patient, who had shared a hospital room with the patient earlier, told the doctor that the patient had spoken with him and other patients inquiring if they had had successful Wor!<man's Compensation awards and about what symptoms they had had. On retrospect, one of the men in the fourbed unit during the patient's hospitalization had had a subdural hematoma develop after an on-the-jOb head injury and had had disabling neurological sequelae occur. Despite there having been no history of head injury in the patient. he had subsequently began to complain of headaches, dizziness. and memory loss. Neurodiagnostic studies had been perlormed because of these persisting complaints and were all normal. At this point, additional psychological testing was perlormed, Psychological evaluation demonstrated average intellectual func路 tioning with no discrepancy between verbal and non-verbal skills nor evidence for language disturbance or visual perceptual deficit. Along with significantly slowed but bilaterally symmetrical. gross, and fine motor coordination skills, no evidence for cerebral dysfunction was found. Unfortunately, the diagnosis of malingering could not be proven, but a case for this was made before the Workman's Compensation Commission by the carrier's attorney. A rather minimal award was granted.

It must be stated that there is no definite way to make a diagnosis of mafingering with certainty unless the patient admits to this behavior. The case for malingering is, 81 best, based on circumstantial evidence represented by inconsistencies in the patient's illness. Malingering should not be suspected as a primary diagnosis in a patient who either has evidence of organic disease or who meets the criteria for the diagnosis of a conversion symptom. However, in patients who have an unexplained symptom but who do not have the other criteria noted above, malingering could be considered. It should be kept in mind in so doing that (1) malingering is considered to occur

continued on page 46 April 1976/Ar!<ansas Lawyer/45


studied, The Minnesota MUltiphasic Personality Inventory (MMPi) is a paper and pencil true-false questionnaire that requires approximately one to two hours to complete. Once test responses are

obtained from the patient, four validity

history (Bernstein, 1966), In this in-

scales, ten clinical scales, and a number of special scales appropriate to the clinical situation presented are derived. The ten clinical scales include

stance, a patient presented with sever incapacitating depression. His past history included surgical intervention for a lumbar spine injury suffered years earlier while he was employed as a truck driver. Four months prior to presentation for

Hypochondriasis (Hs), Depression (D), Hysteria (Hy), Psychopathic Deviate (Pd), Masculinity-Feminity (Mf), Paranoia (Pa), Psychasthenia (PI), Schizophrenia (Sc), Hypomania (Ma), and Social Introversion (Si), The profile pattern of Poat Traumatic,

continued from page 45 very Infrequently and (2) that patients with unexplained symptoms very frequently have an as yet undiagnosed medical condition, the nature of which

will become clear in time (Gatfield and Guze, 1962), Although cenaln physical diagnostic

tests have been suggested to identify malingers (Seaman and Reder, 1963; Berkow, 1970), there is no data to prove their effectiveness and these should not be relied upon, In the final analysis, malingering can only be suspected and not proven unless the patient admits to his conscious behavior.

PSYCHOLOGICAL TESTING AS AN AID IN THE EVALUATION OF THE POST路TRAUMATIC SYNDROME Until recently, little objective evidence concerning the psychological status of

these patients has been reported, In the past ten years, however, a number of

research

studies

have

demonstrated

positive findings that allow professionals to derive a psychological profile for the patients who have the potential to prolong their recovery after a physical injury. Three methods 01 investigation

have been used in these studies: (1) studies of patient groups with and without objective physical evidences of

disability have been compared; (2) comparisions have been made between groups of patients with acute (six months or less duration) injuries versus chronic (greater than six months duration) injuries; (3) evaluation of surgical candidates with psychological tests prior to surgery has been done with the comparison of psychological test profiles ot good as opposed to poor surgical outcomes.

A variety of psychological tests have been used in these studies. These tests have in common the ability to attach discrete numerical values to personality and ability characteristics. Most

frequently, the Minnesota Muitiphasic Personality Inventory (MMPI) has been

46/Arkansas Lawyer/April 1976

classic example of the use of psychological tests to assist in iden~ tifying underlying psychongenic factors complicating the course of recovery from injury was reported in a case

treatment, the patient sustained a minor

responses on these scales is used to

aggravation of his old injury in a second accident. The patient subsequently missed several work days. Finally, in order to accomodate the employee, the

provide a personality description of the

company transferred him to a desk job

patient.

that required major increases in respon-

Research using the Minnesota Multiphasic Personality Inventory

sibility, Psychological testing revealed

(MMPI)

on

patients

with

post-

traumatic/psychosomatic injury syn~ dromes consistently has shown clinically significant elevations on three

MMPI scales: HYPochondriasis' (Hsl, Depression (0), and Hysteria (Hs) (Phillips, 1964; Timmermans and Sternbach 1974; K<l8fl, Wing, and Thompson, 1974; and Wiltse, 1975), More importantly, one study (Wiltse and Rocchio, 1975) has shown that this finding held up regardless of the number of pre-existing objective deficits found on pre-operative medical examinations. In

that study, the combined scores on Hypochondriasis (Hy) and Hysteria (Hs) scales provided the most effective single predictor of the symptomatic response to medical or surgical treatment. The probability of a positive response to treatment decreases as combined scale elevations rise. Therefore, the Minnesota

Multiphasic Personality Inventory is a valuable laboratory adjunct to the physician's

opinion

pre-operative

regarding

the

clinical

psychological

components of the patient's symptoms.

The

Minnesota Multiphasic

Per-

sonality Inventory does have inherent limitations, however, that restrict its functional utility. The patient must have fifth grade or above reading proficiency. and dull normal or above intellectual functioning. It has select clinical weaknesses as well. For example. it cannot say if psychiatric components are solely responsible for presenting

that, in addition to a basic obsessivecompulsive personality structure, the patient scored in the borderline mentally retarded range on tests of psychometric intelligence. The testing also demonstrated the severe depression. The patient was treated with electroshock therapy for his depression and subsequently was returned to work with the recommendation that he be returned to his former position as a driver. At followup, the patient was working effectively with no recurrence of symptoms.

Malingering presents a particular difficulty on psychological, as well as pSYChiatric, evaluation. As mentioned above, the diagnosis of this condition

depends highly on "good detective work" (Berkow, 1970), Inconsistencies in psychological test performance that go beyond the bounds of explainable physical deficits are thought to be helpful in this regard. Personality characteristics and validity scale profiles are

clinically

also

feit

to

be

of

some

assistance in providing clues that point to a diagnosis of malingering. As the malingering patient often exhibits other antisocial traits, we feel that the patient who is malingering with physical com-

plaints will probably have an abnormal elevation on the Psychopathic Deviate

(Pd) scale of the Minnesota Multiphasic Personality Inventory along with a clear

attempt to fake psychoiogical well-being (elevated K and L scales), Unfortunately, no published studies support these contentions.

physical complaints. The test cannot precisely identify specific psychogenic factors that may be responsible for or

have adapted the use of the HaistedReitan Neuropsychological test battery

complicate a particular case. To answer these questions, more detailed personality evaluation with traditional individual psychological tests is required路. Traditional psychological evaluation includes assessment of psychometric intelligence, projective personality tests and on occasion the use of tests sensitive to cerebral dysfunction. The

for purposes of the evaluation of patients who were suspected of exhibiting malingering behavior. This battery appears to have potential use in this area by virtue of the fact that during a six to eight hour examination, approximately one hundred and twenty different measures of cognitive. intellectual. motor, and sensory function

We also, in a few clinical instances,


are obtained in addition to the Standard Minnesota Multiphasic Personality Inventory. This test battery therefore gives a wide variety of test situations which are complex and the purpose of which cannot be identified by even sophisticated patients, and, as such should maximize the pattern of test inconsistencies. Furthermore, various subtests that superficially appear to be completely distinct sample similar skills. This enhances the pattern of disparate results expected in a malingering patient. A clinical example of the potential, but limited, usefulness of this battery in detecting malingering follows:

"CaM example: D.O., a 29 year old female, was referred for complete neuropsychological evaluation after sustaining an on-the-job head injury that involved a brief period of un~ consciousness. She had been evaluated previously with complete neurodiagnostic procedures inclUding skull X-rays, brain scan, elec~ troencephalogram (EEG), and cerebral arteriograms as she had developed periods of confusion, weakness of the arms and hands, and bizarre epileptiform seizures a few days subsequent to the injury. Psychometric intelligence testing placed her in the dull normal range of intellectual functioning. There was no evidence of cerebral dysfunction on tests in the Halsted-Reitan battery, but a confusing, inconsistent pattern of motor test performance was obtained. In addition, the Minnesota Multiphasic Personality Inventory showed a predisposition to somatic complaints (elevated Hy scale) and an antisocial personality orientation (elevated Pd scale). The differential diagnosis was between malingering or a conversion reaction. Based on the abnormal, inconsistent psychological test results, it was decided to try to evoke

malingering behavior. The next day, the patient was scheduled for a repeat electroencephalogram. Prior to the exam, the patient was deliberately allowed to overhear the chief neurology resident inform a young medical student that the patient's "seizures" could be triggered by sudden sharp noise. As the electroencephalogram was being performed, the resident purposely dropped a large book to the floor. Immediately, the patient went into seizure-like activity with no correlated electroencephalographic changes. The patient was confronted with her behavior, the seizures subsequently ceased, and compensation claims were dropped.

In summary, the use of psychological testing as an integral part of the total wOrk-up of the patient with a posttraumatic disability syndrome includes five basic functions: (1) screening identification of emotional adjustment difficulty and the potential for the development of non-organically based physical symptoms; (2) evaluation of the level of intellectual function and potential; (3) evaluation of potential psychodynamic issues that may be contributing to or producing symptoms; (4) documentation of behavioral deficits that have been shown consistently to be associated with neurological deficit; and, (5) in clinically indicated instances, to provide a comprehensive series of behavioral observations to document inconsistent performances which would be compatible with, but not diagnostic of, overtly feigned symptoms.

OVERALL EVALUATION PROCEDURE The Ideal psychiatric and psychological evaluation of a patient with posttraumatic disability states should include:

A.Psychlatrlc diagnostic Interview: Careful attention should be paid to evaluating (1) the premorbid psychiatric status; (2) reaction to stressful past events; (3) details of and reaction to accidental injury; (4) elucidation of stresses and conflicts in life before, at the time of, and after the accident; (5) attitudes towards professionals and employer; and (6) psychiatric status since the accident with careful attention being paid to exclude the overuse of pain medications or alcohol. B.Soclal hillory: This evaluation should include (1) the family members' reactions to the injury; (2) patterns of interaction between patient and his family before and after the injury; (3) family members' estimates of his level of disability and symptoms; (4) recording of the level of function around the home since off work; (5) family members' history of the patient's medication usage; and, (6) past occupational history. C. Poychologlcaltestlng: This examination should include (1) detailed evaluation of psychometric intellectual function with individually administered intelligence tests; (2) evaluation of the personality structure of the patient with both objective and projective tests; (3) meticulous attempts to uncover underlying psychodynamic reasons for presenting symptoms as reflected in test responses; and, (4) in patients with suspected cerebral damage. detailed evaluation of not only intelligence, but also cognitive problemsolving skills, language function. and motor and sensory performance levels must be included. A list of tests which would provide this complete evaluation would include the Wechsler Adult Intelligence Scale; Bender-Gestalt Test; Minnesota Multiphasic Percontinued on page 50 '" *

This case was seen while one of the authors (REH) was In a postdoctoral fellowship training program.

Dr. Max Alden Bakar, M.D., was Resident In Psychiatry, Barnes Hospltel and Washington School of Medicine, St. LDuls during 1957-70. He Is licensed In MissourI, Maryland and Arkansas. In 1972, he recalvad his Diplomate In PsychIatry from the Amarlcan Board of Psychiatry and Nauro/ogy. Since 1974, he has served as the Chief, Psychiatric Section, St. Edward Marcy Hospital, Fort SmIth. Ha has numerous publication credits, and Is a membar of many professional organizatIons. Cooperating with Dr. Baker In the article were Doctor Joe H. Dorzab, Doctor Donald S. Chambers and Doctor Ronald E. Hulsman - all associates at the Fort Smith Psychlatar/c Clinic.

April 1976/Arkansas Lawyer/47


APPENDIX ?

l

F

H.

120

o

Hy

Pd

Mf

PATIENT B.Y.:

110

Pa

PT

Sc

Ma

5i

120

GROUP II

110

Depression/Anxiety Profile

100

100

90

90

80

80

70

70

60

60

so

so

AD

AD

30

30

20

20

10

10

?

F

H•

o

HV

Pd

Mf

P.

PT

Sc

5i

120

120

PATIENT A.A.: 110

Ma

GROUP III

Conversion/Physiologic Profile

110

100

100

90

90

80

80

70

70

60

60

so

so

AD

AD

30

30

20

20

10

10

Fig. 2 48/Arkansas Lawyer/April 1976


?

F

K

H.

o

Hy

Pd

P.

Mf

PT

Sc

M.

s;

120

120

PATIENT B.V.:

GROUP IV 110

Malingering Profile

110 100

100

90

90

80

80

10

70

60

60

50

50

'0

'0

30

30

20

20

10

10

?

l

F

K

H.

o

Hy

Pd

Mf

P.

PT

Sc

120

s;

120

PATIENT D.O.: 110

Ma

GROUP IV

Malingering Profile

110

100

100

90

90

80

80

70

70

60

60

50

50

.0

.0

30

30

20

20

10

10

April 1976/Ar1<ansas Lawyer/49


POlt Traumatic,

BIBLIOGRAPHY

continued from paga 47 sonalily Inventory; Rorschach Test; Thematic Apperception Test; and, where indicated for cerebral dysfunction or malingering, the Halsted-Reitan Neuropsychological Test Battery.

THERAPEUTIC EFFICIENCY OF PSYCHIATRIC AND PSYCHOLOGICAL INTERVENTION This paper outlines a practical a!' proach to the evaluation and treatment of post-traumatic disability states and presents composite case histories which illustrate the positive effects of psychiatric and psychological intervention. Unfortunately, all too often the evaluation procedure does not lead to such good clinical resulls but only adds to the overall costs of these conditions. There are no studies which adequately answer four important questions about these states: (1) What percentage of patients are helped by psychiatric care? (2) How can the individual patient who can be helped be identified? (3) What is the best way to evaluate and treat the individual patient? (4) When should an individual case be termed a treatment failure? It is our clinical impression that the classification presented in this paper is of considerable practical usefulness in dealing with these patients. Group II patients have, in our opinion, a high chance of obtaining substantial, and often curative. benefit from psychiatric care and often are totally refractory cases without such intervention. Group III patients seem to respond less consistently to psychiatric therapy; yet, in individual cases, the results of such care vary from the total lack of change to dramatic recoveries. Our personal experience with proven Group IV patients is minimal. In those patients we suspected of malingering behaviors. our personal experiences have been almost totally negative so far as helping the patient is concerned. We believe that the Minnesota Mulliphasic Personalily Inventory, despite the aforementioned limitations, is an extremely valuable screening diagnostic aid, and believe it should be given to all patients who have a post-traumatic disability state which is either refractory to conventional therapies or is complicated by suspected emotional factors. If the results of this test suggest that emotional or psychiatric factors are operant, psychiatric consultation should be obtained. If indicated, additional evaluation should then be performed as outlined above. SO/Arkansas Lawyer/April 1976

Barkow, R.: Difficult dat/nltlon of mallngarlng. New England Journal of Medicine, 263:710, 1970. Berkow, R.: Psychological Aspects of Back Pain. Orthopaedic Surgery. Mercer, W. and Duthie, R. B. (eds.), /.Dndon, Edward Arnold Ud., 1964. Bernstein, J. C. The value of psychological and psychiatric evaluation In a back Injury. American Journal 01 Orthopaedics, 8:72, 1966. DeJong, R.: Case Taking and the Neurologic Examination. Clinical Neurology, 2nd Ed. A B. Baker (ed.), New York, Hoebar-Harper, 1966. Engel, G. L: Conversion Symptoms. Signs and Symptoms: Applied Physiology and ClInical Inlerprelalion. MacBryde, C. M. and Backlow, R. S. (eds.), Philadelphia, J. B. Uppencott Co., 1970. Gattleld, P. D., Guze, S. B.: Prognosis and differential diagnosis of conversion reactions (a followup study). Diseases of lhe Nervous System, 23:1, 1962. Guze, S. B.: The validity and significance of the clinical symptoms of hysteria (Brlquel's Syndrome). American Journal of Psychl.try, 132:136, 1975. Guze, S. B., Woodruff, R. A, Clayton, P. J.: A study of conversion symptoms In outpatients. American Journal of P.ychlalry, 128:643, 1971.

Keschner, M.: Simulation (Malingering) In Relation to Injuries of the Skull, Brain, and Spinal Cord. Injurle. of the SkUll, Brain, and Spln.' Cord, 3rd Ed. S. Brock (ed.), Baltimore, Williams and Wilkins, 1949. Kokan, P. J., Wing, P. C., Thompson, W. J.: Factors associated with failure of lumbar spine fusion. The Canadian Journal 01 Surgery, 17:294, 1974. Lemakau, P. V., Croce ttl, G. M.: Epidemiology. Comprehensive Tealbook of Paychl.lry. Freedman, A M. and Kaplan, H. I. (eds.), Banlmore, Williams and Wilkins, 1967. Phillips, E. L.: Some psychological characteristics associated with orthopaedic complalnls. Current Pracllce In Orthopaedic Surgery, 2:165, 1964. Tlmmermans, G., Sternbach, R. A: Factors of human chronic pain: An analysis of personality and pain reaction variables. Science, 184:806, 1974. Wlnse, L. L.: Psychological testing In predicting the success of low back surgery. Orthopaedic Clinic. of North America, 6:317, 1975. Wlnse, L. L., Rocchio, P. D.: Pre-<Jperatlve psychological tests as predictors of chemonucleolysls In the treatment of the low-back syndrome. The Journal of Bone and JoIni Surgery, 57A:478, 1975. Yochelson, L.: Psychiatric aspects of backache. Currenl Pracllce In Orthopaedic Surgery. 3:253, 1966. ./. "

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PRESIDENT'S REPORT by Robert C. Compton

Our Mid-Year Meeting was a real success. Almost 400 lawyers participated in a close study of our new Criminal Code and Rules of Criminal Procedure. Many thanks to the panelists and all who made such an exceptionally fine meeting possible. Margaret and I journeyed to Philadelphia February 1215 for the Mid-Year Meeting of the American Bar Association. I also attended a meeting of the Coordinating Committee of State Bar Presidents and then attended the National Conference of State Bar Presidents. The principal discussion is whether to permit any relaxation of our canon prohibiting advertising. Our Arkansas Bar Association's House of Delegates voted unanimously to oppose any such change. During the Conference of Bar Presidents I made known to all listening the position of the Arkansas lawyers in opposition to lawyer advertising because it would not be in the best interest of the public, would degrade a great profession by

tending to make it just another trade or business and would move us closer toward federal regulation. During the conference, our own Ed Bethune did a fine job as a member of the panel discussing the ABA standards for the administration of criminal justice. Since we have already met and exceeded these standards, Arkansas was again out in front of most of our sister states. Truly, when lawyers from all over the U.S. gather together it is a matter of great pride to be an Arkansas lawyer. Before leaving Philadelphia we, of course, went to Independence Hall. Every lawyer must get some special inspiration while in the presence of the spirit of those great men who in that very place wrote both the Declaration of Independence and the Constitution of the United States of America. ..,,

,

April 1976/Arkansas Lawyer/51


Reclamation

And Bankruptcy -ALLEN W. BIRD, II

With the tremendous increase in bank. ruptcies of all types in recent years, most all attorneys are coming into more contact with the bankruptcy court than ever have in the past. A most common situation requiring the attention of an attorney is one where the client is either a secured creditor or an owner of property in the possession of the bankrupt at the time of his adjudication. The most cornman desire of the client is to have immediate possession of property in the jurisdiction of the bankruptcy court.

By the time a debtor reaches such a financial condition that bankruptcy is necessary, much of his properly is usually the subject of security interests which leave no equity for the bankruptcy estate. In this case the creditor, already aware he may not be made whole, is most anxious to take possession of the property, to proceed to liquidation, and prevent deterioration of the value of the property. The owner of property in the possession of the debtor, simply wants his property. The approach in the past for the attorney representing the owner or secured creditor has been a reclamation petition; however. a petition in this case is no longer appropriate under the new Rules of Bankruptcy Procedure. SUbmitting a claim to the bankruptcy court is also usually not the most advantageous route for the attorney to take. A claim is deemed to be consent by the claimant to the liquidation of the property by the bankruptcy court, and an agreement by the claimant that all expenses and fees may be deducted from the funds realized from the sale of the property. Although filing a claim is not always to the detriment of the secured

52/Arkansas Lawyer/April 1976

creditor, a claim should be made only

with full knowledge of its effect. Many times a trustee can liquidate the property for a better price and more quickly than a secured creditor. The creditor may realize more after the expenses are deducted than he could have obtained otherwise. Also, as will be discussed later, if the creditor is successful in obtaining the property, the trustee only abandons his interest in the property and leaves the creditor to his rights under his security agreement. The first approach the attorney for the secured creditor or the owner of property should take is to contact the receiver or trustee on an informal basis and request that the receiver or trustee petition the court for abandonment of the property. The term "receiver" is used to describe the position of the one appointed by the bankrupt prior to the first meeting of creditors. The receiver has no authority to abandon any property since he takes no title to the property under the Bankruptcy Act. The receiver is almost always appointed trustee after the first meeting of creditors, and therefore initial contact with the receiver is not wasted motion. However, the formal abandonment by the court must wait until after the first meeting of creditors. During the first thirty to sixty days after an adjudication in bankruptcy, the receiver or trustee is most concerned with ensuring that he has taken possession of all property in the possession of the bankrupt at the time of adjudication, arranging for insurance. watchmen, caretakers, obtaining bonds, and other administrative requirements. Therefore the informal request of the attorney representing an owner or secured creditor will not normally receive immediate attention unless the attorney for the owner or secured creditor provides

the information necessary to convince the trustee of the client's position.

The secured creditor or owner of property must deal with the trustee In order to pursue the property. The jurisdiction of the bankruptcy court to deal with the property in the possession of the debtor at the time of adjudication is based on mere possession by the bankrupt, and therefore a state replevin action or other litigation outside of the bankruptcy court is not proper. In the case of a client who claims to be the owner of property in the possession of the trustee. the attorney should be prepared to prove to the trustee the true ownersh ip of the property. The attorney must be prepared to produce a clear, legible and certified true copy of any documentation relating to the title. Documents such as bills of sale, deeds. certificates of title and assignments showing title must be obtained if applicable. Proof of consideration must also be shown, especially if the owner claims to have purchased property from the bankrupt. The trustee Is armed with all of the rights and powers of a judgment creditor with a judgment returned unsatisfied. and therefore the burden is on the owner to show that the purchase from the bankrupt of the property was valid and was for fair consideration. If the property in the possession of the trustee belongs to the bankrupt but is the SUbject of a security interest, then the attorney should informaily approach the trustee with all documentation showing a valid security interest. This would include clear, legible, certified true copies of the security agreement. if written, and


the financing statement showing the filing mar1<s of the Secretary of State and appropriate county clerk. Proof of valid consideration must also be shown in the form of canceled checks or receipts, or other documentation showing fair consideration for the security interests granted. It the property in the hands of the trustee can be sold for more than enough to payoff the debt to the secured creditor after the cost of the sale, then the trustee will not abandon the property to the secured creditor, but will normally seek permission to sell the property, either subject to or free from the lien created by the security agreement. Therefore, the value of the property in the hands of the trustee is another question which must be considered by the attorney for the secured creditor. The secured creditor is most often in the best position to obtain qualified expert appraisals of the property in the hands of the trustee. The trustee usually is an attorney and can quickly form an opinion as to the legal status of the secured creditor; however, it is often difficult to obtain an appraisal of the property immediately to determine its value. Therefore, the appraisal of the property shouid be obtained by the secured creditor and provided to the trustee, so that he can make an intelligent decision concerning the equity in the property for the estate. The appraisal should be obtained from one qualified to do so, and if possible from one not associated with the creditor. The trustee should be reminded that for assets of a value of up to $50,000.00, expenses of at least five percent plus auctioneer's fees and other expenses of storage, insurance. and protection should be considered in determining whether there is any equity in the property for the bankruptcy estate. If the property is sold for an amount insufficient to pay the secured creditor and all of the other fees and expenses based on the safes price, then the bankruptcy estate wiil be depleted by the amount

necessary to pay all of the expenses and fees connected with the sale. The aim of the Bankruptcy Act is to achieve speed of liquidation and to realize the most for the property in the possesson of the bankrupt for the payment of unsecured claims. Therefore neither the trustee nor the bankruptcy court has any desire to retain possession of property when such possession only causes expenses and will not realize any increase for the estate.

II the trustee does not agree with the position 01 the attorney 01 the secured creditor or the owner 01 the property, then a lormal procedure in the bankruptcy court must be pursued. The reclamation petition is no longer appropriate under the Rules of Bankruptcy Procedure. The appropriate method of obtaining property from the trustee is now called an adversary proceeding under Part VII of the Rules of Bankruptcy Procedure. Part Vii of the Rules of Bankruptcy Procedure consists of Rules 701-782, and the last two digits correlate with the numbering of the Federal Rules of Civil Procedure. Ail of the rules concerning adversary proceedings are detailed and specific and must be foilowed closely. The trustee, although usually an attorney, is in a vulnerable position as a fiduciary. and an attorney should not automatically expect that a failure to comply with the Rules of Bankruptcy Procedure will be forgiven by the trustee as an act of professional courtesy. An adversary proceeding is necessary and an ex parte application by the creditor or owner of property to the bankruptcy court will not be entertained by the court. Rule 701 provides in part that Part VII governs any proceeding instituted by a party before a bankruptcy judge to recover property. An adversary proceeding

is commenced by filing a complaint with the bankruptcy court, not the district court, to be served upon the named defendants. Rule 704 provides for the service of the complaint and a notice of trial, if applicable. The defendant in the adversary action is the trustee. The bankrupt has no control over nonexempt assets, and is therefore not a necessary party to the proceeding. The summons of the time in which the complaint must be answered. Normally a trial date will be set at the time the summons is issued, unless the plaintiff notifies the clerk that some discovery or other proceedings must be completed before trial may be heid. It the defendant desires discovery, he may petition the court to have the trial date postponed. For the sake of speed, a copy of the complaint and all of its attachments may be forwarded to the trustee at the time it is forwarded to the court to give the trustee an additional opportunity to consider the validity of the position of the plaintiff. Copies of all the documentation within the control of the plaintiff should be submitted as attachments to the complaint. The court may, for good cause shown. order that a period of time in which to do an act be shortened under Rule 906 (c). Thus if the plaintiff feels that the twentyfive days allowed under Rule 712 should be shortened for some reason, such as the deterioration of the value of certain property, he may move the court ex perte to reduce the time in which the defendant may answer the complaint. Rule 712 further controls the procedure for replies to counterclaims by the trustee. The summons issued by the bankruptcy clerk will require thaI the answer of the defendant be served upon the plaintiff's attorney, and all other pleadings after the original complaint will <>e served on the opposing party, Rule 705 requires that all papers after the original complaint be filed with the bankruptcy court not later than the conNnued on page 54

Allen W. Bird, II Is a native of Southern Arkensas. He received his BA from Florida Stete University at Tellehassee, and his JD degree from the University of Arkansas Law School at FayeNevllfe, He earned an LLM at New York University. He was on active duty with fhe U,S. Navy from 1968 to 1974, He moved to LlNte Rock In 1974 and was a sale practlNoner unfit becoming an associate with Rose, Nash, Wllflamson, Carroll, Clay & Giroir in sepfember, 1975.

April 1976/Ar1<ansas Lawyer/53


Bankruptcy. continued from page 53 second business day following service on the opposing party. For this reason it is advisabie to send ail pleadings to the opposing party by certified mail, return receipt requested. showing date of receipt. Rule 906 (e), however, provides that service or notice by mail is complete upon mailing.

If a secured party prevails in his complaint for reclamation, the order of the court will provide for an abandonment by the trustee of all interest in the property.

Getting ready for the next 200 years 73,050 days of liberty and law! Think' of 11. Celebrate il. 8U1 resist the temptation 10 fall back into that special kind of stupor induced by smugness. There is a high - more dangerous than drugs or alcohol - that comes from fantasies of superiority. 73,050 days! We began our journey as a nation," ith a masterpiece - the American CU[I.~tiIUljOI1- to guide us.

We fought nine major wars in charting our destiny, a destiny lilled with triumph and tragedy. We lOasted freedom but let oursehes be trapped into slavery, Our technology conquered a conlinent. but the pollUlion it created threatens our tomorrow. Now is the lime to be gelting ready for the next 200 years. To be free is to be alive to what needs to be done. To be free is 10 be aware that the past has a vote in our lives. not a velO. 73,050 days of liberty and law! LeI us celebrate in wisdom - a strong people gelling ready for tomorrow.

54/Arkansas Lawyer/April 1976

This act merely returns title of the property to the bankrupt and puts the secured creditor back into the position he occupied prior to the bankruptcy. The secured creditor must then proceed under the Uniform Commerical Code, or the appropriate foreclosure proceeding, to liquidate the property. In fact the trustee should insist on returning personal property to the actual possession of the bankrupt to avoid being charged with conversion for returning the property to a secured creditor, who may or may not have first claim on the property. Any defense which the bankrupt may have to the rights of the secu red party may be raised by the trustee, and the reclamation action involving the trustee will not settle these matters. It is assumed the trustee will have already considered these matters and will have either conceded them or the court will have ruled against him.

The procedure in an adversary proceeding in Chapter XIII Is the same as in straight bankruptcy. Rule 13-701 refers to Part VII of the bankruptcy rules for adversary proceedings in Chapter XIII. However. in a Chapter XIII proceeding, the question before the court on an adversary complaint for reclamation is not whether there is any equity in the property to be liquidated, but whether the Chapter XIII plan provides for full monthly payment to the secured creditor. or full payment of that portion of the monthly rate which is deemed to be secured by the bankruptcy court. For an excellent discussion of the procedure and ramafications of the evaluation of secured property in Chapter XIII, see WAGE EARNER REHABILITATION, The Arkansas Lawyer, April, 1974, p. 75. If the debtor does not propose to pay to the secured creditor the full contract rate or the rate to which the secured portion of the contract is reduced by the bankruptcy court, then the secured creditor will normally prevail and will receive this property. It is not

uncommon for the bankruptcy court to delay a decision on the reclamation petition until the debtor has an opportunity to modify his plan, if possible, to provide for the secured contract rate. The court itself may also modify the plan to increase payments to a partlcu lar creditor under Rule 13-214, and therefore a payment to a secured creditor may be increased to provide for what the court has determined is adequate payment. A discussion of Rule 13-302 is also advisable at this point. It provides that unless a secured claimant files his claim on or before the first date set for the first meeting of creditors, he shall be treated as unsecured for purposes of voting and distribution. This is applicable whether or not the claimant Is listed in the petition. Thus if no claim is filed by the secured creditor by the time set by the court, the reclaimalion complaint will be denied since the plaintiff will be considered unsecured.

Following this article, a sample reclamation complaint is reproduced. The changes and modifications necessary to fit one's particular situation should be obvious, but the general information provided in the sample is representative of what the attorney for the secured creditor or owner of property should expect to plead and be able to prove at the hearing on the adversary proceeding. The more information and documents provided in the complaint, the greater the chance that the trustee will voluntarily agree with the position of the plaintiff and will petition the court ex parte for the relief prayed for in the complaint without trial. In summary, if all attorneys who find themselves representing clients in bankruptcy court will make an effort to familiarize themselves with the new Rules of Bankruptcy Procedure and will be prepared to provide the necessary information to the trustee, or prove essen路 tial facts at a hearing, the procedures outlined will work efficiently and smoothly. The purpose of the Bankruptcy Act is speedy, efficient, and inexpensive liquidation of property. If trustees are required to dig for information and litigate every point because of an inability to gain essential enformation, the aim of the Act will be frustrated. As with all other aspects of the practice of law, familiarity breeds efficiency. ~

-'-

* (Editor's note: Sample reclamation complaint is published on page 55.)


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION IN RE I. M. BROKE, Bankrupt; LR 75-1234B

BIG SALES OF ARKANSAS, INC .. Plaintiff

v. U. R. ARBITRARY, DEFENDANT

COMPLAINT FOR RECLAMATION

6. That there is a balance due from the

Comes now the plaintiff Big Sales of

bankrupt on account of the above described transaction in the amount of

Arkansas, Inc. by its attorneys Rose,

$9,246.22 including interest at the rate of

Nash, Williamson, Carroll, Clay and

9 1/2 percent per annum, said interest accruing at this time at the daily rate of

Giroir, and for its reclamation states:

complaint

for

1. That the plaintiff is a corporation organized and existing under the laws of the State of Arkansas with its principal

$2.40. 7. That the machinery and equipment more fully and specifically described in

bankrupt. 3. That on or about March 21, 1975, I. M. Broke, bankrupt herein, purchased

the security agreement attached hereto has a fair market value of $8,000.00 in its present condition in the opinion of Richard Rowe, a person familiar with the machinery and equipment described in the security agreement and wellqualified to give an opinion as to the value of the machinery and equipment.

certain machinery and equipment from

The opinion of Richard Rowe as to the

the plaintiff for a total purchase price of $20,000.00 of which the bankrupt paid the planliff $5,000.00, leaving an indebtedness of $15,000.00. Said machinery and equipment is more fully and

value of the machinery and eqipment is contained in his affidavit attached hereto

office at Little Rock, Arkansas. 2. That the defendant, U.R. Arbitrary, is the duly appointed, qualified, and acting Trustee of the estate of the above name

specifically described in the security agreement hereinafter alleged.

4. That a security for the payment of the said sum of $15,000.00, the bankrupt. on or about March 21, 1975, made, executed and delivered to the defendant a security agreement and financing statement, copies of which are attached

as Exhibit "C". B. That the plaintiff is entitled to the possession of all of the machinery and equipment described in the security agreement attached hereto as Exhibit "A", which machinery and equipment are now in the possession of the defendant herein.

financing statement were filed with the

right, title or interest in the machinery and equipment, and enter an order to be conclusive proof of such abandonment, and for such other and further relief as

agreement

and

financing

statement

sas, said security agreement and financing statement were assigned the filing

may be jUst.

Arkansas, the documents were assigned

Arkansas, Inc.

agreement and

financing

LAW

the security agreement and will direct

filing number 1234.

security

statement with the Circuit Clerk and ExOfficio Recorder of Pulaski County,

AND

the defendant herein to abandon any

Allen W. Bird II Rose, Nash, Williamson, Carroll and Clay, P.A. 720 W. 3rd St. Little Rock, Arkansas 72201 Attorneys for Big Sales of

number 654321, and upon filing the said

YEARS OF L1BERlY

herein to deliver to the plaintiff the

machinery and equipment described in

were filed with the Circuit Clerk and ExOfficio Recorder of Pulaski County, Arkansas, on March 23, 1975. Upon filing with the Secretary of the State of Arkan-

HUNDRED

WHEREFORE, the plaintiff prays that this Court will direct the defendant

hereto and marked Exhibits "A" and "B" respectively. 5. That said security agreement and secretary of State of the State of Arkansas on March 22, 1975, and said security

lWO

April 1976/Arkansas Lawyer/55


Workmen's Compensation

• • •

The Significance Of A Joint Petition . . . Norwood Phillips The exclusive method of finally concluding a workmen's compensation claim by compromise settlement is provided for in Section 19 (1) of the Workmen's Compensation Act Brooks va. Ar· kansss Best Freight System, Inc., 247Ark 61, 444 SW 2d 246 (1964). Termination of a claim by compromise settlement requires not only compliance with Section 19 (1), but also with Rule 19 of the Rules of the Workmen's Compensation Commission, as last amended on August 1, 1975. The procedure of such a ~ttlement is commonly referred to as a joint petition proceeding. A joint petition is a valuable tool in the workshop of a workmen's compensation practitioner. Like all tools, however, it should be properly suited for the purpose sought. If it is not so suited, its use should be rejected in favor of a device more adapted to the particular situation. LEGISLATIVE HISTORY Amendment 26 to the Constitution of the State of Arkansas, giving the General Assembly the power to enact workmen's compensation laws, was submitted to the people by initiative petition. It was adopted at the General Election held November 8. 1938. The General Assembly then adopted a workmen's compensation law by Act 319 of the Acts of 1939. Our present law, with certain amendments, is Initiated Act 4 of the Acts of 1949, which replaced the original workmen's compensation law. Since the original law, Section 19 (1) providing for final settlements, has"'been essentially unchanged. Section 19 (1) provides as follows: "Joint Petition: Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties. the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement 56/Arkansas Lawyer/April 1976

should be had. If the Commission decides that it is for the best interests for the claimant that a final award be made, it may order such an award that shall be final as to the rights of all the parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejUdice to either party. No appeal shall lie from an order or award allowing or denying a joint petition." SETTLEMENT CONSIDERATIONS At the onset it should be recognized that the usual criteria considered by an '3Idvocate when settling a claim based upon a common law cause of action is not totally relevant when considering settlement of a workmen's compensa· tion claim. It is submitted that the controlling question as to whether a claim based upon a common law cause of action should be settled is: Is the settlement to my client's best interest? Regarding settlement of a workmen's compensation claim pursuant to Section 19 (1), the Commission is charged with the duty of determining that the settlement is for the best interests of the claimant. Whether a settlement is to the best interests of a respondent is totally irrelevant. Therefore, when an attorney represents a respondent, consideration must not only be given to a proposition that the settlement is to the respondent's best interests, but it also must be established that the settlement is to the claimant's best interests. In other words, when representing a respondent an attorney must be sure that the settlement is completely fair to both parties. rather than simply looking to the interest of his client alone. Likewise, a claimant's attorney encounters certain pitfalls in negotiating a joint petition settlement. What may appear to him to be a very benefi-

cial settlement to his client. may not appear to be such to the Administrative Law Judge. This being the situation, a claimant's attorney must view settlement negotiations from the posture of not only satisfying himself and his client as to the fairness of the settlement. but also as to satisfying the hearing officer. COMMISSION'S RULE 19 Rule 19 of the Rules of the Commission, last modified on August 1, 1975, provides as follows: "The Commission discourages the use of the Joint Petition as a means of settling cases except in unusual circumstances. No Joint Petition will be approved unless such petition sets forth the nature of the unusual circumstances and unless unusual circumstances are approved at a hearing. Such Joint Petition must set forth in detail the reasons its approval will be in the claimant's best interest as required by Section 19 (1) of the Workmen's Compensation Act. Joint Petition settlements under Section 19 (1) of the Workmen's Compensation Act will be heard by an Administrative Law JUdge in the county in which the accident occurred or at a location convenient to the parties. involved. No Joint Petition will be heard by an Administrative Law Judge until (5) days after the petition or a copy of the petition has been filed with the Commission. It shall be necessary for the claimant to appear and testify at a joint petition hearing. Petitions shall be signed by all parties, including the claimant. and must be verified. Under certain circumstances. the Commission may designate or direc\ the parties to take claimant's testimony by deposition or interrogatories. In all Joint Petitions where the claimant is represented by an attorney, the amount of agreed attorney's fee shall be set out in the petition. No attorney's fee shall be approved if it exceeds the limite-


lions provided for in Section 32 of the Act." Section 43 (9) empowers the Commission to prescribe rules and regulations. Pursuant to this rule making power, through the years, the Commission has promulgated some 23 rules. No rule was in effect regarding Joint Petitions from the inception of the workmen's compensation law until 1962 when Rule 19 was passed. There are two significant differences between Rule 19 as it was in 1962 and Rule 19 as it is in 1975. In 1962, there was no language in Rule 19 discouraging the use of Joint Petitions. In addition, in 1962 Rule 19 provided that the Full Commission would pass on Joint Petitions although authority was given the Commission to designate a referee to hear the Joint Petition. In 1963 Rule 19 was amended to include the language that the Commission strongly discourages the use of Joint Petitions. In 1975 the rule was again amended by deleting the word "strongly" which had modified the word "discourages". Also, the 1975 amendment provided for a hearing on the Joint Petition by an Administrative Law Judge rather than the Full Commission. Another important aspect of the 1975 amendment is the requirement that the written Joint Petition be filed with the Commission at least 5 days before the hearing. Throughout the years it has been the policy of the Commission to grant a Joint Petition when it appears that the terms are to a claimant's best interests. Why then, does Rule 19 state that the Commission discourages the use of Joint Petitions? It is submitted that the Commission does not, in fact, discourage the use of those Joint Petitions which are properly submitted in the posture which the law regarding a final settlement contemplates. The only Joint Petitions discouraged are those which are not to a claimant's best interests. This is best emphasized by a look at the Joint Petitions granted by the Commission from 1970 to date. In 1970, 905 joint petition settlements were approved. In 1971, there were 886 approved whiie in 1972, 921 joint petition settlements were granted. In 1973, 1,049 were approved and in 1974 an all time high of 1,159 joint petition settlements were allowed by the Commission. Through August of 1975, 944 joint petition settlements had been approved. No statistics are kept on the number of Joint Petitions denied. However, from personal experience, both as a referee and a practitioner, it can safely be stated that at least 90% of the Joint Petitions submitted are approved. This enviable statistic should properly be attributed to the competency of the workmen's compensation bench and bar. It is, therefore, apparent that the

Commission recognizes and approves the proper settlement of a claim. This is compatible with the common law rule which is recognized by the Supreme Court that the law favors compromise settlements. Section 11 of the Act provides for the payment of unlimited expenses to an injured claimant. When finally settling a claim by Joint Petition of necessity future medical benefits are thereby terminated. Likewise, benefits for additional disability benefits, either permanent or temporary, are terminated, even if the claimant were subsequently to sustain a remission of his condition. Therefore, careful consideration should be given to the settlement of the claim before reaching an agreement to settle by Joint Petition. Few cases have reached the Arkansas Supreme Court in which the finality of a joint petition settlement was challenged. However, all of the cases are in accord that once the Commission approves the Joint Petition, after a proper hearing and Order of Approval, then the claim is forever barred. NECESSARY REQUISITES TO A JOINT PETITION The essential parts of a completed settlement pursuant to Section 19 (1) are as follows: 1. The drafting and filing of a written instrument, designated a Joint Petition, which sets forth the terms of the settlement and the unusual circumstances which prompt the settlement; 2. Verification of same by the claimant; 3. A hearing on the Joint Petition before an Administrative Law Judge; 4. The Order of the Administrative Law Judge finding that the joint petition settlement is to the claimant's best interest and approving and allowing the same. In framing the Joint Petition, the draftsman should set forth the nature of the injury, with particular emphasis on whether it is an acknowledged compensable injury or whether it is an injury which has been disputed or controverted by the employer. If the injury itself is disputed, then obviously there are unusual circumstances which form the basis for a compromise or settlement. On the other hand, if the injury itself is acknowledged or admitted, then the unusual circumstances justifying a joint petition settlement is generally based upon a disagreement regarding the extent of the injured worker's disability. Again, it is stressed that the Commission is charged by law with finding that the settlement is to the injured claimant's best interests and consequently the claimant must receive a greater amount of money than he would receive based solely on the rating of impairment by his physician. This is essential in cases where the injury is

acknowledged for the reason that if the claimant were to receive only a sum equal to or less than what he would be entitled to receive anyway, then the settlement obviously would not be to his best interests. Regarding the requirement of verification, it is not necessary that the petition be subscribed to and sworn before a notary public. As the claimant is going to appear and testify at the joint petition hearing, it is only necessary that he be asked to identify his signature while testifying under oath and to acknowledge that he signed the Joint Petition after reading same. At the hearing, emphasis should be given to the fact that the unusual circumstances exist and that the settlement is a compromise of a bonafide dispute between the claimant and the respondents. Additionally, the claimant should aver that he feels that the Joint Petition settlement is to his best interest and he should request that the Administrative Law JUdge approve and allow the same. SUPREME COURT DECISIONS Nothing short of the criteria just enumerated will suffice for the approval of a Joint Petition and the divesting of the Commission of jurisdiction. In the case of Georgia-Pacific Corporation vs. Norsworthy. 244 Ark 399, 425 SW2d 320 (1968), the Commission entered an Order based upon a settlement negotiated between the claimant's attorneys and the respondents' attorneys by way of a continued on paga 58

Partnar In tha firm of Shacklaford, Shackleford and Phillips, EI Dorado, Arkansas, 1954; JD, Unlvarsity of Arkansas, 1957. Raferee, Arkansas Workmen's Compensation Commission, 1965-1968. Membar, Union County, 13th Judicial Circuit, Arkansas and American Bar Associations. Chairman, Workmen's Compensation Committee, Arkansas Bar Association, 1975 April 1976/Arkansas Lawyer/57


Compenaation, continued from paga 57 series of letters. No formal written document was presented and no hearing was held. The Supreme Court affirmed the holdings of the Commission and the Ashley Circuit Court that such a settlement was not a "final settlement" within the meaning of Section 19 (1). Particular emphasis should be given, after agreement is made between the parties, to consummate the settlement pursuant to the basic requirements of the Section 19 (1) and Ruie 19, as just stated. It appears practically impossibie to have a judicial determination setting aside an Order approving and allowing a Joint Petition once it has been entered after a proper proceeding. In the case of Cook va. Brown, 246 Ark 10, 436 SW2d 482, (1969) the claimant, after a joint petition settlement had been approved, filed a petition seeking to void the order of the Referee approving and allowing the joint petition settlement. The claimant testified that he was "incapable of understanding the legal ramifications" relevant to the Joint Petition and that he thought his claim would remain open. This allegation was made notwithstanding contrary statements in the joint petition itself and testimony of the claimant given at the hearing. The Commission held, and the Pulaski Circuit Court and the Supreme Court affirmed, that the Commission was without jurisdiction to re-open the claim without an allegation of fraud or insanity. Shortly thereafter, in 1970, obviously cognizant of the holding in the case of Cook VI. Brown, supra, a claimant filed a suit in Pulaski Chancery Court alleging fraud in the procurement of a joint petition order. Johnson VI. Lumberman'l Reciprocal Insurance Exchange at ai, 249 Ark 550, 460 SW2d 53 (1970). Specifically, the claimant's allegations of fraud were that the insurer's claims adjuster and its examining physician falsely and fraudulently represented the claimant's gack condition to be less serious than it actually was and that the insurer thereby obtained claimant's consent to an inadequate settlement. However, the Supreme Court clarified its dictum in the Cook VI. Brown case, supra, and held that the allegations of fraud made by the claimant were allegations of "intrinsic" fraud and were insufficient to vest a Chancery Court with jurisdiction to set aside the order of the Commission approving the Joint Petition. The Supreme Court reaffirmed its distinction between "extrinsic" fraud and "intrinsic" fraud. See Alexander YB. Alexander, 217 Ark 230, 229 SW2d 234 (1950). Extrinsic fraud occurs when a party is kept away from the trial by his adversary's deception or when a party is 58/Arkansas Lawyer/April 1976

corruptly betrayed by his own attorney. On the other hand, intrinsic fraud founded on a fraudulent instrument, perjured testimony, or any matter actually presented and considered in the judgment assailed is insufficient to be the basis for setting aside the jUdgment. It, therefore, appears that the only matters which could possibly influence a Court of equity to properly set aside the final order of the Commission approving and allowing the joint petition settlement would be: 1. Insanity of the claimant; and 2. intrinsic fraud. There seem to be only two incidences which intrinsic fraud could occur, i.e., when a party is kept away from the trial by his adversary's deception or when a party is corruptly betrayed by his own attorney. Obviously, the former criteria would not apply in workmen's compensation hearings because the claimant must be present to testify at the joint petition hearing before the joint petition can be granted. Therefore, the only fraud which would justify the setting aside of the joint pention order would seem to be when a party is betrayed by his own attorney. Whether an Order Approving a Joint Petition Settlement could be set aside by proof of insanity of the claimant or intrinsic fraud practiced upon him by his own attorney appear to be the only questions not yet resolved by the Supreme Court.

those rights do not come into full existence until the employee's death. He, however, recognizes that there is authority to the contrary. What, then, can the draftsman do to protect the rights of an employer when settling by joint petition? Since the Arkansas Supreme Court is silent on this particular issue, one can only speculate. However, if the wife joins in the joint petition as a party, is paid a sum of money in consideration of waiving any prospective rights which may accrue to her as a widow, and testifies that she believes such settlement is to her best interests, then it is submitted that serious consideration by the Supreme Court woald have to be given to the proposition that any prospective claim that she may have is extinguished. In death cases, the parties to a joint petition are often under a disability of minority. In such case, to effectively terminate their rights, a guardianship should be established and authority of the Probate Court to enter into the joint petition settlement obtained. As a claimant under a disability cannot effectively settle a claim, such a claimant cannot settle a workmen's compensation claim. Care should be taken to have the guardian present at the joint petition hearing to testify as to the particular circumstances and the beneficial aspects of the joint petition to his ward.

COLLATERAL RIGHTS Although Section 19 (1) provides that the Workmen's Compensation Commission loses all jurisdiction of a claim after the approval of the joint petition, there are questions involving the rights of persons not parties to the joint petition settlement to pursue additional claims arising out of the same accidental injury. The most troublesome area involves a wife. For example, if a claimant were to sustain a heart allack while on the job, and a joint petition settlement is negotiated as a result of the heart attack, what would happen if the claimant subsequently died as a result of the heart attack? Does the widow have a claim for benefits independent of the claim of her husband? This particular issue has not adjudged by the Supreme Court of Arkansas. However, Professor Larson states the majority rule of the United States to be that a widow's claim is not barred, notwithstanding the fact that her claimant husband settled his claim prior to his death. The reason is, the dependent's right to death benefits is created directly by a statute and is not derivative from the rights of the deceased empioyee. Larson, Workmen'" Compan"atlon Law, Section 64.10, Page 11-113. Professor Larson goes on to state that the wife herself cannot join in a settlement which disposes of her prospective right to dependency benefits, since

CONFLICT OF LAWS Another troublesome area in some joint petition settlements is the fact that the claimant may have a claim in more than one jurisdiction. For example, I recently had occasion to draft a joint petition which involved jurisdictions other than in Arkansas. The decedent was a resident of Broken Bow, Oklahoma. He was hired by a corporation whose principal place of business was in Shreveport, Louisiana, and the contract of hire was made in Shreveport. He worked out of the truck terminal in DeQueen, Arkansas. He sustained an accidental injury arising out of and in the course of his employment which caused his death in Texas. It is readily apparent that there were at least three states which could have assumed jurisdiction of Jhe widow's claim for dependency benefits, and probably four. The widow elected to pursue her claim in Arkansas, and a joint petition settlement was negotiated. The joint petition was drafted, employing the language that the widow was aware that she had an election of forums, but that she chose Arkansas, and by entering into the joint petition she stated affirmatively that she waived any workmen's compensation claim that she might have under the laws of the States of Oklahoma, Louisiana, or Texas. In addition, a clause was inserted in the joint petition which provided that were the widow to


L

pursue a claim in either Oklahoma, Louisiana, or Texas, and were she to receive an award in any of those States,

538 cases were heard by Administrative

Law Judges. In 1972, the ratio was 921 to 567; in 1973, there were 1,049 joint peti-

lhen she agreed to indemnify and hold

tions compared to 619 controverted cas-

harmless the respondents from any award she may receive at any of those

es; in 1974, there were 1,159 joint petitions approved while only 741 claims were liligated; through August, 1975,944 joint petilions had been approved while only 560 claims had gone to a hearing. It

States. The Joint Petition Order also reflected this indemnity agreement. CONCLUSION In 1970, there were 447 hearings on controverted claims, while at the same time there were 905 hearings on joint petitions. Likewise, in 1971, there were

886 joint pelitions approved while only

necessarily follows that under the present complement of the Workmen's Compensation Commission it would be impossible to operate without a proce路 dure for disposing of claims by compromise. The ratio of joint petition settle-

ments as opposed to controverted claims is approximately two to one. In other words, if the procedure for settling claims were to be done away with, then

the loaf of the Administrative Law Judges would increase threefold.

A joint petition could properly be referred to as a dilemma to a linguist. It is a noun, "I am filing a joint petition", It is a verb. "I joint petitioned the claim", It is an adjective. "I am going to a joint petition hearing". Above all, however, it is an efficient, integral and necessary part of our workmen's compensation law, ,J-~~

LAW DAY MAY 1, 1976

U.S.A. It is not difficult during these times to understand the Bicentennial Year observance. Our Country's heritage is freedom. We can relate to 1776 and the events during the last quarter of that century. Can we likewise relate to Law Day USA? What is Law Day U.S.A.? How did it come into being? How is it observed? Has it been successful in achieving its purposes? Law Day is set aside on May first each year by joint resolution of Congress and Presidential proclamation as "a special day of celebration by the American people in appreciation of their liberties" and as an occasion for "rededication to the ideals of equality and justice under law," The annual nationwide event is not a "lawyers' day", but rather an occasion for honoring the place of law in our lives, for learning how the law and our legal system operates, and for examining how the law can better serve our people and nation. Law Day was conceived in 1957 by Charles S. Rhyne, a Washington, D.C. lawyer and then president of the American Bar Association. On the occasion of the first observance of Law Day in 1958, President Dwight D. Eisenhower stated:

"It is fitting that the American people should remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law ... It is our moral and' civic obligation as free men and as Americans to preserve and strengthen that great heritage". Rhyne said: "Today, after 350 years, the greatest strength of America lies in this concept of individual liberty under law. Other systems of government have produced great scientists, great musicians and other outstanding achievements. But no system has produced the individual freedom which exists in America..." Our Nation, through its citizens, pauses once each year to reflect on our legal heritage and the role of law in an ever changing society. The theme selected in recognition of Law Day 1976 is: "200 Years Of Liberty and Law". Law Day 1976, therefore, is a time for reminding all citizens of the United States of the rights they hold under the U.S. Constitution and Bill of Rights which are protected by law and the courts: free speech, free press, free assembly, freedom of religion, the right to legal counsel and

a trial by one's peers if accused of crime. It is a day, too, when all the people are asked to consider their individual duties as responsible citizens. Such as: 1) To be informed on issues of government and community affairs, 2) To support and encourage efforts to update and modernize our Courts, 3) To vote in elections, 4) To obey, respect and uphold the law, 5) To support those institutions and persons charged with law enforcement, 6) To respect the rights of others, 7) To practice and teach the principles of good citizenship in their homes, and 8) To serve on juries and as a court witness if called. Lawyers, particularly, need to relate to Law Day. Lawyers need to be involved in the observance of Law Day in their communities. They need to sponsor programs in their schools, churches, and counties. Lawyers are the best qualified to lead the way in the observance of our Nation's Bicentennial Year and Law Day U.S.A. 1976. Certainly these occasions deserve to be America's most widely recognized and celebrated events of the year.

,,- ....

April 1976/Arkansas Lawyer/59


OYEZ

,, OYEZ ••

by Barbara Tarkington Membership Secretary

Georgia-Pacific has announced the appointment of L. Philip McClendon as resident counsel for the Crossett Division. Ray Thornton has been appointed to an ad hoc committee on tax reform that will study the impact of proposed tax reforms on farmers. Chief JUl· tice Carleton Harrl. is the chairman of the state Board of JUdiciai Apportionment and Robert L. Jonel III of Ft. Smith is the newly elected-ai-large member. John R. Cleyton, formerly of Dumas, Jemel M. Mey III, and Kennelh J. Groll have become associated with a NLR law firm and the name changed to Wallace, Hilburn, Ciayton, Wilson and Hankins, Ltd. Kent Foster, formerly General Counsel for the Arkansas Public Service Commission, has joined the law firm of Spilzberg, Mitchell and Hays. The PSC has designated three of its attorneys as hearing examiners: Larry Chisenhall, Michaal O'Mallay and Slephen CuHman. Kennelh E. Buckner has joined the Pine Bluff law firm of Bairn, Bairn & Mullis. Jerry Post and Robert Stroud are partners with the Murphy and Blair law firm of Batesville. Jack A. McNufty has been named a partner with Bridges, Young, Matthews & Davis of Pine Bluff. John F. Forster, Jr., former Assistant U.S. Attorney, has joined the law firm of Bailey, Trimble & Hoit of Little Rock with his office to be located at Evergreen Place on N. UnIversIty. The firm opened 6O/Arkansas Lawyer/April 1976

this second office in February and Jack Holt, Jr. will divide his time between each office. John M. Belew has joined a Batesville law firm and the name changed to Harkey, Walmsley and Belew. Van Thomas Younes is now in practice with the law firm of Adams and Covington of Harrison. Van A. Gearhart, formerly of Fayetteville, has j<>ined the law firm of Poynter and Osmon of Mountain Home. Mark Grobmyer has become associated with the law firm of Moses, McClellan, Arnold, Owen & McDermott. Richard B. Berry, a 1975 graduate, has opened a law office at 104 N. Cherry, Beebe. H. Clay Moore and William C. Rea have formed the law firm of Moore & Rea and have associated with them Marlin J, Nevrla. Charles A. Hadden has become Vice President & Trust Officer of The First National Bank in Little Rock. William S. Orr III has been named a Trust Officer of The First National Bank in Littie Rock. Since Joe Barrell (Barry) Deacon passed the bar exam in 1975, we now have three generations of attorneys in the law firm of Barrett, Wheatley. Smith & Deacon. Frad Embry Pickell, Ashdown, has been selected Administrative Law Judge by the Bureau of Hearings and Appeals for the Sociai security Administration to be located in Shreveport. Slark Ligon, Jr., Little Rock, has been appointed YLS Membership Chairman for Arkansas. Ed McCorkla has been installed as President of the Arkadelphia Chamber of Commerce. Eugene Coffelt, Bentonville, has received the Boss of the Year Award from the Benton County Legal Secretary Association. Allyn C. Talum, Batesville, has been elected as a member of the Board of Directors of Region VI of the National Council of Community Mentai Health Centers. Robert A. Letlar has received the annual Best Book Award made by Scribes at its August 1975 meeting in Montreal. Ralph Brodie, Little Rock, has been named Executive Director of the new state tax revision commission with Hugh L. Brown and John H. Peleroon, Little Rock, as assistant directors. Ben F. Arnold, Little Rock, has been eiected to the Board of Directors of Union National

Bank. B. Richard Allan, Newport, has been appointed Deputy Prosecuting Attorney for Jackson County and has moved his office to the Erwin Bldg., 110 Main Street. The law partnership of Sam Boyce and Mex Bowie of Newport was dissolved January 1. Sem Boyce will continue his law practice at the same location, 110 Main Street. Max Bowla has formed a law partnership with Gereld W. Caryle and Harold S. Erwin located at 110 Hazel Street, Newport. Roy Thomal has been selected to replace John Purlla, who resigned as City Attorney at Batesville. Bill Cllnlon, Fayetteville, addressed the St. Francis County Bar Association during its February meeting. The American College of Probate Counsel has announced 17 Arkansas lawyers into its membership: H. W. McMillan, John Mac Smith, William S. Mllchell, Thomas E. Sparks, Jamea B. Sharp, Emon A. Mahony, Owen C. Pearce, D. L. McRee, Leonard L. ScOIl, James L. Shever, Jr., WIlliam Ball, Richard L. Martin, David Solomon, John D. Eldridge, John F. Siroud, Jr.. J. Gaslon Wllliemoon and Nabora Shew. L. Gray Dellinger, Melbourne, was an instructor for adult classes sponsored by the Agriculture and Home Ec Department of Evening Shade. Appointed Secretary of State George Jernigan was a speaker at the Greene-Clay Counties Bar Association November meeting. Ooug Rlchnow presented a program to the Texarkana Bar Association about Texas Legal Protection Plan, Inc. Charlas A. Bankl, Blytheville, was a speaker at a meeting of the Osceola Lions Club held in December. Sam H. Boyce, James A. McLarty, David Hodges, and Marvin ThaxIon conducted one of two panels at the 42nd annual meeting of the White River Production Credit Association held during January at the Newport High School. WIlliam Brldgforth, Pine Bluff. participated at a forum on the "New Rural Society" held in December and co-sponsored by the U of A Dept. of History and Political Science in Pine Bluff and the Arkansas Humanities program. A Franklin County Bar Association has been orcontlnu&d on page 61


EXECUTIVE COUNCIL NOTES by James M. Moody Secretary-Treasu rer

The Executive Council held a regular scheduled meeting in Little Rock on December 13, 1975, to discuss a variety of subjects. Jim Harper of Rather, Beyer & Harper, insurance agents, reported to the Council that Commercial Insurance Company was replacing CNA as the major medical insu ranee carrier for the Association. Only two changes were made in the policy, including a limit on the surgery schedule and payment for mental disorder only for treatment in a hospital. The Rather, Beyer & Harper Agency was gratefully recognized for its $1,000 donation to the Arkansas Bar Foundation. President Compton reported to the Council on his attendance at a meeting of state bar presidents in Chicago concerning the status of advertising for lawyers. A discussion draft was presented at the meeting which proposed permitting adver-

tising in the media with certain limitations. The Council authorized President Compton to make a statement of general opposition to the concept of advertising for lawyers. Col. Ransick reported on the status of prepaid legal services. The Arkansas Supreme Court has adopted the "Chicago Amendments" to the Code of Professional Responsibility which was the first requirement for participation in a plan. A suit has been filed in Pulaski Chancery Court by the State Insurance Commissioner against certain organizations seeking an injunction against offering the plan. This suit is still pending. No legislation was passed in the current legislature session which affects the status of the plan. Winslow Drummond was appointed Chairman of a committee whose purpose is to suggest a program for evaluation of judicial performance

Oyez-oyezll continued from page 60

tion elected new officers: John C. Gregg, Pres., H. Da.ld Blair, V.-Pres., and Bernice McSpadden, Sec.-Treas. William Green is the new President of the Garland County Bar Association with Richard MUM, V.-Pres.; and Don Pullen, Sec.-Treas. Robert JOMph Brown, formerly Executive Vice President of Block Mortgage Company. has opened his law office at 807 West Third St., Little Rock. Jay Dickey, Jr., Pine Bluff, was a guest speaker at the Batesville First Baptist Church observing Baptist Men's Day held in January. The law firm of Maz-

ganized and officers elected: Gregory P. McKen.zJe, Pres.; Joe Ramos, V.-Pres.; Orville C. CUlt, sec.-Treas.; and Ste.e White, Librarian. Greg McKenzle, Ozark, has bought the Franklin County Jail constructed in 1916 for his office. The Southwest Arkansas Bar Association elected new officers at its December meeting: James H. McKenzie, Pres.; G. William Lavender, V.-Pres., and Talbot Feild, Jr., re-elected Sec.-Treas. Vincent FOlter, Jr., Little Rock, was the guest speaker at the February meeting of the Southwest Ark. Bar Association meeting. Independence County Bar Associa-

by circulation of questionnaires to the members of the bar. The committee will study various means of accomplishing the poll and make specific suggestions to the House of Delegates. The House of Delegates met at the Camelot in Little Rock on January 22,1976, as part of the midwinter meeting. The House heard the annual Secretary-Treasurer's report which reflected an increase in members' equity of $8,761.33 with total members' equity of $77,349.15. The Association is in excellent financial condition thanks in large part to the efforts and abilities of Col. Ransick in managing our fiscal affairs. The current reports from the bookkeeper indicate the association will operate this fiscal year within its income. The Association membership remains at a record high of 2,037 as of December 1, 1975, compared with 1,895 on December 1, 1974. :J-_

unE.IEAR

zanti, Schmidt and Jenkins have moved

their office to No. One Spring Bidg., little Rock. !J

-....

April t976/Arkansas Lawyer/51


Great partnership: Rodgers &Hammersteln ••.another great partnership: ARKAnSAS BAR ASSOCIATion & RATHER BEVER & HARPER Now working together with CNA/ insurance to provide you with the two most vital forms of fundamental protection for every practicing attorney: • Professional Liability • Business Liability Fiduciary coverage Settlement only with consent Legal defense provided

PROfESSionAL LlABILlTV PROGRAm $100,000 per claim/$300,OOO Aggregate

Want more details? Call or write Arkansas Bar Association Administrator Rather, Beyer & Harper Three Hundred Spring Building Little Rock, Arkansas 72201 (501) 372-4117 62/Arkansas Lawyer/April 1976


Editor's Comment: AEGIS is a feature of the Arkansas Bar Association's educational program concerning docket control and other areas of high risk experience In professional liability cas-

as.

SAFEGUARDING YOUR PROFESSIONAL FUTURE

He that nothing questioneth, nothing learneth! the problem

A man was involved in an automobile accident with a vehicle owned and operated by a city police department. He was killed instantly in the accident and his family retained an attorney to handie his estate as well as represent them in their claim against the city. The handling of the estate was somewhat complex and took considerable time. When the attorney got around to filing suit against the city, the Statute ot Limitations for Wrongful Death Actions had expired. Although the Statute of Limitations for Personal Injury Claims is five years, in that particular state, the Statute of Limitations for Wrongful Death Actions IS only two years. The clients initiated a malpractice claim against the attorney.

the result

Compromise settlement was made. Although the liability on the suit against the city was questionable, the attorney's malpractoce was clear because of his failure to file the SUit before the Statute expired.

advice

When you are not positive that a particular situation is governed by a general Statute of Limitations, be sure you check it. Some special Statutes are much shorter than the general Statute.

April 1976/ArI<ansas Lawyer/63


ARKANSAS BAR ASSOCIATION

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LEGAL ECONOMICS by Fran Shellenberger

A REVIEW HOW TO CREATE-A-SYSTEM FOR THE LAW OFFICE How would you like to be able to open a file in your office and find right on top a record of the tasks done in that file, when the task was done and by whom, and know what the next step is, who's going to do it and when? How would you like to be able to see twice the number of clients you're presently seeing? Wou Id you like to be able to prepare a complicated Will in 24 hours? A new book, How to Create-ASystem for the Law Office, pubIi$hed by the American Bar Association Section of Economics of Law Practice, teaches the lawyer how to organize his practice so that he can do just that. Editor-in-Chief Roberta Ramo, a New Mexico solo practitioner, and a team of six lawyers, all experts in the field of law office economics, introduce systems analysis as an approach to organizing the substantive part of your law practice. This is not another law office management book, it's a law practice management book. Nor is it a book to be read; it is a book to be used, a workbook to use while organizing the substance of your work, that which you do for your client, your boss or your company and for which you send a bill or receive a salary. "Create-A-5ystem" is written in three parts. Part One introduces systems analysis as an approach to organizing the substantive areas of your practice. Part two is the workbook; it contains a mini-system and a maxi-system packet which you will use to prepare your systems for your office. Part three deals with the use of automatic typewriters in the systems approach. I know you're wondering what systems analysis has to do with the 66/Arkansas Lawyer/April 1976

practice of law. Systems analysis does for the lawyer what it does for the astronaut - systems tell you what to do, when to do it, who is going to do it, what tools (equipment, forms. information) you need to do it, where it goes when it's done, records the fact that it's done, tells you what to do next, and records the time it took you to do it. Just as the space program utilizes all those records and data to justify their budget, the lawyer's systems allow him to send a bill so completely itemized that his client hurries to pay it. As systems keep the spaceship in orbit while the astronaut sleeps, your systems keep humming while you're on vacation with your family. Systems give you control over your practice and make it manageable. You already have mini and maxi systems in your office - they're there in all of the ways you and your staff get the job done now for your clients. The forms, filing instructions, revenue stamps, and letters to the clerk and to your client that you use now in the preparation of deeds are an example of one of your minisystems. Those comprehensive areas of your practice, probate and incorporation for instance, are examples of maxi-systems. The mini and maxi packets allow you to combine your forms and your splendid language to achieve a system which is going to work in your office and with which you ana your staff will be familiar. That same system will be there when one of the three M's (moving, marriage, and maternity) strikes your secretary. You won't have to tell your new secretary to "do it the same way Susie did" because Susie's methods will be right there in your system for your new

secretary to follow. If you decide that there are several areas of your practice that it wou Id be profitable for you r to organize, you can order more of these packets separately from the American Bar Association. If I were an attorney in a general practice, I'd want several of the mini-systems to organize the collections that I handle for my clients. Every item and transaction from the time you r client turns the collection over to you to the time you remit the dollars you collected for him, all the letters, forms, pleadings and instructions for handling monies received on behalf of your client would be worked into the mini-systems and I'd create a midi-system for handling collections in my office for my clients. Don't think that the systems have to be prepared (I ought to say "programmed", but I don't want to frighten you) by you alone. Much of it can and will be done by your secretary and staff. It's a matter of documenting what they already do for you so that others can do it in their absence. You will discover, if you have not already, that the proper use of automatic typewriters along with your systems is invaluable in boosting the productivity of your staff and your paperwork. If you are already using automatic typewriters, section three will show you how to automate the production of the paperwork in your office. If you've been "on the fence" about the use of automatic typewriters, "Create-ASystem" will show you how to use them in your practice. Recently, Audrey, (secretary to Anthony Advocate, both of whom continued on pag9 71


In The

SERVICE Of The

REPUBLIC -Edward H. Levi

â&#x20AC;˘

It is a privilege to address this group of leaders of our republic. There is no doubt that you are that, although you and I may be biased in favor 01 the bar. The shafts directed at our profession throughout the history of our society of advocates and scriveners can be treated either as a recognition of leadership or a warning of bias. Edmund Burke. in describing the reasons for troubles with the colonies, gave some emphasis to the large number of lawyers -"acute, inquisitive, dextrous, prompt in attack, ready in defense, and full of resource." Later Burke was less complimentary in describing the role of lawyers in the French revolution, but needless to say he found them no less trouplesome. An anonymous essayist, opposing the adoption of the American Constitution and wickedly signing himself "A Federalist" when he was the opposite, complained that "lawyers in particular keep up an incessant declamation for its adoption; like greedy grudgeons they long to satiate their voracious stomachs with the

golden bait." I assume one day a research project for your Foundation will list ali these delightful sayings. It wili make a big book. I was surprised when I found in your program that the title of my talk tonight was "In the Service of the Republic." I do not recali, although il is possible that it happened in the rush of doing, that the title came from me. Somehow it has a pretentiousness to be properly reserved for law school deans or university presidents. I accept the title, since, I hope it is not presumptuous for me to say, this is the way you shou Id. see yourselves, and I am certain you do. The idea of our republic is that we are all in its service. As members of our profession we are all public citizens. We all take part in the effort to have the republic service and represent the citizenry and the common good. The responsibility and opportunity are not the sole possession of lawyers. The Periclean ideal of citizenship-no matter how impossible for us and for Pericles to achieve-is central to our society. Surely

it is central to our profession. The responsibility and opportunity are certainly not reserved for those who happen to be in government where under some popular notions. which I trust are wrong, there may be even some loss of freedom and honor, which are after all essential ingredients for a serving leadership.

The lawyer's service Is frequently regarded as in the adversary model. I have been cautioned on several occasions during the last year that the office I now hold is supposed to be an adversary one. I was told this by some when the Department of Justice took the admittedly unusual step of not only filing a brief in the Supreme Court in defense of the Federal Elections Commission. for most, although not ali of the provisions of the Act. but also filing an impartial amicus brief as well. I was told this also when I gave an Attorney General's opinion. as I am bound by statute to do. continued on paga 68 April 1976/Arkansas Lawyer/57


Republic, continued from page 67 to the Secretary of Commerce. The opinion, it was said, need not be taken seriously because. coming from the Executive Branch, it was necessarily special pleading. The conceptions of the lawyer as agent or representative of the client or as servant of the rule and pro· casses of the law are, as we well know, not simple. The characterizations do not quite fit because the roles of the lawyer are many. The prosecutor, we are told, may strike hard blows but not foui ones, but this hardly adequately describes even the prosecutive function. Be that as it may, our entire legal system is some-

times described as an adversary one. The paradigm is the trial in which the arguments, the facts, and the methods of presentation which will help win are advanced, and those which might help lose are subdued, or subdued to some extent, by both sides. The process is one which, when it works, has the merit of defining the issues and reaching a decision. In spite of frequent criticisms, Including those by judges of lawyers said to be ill-prepared for the task, and others who find the process wasteful or not the best for truth finding, this kind of proceeding is, I think, much admired in our society. indeed the modern form of a public debate on policy issues sometimes assumes the style of moot trial, which apparently is thought to enforce more discipline, perhaps drama, than the exchange of discourses of an older day. The decline of rhetoric and eloquence somehow has made ttie structure of a trial more appealing during the very period when science and its methods of research for its own purposes are claimed to go in the opposite direction. On entering my office, I am greeted every day by the slightly ambiguous inscription-ambiguous in part since the words are in a small rotunda, and one can begin the sentence at different places-"The United States wins its point whenever justice is done its citizens in the courts." I am also forced to take note of the fact that when one

a

enters the Attorney General's office, one faces a rather large mural showing "Justice Liberated," but as one leaves one sees a large mural showing "Justice Enslaved." I wish it were otherwise. I take it both the mural and the inscription are admonitions to give care, quality, and direction to the adversary process.

It is not strange, I suppose, that the modern view of our society is that it is, after all, composed of conflicting groups and their protagonists. Our form of government, with its checks and balances, was created in recognition of this and to curtail the power of factionalism. Roscoe Pound built a view of jurisprudence on the basis of interests pressing for recognition. The formation of our Constitution and its development have recognized not only this kind of interest, but the particular desire for power which govelnmental roles themselves induce. Nevertheless, our Constitution, with all the wariness it reflects concerning man's nature, came from the age of enlightenment with its hope-perhaps faith-in reason. But in our special kind of scientific period, which has tended to avoid the normative-and this creates a special problem for law, which, after all, is at least in part normative-there has been an inclination (I think this is changing) to describe everything that goes on, viewing the structure of aHairs in action, in terms of power relationships or auto· matic reactions. It is, of course, possible to do this since it is one way, although, depending on what power means, an in· complete way, of looking at the world. The position diminishes reason, disparages the ideal of the common or public good, adds legitimacy to the notion that law is only one more instru· ment among many to be manipulated. Then, too, the products of our scientific age and their uses add greatly to the means for effective propaganda and to other techniques for gaining advantage. I suppose it is not strange that our view

of the struggle of self·interests, real or Induced, is somewhat self fUlfilling. It builds easily upon the pragmatic strain among us with its inherent cynicism, even though the events of the last thirtyfive years indicate that one should not count on cynicism to combat passion. John Austin in his Province of Jurisprudence Determined remarked that, "It was never contended or can· ceited by a sound orthodox utilitariaf!, that the lover should kiss his mistress with an eye to the common wea!." I suppose it is one of the tenets of the operators of our manipulative society that this result would not be and never has been beyond reach. The events of the last twenty-five years-perhaps longer-culminating in the governmental crisis of a few years ago, greatly enhanced the view that no matter how things may appear, the struggle for power is what is truly and only genuine. The fact that there was a crisis might suggest an effective limitation upon that struggle as the sole stan· dard and motivation for conduct. It is in any event an oversimplification, but the point is that it came to be believed. Today one has to argue that the appearance of conflict is not necessarily the whole story, or even that the absence of the appearance does not mean something is being concealed. One example is that almost every issue today at the Federal government level is described as a conflict between the executive and the legislature. It mayor it may not be. Another example is that the public press, clothed as it properly Is in the mantle of the First Amendment, now so frequently sees itself totally committed to this adversary view of life. Since no institution is as sensitive to criticism as is the press, I state this example with some trepidation, or perhaps assurance that I will be misunderstood. I do so only because, as I will say later, the responsibilities and powers of the press and other forms of communication are important and awesome. The point is not the role of the press as investigative reporter or essayist, or the constitutional mandate

Editor's Note: The theme tor LAW DAY U.S.A. 1976 'is "200 Years of Leberty & Law". We have considered a number of addresses tor publication in this connection in this issue of The Arkansas Lawyer. This address was given by the Honorable Edward H, Levi, ANorney General of the United States, betore the American Bar Foundation Fellows on February 14, 1976 at Philadelphia. Mr, LevI's Insight into role of lawyers in the history of our Country shouid be of Interest.

68/Arkansas Lawyer/April 1976


against its abridgement. It is rather the choice of the role as adversary rather than as critic, because recent history is thought to have made this choice necessary. Samuel Johnson, as one might expect. in his dictionary, said some unpleasant things about critics. He defined a critic as a "snaner or carper" but he also recognized a critic as an "examiner," or as "a judge," or even as "a man apt to find fault:' The adversary, on the other hand, in his dictionary, was "an opponent. an antagonist, an enemy, generally applied to those that have verbal or judicial quarrels." "It may sometimes imply an open profession of enmity," he wrote, using as an example the sentence, "A secret enemy is worse than an open adversary." This conception of the role of the press is, I think, a sign of these days, although I believe it is changing. The laws of the United States, as they are in action, for reasons well understood, have furthered this sense of adversariness. A law against discrimination hovers on the edge of becoming a law for discrimination, not to correct past wrongs but because society is seen, not as composed of individuals with talents and rights, but as a series of groups vying for power. And this has come to be regarded as one of the uses of law, in litigation and otherwise, without, however, a legislative or constitutional confrontation of the values which are involved. In the Interstices of the law are found the weapons to fight these battles of public policy, not just as to discrimination but also as to the allocation of resources and the determination of the forums for decision. Political theory sometimes argues for the formal representation of interest groups, chosen for them and exclusively by them' in parliamentary assemblies. We have rejected this Idea of corporate syndicalism for legislatures but recreated it for the law at large and particularly for the courts. The history of law can be written this way, but in the cycle of history, the trend is accentuated in our time.

Popular governments are prone to cycles. It Is one of their strengths as well as their weaknesses. In the confused days between the end of the Revolutionary War and the Constitutional Convention George Washington wrote, "We are apt to run from one extreme to another." The Constitution was intended to form a government which recognized, moderated, but did not entirely do away with this tendency. We are in such a period of cyclical reaction today, justifying what we do now as a kind of getting even with the events of prior years. This in itself is another form

of the game of victims and losers. We are adversaries not only with ourselves, but also with the past. This seems some distance away from the spirit of the Founders of the Republic, who did not overestimate the nature of man, or minimize the difficulties in which they found themselves, who had many disagreements but were thoughtful about their attempts at resolution. "We have probably had too good an opinion of human nature in forming our confederation," George Washington wrote. In the midst of the Constitutional Convention, Benjamin Franklin was moved to say, "We indeed seem to feel our own want of political wisdom. since we have been running around in search of it. We have gone back to ancient history ... ; we have viewed modern States ... but find none of their constitutions suitable to our circumstances. Groping as it were in the dark ..." But from this assemblage which knew it had a serious task to perform, and which could write about the problems with explicitness and eloquence, there came, as Charles Beard wrote, more than a bundle of compromises. It was "a mosaic of second choices accepted in the interest of union and the substantial benefits to flow from union." It was a convention in which necessity and discussion made a difference. At the time of the Convention and for many years thereafter, as has been noted, there was a special quality to American law. Because of the method of training, or, we might say, non-training of lawyers, there was an emphasis on general principles, both of law and of government, and on the practical necessities and the customs which had been developed and were changing. There was the guidance also of a sense of history and a feeling of destiny. I have taken advantage - and beg your indulgence on this point - of this bicentennial year to give some impression, quite unnecessary in this group of the thought and words of that period. In a country which for some reason not clear to me knows SO little history as we do, a recollection of that period represents an opportunity, but we may end up with echoes from that time and the impressions of the present, without much conception of what happened in between, even ten, twenty, or thirty years ago. We are the captives of, and are only learning to master, forms of communication which impose upon us a kind of existentialism, an immediacy which does not have the reality of discussion or the wider historical sense. That this should happen in a country which has more formal education widely distributed than has ever been the case is not as odd as it sounds. Education

never ends or it dies; it is not easy to achieve, and half education. like half truths, represents at least the same challenge today and probably more so, as did the necessity for an educated citizenry in the much smaller country of four million people two hundred years ago. History, like law and economics, is not everything. But one may pause to consider the oddity of the one-dimensional character of much present discussion. The abuses of investigatory agencies over at least the last two decades, while real and cause for alarm. are viewed as if they existed outside of time or as if they had all occurred today. thus removing from critical scrutiny the most important factor: namely, the environment in which they took place - an environment which, it must be said, has a habit of reappearing at various intervals in the life of the Republic, starting, perhaps, with the Alien and Sedition Laws of 1789, but really before. One only has to think of Madison's letter to Jefferson in March, 1786, secretly planning the constitutional convention and expressing his concern: "I saw during the late assembly of the influence of the desperate circumstances of individuals on their public conduct to admonish me of the possibility of finding in the council of some one of the states fit instruments of foreign machinations. Or think of the problem of secrecy. The Congress of the Articles of Confederation met in private. It was called a "dark and secret conclave." So did the Constitutional Convention, which required a pledge of confidentiality as to its proceedings. and which, in order to prevent leaks, watched Franklin with particular care. Jefferson, who was not present, complained in a letter to Adam.: '" am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members. Nothing can justify this example but the innocence of their intentions, and ignorance of the value of public discussion." But there is at least some reason to believe, sunshine laws to the contrary, that the new Constitution could not have been created under any other circumstances. There are many other examples of footnotes on subjects now current, inclUding the covert action by France, which perhaps made this Republic possible, and the refusal of WaShington, noted in his diary. to consult with the Senate on the "places to which it would be necessary to send persons In the Diplomatic line" because "they have no constitutional right to interfere" and "it might be impolitic to draw it into a precedent, or the betterknown example of refusing to provide the House with the backgrou nd papers to

to

continued on paga 70 April 1976/Arkansas Lawyer/69


Republic, continued from page 6IJ on Jay's treaty with Britain. This is not to say that history should repeat itsell but rather that it might save us from the surprise which dulls reflection. There is no hidden agenda in this discourse.

Rather I seek to emphasize one attribute 01 the kind 01 govemment, republic, and society it was hoped we could be. It was to be a government and society which moved by reason. The Revolutionary War, it was thought, had itself spread among the Americans a greater knowledge of the science of government. We should not relegate to extinct Fourth of July adresses the brash affirmation of Joel Barlow. American poet and statesman who later settled not too gloriously the matter of payments for trade on the Barbary Coast, when he proclaimed in 1787 "the present is an age of philosophy and America the empire of reason." The Federalist Papers reflect the view that there was a new science of government. The belief came at a fortunate time so that it could be later reaffirmed by other examples 01 the progress made through the miracle of evolution and the discovery of new principles. The ability, the willingness, the frqadom to exchange ideas and to disCuss were extremely important. So Mill wrote in On Liberty: 'When there is a tacit convention that principles are not to be disputed; where the discussion of the greatest questions which can occupy humanity is considered to be closed, we cannol hope to find that generally high scale of mental activity which had made some periods 01 history so remarkable." So Bagehot, the English economist, applying Darwin's theory of evoultion. wrote that it was government by discussion" which would break the bonds of ages. I don't think we need be reminded of the American dream in this area. but rather to take heed of what it requires. There is a sense, of course, in which it cannot be fulfilled. Frank Knight, the great American ecomomist and, I would say, philosopher, took grim pleasure in pointing out how few real discussions ever took place. The understanding and exchange of ideas, to learn and to change what one knows - all this is extremely difficult. In a pureist sense it hardly ever happens. Yet the measure of the excellence which is reached is of concern to all of us, and particularly to the nation's laws, which are bound to be in considerable part a reflection of the nation's thought and confusion. "Representative bodies," John Jay wrote Washington. "will ever be faithful copIes 70/Arkansas Lawyer/April 1976

of their originals, and generally exhibit a checkered assemblage of virtue and vice. of abilities and weakness." He was wrong, of course. in his despondent prediction. The Constitutional Convention did better than that. But over time a working society, with a broadened electorate and a representative government. cannot help but be elevated or depressed by the general level of knowledge and spirit of candor to inquire and to learn and to think and rethink possessed by the many. The great experiment which the Federalist Papers proclaimed was not SO much representative government or checks and balances within the general or central government. The Papers recongized these were borrowed ideas. Even the creation of the Executive, which was the greatest necessity to which the Constitution responded, was not the distinctive contribution. Even Jefferson, who was often doubtful about the need for a strong executive until he became president, was urging the importance of separating the executrve and legislative powers. Again Washington records in his diary the closing interview between the new President and the French Minister. The French Minister, according to Washington, said that, "Hitherto he observed that the Government of this Country had been of so fluctuating a nature. no dependence could be placed on its proceedings; which causes foreign nations to be cautions of entering into Treaties. etc. with the United States. But under the present Government there is a head to look up to _. and power being put into the hands of its officers, stability will be derived from its doing." The originality which the Federalist Papers claimed was in the application of the principle of representation through federalism to make possible an extended republic of great territorial size with a national authority and many subordinate - that was the word used - governments with their own legislatures and councils and "their due authority and activity." Writing about the American republic at the turn of the century, Barrett Wendell of Harvard described in this extendec republic. "It is a happy legal notion," he wrote, "honestly believed by most Americans from the beginning to this day, that no question can arise which the law does not cover," Then he went on to portray the unprecedented complexity of legislation, each state with its constitution, its legislature, almost every town subject to a legislative body. "This state of affairs has combined with the somewhat superstitious confidence of Americans in legal forms to cover the face of the continent with an intricate network of often conflicting statute law, varying in force from Acts of Congress

to resolutions of aldermanic boards." He thought a hasty glance at the incredible confusion of American legislation might mislead a stranger into a belief "that a country thus fettered must be virtually paralyzed." But the solution, he said, is in the system that. as with the constitutions, confides in the courts have been animated "by a conviction that their duty is to keep the machinery of society in working order. In brief, what has saved America from the benumbing result of excessive legis!ation has ... been the swift and luxuriant growth of unwritten law." "If the wording of carelessly drawn. preposterous or conflicting statutes can be stretched into practical consistency, the Courts may usually by trusted to stretch it. If statutes prove utterly unpracticable. the Courts will commonly make this fact so clear as to induce repeal or amendment." The least dangerous branch was fulfilling the role of linchpin, bu~ more than that. in the government of the United States.

Considerable progress has been made In the last century to clarify the network 01 law. Codes, uniform laws and the restatements have helped greatly. Studies coming from the American Bar Foundation and from other associations have provided important background material and recommendations. The course of legislation in some areas has been helped. The growth of administrative law and procedures has added to the intricate pattern. But in matters of important social policy. legislation is most apt to be incomplete, hortatory, evasive and irresponsible. The role of the courts has not diminished. It has been magnified. The federal constitution has been treated in part as legislative enactment. or in lieu of legislation, and the federal courts have become the mechanism for the federal presence in state and local governments. The opening up of the courts through changes in rules of standing and class actions have enabled the courts to playa much more active role in the conflict between interest groups. That which cannot be decided in the legislature moves to the courts under the rubric of constitutional doctrine where the adversary proceeding will be fought out, followed, perhaps, by a period of court management of local institutions. The system no doubt responds to important needs and no doubt is a spur to progress. but it also works a delay as elected officials can wait for the time when the blame for action can be placed upon the intruder. When the council of revision, which would have included the judges, was debated in the Constitutional Convention, it was argued that


putting the courts in this position would lose them the confidence of the people. But the present situation frequently places a burden much heavier upon the courts, sometimes acting on the basis of legislation. sometimes without it. navigating most difficult areas where a society which must husband its resources and which in fact wants to find a new charter for human rights has difficult decisions to make. The point which must be made, I think, is that behind the courts and behind the

Legsl Economics, continued from page 66

are regular visitors to this column,) used the systems analysis approach to organize the care of the several plants in Anthony's office. The plants were the pride of the office and clients often mentioned how attractive they were. Audrey spent about an hour each week tending to them, however, and she felt that a system would allow the firm's afterschool clerk to take over their care. Her analysis showed that there were five plants in the system, so she numbered them as follows: 1, Ficus benjamina (weeping laurel) 2, Totem pole philodendron, 3, Boston fern, 4, SChefflera (umbrella plant) 5, Kentia palm

legislatures are the influential mechanisms of society which set or distort the debate. which enlighten. or by a delight in induced or assumed antagonism. cheapen every discussion so that the immediate reaction is never troubled by later thought. These are harsh words, too harsh perhaps, but the freedom our society has given does place a responsibility upon the press and upon the professions. particularly our profession. to clarify the issues. not in a spirit of antagonists or adversaries - there are forums for that - but so that

an enlightened public will understand not the catch words. not the chosen disagreements. but the basic issues which are involved. If one believes in a government by reason or discussion, the victory comes when there is understanding. The problems we have are not easily solved. but the beginning is made when they are understood. This is of course much to ask. But it has a great deal to do with the role of our country if it is to continue to be the best hope in government for mankind. :J.

She then numbered the various steps in their care, as follows: A, use Sav-a-Plant probe to determine the amount of moisture in the plant B, water with 32 oz. of water C, water with 16 oz. of water D, mist the plant with clear water spray E, fertilize the plant with 1/4 cup acid fertilizer per foot of plant growth. She then included a paragraph outlining the care for each plant as follows:

the necessary steps in the system. Audrey has already had to update her system due to the dem ise of the Kentia palm and the fact that 1/4 cup fertilizer proved to be too much for the totem pole philodendron. If you have ever said to yourself or your secretary, "Someday we golla get organized!" or "There's golla be a beller way to do this!" then you need this book in your office. If Audrey can organize the care of the office plants, you can organize the substantive part of your practice. Systems put a man on the moon and systems can help lawyers increase their productivity and at the same time enable lawyers to deliver quality legal services to an ever-increasing client workload. How To Create-A-System for the Law Office will be sold at the June meeting of the Arkansas Bar Association in Hot Springs, according to Fines Batchelor, Jr., Chairman of the Legal Economics Commillee of the Arkansas Bar Association. If you can't wait until then, it is available from the American Bar Association, Section of Economics of Law Practice, 1155 East 60th St., Chicago, IL 60637, at $19.95, including a casselle with instructions on how to use the mini- and maxi-systems. Without the casselle it's $14.95; however, in my opinion, the casselle is worth as much as the book alone and I'd highly recommend including

Monday of each week: 1 - ABD 2 - ACD 3 - ACD 4 - ACD 5 - ABD Wednesdays of each week: 1 - D 2 - D 3 - ACD 4 - D 5 - D

Tuesday, Thursday and Friday of each week: 3 - D January 15th, April 15th, July 15th, October 15th 1 through 5 - E Then Audrey allached labels to each plant, giving its name, number and system code for plant care. The system is kept in a notebook along with the firm's other systems. Weekly tickler cares are maintained for all

it.

:J. .~

April 1976/Arkansas Lawyer/71


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•EI


ARE YOU READY TO GO TO THE OFFICE? This is ETHICS QUIZ NUMBER 4 in our current series. We are indebted to the New York State Bar Association for permission to reprint four Ethics Quizzes, recently published to remind members of their professional responsibilities. This quiz deals with questions many lawyers confront during their daily practice. If

you cannot get a perlect score (100%) on this one. you beMr start reading the Gode of Professional Responsibility tonight! Answers are on page 75.

Y.s

No

Don't Know

1. The morning newspaper contains a news item reporting the indictment of a lon9hunted fugitive for the murder of a police oHicer. The District Attorney is quoted as iden-

tifying the defendant as a well-known member of the Mafia with a record of three cor>victions for assault. Should you do anything? 2. That evening. there is a TV news item of the District Attorney announcing that the defendant has been arrested in another city and has given a confession to the arresting officers. Does this additional statement change your answer to question 1?

,

3. The morning newspaper also contains an article reporting a speech by a new judge criticizing a State law which requires mandatory life imprisonment for possession of substantial quantities of narcotics. The judge, who is currently sitting in Criminal

Part, describes the law as "unconscionable" and urges its repeal. Did the judge act improperly? 4. In the morning mail is a letter from Judge Johnson asking you to purchase two $50 tickets for a fund-raising dinner for the Murray Hill Settlement House, a worthy charity of which he is a trustee. Shou Id you tear the letter up and throw it away? 5. You are asked by a long-time client to draft a will involving complicated future interest provisions. You have had little experience in the area, and are fearful that you may not be able to do the job correctly, but the client is insistent. May you ask your cli-

ent to sign an agreement that you will not be held liable if the will fails?

6. May you take on the matter at all? 7. Another client previousty asked you to handle a piece of complicated tax litigation which you had immediately turned over to a tax specialist to handle. The specialist has

completed the job satisfactorily and has been paid. He sends you a nice letter of thanks and encloses a check for 25% of the payment as a forwarding fee. May you deposit it? 8. A corporate executive who runs a medium size computer servicing firm has com-

plained to you about the predatory practice of one of the giants in the industry who has recently pleaded nolo contendere to a criminal antitrust indictment. You have just received an announcement of the return to private practice of a lawyer who served in the Antitrust Division of the Department of Justice and who was associated with the investigation leading up to the indictment Can you suggest to your client the retainer of this

lawyer as co-counsel to help in drawing up a Ireble damage complaint against the offending violator? 9. You are about to go to trial in a commercial case in which expert testimony would

be extremely helpful. The problem is that the expert's lee is substantial and your client has suffered financial reverses and has little cash available. May you offer the expert a nominal fee for testifying, with the understanding that if your client recovers he will receive an additional payment out of the recovery?

10. You are a member of the Board of Directors of the local Legal Aid Society. May you and your fellow Directors give a staff attorney directions on the manner in which he

should conduct the defense of a controversial black militant in a highly publicized "incitement to riot" case?

April 1976/Arkansas Lawyerl73


............

JURIS DICTUM

I111

by C. R. Huie Executive Secretary, Judicial Department

AN OBJECTIVE VIEW OF THE ARKANSAS COURTS AND THE LEGAL PROFESSION Ed McConnell, long recognized es one of the nation's outstanding Court Admlnlstretors and until fairly recently Administrative Director of the New Jersey Courts, was drafted by the Directors of the National Center for State Courts to

be Its Director. He accepted an invitation to addrass the Arkansas State Judlciel Council at its Seminar and Annual MeetIng on October 10, 1975. His remarks wefe so well received that several members of the Council requested copies of the address. Feeling that the members of the Bar end those judges who were unable to 8Hand the Annual Meeting would

also enjoy his humorous and perceptive remarks, I decided to devote this Issue's "Juris Dictum" section to a reprint ofthe entire address. Mr. McConnell served his apprenticeship under Chief Justice Arthur Vanderbilt of the New Jersey Supreme Court, recognized as one of the nation's strongest leaders In the movement for court Improvement and reform.

Mr. McConnelfs address follows:

SOME NATIONAL TRENDS AND PERSPECTIVES RE JUDICIAL ADMINISTRATION I read the agenda of your meeting here today with a good deal of interest. Seminars such as this offer a valuable opportunity not just for you to become more familiar with the topics under discussion. but an exchange of views by all members of your judiciary should prove most helpful in coming to grips with some of the basic problems confronting the courts and the legal profession. And the value of such free discussion in the solving of problems is well recognized. The interest of judges and lawyers alike in improving both the courts and the legal profession is at high tide. Whether it is the result of continued public prodding or the self-awakening of a new sense of responsibility, the fact remains that there is a nationwide groundswell of interest in court reform, or court improvement as some prefer to call it. The specifics vary from state to state, but

the current focus is on the following general areas: 1. There is a growing professionalism in the courts. This is reflected in renewed interest in merit selection of jUdges, in the insistence on procedures for the discipline or removal of judges when appropriate. and in the development of meaningful in-service judicial training programs at both the national and state level - a SUbject you discussed this afternoon. Attention is also being given to improving the caliber of court support personnel - a painful process that requires taking court staffs out of the political patronage arena and making them directly responsive and responsible to the judges and courts they serve. 2. The courts are rapidly becoming management conscious, with the hiring and training of qualified court managers and the utilization of the skills and technology of modern business management. And I should interject here that it is not just the large urban courts that need to improve their operations and can benefit by the application of sound business principles - in fact it is the small and medium sized courts, I think, that stand to gain the most. because their problems are manageable, whereas in some of our large urban centers like New York City and Chicago it is questionabie whether anything is going to pull them out of their present deplorable state. 3. There is a continued trend toward centralized state court administration, notwithstanding some of the theories being voiced that this is conceptually inappropriate. Courts, like any other organization, need strong leadership if they are to work well and continue to meet the needs of the times, and leadership can only come from the top. It is being recognized, however, that centralized administrative authority over state courts is best exercised by actively involving all affected troups in the decision-making process and by decentralizing policy execution. This trend towards centraliza-

tion of court systems is also seen in the renewed interest in Roscoe Pound's simplistic "one-court" concept and in the movement towards state financing of all courts, which prompts me to inquire whether it is really necessary for Arkansas to have two courts of general jurisdiction and seven courts of inferior jurisdiction? In asking the question I do not intend to suggest the answer. In my opinion there are only two tests for a court system: Does it work; and do the people of the state like it. If so. it matters not that it is different from that of any other state or anybody's standard. 4. One of the most recent. and in my opinion most significant developments is the belated realization that if courts are to run well, like any other well-run organization or operation, they must plan for the future. Impetus is being given this movement by a new nation-wide project we at the National Center are undertaking aimed at developing the internal planning capabilities of state court systems. In retrospect it is somewhat amazing that court systems have improved at all, since few states have had any idea or plan as to where they wanted to go or as to how they were going to get there. And I might add that having a plan is only the first step - there must also be the commitment and determination on the part of all concerned to carry it out. Now that I've mentioned some of the things that are being done. I shouid like to briefly enumerate what I perceive to be seven major areas of public dissatisfaction with courts and with lawyers: 1. Case dispositions are too long deiayed. I am fUlly familiar with all the reasons - and many of them are very good reasons - why this is so; but there can be no question that court delay is one, if not the major cause of public disillusionment with the judicial process. According to the last annual report of your Judicial Department. in the iast 10 years the volume of filings in your circuit and chancery courts has doubled, and over 8% of all criminal cases, almost 15% of

74/Arkansas Lawyer/April 1976

J


L

civil law cases and over 31 % of all chancery cases pending on your dockets were over two years old. In comparison with some other jurisdictions this may look current - but it does not look that way to the ordinary litigant. Courts just must be given the resources in terms of judges, staffs and facilities to process expeditiously the business coming before them. The only alternative, if the public or the politicians are unwilling or unable to finance adequately our present system, is to explore drastically different procedures for the trial of cases. For example, an arbitrary time limit might be placed on the length of time a trial can take, thereby forcing the parties to make the best showing they can in the time allowed. This is generally done today on appeals, with limits on the length of briefs and the time for argument. Obviously any such procedural change would be of revolutionary proportions and would require scrapping or totally revamping the rules of evidence and the manner in which testimony is elicited by examination and cross-examination. But whether this is done or not, one thing is sure: a given number of judges cannot keep doubling the number of cases or appeals they dispose of. In most jurisdictions the point of diminishing returns from improved techniques has been or soon will be reached. If disputes are to be resolved expeditiously, we ultimately either need to add judges or change the process. 2. Courts must make greater efforts to suit the convenience of the public, in terms of both when and where they sit and the manner in which lawyers and

court staffs treat litigants, witnesses and jurors. The courts must become more consumer oriented. In this regard, I think we might profit by taking a look at the transformation that has taken place over the past decade in the banking business. 3. Some of the mystery must be removed from the judicial process - it must be made more understandable to the average person. This might be done, I think, in three ways - by increasing lay participation at all levels; by the televising of court proceedings (a good place to start being with the Supreme Court); and by bringing judges more into the mainstream of community life (many of the codes and canons appear to the layman as being mere professional excuses to avoid civic responsibility - a judge does not have to be isolated and aloof in order to be regarded as fair and impartial). 4. The cost of legal services and of access to the courts must be brought within the means of the ordinary person having need of them. The fact of the matter is that today it is only the very rich or the very poor who can afford to go to court. The person of average or above average income just cannot afford to be either plaintiff or defendant unless there is an insurance company around to pay the bill or unless a lawyer takes his case on a contingent fee basis, which in turn is not without some problems. 5. The legal profession must take steps to insure the public of the continued qualifications of its members, both judges and lawyers. Some form of continuing education and legal speciali-

zaUon seem to offer the best solution. And we should not minimize the value of education - business has found it an indispensable means of keeping up with the times and of up-grading staff performance. 6. The political process and not the judicial process should be used to resolve basic issues of controversial political and social policy. There are many cases today that it seems to me just do not belong in court - they are for the legislatures and not the courts to wrestle with. But jf courts are to continue to deal with such issues as school integration and the right of public employees to strike, then they must develop procedures more reasonably calculated to inform them as to the facts and the consequences than do present trial and appellate procedures. One possible technique, for example, might be for the court to hold public hearings at which those concerned and affected, but not parties, might make their views known. 7. Finally, the handling of criminal cases, and particUlarly sentencing, must be placed on a more rational basis. Today, the public criticism - and it is not just police criticism - of the courts' performance in this area places our whole system of law and justice in jeopardy. The courts just must be prepared to try defendants for the offenses with which they are charged -with a guilty plea being considered only as an alternative to trial - and must obtain from the behavioral scientists better criteria for determining what sentence to impose on whom. iJ-_

What is Your Ethics Rating? 600/0, 800/0, 40 0/0? Answers to Ethics Quiz No. 4 Conffnued ~om page (Don'l look unlll you have marked all of you, an.wer. on tha quiz.) 1. Ve•• 2. No. Both the newspaper article and a report of the TV news item shou Id be forwarded by you to the Grievance Committee. Disclosure of a confession, evidence, prior criminal record, or other prejudicial background information to the media by the lawyer for the prosecution is a direct violation of Disciplinary Rule DR7-107-(b). Every member of the bar has a personal responsibility to report such unprofessional conduct to the proper agency. DR1-103(a). Unfortunately, few lawyers have read the new Code and fewer still comply with it, so these abuses continue to occur with alarming frequency. 3. No. Since the judge has an exceptional opportunity to assess the workability of the narcotics law he can and should express his opinions on how it

can best be improved, if, in doing so, he does not cast doubt on his capacity to decide impartially any issue that may come before him. 4. No. Vou should send the letter to the newly-created State Commission on Judicial Conduct. A judge is prohibited from soliciting funds for charity by Canon 5(b) (2) of the Code of Judicial Conduct. A lawyer's obligation to report imrpoper conduct extends to judges as well as lawyers. DR1-103; ECl-4; EC8-o. 5. No. Attempting to limit liability for malpractice is expressly forbidden by DR6-102(a). 6. Ve•• Although ordinarily an attorney who does not feel competent to handle a matter should not accept it at all, it is permissable to do so if. with the knowledge and consent of his client, he associates with an attorney who is capable of doing an adequate job. EC2-22; DR2107(a); EC4-2; EC6-6; DR6-101 (a)(l). see NVSBA Opinion 339.

7. No. A fee can never be divided without a client's knowledge and consent. DR2-107. NYSBA Opinion 134. Even if such consent is given, however. .. . .. the division is to be made in proportion to the services performed and responsibility assumed by each". NYSBA Opinion 317. Here no split is justified. 8. No. "A lawyer shall not accept private employment in a matter in which he has substantial responsibility while he was a public employee." DR9-101(b). See also ABA Informal Decision 1182. 9. No. Any contigent payment to an expert witness which amounts to a bonus if the client prevails is explicitly prohibited by DR7-109 (c). 10. No. Such a board should limit itself to formulating broad policy. leaving the conducting of individual cases to at~ torneys assigned to them. See OR2103(d). For an extended discussion of this question, see ABA Opinions 324 and 334. J--~ April 1976/Arkansas Lawyer175


3J n JMtmortam For I have learned, in whatsoever state I am, therewith to be

content. Philippians 4:11

ROBERT S. McGREGOR Municipal Judge Robert S. McGregor, aged 67, died November 27. 1975, at Brinkley. Born at Brinkley, he had been a steamship captain with the Lykes Brothers Steamship Line and was a member of the Merchant Marine during World War Ii, and the Korean and Vietnam wars. He returned to Brinkley after his retirement from the Merchant Marine. and became Municipal Judge in 1973. He was a graduate of Cotton Plant High School and the University of Arkansas He was a member of Sigma Alpha Epsilon Fraternity. the Arkansas and American Bar Associations, the Brinkley Rotary Club and the Elks Lodge. He was a Presby1erian. Survivors include his wife, Mrs. Wilma Spears McGregor; two daughters, Mrs. Barbara Denton of Hot Springs and Mrs. Romeo E. Short of Brinkley. a brother. three sisters. eight grandchildren and five great-grandchildren. Memorials may be made to Brinkley Presbyterian Church and R. C. Wels Living Memorial Fund at St. Joseph Nursing Home at Brinkley. JAMES H. PENICK 1897-1975 James H. Penick, aged 78, Senior Board Chairman of Worthen Bank and Trust Company, died December 4, 1975, in Littie Rock. Mr. Penick was born at West Plains, Missouri, July 14, 1897, but moved with his family to Hot 78/Arkansas Lawyer/April 1976

Springs, and then to Little Rack in 1904. Educated In the city's public schools, he attended Washington and Lee University at Lexington, Virginia, interrupting his college education to join the Army in World War I. He returned to the Army in World War II and spent much of his second tour at Rome as Chief of the Allied Financial Agency. helping to rebuild the banking system of Africa and Italy. Italy awarded him the Order of the Crown of Italy for his services. He also received the Legion of Merit from the U.S. Army and left the Army as a Lieutenant Colonel. Mr. Penick lolned the staff of what then was called the W. B. Worthen Co.. Bankers. On February 15. 1919. He rose through the ranks to teller. cashier, executive Vice president, president and board chairman. retiring from active bank management in the mid-196O路s. but retaining his seat on the bank's Board. Mr. Penick earned a law degree from the Arkansas Law School and an honorary doctor of laws degree was awarded him by the University of Arkansas. He was admitted to the Arkansas Bar in 1919. Mr. Penick served In many capacities in various banking organizations, local. state and national. In nonbanking fields, Mr. Penick served as President of the Community Chest. the predecessor of the United Way. of Pulaski County; as president of the Little Rock Chamber of Commerce and of the Pulaski County Citizens Council (later called Ihe Committee of 100); and as

Chairman of the Little Rock Civic Committee. He served many years on the Board of the Liltle Rock Boys Club and as ils president. and as a director of the Boys Clubs of America. Mr Penick served as a vestryman and senior warden of the parish of Trinity Episcopal Cathedral and had been chairman of the Standing Committee of the Episcopal Diocese of Arkansas and a member of the Diocesan Board of Trustees. He was a Mason. a member of SCimitar Shrine Temple, a past grand commander of the Knights Templar and a former secretary of the Arkansas Division of the Knights Templar Educational Foundation. Mr. Penick was a founder and the first Protestant co-chairman of the Arkansas Region of the National Conference of Christians and Jews, and the recipient of its 1973 Brotherhood Award. Mr. Penick is survived by hiS wife, Virginia Ivey Penick; three sons. Edward M. Penick, James H Penick, Jr., and James Carroll Penick; and two daughters, Mrs. W. N. Brandon. Jr. and Virginia Ivey Penick; two sisters, eight grandchildren and four great-g randch iId ren. GEORGE EDWARD THIEL, JR. 1924-1975 Former MuniCipal Judge George Edward Thiel. Jr.. 51, of Paragould, died November 11, 1975, of injuries received In a traffic accident on Highway 1 Bypass Thiel was an attorney and a lifetime resident of Paragould. He graduated from the University of Arkansas School of Law in 1947. He was a former president of the Greene and Clay Counties Bar Association. and served as mUnicipal judge in the 195O路s. Thiel was a member of the Christian Church and a 32nd Degree and Scottish Rite Mason. He is survived by his mother, Eva Blanche Thiel and a son. Michael E. Thiel. both of Paragould

CHAS. H. TOMPKINS 1889-1975 Chas. H. Tompkins, the senior member of the law firm of Tompkins, McKenzie, McRae & Vasser, died in Prescott on September 20, 1975.


He was born In Prescott on September 1, 1889, and made his home in Prescott all of his life. Mr. Tompkins was graduated from the University of Arkansas and later attended Washington & Lee University in Lexington. Virginia. where he obtained his law degree in 1914. He was an outstanding pitcher on the baseball team of each school and later played professional baseball with Toronto. Canada. for the International League and the Cincinnati Reds of the National League. Mr. Tompkins was admitted to the Arkansas Bar in 1914 and shortly thereafter commenced the practice of law in Prescott with the firm of McRae & Tompkins. He was engaged in the active practice of law in Prescott until his death, a period of more than 60 years. He was an Elder of First Presbyterian Church of Prescott for more than 50 years, taught the Men's Bible Class, and was a member of the choir of that church for many years. For all of his life he was an ardent hunter and fisherman. Mr. Tompkins IS survived by two children, Martha Tompkins Felder of San Antonio. Texas, and Chas. H. Tompkins, Jr., of Carthage, Missouri. and four grandchildren.

MEMORIAL GIFTS "It is more blessed to giv~ than to receiven-However, a member profits both way. with a memorial gift to the Arkansas Bar Foundation. One'. gift is a beautiful way of honoring a former colleague. The family must be most al'Preciative of such remembrance. The gift is n"ted in the Foundation'. Memorial Book and, of course, is tax deductible. Memorial gifts may be sent 10 the Arkansas Bar Center. The memorial cards (below) of the Arkansa. Bar Foundation are formal and are promptly delivered upon receipt of the memorial gift.

WE ACKNOWLEDGE WITH GRATEFUL APPRECIATION THE RECEIPT OF A GENEROUS MEMORIAL GIFT FROM

OF

IN MEMORY OF THE LATE

~ dda....da6 @"", .%~. LITTLE ROCK, ARKANSAS

REUEL WALTER TUCKER 1895路1975 Reuel Walter Tucker, 80, of Ruston, Louisiana, died March 3, 1975. Mr. Tucker was a native of Arkansas and a member of Trinity Methodist Church of Ruston, Louisiana He was a veteran of World War I, and had been an attorney in Batesville and EI Dorado, Arkansas. until his retirement 20 years ago. Mr. Tucker was a member of the Arkansas Bar ASSOCiation and the American Bar Association. Mr. Tucker had recently completed a book entitled "Memoirs and History of the Peyton Tucker Family," which book was received from the publisher the afternoon of his funeral Survivors Include his wife, Rose Laurence Tucker, and a number of nieces and nephews ~.

DATE WE ACKNOWLEDGE YOUR GENEROUS MEMORIAL GIFT IN THE AMOUNT OF

_

IN MEMORY OF THE LATE

THE FAMILY Is BEING NOTIFIED

LITTLE ROCK, ARKANSAS

April 1976/Arkansas Lawyerm


LAW SCHOOL NEWS by Asst. Dean J. Steven Clark

Dean David R. Hendrick

TO THE MEMBERS OF THE BAR: Most of you have just received your Law Graduates Brochure for 1976. As mentioned by both Dean Davis and Dean Hendrick. we are quite proud of these graduates and believe they will be a credit to our profession and association. Due to the decrease of available job opportunities, students are taking placement and their preparation to become skilled lawyers more seriously. A large number of students each year are involved in intern programs throughout the ~tate. These students work with prosecutors, pUblic defenders, circuit judges. prison officials. the United States 8"orney. and the attorney general, just to name a few of our colleagues who have been involved in the development of such students' legal education. Additional students acquire practical skills and experience clerking with innumerable firms in Fayetteville, Little Rock, and other communities. Moreover, both schools operate clinical programs. At the Fayetteville campus the clinic

operates five days and two evenings a week. This practice skills law office operates with over seventy-five student associates. It is directed by three attorneys and litigates in the juvenile, municipal, and chancery courts with the assistance of supervising attorneys from the community. The culmination of all this effort is a student who is well grounded in the fundamentals of law with an awareness of the practical sk ills needed to be successful in practice. This student can be a benefit to any firm either as a summer clerk or an asso路 ciate. Just as our education programs have been expanded to include practical skills, so have our placement services grown. A conscientious effort is made to accommodate every individual. firm, government agency, or corporation desiring to interview our graduates. The Placement Offices can inform students and recent graduates of positions available; collect resume data from interested applicants; arrange scheduling and

interview facilities, and assist in bringing together employers with qualified applicants. Of course, these services are free. The development of an expanding practice and effective delivery of client service directly correlates to the development of a sound recruitment program. It is our sincere hope that the lawyers of our stale will permit its law schools to assist them in the development of their efforts for extra part-time interns and associates. Do not hesitate to call upon our placement services whenever we can be of assistance. Contact:

J. Steven Clark. Assistant Dean School of Law University of Arkansas Fayetteville. Arkansas 72701 David "Sandy" Hendrick, Acting Dean School of Law University of Arkansas 400 West Markham Little Rock, Arkansas 72201

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE Dean Wylie Davis attended a Dean's Workshop February 12, 13 and 14 at the mid-year meeting of the American Bar Association in Philadelphia. Saturday, January 30th. Mssrs. Fines Batchelor, Jr., Tom Ledbetter and Lewis Epley. Jr.. presented a legal economics seminar at the School of Law. The sem inar was extremely well received and attended by the students. The faculty and students at the Fayetteville campus appreciate this service rendered by the bar and these lawyers. Professor Morton Gitelman was the keynote speaker at the January meetings of the Arkansas Press Women In 78/Arkansas Lawyer/April 1976

Fayetteville and the Arkansas Federation of Water and Air Users, Inc., in Hot Springs. Assistant Dean J. Steven Clark took leave of absence from the School of Law during the month of January to serve as a legislative liaison to Governor David Pryor for the extended legislative session. Professor Hillary Rodham was the keynote speaker at a national conference in children's rights held at Brigham Young University, Provo. Utah, February 19th. Dean Wylie Davis addressed the Sebastian County Bar TueSday, February 17th.

Mssrs. Robert Henry and Ernest Lawrence, Jr., Chairman and member, respectively, of the Board of Bar Examiners, presented a program for those graduating students preparing for the Bar Friday, March 6th. The program was coordinated by the Bar Association's Law School Liaison Committee through A. D. McAllister and Rudy Moore. Jr. The program was very well attended and quite informative. It is with deep sorrow that the School of Law records the death of Mrs. Norma Gitelman, wife of Professor Morton Gitelman. We will all miss her friendship and support of law school programs.


SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT UTILE ROCK A Committee chaired by Dr. Winston Beard. Associate Vice-Chancellor of the University of Arkansas at Little Rock. is searching for a permanent Dean of the

UALR School of Law. Four members of the law faculty, two law students, a past president of the Arkansas Bar Association, and a member of the UALR under-

graduate faculty constitute the Committee. They are: Professors Ruth Brun-

son, Robert H. Marquis, and James Wm. Spears; Assistant Professor Kenneth S.

Gould; Mrs. Nancy Hofmann and Mrs. Marjorie Kesl; the Honorable Gaston Williamson and Professor Pat McGraw. UALR Chancellor G. Robert Ross will annqunce the appointment after receiving recommendations from the Committee and the law faculty. No date has been set for the appointment. Associate Professor David R. Hendrick, Jr. is serving as Acting Dean during the interim.

Professor Robert H. Marquis recently attended an Environmental law Symposium at Nashville. Tennessee. Mr. Marquis served as a panelist discussing the topic. "The Environment and the

"Recent Developments Credit Law,"

in

Consumer

Sixteen students at the UALR School of Law have been named apprentices on

the staff of the Arkan.a. Law Review.

T.V.A.... The conference, held on January 21, 1976, was co-sponsored by

Those named were: Rolf Anderson. Katherine Anderson, Paula Casey.

the Tennessee Environmental Council, the University of Tennessee at Nashville. and the Junior League of Nashville. Professor Marquis was also a featured

Jones. Wayne Lee. Paul Means, Anne Owings. John Peace, William Tyler, and

speaker at the annual Oil and Gas Institute held in Hot Springs on Thursday, February 26, 1976. Mr. Marquis spoke on "The Arkansas Administrative Procedure Act and the Conservation Act -

Some Federal Precedents."

Wayne Elrod, George Jegley, Steve Kathy Woodward all of Little Rock; James Carroll of North Little Rock, Mrs. Sherry Mathis of Arkadelphia, Randy Rice of Benton and Mrs. Judy Stracener of Jacksonville.

The Law Review is published quarterly under the auspices of the Arkansas Bar Association and the Fayetteville and

Little Rock Law Schools. The principal

Professor Arthur G. Murphey addressed the Pulaski County Bar Associa-

editorial offices are on the Fayetteville

tion at its regular monthly meeting on

campus. "

<T- ....

March 5, 1976. Mr. Murphey reviewed

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Major legislation of Interest to lawye rs 94th Congress, Second Session House Status

Bill Description No. Fault. (5 354: HR 9650) Ellotbllsh lede,.l nO"olult ,}UIO h,surance

sta"CI.lrds.

Adm!nllt,.tlve ProCldur. A" Amendmenh. IS 796-800: 10194·10199) Pl"OPOioIll to Improve admlnlllr.lIl1e procedu'f15.

HR

Senate Statlls

Commerce subcommIttee

CumrnCI<;e Committee

reported 10/29/75

regorted 7/15/15

Judiciary subcommill••

Pending In Judlcluy

be~n

hearings

ABA Position OpPole5

SlIPPOrts

lubcommltlee

12/4/75 Additiona' JuCl,...ttlps.. (5 2861 Crute 7 more appellite judgeshiP" IS 287) 45 more district jud9ll5hlpl: (HR 4421) 52 more d151,lct Judgeships: IHR 4422) 13 more nK)ell~.luCl....Shlpl.

JUdlCl40ry subcomm~lIee

PUHCl 5 286 lO/2{75;

~nhur;n91

Judlc..ry reported

ildCllllona'

11/12f15

S2879f24{15

Judgahlol

Judie.. ' Cln:ult1.. IS 729) Reo'9<'nl."e 5th .no 9th c:lreults ano ere-te addltloniill judgeShips In thOse clrcults: (S 2752) Reorpnlze only Sth clfCult lind creiilte iil<tditloniililudgeshlps_

NO bit" Introdueed

Judlcl.,y Committee reponed 5 2752 12~: Judiciary subcommittee repofted S 729 9/23/75

Niiltloniill Court of Appeals. (S 2762: HR 11218) Estiilbllsh 7·member court to consider uses referred by the Supreme Court or translerred from the U.S. Court ot Appeiills.

Pending In Judleliilry subcommittee

SuppOrts

Supports r.clr~nl.EUlon

In principle

Pending In Judlcliilry SUbcommittee

SUPPOrlS only lelerence JurlSdlcllon

Pused 6/20/75

SUPPorts

Pending In JUOKiiilry SUbCommittee

JudiciAry subcommlltee began heilrlnlll 2/18/16

SUPPOrts In o.lnc!o"

0 . . . Co..ernmenl. IS S, HR 116561 Require open meellngs of gove,nment iilgencies: IS Res 91 Open senate meetln9S.

Cov't Ope,..tlons Committee begiiln miilrkup 2/26/16

Pused S Res. 9 llts/75 iilr'Kl S 5 11/6/75

Suppo,ts In princiPle

Gun ContrOl. (Unnumbe,ed Sen.. te 0111: HR 11193) Limit or prohlOU Hill, ownership, possession, t,.. nsoortiiltlon Or receipt of hiilndguns.

Judlc10lry Committee bltgiiln miilrkuo 2/3/76

Judlcliilry subcommittee reponed 12/1/75

Suppo,ts strengthening gun control iilet

F.CI.r.1 Crimln.. 1 Code Revision. IS I: HR 333, 3907,108501 Revise 18 usc: Codify, " ..1", .nd emend f.oen,l crimina' 'ews.

Pending In Judlcliilry subcommittee

Judleliilry SUbCommittee reported 10/21/75

Supoorts S 1 iilS buis for 'eg,st..uon

AWiil,d ot AUo,ney Fees. IS 2278 et al; HR 7825 et iilO Authol\ze awa,d of reuonabie legiill' fe.s .nd costs ,n DUbilc Interest and Other 1It1901Uon.

JUdle10lry wbeommlttee completed l'Iurings )2/3/75

Judlc10lry subcommIttee completed l'Ie.-rongs on S 2715 2/6/16 iiIInd app,oved S 2278 2/19/76

NO pOl,tlon

Thre.Judge court .. (S 537: HR 61501 Eliminate th,ee-judge courts except In certain uses. Judlc~1 Tenure. CS 1110: HR 1275) Establbh procedure for rellre· ment, ,emoviill of diSAbled or untlt judges.

Judiciary suocommlltee iilPproved HR 6150 am.nded 9/25(15

Conwmer Pfotectlon. CS 2001 Estiilbllsh lr'Klfloendent, nonregulatory Agency 10' Consumer AdvOCiilCy '0 "P,eMnt consumer Interests befo,e feeler .. 1 .genc,es.

Pnsecl 11/6/75 wltl'l ..menOments

Wo,ke..' Compensation. IS 2018; HR 9431 ) ESlabllsl'l minimum feder.. 1 Stillndards fO' state wO,kers' compen ...tion orog,..ms.

EOuc;ltlon·L.bo, subcommittee oeg.. n hf:ijl,lngs 1/22/76

Voter Registration. IS 1177; HR 115521 Allow voters to ,egluer for ledera' elections by m ..lIlng postca,d 10 10UI election oltlelafs.

RUles committee postponed 1/29/76

Post Office and Civil service comoleted l'Iurinos 5/9/75

SuoporU

Medlc.. 1 M.. lpriilCtlce In"",.. nce. IS 188 et al: HR 6)00) Propowls to usure ..v.. llabillty 01 msur.. nce, InCluding federal relnw,..nce, lim,ts on conllngency fees, strlcte, st.. ndards fo' medlUI personnel.

Commelce wbcommittee bfI9iiIn regional nea,lngs 6/16/15

Labo,-Public Welfare SUbcommittee hflld iiIIdditional neiil,lng 12/3/75

ABA commlss.on to Sludy ISsue

C,lmlniill Justk:1 In'orm ..Uon P'I....ey. CS 2008; HR 8227j Provide fo, security. iiIIecuriilcy and conlldentl.. tity of crjmln... Justlee information; orotect prlv..cy of ind/vldu..1 to wnom informulon rel.ltes.

Judiciary wbcommlttM completed heiillrlngs 9/5/75

JudiCiary subcommittee completed he..rlngs 7/16/75

SuppOrts In principle

LEAA. IS 2212; HR 9236) Extend life of LEAA 5 years: eXPiilnd ,urlsd,ct,on of Its rese.. ,e" Inltltute 10 clvlt m ..llefl: empl'laslu courl orog, ..m funding: (HR 8967; S 3043j Anures Judiciary LEAA funding

Judlcl.. ry subcommittee bflgiiln l'Iurlngs 2/19/76

JudlCI,ry sUDcommlttee began hearings 10/2/75

Supoorts iiIIde· QU.. tfl eOUf! funding

Bankrvptcy L..w Refo,m. CS 235. 236: HR 31, 32) Rev,se iiIInd relOlm 11 USC, leoe'iill biillnkruotcy t..... s.

Judlcl..ry subcommittee hu,lng1 underwey

Judleliilry SubCommittee begins markup in M..reh

Supports reform

Antitrust L..... s. IS 1284j ElIlOiilnd federal p.emerger notlllUlllon power and use Of c"mlniilll .ntltrust nolo pi en In civil easel; Increase Cfllliill,n hnes, Autho,ize /HIfrns p~r'lilf1: S"engtl'len elv,1 discovery C.. ISO HR 39)

JUd,cl..ry SUDeommlttee COmPleted l'Ieiillings on HR 39 7/25/75

Judiciary subCommlUee to begin m.rkup 3/4/76

Opposes

Antlt,ust Puenl PU,I,ul. (5 1284, Tltte IV: HR 85321 Authorize Sl.. te attorney§ gener,1 to sue on oeh,H of state Citizens to reCOver antitrust aiilm..ges.

Rules Committee granled open rule 2/10/76

Judlcl"y wocommlttee to begin m .. rkuo 3/4/76

Opposes

BO/ArI<an.a. Lawyer/April 1976

Pnsed 5/15/15

L.. bo,·Public Well.,e SUbcommittee begins hUflngs 3/2/76

SuPPOrts /n principle

Opposes federiill stlnOards


VERBALIZING

Relating to the public

Is there an organized group, or a public person, anywhere in our country who doesn't complain about "having a bad image" or "getting a bad press"? I have yet to find one, including, ironically, public relations practitioners and news people, the builders and conveyors of "images."

Lawyers, it seems, are constantly reading, and taking seriously, survey results that rank them in public esteem at a level with morticians and just below butchers and above hairdressers. There appear to be three sacrosanct rules followed by every speaker or writer on the subject of lawyer pUblic relations: 1) Quote deTocqueville, who wrote many complimentary things about lawyers. 2) Immediately contrast something by deTocquevilie with Sandburg's "hearse horse" poem, or, even better, with Shakespeare's line about "killing the lawyers." 3) Cite one of those surveyseven if it was conducted among six people on a street corner in Keokuk - that demonstrates that people "think lawyers are thieves." (Incidentally, it always bothers me to see that Shakespeare quote used, since it is virtually always quoted out of context. The quote comes in a scene in which Jack Cade, "a rebel," discusses his plan to become king. Cade says, "There shall be no money; and all shall eat and drink on my score; and I wilt apparel them all in one livery, that they may agree like brothers and worship me their lord." Cade's accomplice, Dick the Butcher, then suggests that the

rebels begin by killing all the lawyers. Obviously, this suggestion is made not because Dick believes that lawyers are bad people but out of the knowledge that, by killing the lawyers, Cade and his people wou Id remove the strongest opposition to his plan to take over the country.) Lawyers, like everyone else these days, are paranoid about what the press says about them and what the public thinks about them. Too many of us, including some high-level representatives of the organized bar, think that "the press is out to get us" and "the consumers are out to get us" and "the Antitrust Division is out. .." and so on, ad nauseum. This attitude is negative and selfdefeating, and one often finds that those who complain most loudly are those who try the least and achieve the least to remedy the situation. Public relations is one of the subjects about which the bar talks very much and does very Iittl&-and when I say "pUblic" relations, I mean all of our publics: the community, the judiciary, the press, our clients, etc. I suggest that the first thing we do is get rid of the word, "image," as it relates to public relations. The dictionary defines "image, in this context, as "a mental picture of something not actually present." The bar, and any group or individual wanting to create a favorable impression in the pUblic mind, must present a picture of what It Is, not what It wants people to think It Is. This is the difference between shadow and su bstanc&-between a cosmetic approach and a realistic

one. Let's show the warts and the moles and the pimples; let's admit that they are imperfections and point out that we're taking medicine to cure them. I further suggest that we stop thinking about the bar as "the second profession." Lawyers too often compare themselves to doctors, in a sel-deprecatory way. Many Chicagoans refer to Chicago as "the second city," comparing it unfavorably to New York City. Just as living in Chicago has taught me that it's not inferior to any city, working with lawyers has demonstrated that the bar need not feel less important or valuable than any other profession. And let's maintain a free and open working relationship with the press and work to strengthen and improve that rapport wherever it exists. We should avoid that hideous phrase, "no comment," and attempt to avoid "misspeaking" to the press (a word that my dictionary doesn't define, but that I think is synonymous with "lying."

Finally, lawyers and bar associations should do positive things--not dance around them, not just talk about them: Become part of the community; eliminate pomposity disguised as dignity; deal with people as though they're equals, even if they aren't lawyers. Public relations has been defined as, "doing good things and letting people know about them." What more do we need? How much simpler can a job be?

-Alan E. Kurland

/1- ....

(Editor's Note: One of the main topics presentad at the National Association of Bar Executives' 1976 Midyear Meeting was "Public Relations: Angel or Ogre". The above article by Alan E. Kurland, Staff Director of Bar Services of the American Bar Association, received much favorable comment at the meeting. The article first appeared In the January 1976 Issue of BAR LEADER, an ABA publication for state and local bar association officials.) April 1976/Ar1<ansas Lawyer181


"How to Start and Build a Law Practice" Jay G. Foonberg Beverly HIlls, California the "hit" speaker at current Legal Economics Seminars

PRESIDENT'S RECEPTION ASSOCIATION & FOUNDATION LUNCHEONS ANNUAL BANQUET & DANCE PRESIDENT-ELECT'S RECEPTION CB's SPORTS TOURNEYS

ANNUAL AWARDS

OUTSTANDING LAWYER

OUTSTANDING LAWYER-CITIZEN

OUTSTANDING LOCAL BAR ASSOCIATION

82/Arkansas Lawyer/April 1976


"How to Double the Productivity of Your Law Office"

YOUNG LAWYERS SECTION

with

"Juvenile Justice in Arkansas:

ANNUAL MEETING

ROBERT P. WILKINS, Editor Legal Economics

The New Juvenile Code in Review"

and

with RICHARD WILLIAMS, Chairman ABA economics of Law Practice section

A very special ladies' program, too!

Juvenile Referees Bob Mayes and Jimmy Joyce

BAR GROUP MEETINGS Annual Membership Meeting of Arkansas Bar Foundation Association Committee and Section Meetings Arkansas Law Review Board Law Review Breakfast Delegates' Caucuses

HOUSE OF DELEGATES' ANNUAL MEETING

OPEN TO THE GENERAL MEMBERSHIP

THE ISSUES OF TODAY IN THE LAW

Two Popular Subjects & Popular Speakers:

"A Look at the Present Crisis in the Delivery of Legal Services" with JOHN H. CAMPBELL of Kansas City, Missouri

"Ethical Considerations of Prepaid Legal Services" with TOM CONNALLY of Houston, Texas

ENTERTAINMENT "The Spirit of '76" starring Penny Rice with Glo Atkinson The Common Good Young Peoples' Program

April 1976/Arkansas Lawyer/83


WEST ANNOUNCES "WESTLAW" ELECTRONIC RETRIEVAL SYSTEM More Ihan 2,000,000 lawyer-prepared case summaries are stored in the central IBM-370 computer dala base of a new electronic retrieval system for legal research just announced by West Publishinl1 Company, SI. Paul. Called "WESTLAW," the system culminates ten years of research and development by West in the field of computerized retrieval. Before its market introduction, the system was also field-tested at a large law firm. a state supreme court. a government judicial center and a federal agency. The performance Is rated as excellent by the users who hail the system's simplicity of operation and the speed and thoroughness with which it retrieves relevant case summaries for instantaneous cathode ray tube display and for hard copy reproduction. "WESTLAW" offers to the legal profession the most extensive case law data base available in the legal field. It includes lawyer-prepared case summar路 ies classifying points of law from all National Reporter System opinions of the tederal courts from 1961, and of the appellate courts from all of Ihe stales from 1967. The West approach to computerassisted legal research, an approach which cuts across Key Number classifications of points of law and case summaries prepared by lawyer-editors, was developed after exhaustive studies of alternative approaches. The editors discovered that the edited data base approach enabled them to find many more relevant cases than they did when using the full lexI data base. Law offices and libraries SUbscribing 84/ArI<ansas Lawyer/April 1976

You know you would find it in USCA. A Hawaiian costume party was on top of Greta's summer social calendar. A hula skirt was Just what she needed. She found one in a little costume shop at a good price. But at the party a careless cigar ignited the skirt ... and much more than Grela's pride was injured. If this were your case, how would the Flammable Fabrics Act affect this civil tort action? You would not find a case In point under the Act-UNLESS you looked in USCA (Title 15 搂 1191). You see, USCA gives you all the law, including all the court constructions . ThaI's why so many lawyers have relied on it for so many years. Join them. Get details from your West Publishing Company representative.

Annotallons

are as much

a part 01 Ihe law as Ihe law liseII...

USCA

Elmer P. Roberts P.O. Box 17161 M~mphis.

Phone:

TN 38117 901 744-8420

to "WESTLAW" will be linked to the central computer data base through a terminal unit with a typewriter-like keyboard and a cathode ray tube for document display. Another element in the system is an IBM printer which enables the user to get instantaneous hard copy printouts of documents displayed by merely touching a button. No special skills afe needed to "talk" to the computer through the keyboard. The user need not be a skilled typist; in fact, the

hunt-and-peck system works very satisfactorily. Another advantage of "WESTLAW" is that the user can correspond with and instruct the central computer in everyday language. He is not restricted to use of Boolean logic, which is the case with many systems. The system, however, does respond equally well to queries framed in Boolean logic. West has announced that "WESTLAW" is now available to the legal profession. 1 __


Delegate's Report by Herschel H. Friday Delegate To A.B.A.

I am reporting to you as the representative of the Arkansas Bar Association in the House of Delegates of the American Bar Association. For your general information. the House of Delegates of the American Bar Association has 340 members. The House membership is made up of the officers and Board of Governors. State delegates (one from each State elected by the members of the American Bar Association in that State), State and local Bar Association delegates, Section delegates (there are 25 Sections), Assembly delegates (5 are elecfed for 3-year terms at each Annual Meeting), delegates of affiliated organizations (such as the National Conferance Commissioners on Uniform State Laws and the Conference of Chief Justices), and others (such as the Attorney General of the United States and Past Presidents). The House of Delegates meets twice a year, once at the Annual Meeting in August and once at a Mid-Year Meeting in February. The business before the House comes from many sources, including officers, Board of Governors, Section reports, Standing Committee reports, Special Committee reports, State and Local Bar Associations and others. At the last meeting of the House in Philadelphia (February 16-17, 1976), there were some 52 items that required action, many of them involving extended debate. I will not try to cover all of these Items but do want to mention a few specifics that should be of interest to you. The dues structure was amended, of路 fective with the fiscal year beginning July 1, 1976, as follows: 510 - if admitted to the bar less than two years, S20 - if adm itted to the bar two years but less than five years, $40 - if admitted to the bar five years but less than ten years, if admitted to the bar ten years but less than fifteen years, 5100 - if admitted to the bar fifteen years or more. This proposition was given serious , consideration because of the possibility that Increased dues will drive certain

sao -

members of the profession out of the Association and keep certain potential members from joining. On the other hand, it was pointed out that the Asso-

ciation (which is voluntary and now has in excess of 2OO,0Cl0 members) is widely engaged in endeavors essential to the profession and the public. These include undertakings to improve the following: 1. Administration of Justice (such as problems of the courts, judicial selection, Code of Judicial Conduct, fair trial and free press, criminal justice, juvenile justice standards, corrections-reform projects). 2. Delivery of Legal Services (such as survey of legai needs, lawyer referral, prepaid legal services plans, legal clinics, legal assistants, law office management and techniques, continuing professional education, specialization, appellate advocacy, litigation). 3. self-Regulation of the Bar (such as antitrust and first amendment litigation, changes in the Code of Prafessional Responsibility, Center for Professional Discipline). 4. services to the Profession (such as lawyers' liability insurance, Juriscan, clients' security, legislation in路 volving attorneys' interests in real estate, automobile reparations system, limitations on lawyers' fees). 5. The Bar and Society (such as law and the economy, Interdisciplinary Commission on Medical Professional Liability, Commission on Mentally Disabled, conference between lawyers and CPAs on lawyers' replies to auditors' requests, conference of lawyers and scientists, elimination of Improper influences on federal law~nforcement agencies, election reform, model procurement code, Housing and Urban Development Law). The above broad summary was taken from the President's report to the House. The final vote approving increases reflected a recognition of the necessity for additional funds as being a more desirable alternative than curtailing the work of the Association.

The most publicized matter involves the changes in the Code of Professional Responsibility pertaining to the making available of additional information concerning lawyers and their services. This has been characterized as the "advertising issue." However, the debate before the House made it clear that advertising by individual lawyers was not involved and nothing done was intended to permit that. Further the clear sentiment of the members of the House is that in the foreseeable future nothing is contemplated which will permit advertising by individual lawyers. What has been done is to authorize the dissemination, subject to the control of applicable State authority, of certain information "uniformly applicabla to all lawyers" through existing media (approved law lists and telephone directories) which will be useful to potantial clients in obtaining legal services. I, or the office of the Arkansas Bar Association, will make available upon request to any of you the precise changes In the Code that were voted by the House. For present purposes, I advise that the sources authorized are reputable law lists, legal directores, directories published by State, County or Local Bar Associations and the classified section of the telephone company directories. The information that may be set forth is expressly limited but includes specialization to the extent permitted by State authority, whether credit cards or other credit arrangements are accepted, hours of availability, and a statement of legal fees for initial consultation or availability upon request of a schedule of fees or an estimate of a particular fee: "provided, all such published data shall be disseminated only to the extent and in such format and language uniformly applicable to all lawyers, as prescribed by the authority having jurisdiction by state law over the subject." There is shaping up a contest for the office of President-Elect at the August, 1976, Annual Meeting. I mention this because of the unique nature of the contest. The present Constitution and Bylaws of the American Bar Association provide for a nominating committee continued on page 86

April 1976/Ar1<ansas Lawyer/85


with 2,500 to 3,000 lawyers, should not have the same voice in selecting the officers of the Association as California or

Delegate'. Report, continued from page 85

New York, each of which has in excess

made up of the State delegates (one from each State, and in Arkansas the State delegate is Jack C. Deacon of Jonesboro). Historically, campaigns have been conducted with the end in

of 45,000 lawyers. The attacks have been unsuccessful because on balance the House has decided that the system has

view of achieving nomination by the

ciation. In Philadelphia this year, the State delegates nominated Wm. B. Spann, Jr. of Atlanta, Georgia. The actual election will take place in the House of Delegates in August. The Constitution

State delegates since that nomination has been tantamount to election. This

system weighs heavily in favor of the smaller states, such as Arkansas, and it has been subjected to aÂŤack on several occasions. These attacks have generally

pointed out that Arkansas, for example,

proven itself to be realistic and effective in bringing good leadership to the Asso-

and Bylaws of the Association permit

nomination by petition but, to my knowledge, has never heretofore occurred.

This year, however, we are advised that

a petition will be filed nominating Leroy Jeffers of Houston, Texas. It appears, therefore, that the House in August, rather than routinely electing the nominees

of the State delegates, will have an active contest to resolve. I know both of

these men well, and I believe thai the Association and its members will be well served if either is elected. They are both highly qualified from an Individual and professional standpoint. If any of you would like more information, or copies of specific reports or other documents pertaining to any item of business, please contact me.

J--..

SEMI-LEGAL CROSSWORD PUZZLE ACROSS 1. Neglect

6. E><--. 11. Sick. 12. Cont. 13. Long time 15. 17. 19. 22.

Man's nickname Takes an oath. Two contract scholars. Lupino.

23. A letter. 24. Sun (Sp.).

25. __ fidem. 27. Wide sl. 28. Wish, in Ireland. 29. What Myerson is. 31. Roman numeral.

33. Mitigate. 34. Claims to property.

36. Prior to. 37. Defects. Rptr. 42. Long Island __.

39. _

43. Between 2d & 3d. 45. Paddle. 46. Escapee.

49. Ear, comb. 51. Author, treatise (with SO D) 54. Fundamental right. 55. Ending for in. 56. Uncle, friend. 57. Article (Sp.) 58. Passed out cards.

60. Whiskey and __ . 61. Dangers.

DOWN 1. Caesar, for one.

2. Ark. legal scholar. 3. A G.!. inspection. 4. "I demand an attorney!" 5. Sen.'s partner.

7. 8. 9. 10. 14. 15. 16. 18.

Being. Dealer in legal journals. "1100." Parts of shoes. Ship's lowest deck. Hitting the perfect serve. Zero. Common digraph. 20. In __. 21. Related to 27A. 26. Discourage.

27. Other name. 29. Fortas. 30. Pro __. 32. L1ab. __ . 34._M. 35. Per choice.

38. Small field. 40. Rebound. 41. WrongfUl conversion. 44. Louis.

46. Old S. Ct. rplr. 47. Mel.

46. N.E. state. SO. See 51A. 52. Thus. 53. Slippery.

56.09 __. 59. Three-toed sloth. 86/Arkansas Lawyer/April 1976


ADDENDA by C. E. Ransick Editor

STANDARDS FOR ADMINISTRATION OF CRIMINAL JUSTICE The circle was completed at the Midyear Meeting of the National Conference of Bar Presidents, February 1215, 1976 at Philadelphia. Edwin R. Bethune of Searcy was the featured speaker for the afternoon session on February 13th on "Improving the Criminal Justice System Through the ABA Standards for the Administration of Criminal Justice". As pointed out by Association President Robert C. Compton in his President's Report in this issue of The Arltansas Lawyer, Mr. Bethune did an outstanding job in reporting on the new Arkansas Criminal Code and Rules of Criminal Procedure, effective January 1, 1976. At the National Conference of Bar Presidents' meeting in Texas in 1969, then Association President Robert L. Jones, Jr. and Executive Director C. E. Ransick were introduced to the ABA Standards. With then NCBP President Chesterfield Smith presiding, the Texas program placed great emphasis on the importance of the ABA Standards. The rest is history, the Arkansas Bar Association made the Standards one

of its main programs, and is now generally recognized as the leader in the improvement of State criminal justice systems of law. In the January 1971 issue of The Arltansas Lawyer, Mr. Bethune published his article, "It's Assizetime in Arkansas". He will pUblish an update article in the July 1976 issue. ATTORNEYS REQUIRED TO REGISTER IN OHIO The Supreme Court of Ohio has instituted a registration rule for all attorneys admitted to practice before that Court, effective January 1, 1976. Registration is $25 per year, payable biennially. Attorneys who want to retain their right to practice before the Court must register regardless of whether they plan "active" or "inactive" status. Registration forms and further details may be obtained from Clerk, Supreme Court of Ohio, 30 East Broad Street, Columbus, Ohio 43215 (Telephone 614-466-393) ). RESPA In the January 1976 issue of The Arltansas Lawyer, we published an article on the Real Estate Settlement Procedures Act of 1974 (P.L. 93-533; U.S.C. 2601 et seq.). In our Editor's Note, we pointed out that "RESPA" was under fire in the Congress. On January 2, 1976, President Ford signed'into law P.O. 94-205, the Real Estate Settlecontinued on page 88

DEAN WRIGHT Dean Robert R. Wright has announced his resignation as Dean of the College of Law and Director of the Law Center at the University of Oklahoma, effective August 31, 1976. Dean Wright is planning to return to full-time teaching at the College of Law there. OU President Paul F. Sharp, commenting on Wright's service, said, "The last six years have been extremely important to our College of Law. We have moved from a limited legal education program to a broadly based Law Center complex which not only educates young lawyers, but also provides the state with a continuous educational process for all those in the legal profession as well as a focus point to legal juridical research." Dean Wright served on the facu Ity of the Law School, University of Arkansas from 1963 to 1970, when he joined the OU faculty. He has contributed two articles to recent issues of The Arltansas Lawyer, and is the author of several books and other legal articles. Dean Wright is a member of the Arkansas Bar Association and is a regular attendee at Association meetings. April 1976/Arkansas Lawyer/87


Addende, continued from page 87

ment Act Amendments of 1975. The new law repeals: the requirement of disclosure of the previous selling price of property; the requirement for 12-day advance disclosure of real estate closing costs; and the Truth-in-Lending Act requirement of a full statement of closing costs related to consumer and home mortgage loans prior to settlement. (Other sections in the Truth-in-Lending Act continue applicable to real estate transactions). HUD has published new "RESPA" regulations in the Federal Register, dated January 9, 1976 - to be effective

as of January 2, 1976. HUD also intends to publish additional proposed regulations for comment under suspended "RESPA" sections 4(b) and 5. HUMANITIES SEMINARS FOR LAWYERS Applications from lawyers are being received by the National Endowment for the Humanities for four seminars in the summer of 1976. The seminars will be tuition free with $1,500 to cover expenses. The programs will be held in Chicago, Illinois, June 7-July 1; Williamstown, Mass., June 28-July 23; Claremont, California, July 12-August 6; and Tucson, Arizona, July 5-30. Application deadline is April 15th.

ROBING CEREMONY

The Sebastian County Bar Association presented robes to Arkansas Chancellor Warren O. Kimbrough, Chancellor Bernice L. Kizer and Circuit Judge John G. Holland at the impressive Investiture of Judicial Robes on October 29, 1975. Arkansas Supreme Court Justice John A. Fogleman presided. Association President Robert L. Jones, III, welcomed the attendees. Members of the Bar of the Tenth Chancery Circuit and the Judges of the various local, state and federal courts then joined together for the taking of a group picture. UNIFORM RULES OF EVIDENCE

The new Uniform Rules of Evidence were signed into law by Governor David Pryor as Act 1143 of 1976. The ceremonial signing was attended by Senator Max Howell and State Uniform Laws Commissioners Phillip Carroll and William S. Arnold. ;'....~

.,

88/Arl<ansas Lawyer/April 1976


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