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A credible witness. And when we take the stand, we're credible. Because first and foremost, we make our living practicing our profession. If you'd like to know how we can help you, call]. Neal Thomas in Little Rock at (501) 370-3102 or Jim Vawter in Fayetteville at (501) 443-3425. You'll find that we can make a big difference when it comes to doing your case justice.

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April 1987

Vol. 21, No.2 omCERS Richard F. Ha1lield. President John F. Stroud, Jr.. President-Elect Sandra Wilson Cherry. Sec.-Treasurer

ARKANSAS

LCI

SPECIAL FEATURES

Randall W. Ishmael. Council Chair

38 40 44

Wm. A. Martin. Executive Director Judith Gray, Assistant Executive

Director

EXECUTIVE COUNCIL H. Murray Claycomb John D. Eldridge. III Robert S. Hargraves

Donald K. Harp Ronald D. Harrison

Jack A, McNulty W. Russell Meeks. III Stephen M. Reasoner Robert G. Serio Bobby E. Shepherd James M. Simpson. Jr. Robert R. Wright. III EX-OFFICIO Richard F. Hatfield John F. Stroud. Jr. Don M. Schnipper Sandra Wilson Cherry J. Thomas Ray Randall W. Ishmael EDITOR Ruth M. Williams. Director of Communications and Public Relations

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. 400 West Markham. Little Rock. Arkansas 72201. Second class postage poid at Little Rock. Arkansas. Subscription price to nonmembers of the Arkansas Bar Association SI5.00 per year and to members

$10.00 per year included in annual dues. Any opinion expressed herein is

that of the author. and not necessarily that of the Arkansas Bar Association, or

The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and

should be sent in two copies to the Arkansas Bar Center. 400 West Markham,

Little Rock. Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.

REGULAR FEATURES

Rules of the Game: Attitudes and Norms in the Arkansas Legal Culture. by Art English

An Oily Prospect for Financial Institutions. By Walter G, Wright. Jr.. and Douglas B. Ward Annual Meeting Special Insert

Arkansas IOLTA Program

46 54 56 57 67 68 74 75 77

The President's Report Point of ViewlLetters Law, Literature & Laughter

Disciplinary Actions

In Memoriam

Executive Director's Page Young Lawyers' Update In-House News

ON THE COVER: Like a large oil slick, the number and types of parties potentially subject to environmental liability are rapidly expanding, and a number of unsuspecting financial institutions may face the prospect of getting oily, Walter G. Wright, )r., and Paul B. Wmd look at the legal framework surrounding this issue and conclude thaI many financial inslitutions should evaluate loans in terms of not just their marketing and credit risks, but their environmental risks as well. April 1987/Arkansas Lawyer/37

THE PRESIDENT'S REPORT

"Duty, Honor, Profession!" By Richard F. Hatfield

from a business by (a) the requirement of extensive formal education. (b) a licensing test and requirement of moral fitness. (c) a code of ethics imposing higher standards than prevail in the

This is in response to a letter written by a law student who had just completed her first semester of law school. Cathy asked, "Why should I become a lawyer?"

market place. (d) a system of discipline for violation of the code, and. probably most importantly. (e) a duty to subordinate personal financial reward to

Dear Cathy, I appreciate your remarks on how tough your first semester in law school has been. Believe me when I say that your description of long nights of study brings back vivid memories. Why pay this very high price to

become a lawyer? First. you receive a feeling of self-worth and self-satisfaction. Second, you earn the respect of your family and neighbors. And third, you have a chance to help others while earning a good living. To put this as personally as possible, let me describe David. a close friend who has practiced law for 30 years in a medium-sized town in Arkansas. He and his wife have raised three children and he has been a leader in the community. Because a lawyer sells his judgment. you should know what David's judgment is based on. He has an "av" MartindaleHubbell rating - the highest and is well-known by many lawyers throughout the state. In his professional and community life, David has adhered to the motto, "Duty. Honor. Profession!" Let's examine David's gUide for success in the law. I. "Duty" -In his oath before the Arkansas Supreme Court when admitted to the Bar. David pledged to be honest. competent and diligent in his law prce路 lice. He declared his duty as an officer of the court to the judicia.! system. his

clients and fellow lawyers. Someone who hires David to handle his case gets

381Arkansas Lawyer/April 1987

s0-

cial responsibility.

David's "best effort:' because that's all David knows to give. He stays current

with changes in the law by attending seminars regularly and serving as an instructor on occasion. This enables

him to know the law and his "bull路 dogged" persistence lets his clients

know they've hired a "real lawyer:' 2. "Honor" - David has the repulo路 tion among his fellow lawyers and in his community as being "honorable" -

a distinction he gained the "old-fashioned way." he eamed it. By both work and deed, he conducts himself with in路

tegrity and honesty - and people know it. The Code of Professional Conduct guides his actions in representing his clients. Lawyers who deal with him know that his word is his bond and that if he tells them something, that's the way it is.

A portion of the West Point Cadet Prayer describes David's philosophy, "... choose the harder right instead of the easier wrong. and never be content

with the hall truth when the whole can be won . .. " 3. "Profession" - The practice of law is a profession. and. as such, is so much more than just a way to make a living. A "profession" has been distinguished

David's involvement on the Arkansas Supreme Court committees on procedure and discipline, as well as his proposals for improved local court procedures, have contributed to more effective docketclearing so that the cases that have to be tried can have "their day in court." He's referred lucrative cases to other lawyers when he's had a conflict of interest (which is harder to do than you might think). Many of his weekends have been spent drafting Arkansas Bar Association legislation to improve ju-

venile justice and criminal law. He has made a significant sacrifice in personal time and money to better the practice of law in Arkansas. For this he has earned the respect of his fellow lawyers. So why become a lawyer? II's a great way to meet many of your basic needs in life - self-worth. self-respect and a good living for you and your family. Another reason, perhaps as important as any, is that it's a real opportunity to "mnke a difference" to your chosen profession and your fellow man. If you choose this path. years of reward, joy, pain, self-sacrifice and long hours await, but be assured that the prize is worth the effort. I trust that this answers your questions, Cathy. and that in about 30 years or so one of your fellow lawyers will be answering the same questions the same way, but using you as the example. 0

POINT OF VIEWILETTERS

ENVIRONMENTAL LAW'S SECOND DECADE

HOWAREWE DOING? By Allan Gates Most observers date the origins of environmental law in 1970.' In that year the Environmental Protection Agency was organized, the concept of environmental impact statements was launched and the great Earth Day demonstration raised the nation's environmental consciousness. The first decade of environmental law saw a tentative trickle of statutes and regulations develop into a steady flow. Now, with environmental law approaching the end of its second decade, it is pertinent to step back and assess how we are doing. Measured simply by quantity, we are doing extremely well indeed. The current inventory of major federal statutes is impressive: • the National Environmental

Policy Act, 42 USC § 4321. et seq.; • the Clean Air Act, 42 USC §7401. et seq.; • the Federal Water Pollution Control Act, 33 USC § 1251. et seq.; • the Resource Conservation and

Recovery Act, 42 USC § 6901, et seq.; • the Toxic Substances Control Act. IS USC § 2601. et seq.;

• the Sale Drinking Water Act, 42 USC § 3001. et seq.; • the Federal Pesticide Act, 7 USC § 136, et seq.; • the Noise Control Act, 42 USC § 4901. et seq.; • the Surface Mining Control and

Reclamation Act, 30 USC § 1201. et seq.; and,

Editor's Note: Allan Gates is a member of the Little Rock law firm of Mitchell, Williams, Selig and Tucker. He is chair of the Arkansas Bar Association's Environmental Law Committee. 40/Arkansas Lawyer/April 1987

• Superfund, 42 USC § 9601. et seq., (not to mention major amendments and extensions of several of these statutes). The list of state environmental statutes is equally impressive: • Arkansas Water and Air Pollution

Control Act, Ark. Stat. Ann. § 821901. et seq.: • Arkansas Solid Waste Management Act, Ark. Stot. Ann. §82-270 I. et seq.;

• Arkansas Hazardous Waste Man·

agement Act, Ark. Stat. Ann. § 824201. et seq.; • Arkansas Resource Reclamation

Act, Ark. Stot. Ann. § 82-4217, et seq.;

• Arkansas Open Cut Land Reclamotion Act, Ark. Stot. Ann. § 52917, et seq.; • Arkansas Coal Mining and Reclamation Act, Ark. Stot. Ann. § 52936, et. seq,; • Arkansas Emergency Response

Trust Fund Act, Ark. Stot. Ann. §824701. et seq.; and, • Arkansas Remedial Action Trust Fund Act, Ark. Stal. Ann § 82-4712, et seq.

Each of these state and federal environmental statutes is backed by a detailed set of regulations and administrative programs. Agency staffing and budgets have grown dramatically. Indeed, the growth of environmental laws and regula-

tions has spawned an entire language unto itself, including agiosary of acronyms that frequently seem to be a parody. Consider, lor example, the BAT [best available technology] standards, the LUST [leaky underground storage tank] program. SIP [state implementation program], SLAMS [state or local air monitoring stations] and SNARL [suggested no action response level]. Measured in terms of accom-

plishments, the record in environmental law is one of mixed results. In certain areas, there has been undeniable progress. Rivers and streams once choked with pollution have recovered to fishable-swimmable standards. Major sources of air and water emissions have in-

stalled pollution control devices, treatment systems or process modifications which eliminate or dramatically reduce actual emissions. Thousands of acres of once unprotected wilderness and fragile wetlands have now been protected from indiscriminate destruction or development. Orphaned sites where toxic waste had been dumped or abandoned in an uncontrolled maImer have been identified and contained or cleaned up. Perhaps most importantly, government agencies and the public have become sensitized to the environmental consequences of their actions.

There have also been undeniable failures. Statutory and administrative deadlines have been missed with such regularity that cynicism is commonplace, and occasionally justified. Some problems, such as acid rain and ozone depletion, seem to elude scientific consensus and legal action con-

tinually. Other problems are the subject of administrative programs and complex regulatory requirements that seem to generate far more paperwork and confusion than results. Many programs, although viable in theory, languish for lack of funding or consistent enforcement effort. At the same time, other requirements or problems receive enforcement or regulatory emphasis well beyond anything that can be justified as a rational ordering of priorities. Whatever one's view may be regarding the accomplishments. it is clear that environmental law, in at least some form, is here to stay. Although certain programs or concepts may deserve reconsideration (or even repeal), wholesale deregulation of environmental law is not in the cards. In the absence of some form of control. the market pressures to pollute are inexorable. Given the prospect that environmental regulation will be an endur-

ing feature of the legal landscape, it is well to ask what lessons may be drawn from our experience thus far. The first lesson is that environmental problems are frequently far more complex than the public, or sometimes even the direct participants, generally perceive them to be. This complexity may arise out of difficulties in understanding the technical or scientific issues. It may arise out of hidden motives or political agendas unrelated to the environmental issue itself. Thus, for example, the debate over the New Source Performance Standards in the Clean Air Act Amendments of 1977 were frequently reported in the press and perceived by the public as a division between "clean air" and "dirty air" advocates. In reality, however, a variety of competing economic and political interests (such as eastern coal versus western coal and the older industrialized northeast corridor versus the developing sunbelt) may have been more important determinants in the ultimate outcome. Even where the issues are not complicated by hidden political agendas, the public and the press tend to reduce environmental issues to a simplistic and frequently misleading morality play between those for the environment and those against it. While such a portrayal may be easy to accept (or profitable to publish), it rarel y corresponds to the true problems that must be resolved. The second lesson is that environmental law is characterized by internal and external dynamics that result in an extraordinary degree of change. For example, advances in scientific knowledge and instrumentation have raised new issues and significantly altered priorities in existing areas of environmental regulation. Changes in pollution control equipment and remedial techniques have made "state of the art" technology an evanescent goal that seems to recede from one's grasp at least as rapidly as it is approached. The knowledge gained from observing the accomplishments of existing programs has alerted us to entirely new concerns that were previously unrecognized and unregulated. Change itself has become institutionalized in various ways, such as

the concepts of "technology forcing" and "ratcheling down" standards of performance or attainment. Even when standards become relatively stable, other pressures such as population growth and economic development make it hard work just to maintain the environmental status quo. The fact that rapid change has been a constant feature of environmental law can easily distort one's perspective. Plant managers attempting to understand and comply with a steady stream of new environmental requirements are continually frustrated in their attempt to identify and reach a simple, fixed objective. Regulators and the public, on the other hand, are faced with an endless and seemingly impossible goal of closing the gap between lofty environmental aspirations and the hard facts of real world performance. The third lesson in environmental law is that most problems, and most solutions, are inextricably intertwined with a variety of economie, social and political factors. The requirement of costly pollution control equipment or process modification in one industry can dramatically alter that industry's competitive position with potential substitute products. Stringent engineering or performance requirements for new facilities can result in a grandfathering effect that protects existing facilities and prolongs their useful and polluting life unduly. The large capital expenditures and regulatory sophistication required by many environmental programs place small businesses at a significant disadvantage. As a result, the difficulties of environmental compliance can have significant anticompetitive effects in the marketplace. The success of almost any program depends to a large degree on the success with which it identifies and deals with not only the direct problem, but also the interrelated social. economic and political concerns. The exaltation of one concern (whether it is promotion of economic development or preservation of the snail darter) to the exclusion of all other concerns is doomed to ultimate failure. The fourth lesson of environmental law is that the problems and solutions frequently transcend traditional political and geographic

boundaries. For example, the state or municipality which leniently regulates a major local industry's water effluent is likely to find a much different attitude about the issue in the state or local jurisdiction immediately downstream. Similarly, the NIMBY (Not In My Back Yard) syndrome of intense local opposition to the location or operation of waste disposal facilities can rarely be reconciled with the unquestioned need for more and better facilities for treatment, storage and disposal of solid, hazardous and radioactive wastes. Even national boundaries are not large enough to contain environmental problems such as acid rain, ozone depletion, endangered species protection and oceanic pollution. From our current vantage point it is clear that we have come a long way in the first two decades of environmental law. It is also clear that we have a long way yet to go. It would be truly unfortunate if undue focus upon the past accomplishments of environmental law obscured our understanding of the very real needs for continued effort. It would be equally unfortunate if preoccupation with the persistent and complex current environmental problems deterred recognition of the significant efforts and undesirable progress that has already been made. We should candidly recognize what has worked and what has not worked over the past two decades. Policies and programs that have been too weak or ineffectually administered should be discarded. Similarly, policies and programs which have imposed burdens or costs without producing commensurate results should be replaced. 0 FOOTNOTE 'Viewed in a broad non-regulatory context, one can argue that environmental

law is quite ancient in origin. Several early English and colonial common law cases addressed instances of trespass and nuisance arising oul of excessive smoke. offensive odors and contamination of waterways. The 19th and early 20th Century preservation movement identified with John Muir and Gifford Piochot is also clearly a progenitor of modern en路 vironmentalism. Post World War n land路 marks such as the publication of Silent Spring by Rachel Carson and the early federal air and water legislation clearly blazed the path for what is now recog路 nized as modern environmental law . As a practical matter, however, effective legal regulation of air emissions. water discharges and waste disposal did not come ioto being until after 1970.

April 1987/Arkansas Lawyerl41

Letters

LAWYERS' MART BOOKS FOR SALE

EQUIPMENT FOR SALE

For sale, Arkansas Reports. all original bindings, Volumes 1268, Am Jur 2d current through 1980. pocket parts out-of-date. Contact Doris Hughes, 376-3423 from 8:30 a.m. to 5:00 p.m.; 225-4052 after 5:30 p.m.

DisplayWriter printer - IBM Model 5218 A02 with automatic paper feed. Approximately five years old. Excellent condition. under continuous maintenance and in present use. Selling hecause of installation of new word processing system. Works best with IBM DisplayWriter word processing systems. Contact Overhey & Deininger. 425 North University Avenue. Little Rock, AR 72205, (SOl) 664-8105.

For sale, law books. West's Arkansas Digest: Arkansas Statutes Annotated: SW REP. Arkansas Ed 2nd #641-670; Current Legal Forms RABKIN & JOHNSON still boxed in original carton, never opened. 753-3267. Complete set Arkansas Statutes Annotated with supplements. New. still in boxes. $400. Call Tim at 374-6535 or 851-4765.

BOOKS WANTED Polk County, Arkansas, is establishing a law library with a substantial collection of federal references. We need a set of Federal Reporter 2d. Would someone be willing to donate a set? Contact Mary M. Rawlins, 500 Main Street. Mena. AR 71953.

SET FOR SALE For sale: Eight oak bookcases with glass; seven oak bookcases without glass; SW Reporter. Arkansas cases. Vols. 1-300; SW Reporter 2nd. Arkansas cases. Vols. 1-232; SW Reporter. paper. Vols. 232-342; Arkansas Reports. 233-274; and, Arkansas Digest. Arkansas Statutes. Shepard's Arkansas Citations and Arkansas Blue and White Book. not upto-date. Contact Royce Weisenberger, Sr., (ReL), 714 E. Second Street. Hope, AR 71801. (SOl) 777-2652.

The wit and wisdom of George Rose Smith? An anonymous letter was received concerning this sentence from the article on George Rose Smith in the January issue of The Arkansas Lawyer: "Seated across from the judge at the chess table where he writes his opinions on Monday afternoons and nights, the question was asked what he considered to he his major opinions over the years." The letter writer asked, "How in the world did this dangling participial clause get into an article on the state's hest crafter of words?" Four proofreaders stand guilty hefore the hench. A proper rendering of the sentence is, "Seated at the chess table where he writes his opinions on Monday afternoons and nights, Judge Smith was asked to list what he considered to he his major opinions over the years." 0

TOM M. FERSTL, MAl, SREA Suite 400, Continental Building 100 Main St., Little Rock, Ark. 1-501-375-1439 Court Testimony ... Real Estate Counseling ... Feasibility Studies Commercial and Residential Real Estate Appraisals

Member:

Arkansas Bar Association Arkansas Realtors Assn. Society of Real Estate Appraisers Amer. Institute of Real Estate Appraisers 421Arkonsos Lawyer/Apnl 1987

Your letters and points of view are welcome. Please write The Arkansas Lawyer. 400 W. Markham, Little Rock. AR 72201. Contributions are subject to editing and will he printed on a space available basis.

LAW. LITERATURE & LAUGHTER

The series on our Constitution's Bicentennial resumes, highlighting law literature attributable to the freedoms we enjoy under our Constitution. No Red Rider on the policy. New York. 1925. As to whether nationalization of insurance companies relieved a Russian corporation from being sued in New York, it was argued that the company in effect was "dead." Justice Cardozo responded, "The shades of dead defendants do not appear and plead." James & Co. v. Second Russian Ins. Co.• 146 N.E. 369, 372. Keep on truckin·. Ohio, 1956. Re-

himself. The Court wound up with a sticky issue: "whether ... manure ... is realty or personalty." A fertile field of case law yielded this rule: Manure is realty when produced by animals being fed products grown on the farm in question. But if made "otherwise than in the usual course of husbandry, it forms no port of the realty .. " but is regarded as personal estate ... " If animals are not fed products of the land, the land is not impoverished. The owner then has "no duty to leave the manure to replenish the land." In a rental situ-

solving a master-servant issue

the product of (the) demised premises, ... is not part of the realty, and may be removed by the tenant at the close of his term." Resolving the damages issue was messy. Manure dropped by both parties' cattle "was mixed with and churned into the native soil," causing "an added complication, difficulty of extraction." The Court found calculation of "the proper quantity of manure belonging to each litigant and affixing the value thereof" to be "no easy

arising out of a truck lease, Judge Taft astutely noted, "Without a driver. a truck cannot move." Van Meter v. Public Utility Comm'n, 135 N.E. 2d 848, 852. Do What? Louisiana, a long time ago. In the spirit of freedom, Louisiana colonists chose not to bring with them this French regulation from a 1481 edict of King Louis XI: "Anyone who sells butter containing stones or other things (to increase its weight) will be put into our pillary, then the said butter will be placed on his head and left until entirely melted by the sun. Dogs may come and lick him, and people offend him with whatever defamatory epithets they please without offense to God or the king." Breeden & Lovett, Louisiana's New Unfair Trade Practices, , , Act, 20 Lo. Bar. J. 307 n.4 (1973). Bull: Is it or ain't it? Arkansas, 1879. The indictment charged that "Robert McMinn . . . one bull ... did ... feloniously steal, take and carry away." McMinn pleaded a previous acquittal. The first indictment charged theft of two cows and a heifer. The State appealed from McMinn's discharge. "Cow - The female of the bovine genus of animals. - Webster. Heifer - A young cow ... Bull - Male of the bovine, etc. - Ibid. Appellant was indicted ... for stealing a bull ... If. upon the first indictment. he could not have been con441Arkansas Lawyer/April 1987

ation manure that is "in no sense

chore." The trial court's award of

By Vic Fleming victed of the offense described in the second, then an acquittal upon the former is no bar to the latter ... (U)pon the indictment for stealing a cow and two heifers, appellant could not. upon any evidence that might have been legally adduced, have been convicted for stealing a bull, the variance between the indictment and the proof being material and fatal ..." State v. McMinn. 34 Ark. lGO, 162-63. Don't take no..... ·from Gomez! Arizona, 1961. Gomez bought Dykes' ranch. For consideration Dykes kept cattle on the premises. Dykes removed 1645 tons of manure from the feed pens. Gomez put a stop to that, then shoveled out 660 tons

"660 tons of manure at the rate of $2.50 per ton" to Dykes was affirmed, including dismissal of a claim for punitive damages. Gomez v. Dykes. 82 A.L.R. 2d 1093 (1961). "To complete your audit , .. " Washington, D.C .. 1975. In deciding whether to reinstate an ex-

government employee, Judge Nichols of the Court of Claims wrote: "The plaintiff ... was a GS12 special agent of the IRS ... The special agent is the unobtrusive fellow casually introduced to you midway in the audit of your income tax return as the one who is now taking over. If you grasp the signifi-

cance of his title, you gather your wits together and rush out to hire the ablest criminal lawyer you can obtain, at any cost. You know the prison doors are yawning for your reception." Peden v. U.S., 512 F.2d 1099. []

Where there's awill, there's a wa~ How does Arkansas Children's Hospital maintain its position as one of the finest and 20 largest pediatric hospitals in America? One important way is through the support of the Arkansas legal communityespecially in the form of gifts provided in wills. If you are asked by your clients for suggestions on charitable bequests, we hope you will consider recommending Arkansas Children's Hospital-because no more worthwhile beneficiary can be found than Arkansas' children. Gifts of all types, including cash, securities and property are appropriate and deeply

appreciated. They can even be designated to help a specific medical program offered by the hospital. Please join us in planning for the future for Arkansas' children. Because your children are our children.

ARKANSAS

CHIIDREN'S HOSPITAL Your children are our children.

For information regarding bequests, please contact the Arkansas Children's Hospital Foundation, 800 Marshall Street, Little Rock, AR 72202 (501) 370-1470. April 1987lArkansas Lawyerl45

RULES OF THE GAME Attitudes And Norms in the Arkansas Legal Culture By 461Arkansas Lawyer/April 1987

Art

English

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involved in our legal system have been viewed as different from other elites. The mysterious cult of the robe and the legal jargon that is part and parcel of the legal profession have given judges and lawyers a special place in our social system. The t. v. imagery of both professions underscores this view.

Judge Wapner of "The People's Court" is firm and decisive. Those appearing in Wapner's media court sense that his wisdom is far superior to theirs and he never fails to disappoint. Before the losing party knows it, they are being escorted to the rear of the courtroom for an interview with Doug Lewellyn. Similarly, Perry Mason never fails to save the day for his client with last minute bursts of brilliance or cleverness while the righteousness and justice of E,G. Marshall's cause in "The Defenders" strongly support the appearance of professional infallibility, Though judges and lawyers are often portrayed on the screen for their wisdom and analytical ability, do legal elites operate under informal rules of procedure which are so very different from other elites and decision-makers? Are there "rules of the game" which help mitigate conflict and facilitate cooperation in the legal profession and, if they exist, are they so rooted in a specific, institutionalized legal culture to differentiate the legal profession from other governmentally-related elites? And, do lawyers and judges share similar attitudes about the legal culture? Literature Review

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The concept of unwritten "rules of the game" is not a new one, particularly in political science literature. This piece draws particularly on the legislative norm literature since many lawyers are legislators and not infrequently seek election to the third branch of government in states which have elected judiciaries. Donald Matthews in his classic study of Congress in 1960 found that United States senators worked within an elaborate legislative subsystem of well-developed, inApril t987/Arkansas Lawyer/47

fonnal nonns of behavior. New senators, for example, were to be seen but not heard, freshmen members were to serve an apprenticeship before being accepted as fullfledged members and senior senators were to specialize in their legislative work and work hard at it. This latter rule - "don't be a show horse, be a work horse" was found to be widely shared by senators. In addition, seniority was highly respected and avidly pursued and members were to show each other respect and the chamber in which they worked institutional patriotism.' A study of the Arkansas General Assembly in 1983 found a similar pattern of unwritten "rules." The most frequently articulated ones are "keep your word:' "respect colleagues:' "specialization" and "apprentice-

used a comprehensive questionnaire to conduct 21 personal interviews with members of the Arkansas judiciary, with an emphasis on federal judges and members of the state Court of Appeals and Supreme Court. In early 1984, the students conducled in-deplh, personal interviews with 64 Arkansas lawyers. (Those interviewed were selected at random from central Arkansas. However, several interviews were conducted with attorneys in Hot Springs and Arkadelphia known personally by the students.) In the final stage of the data collection, the same questionnaire which was administered to judicial respondents personally in 1983 was mailed in late 1984 to all 67 circuit and chancery judges in the state. Thirty judges, or 45 percent, returned the mail queslion-

ship:~

noire.

Nelson Polsby's landmark study of the U.S. House of Representatives in 1968 attributed the development of unwritten "rules" to the institutionalization of behavior over

At the conclusion of the data collection, a total of 50 interviews, in person and by mail, were completed with members of the judiciary, including five federal judges, five state Supreme Court judges, three Court of Appeals judges and 33 of the state's circuit and chancery bench. The other four judicial respondents included a juvenile judge, federal magistrate and two municipal judges. While the judicial data are quite

LAWYERS AND

comprehensive. no claim is made

JUDGES SHARE

neys are representative of the legal

that the interviews with the attor-

SIMILAR ATTITUDES?" a long period of time which defined a peculiar legislative role.' However, a study in 1981 of nonns of constitutional conventions (ephemeral. temporary institutions without historical development) found the same norms as those found in legislative institutions, with only a few exceptions, suggesting that "rules of the game" are carried in the general societal culture rather than being the product of an institutionally specific culture.' Data Collection This study presents data drawn from personal and mail interviews with Arkansas judges and lawyers over a one-year period. The data were collected in three stages. In late 1983, students at the University of Arkansas at Little Rock 481Arkansos Lawyer/April 1987

profession in Arkansas. The interviews with lawyers seem to suggest a fairly accurate profile of the "Arkansas lawyer." For example, about half of the lawyer respondents came from low-status families, the vast majority were employed in small firms or were solo practitioners (as opposed to working in a corporate setting or practicing criminal law), 25 percent had practiced law ten years or more, almost two-thirds were brought up exclusively in Arkansas and better than 60 percent of those responding had attended either the University of Arkansas, Fayetteville, School of Law or the UALR Law School. Rules of the Game Lawyers By far, the vast majority of the "rules" mentioned by lawyers dealt with respect. courtesy and cooperation when dealing with an opposing lawyer and in representing

one's client. These "rules" included "don't lie to a fellow attorney or judge:' "be respectful and honest with other lawyers:' "work with other lawyers:' "always grant an extension if the opposing lawyer asks for it - the shoe may be on the other foot some day:' "don't inform on another lawyer unless the violation is a serious one," "represent

one's client to the fullest" and "be an advocate at all times." The open-ended responses by the attorneys reflected the general norm of cooperation as a way of efficiently conducting their law practices. An analysis of the fixed-response data proved to be more revealing, however. As a measure of whether there was strong consensus on a nonn or an attitude, an operational definition of 75 percent agreement or disagreement with the item asked was set. Using this definition, strong consensus was found on the nonn that: • attorneys have to be able to negati· ate with other attorneys to be sue·

cessful reinforcing the norm of cooperation;

• attorneys should always show courtesy to fellow attorneys. even if they

don't like them personally; • attorneys should try to specialize in a few types of cases rather than be a

jack-of-all-trades. On the other hand, certain nonns and attitudes seemed to produce conflict among the lawyer respondents. To illustrate, attorneys, unlike legislators who unifonnly have a strong sense of institutional patriotism, were heavily divided on the nonn of having pride in your profession and not saying anything publicly to run it down. Although the 75 percent threshold was not reached, a strong majority of lawyers agreed that many attorneys who practice are not good advocates in the courtroom. the lawyer Interestingly, respondents reached consensus that the best way to select judges is through appointment and showed strong support but not consensus that the best way to remove incom-

petent judges is through an independent commission made up of judges, attorneys and citizens. Judges Our judicial respondents were asked the same botlery of nonn and attitude questions but their levels of consensus and orientation on some items were dramatically dif-

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o

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;... feren t than those of the lawyer respondents. One striking difference was that a large majority of the judges did not perceive any unwritten "rules" intrinsic to the nature and operation of their work. In fact. only 25 percent mentioned that there were unwritten "rules" that judges had to abide by and a number of these judges did not mention any specific "rules." Those judges responding that there were "rules" unsurprisingly were largely but not exclusively judges serving on a collegial court.

One state court of appeals judge, for example, said that there was a need to keep each other informed on mailers pertinent to the court and several state collegial court judges mentioned that the key "rules" in their courts were to keep the judicial conference in strict confidentiality and to never criticize a judge personally or take personally disagreement over an opinion. The view that there are no unwritten "rules of the game," a position taken mostly by circuit and federal district judges, was not

~ ~

..i

surpnsmg given the individuality and solo control they exert over

Editor's Note: Art English is an associate professor of political science at the University of Arkansas at Little Rock. He has authored and coauthored numerous articles on state and national government, many of which have appeared in nationally prominent journals and magazines. He is the co-author of A Citizen's Manual to the Arkansas General Assembly, April 1987/Arkansas Lawyer/49

their courtrooms in contrast with collegial court judges who decide cases in panels with other judges and must learn to be team players. It appears that general norms governing interaction among these judges have developed so that these judges can do their work as efficiently and satisfyingly as possible. In this sense, more specific "rules" of the judicial game may indeed be the product of traditional patterns of formal interaction in collegial courts while norms agreed to on the fixed-response questions by judges who did not believe that there were unwritten "rules of the game" may be more likely to have been acquired in the general culture as basic rules of civilized conduct. For example, all of our judicial respondents supported the norm of courtesy to fellow judges and there was also very strong consensus on the norm

that new judges should seek the advice of other judges when they are uncertain about how to conduct themselves. Put in more positive

.A

Table' Conâ&#x20AC;˘â&#x20AC;˘ nIUI and Conllic1 in Ihe Arkansas Legal Culture (In Percent)

Seek ad.ice of .eniaT membell in Cowl8O\lS 10 peer.

."'en it dislike personally

SUMlonhol number of g1l0mey. who prochce

Incompetent judges

should be lemoved by independent COllunlulon, nOI impeachment

Should specloha, nOI

100

100

.

"

"

"

try to be experl

78

27

In

everything Best way

10

select

ludge. I. through appointment

moved.

judge said that judges should uphold the dignity of the court by their conduct and should not be publicity hounds. The judges met the 75 percent level on the norm of specialization (one staunchly held by legislators), disagreeing with the "rule" that judges should not try to be experts in everything and speSO/Arkansas Lawyer/April 1987

"

nol good advocates

run it down publicly. One circuit

THAT MANY ATTORNEYS ... ARE NOT GOOD ADVOCATES IN THE COURTROOM."

95

p-otesslon

terms, this norm seems to say that more senior judges should help new judges become acclimated to their new jobs - certainly a very civilized view of the judicial work place. The judges were more likely than lawyers, although they did not reach the 75 percent threshold, to take the view that they should have pride in their institution and not

MAJORITY AGREED

"

To be successful. mUll be able 10 negotiate

cialize in a few types of cases, undoubtedly reflecting the large number of diverse cases that come before them. They did not, however, reach consensus on whether a judge needs to be able to negotiate effectively with his colleagues, probably because most of our judicial respondents were not collegial judges and thus did not see onegotiative skill with their judicial peers as important to their courtrooms. And, unlike the lawyers who showed strong support for appointed judges and fairly strong but not consensual support for judicial removal by an independent commission rather than by impeachment. the judges, unsurprisingly, with the exception of the federal judges, endorsed the norm of elected judges with strong disagreement in their ranks over how incompetent judges should be re-

STRONG

Judges 70

Item Pride 10 profession (don', run II down publicly)

Attitudes Toward Judicial DecisionMaking The judges and attorneys were asked about those factors which are most salient in influencing judicial decisions. The specific question asked was, "When you (the judge) are uncertain about how a case should be decided, how

regularly do you look for help from case precedent. facts of the case, oral argument, briefs, legislative history, law journal articles, fellow judges, public attitudes and newspaper editorials before you make up your mind?" The responses of "always," "very often," "often" and "sometimes" were collapsed. into

the variable of "frequently" and the categories of "rarely" and "never" were collapsed into the variable of "infrequently." (In comparing these responses it should be noted that the judges responded from experience and that the lawyers' attitudes were more directly rooted in their perception of the process.) Using the 75 percent threshold as indicating consensus, the data show the judges reached consensus on virtually every item, particularly the use of case precedent. the facts of the case, oral arguments, attorneys' briefs, the non-use of public attitudes and newspaper editorials as decision-making cues. The attorneys perceive the decisionmaking process in a very similar fashion, reaching strong consensus on the importance of precedent. the facts of the case, oral argument and the use of attorneys' briefs. While the conflict between the

judges and the attorneys was not great, there were some areas of disagreement. On the use of law journal articles and legislative history as decision-making cues, the lawyers were less likely to see the judges as judicial scholars than the judges perceived themselves. And, on the items dealing with the influence of public attitudes and newspaper editorials on judicial decision-making, a much larger percentage of lawyers than judges saw these cues as influentiaL underscoring perhaps their views that elected judges are more subject to the influences of public opinion than are appointed judges. Discussion

This research has shown on a preliminary basis that attorneys

and judges do subscribe to unwritten and informal "rules of the game" in their work. These "rules," however, seem to be largely the product of the general culture rather than being specific to the institutions in which judges and lawyers work.

Table II

MOlt Freq\l8ntly Mentioned Norma: Lawyers and Judges

Luwyers Keep Your WOld (7)

Judge. Deliberations Confidential {31

Cooperate with fellow Allorneys (14) Honesty and Respect in Profession (lO)

Disagree Disagreeably (2)

Judges and lawyers believe that courtesy, cooperation and respect are important to success in their profession. On another leveL however, judges and attorneys in Arkansas seem to perceive the nature

of the legal culture in different terms. Judges are adverse to specialization, but the attorneys believe that it is a useful norm for them, perhaps reflecting the increasingly tight job market. Attorneys believe that an appointed judiciary is best, a view shared by the federal judges, although all of our elected judges fervently believe that electing judges is the best method of selection. In variables that influence decisionmaking, judges and lawyers see precedents and facts as important but differ considerably over the inApril 1987/Arkansas Lawyer/51

fluence public opinion has on judicial decisions, And perhaps even more curiously, judges see attorneys as more competent in the courtroom than the attorneys perceive themselves, In sum, although the Arkansas legal culture is on the whole a homogenous one in which judges and attorneys reach consensus on Tobie UI Altltud•• Toward Judicial Declllon-Mg.lr:1nll' (Ill Percent)

Lcrwy.r. OecI.ion.MaldDg Cue Often

Case prKed.n!

'92 '92 "0<

facti 01 calle Oral arguments Allomeys' briels "58 Legi,latlve hiltory Low journal articles 11 Fellow judges '1:1 Public altitudes '1

I'

Newspaper editoricd.

"

"

Judg••

&me_ tim••

,,., ',. "3S ." " I'

Ohen '100 '100

"-45

.

Sometim••

--

"45

"I'

26

29

36

'2

.1 .1

1. 2

",Ilong c:onaensus(75 percent support or over, nol including ~aometimel" responses) CQnlen".1IJ {75 percent support or over, Including waomelimel~ respon5e$}

SEE ATTORNEYS AS MORE COMPETENT IN THE COURTROOM THAN ATTORNEYS PERCEIVE THEMSELVES,"

many norms in the culture, the disagreement over how judges are selected and removed and how they make their decisions, as well as the ambiguity over their competence at advocacy, suggests that there is still conflict within the professions and between the professions on the best way to achieve a first-rate system of jusD tice in Arkansas' Footnotes IDonald R. Matthews. U.S. Senators and Their World (Chapel Hill: University of North Carolina, 1960) passim. 2Art English and John CarrolL A Citizen's Manual to the Arkansas General Assembly (Little Rock: Institute oj Politics and Government. 1983) p. 47. 3Nelson Polsby. "The Institutionalization oj the U.S. House of Representatives." The

52/Arkansas Lawyer/April 1987

American Political Science Review, Vol. 62. No, 1, pp, 144-168, ~John Carroll and Art English, "Rules of the Game in Ephemeral Institutions: U.S. State Constitutional Conventions," Legislative Studies Quarterly, VI. 2. (May 1981), pp. 310311. .YJ'he question read: We've been told that courts (lawyers) have unofficial "rules of the game" - that is. there are certain things

judges must do and must not do if they want the respect and cooperation of their fellow judges (lawyers). Do such rules of the game exist in your court? li"fhe author would like to thank Lori Ramsey Bowen and Craig Gerard, graduate assistants in the Masters of Public Administration Program at the University of Arkansas at Little Rock, for their assistance in assembling the dolo for this article.

DISCIPLINARY ACTIONS November to January The Arkansas Supreme Court Committee on Professional Conduct from November 1986, to January 1987, issued six letters of reprimand, two letters of caution and eight letters of warning. The Committee took no action on 84 informal complaints and voted "no action warranted" on 13 formal complaints. It accepted one surrender of license. The state Attorney General's Office, on behalf of the Committee, filed a lawsuit in circuit court on December 3l. 1986, to disbar former federal Judge Harry E. Claiborne of Las Vegas, a native of McRae, who was impeached and removed from office in October 1986 after being convicted of income tax evasion.

SAM ANDERSON. JR. Surrender of License Sam Anderson, Jr., of Hot Springs, voluntarily surrendered his license to the Committee due to violation of DR 1-102 of the Code of Professional Responsibility and Rule 8.4 of the Model Rules of Professional Conduct, both involving misconduct. Anderson was con路

victed February 28, 1985, in federal court at Hot Springs of two counts of

Rules l.3 and 3.2 of the Model Rules of Professional Conduct involving diligence and expediting litigation as a result of a Per Curiam Order from the Arkansas Court of Appeals. In an order dated September 17, 1986, the Court said it had issued two mandates directing Holstine to appear before it to show cause why he should not be held in contempt for failing to file a timely brief on his client's behalf. The second mandate asked him to show cause as to why he did not appear

before the Court following its first mandate. The Court did not hold Holstine in contempt. It did, however, find that he was "grossly inattentive" to his client's rights and "derelict" in the discharge of his duties.

DREW LUTTRELL Letter of Reprimand Drew Luttrell, of Mountain Home, was issued a letter of reprimand in November for violation of Rule l.3 of the Model Rules of Professional Conduct involving diligence. Luttrell's client said that she paid $200 to Luttrell to change her name. She said Luttrell never did the work for which he was paid.

conspiring to possess cocaine with

intent to deliver and one count of distributing cocaine. Anderson

was charged with conspiring to distribute cocaine from November 1983 to February 1984 and of conspiring to sell cocaine from May 1984 to June 1984. He was sentenced to three years in prison and fined $6,000. Anderson appealed his conviction, which was recently affirmed by the United States Eighth Circuit Court of Appeals at St. Louis. The Committee accepted his surrender of license on December 8, 1986.

JOHN M. HOLSTINE Letter of Reprimand John M. Holstine, of Mountain Home, was issued a letter of reprimand in November for violation of 54!Arkansas Lawyer!April 1987

WILLIAM MURPHY Letter of Reprimand William Murphy, of Sheridan, was issued a letter of reprimand in January for violation of Rule l.ll(c) of the Model Rules of Professional Conduct involving successive government and private employment.

Murphy was arrested for driving while intoxicated on June 19, 1984. His conviction in Sheridan

Municipal Court was appealed to Grant County Circuit Court in September 1984. In May 1986, Murphy was appointed deputy prosecuting attorney for Grant County and in that capacity filed a motion asking that the charge against him be dismissed. The charge was dismissed on July 25, 1986, then reinstated and dismissed again in December 1986.

WAYLAND A. PARKER Letter of Reprimand Wayland A. Parker, of Greenwood, was issued a letter of reprimand in January for violation of Rule 1.3 of the Model Rules of Professional Conduct involving diligence. Parker's clients said that Parker was hired to represent them in two legal matters. Parker assured them they had good cases and that he was taking care of everything. The clients said that no work was done for them and that Parker refused to return their telephone calls or to discuss their cases with them.

EDWARD TARVIN Two Letters of Reprimand Edward Tarvin, of Little Rock, a former municipal judge in Maumelle, was issued two letters of reprimand in November. One was issued for violation of Rule l.15 of the Model Rules of Professional Conduct involving the safekeeping of property. The other was issued for violation of Rules l.3 and l.4 of the Model Rules involving diligence and communication. In the first matter, Tarvin's client said that after receiving proceeds from his lawsuit. Tarvin sent him a check for his portion of the proceeds. The check was returned for insufficient funds. The check was re-submitted to the bank according to Tarvin's instructions but was again returned. The client said he tried to contact Tarvin about the money, but Tarvin refused to talk to him. The client said the money was eventually paid. In the second matter, Tarvin was hired to represent two clients in a lawsuit against an

insurance company. Over a two year period, Tarvin made numer-

ous excuses to the clients for his failure to file their lawsuit.

VIRGINIA ATKINSON Letter of Caution Virginia Atkinson, of Little Rock,

was issued a letter of caution in January for violation of Rule 1.15 of the Model Rules of Professional Conduct involving the safekeeping of property. Atkinson's client said she paid Atkinson to handle a child custody matter but Atkinson later declined to take the case. The client said she had difficulty getting her file material returned and said Atkinson refused to return the documents until she was paid a one-hour legal fee. In her response, Atkinson said the legal fee was charged due to harassing calls and letters from the client.

KAREN HALBROOK Letter of Caution Karen Halbrook, of Rogers, was issued a letter of caution in January for violation of Rule 8.4 of the Model Rules of Professional Conduct involving the reporting of professional misconduct. The complainant said that Halbrook represented a

client in a real estate transaction against him and his wile. During the course of the litigation, Halbrook wrote letters to a Rogers bank stating that she represented the complainant and his wife. The complainant said that he had never spoken to Halbrook and that she had never represented him.

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HOW TO SUCCEED

AT LAWYERING Variety, excitement, enlightenment, fun! Whatever you want in an Annual Meeting, we have it all! Annual Meeting '87 promises to be one of the most comprehensive, entertaining events ever presented to Arkansas Bar Association members. Read through this brochure for all the activities, workshops, recreation and entertainment you'd hope to find at a once-a-year gathering of your profession, It all happens in Hot Springs on June 10 to 13.

Education Beginning Thursday, get a handle on "How to Succeed at Lawyering." In the morning, Federal Judge Henry Woods and Arkansas Supreme Court Chief Justice Jack Holt, Jr.. will join Robert L. Hahush, president of the Association of Trial Lawyers of America, to give you the appellate, federal and trial vantage point into "Presenting Your Case." President Hahush, Winslow Drummond and Dennis L. Shackleford then "Meet the Press" in a panel discussion with journalists Steve Barnes, John Brummett and Pat Lynch. On Thursday afternoon, "Law Office of the Future," the highly acclaimed traveling presentation of the American Bar Association's Legal Economics Section, makes its Arkansas debut. In addition, WFSTLAW will offer an introduction to computerized research. 581Arkansas Lawyer/April 1987

Wake up Friday morning to the inspiration of Arkansas Razorback Head Football Coach Ken Hatfield as he shares his views on leadership. Then, Lawrence J. Smith, of Louisiana, will impress you with his courtroom caromunications strategies. From jury rapport and interpreting non-verbal cues, to voice impact and the subtlety of body language, Smith will offer pointers on how to get a jury eating out of your hand. 'What Went Wrong," a panel on disciplinary actions and professional liability insurance costs, will follow. On Friday afternoon, the Association's lobbyist, Martha M. Miller, will give an update of the 1987 legislative session in order to help you avoid the bear traps. Joining Ms. Miller in her review will be an expert panel.

Awards Luncheon The Awards Luncheon on Thursday will feature the presentations of the Outstanding Lawyer, Outstanding Lawyer-Citizen and Outstanding Local Bar Association Awards and the C.E. Ransick Award of Excellence. The presentations will be made by James A. McLarty, III, president of the Arkansas Bar Foundation. President Richard F. Hatfield will preside.

Join us in honoring the recipients of this year's Arkansas Bar Association/Arkansas Bar Foundation awards.

Star-Spangled America You'll bob to the sounds of Little Joe and the BK's and feast on Cajun red beans and rice, Manhattan clam chowder, San Antonio Tex-Mex and San

Francisco stir-fry during this celebration of the Bicentennial of the United States Constitution on Friday evening. Our special guest, Billy Lafferty, will join Little Joe to bring you the best of Buddy Holly, the Beach Boys and Chuck Berry in a star-spangled extravaganza for the whole family.

Receptions and Sporting Fun A mixture of just plain fun activities will be offered throughout the four-day Annual Meeting. Renew old friendships at the President's Reception on Wednesday honoring Dick and Sue Hatfield - our Annual Meeting opener. No one will want to miss this grand opportunity to visit with our special honorees from 6:30 to 8:00 p.m. in the Conference Center. Your evening on Thursday ends in "a lovely way" with a coffeeldessertlcocktail cash bar available in the Magnolia Room. For those returning from dinner, this is a fantastic way to meet friends, renew old acquaintances and end a full day. The President Elect's Reception in honor of John and Marietta Stroud opens Friday evening's activities at 6:30 p.m. in the Crystal Ballroom. Immediately following the reception, join us for a Star-Spangled America extravaganza.

For the best in sporting fun, tee up with Hugh Harrison in a special golf outing on Wednesday at the Belvedere Country Club. See sign-up form in Annual Meeting packet. Then, lace up your running shoes Thursday morning and blaze the trail in the annual Legal Run-Around. The run begins at 7:00 a.m. from the front steps of the Arlington Hotel. Prizes will be awarded and a T-shirt comes with your $5 running fee.

For Your Spouse

On Friday, spouses will enjoy brunch and the styles of New Traditions of Little Rock. Each attendee will receive A Great Taste of Arkansas recipe collection which celebrates the "best cooking" from Arkansas homes, premier industries and restaurants and cafes. A GREAT TASTE OF 'PEC

PI'COLLECTION

A separate program, featuring activities for spouses, will be furnished in the Annual Meeting packet. Please look for it and take it home to your spouse. April 1987lArkansas Lawyerl59

GENERAL INFORMATION ow to Succeed at Lawyering" is the theme of this year's Annual Meeting, Co-Chairs Walter R. Niblock and Henry Hodges and Martha Miller and Thomas D. Ledbetter have done a superb job in planning an outstanding meeting for you. The program on Thursday gives you the appellate, federal and trial vantage point into "Presenting Your Case" and provides a look at bar/media relations. In the afternoon, "Law Office of the Future" premieres and WESTLAW oHers an introduction to computerized research. On Friday, wake up to the inspiration of Coach Ken Hatfield Wednesday

and his views on leadership. Then LawTence J. Smith will impress you with his courtroom communications strategies. On Friday afternoon, the Association's lobbyist, Martha M. Miller, will update you on the 1987 legislative session. Finally, the Star-Spangled America extravaganza celebration will have you bopping with Little Joe and the BK's. We are truly excited about this year's program and hope all of you will join us in Hot Springs for an annual meeting to remember.

Dick Hatfield President Goll

Registration

Tournament

Afternoon

June

to

Discount for Pre-Registration ou are encouraged to pre-register prior to June 9 and receive a $15 discount off the regular registration fee.

House of Delegates he House of Delegates will meet in the Crystal Ballroom at 9:00 a.m. on Saturday morning. The meeting is open to the membership and all are encouraged to attend.

Aiel[ Bao,d

ABf Membership and Board

Wednesday Evening

President's Reception

ABF fellows' Dinner (by invitation)

Thursday Morning June II

Legal RunAround

Registration Persuading the Court

Spouses'

und the

Tennis

Public

Thursday

Awards Luncheon

Afternoon

Law OUke

YI.S Annual Meeting Bar Groups

Economics in

Today',

Arkansas Law Review

World Thursday Evening Friday Morning June 12

Friday

Registration

Bao,d

Continental Breakfast

Bar Groups

Ken Hatlield

Law

Courtroom

Student Section

Strategies

Spouses' Luncheon

Concurrent Workshops

Law Schools'

Afternoon

Update: 1987 Friday

Firm Receptions

Legislative Session

Evening

Alumni Luncheons PreSIdent Elect's Reception StarSpangled America

Saturday Morning June 13

House 01

Delegates Executive Council

60IArkansas Lawyer/April 1987

,.

,

II

Like a large oil slick, the number and types of parties potentially subject to environmental liability are rapidly expanding, and a number of unsuspecting financial institutions may face the prospect of getting oily. By Walter G. Wright. Jr. And Douglas B. Ward

~._-, -~

"

.,

.-

•• •

he huge cost of cleaning up pollution-contaminated property or related facilities has led to a search for new sources of cleanup funds. Federal and state authorities seeking cleanup cost reimbursement. as well as private parties demanding compensation for pollution-related injuries. are going beyond facility owners and operators and turning to parties with deeper pockets. Even parties whose involvement with the property or facility has been tangential may be at risk. Certainly. a business utilizing processes and/or methods likely to produce contaminants can expect some degree of exposure in terms of environmental liability. What is perhaps less obvious is that even parties who have never engaged in such practices may be liable for environmental damages under the broad sweep of federal or state statutes. For example. seemingly innocent purchasers and lessees of real estate are increasingly the object of environmental enforcement actions. Up until recently. however. only the most cynical attorney or bank officer would have suggested that secured creditors could be held liable for the environmental harms caused by their borrowers' activities. Today. in the wake of several recent federal court decisions and action taken by the United States Deportment of Justice. such creditor liability is not only possible. but likely. Consider the following examples: EXAMPLE 1: In 1976. XYZ Coatings Company commences a paint manufacturing operation on a plant site that the company owns. The waste stream generated by xyz's operation is stored in

drums located on the plant site. In the same yeor. ABC Bank makes a loan to XYZ Company. securing advances for working capital with a pledge of

the assets and inventory of XYZ Company. Following a default on the loan. a loan officer of ABC is installed. as a member of an advisory board

which attempts to assist XYZ Company. After XYZ Company files for Ixmkruptcy under Chapter II of the Bankruptcy Code. the loan officer becomes more involved in the daily operations of XYZ Com-

pany. An inspection 01 the plant site by the Environmental Protection Agency (EPA) reveals the improper storage of hazardous waste. The EPA

utilizes funds available pursuant to the Comprehensive Environmental Response Cleanup and

Liability Act (CERCLA) to remove the hazardous waste from the plant site. Thereofter. the U.S. Department of Justice files suit against various parties. including the present owner of the property, for the cost of the cleanup. The present owners,

who had purchased the property at a sheriff's sale. file suit to join ABC Bank as a third party defendant. The present owners argue that frequent visits to the plant site, insistence on certain manufacturing changes. reassignment of person-

nel and day-to-day supervision 01 XYZ by an employee of the bank renders ABC Bank a "responsible party" under the CERCLA liability scheme.

EXAMPLE 2: From 1944 to 1980. John Smith. Sr.. Aprif 1987/Arkansas Lawyer/63

owns a lCKJ-acre farm on which he operates a trash

and garbage business. During 1973, John Smith permits the dumping of hazardous wastes on this

site. During the 1970's. AB Bank & Trust Company loans John Smith funds for use in his sanitation business. In 1980, John Smith, Jr" applies for a $335,llOO loon from AB Bank & Trust Company to purchase the site from his father. John Smith, Jr" fails to make payments on this loan, and AB Bank & Trust institutes a foreclosure action against the site and purchases the property at a foreclosure sale. An inspection of the site prompts the EPA to request that AB Bank & Trust initiate a cleanup of vmious improperly stored hazardous wastes. AB Bank & Trust declines the EPA's offer, forcing the

EPA to utilize CERCLA funds to clean the site itself. The EPA then tenders a bill for S5Sl,llOO as the cost of the cleanup and requests payment by the bank. AB Bank & Trust Company refuses, prompting the U.S. Department of Justice to lile suit against the bank as the owner of the site and a "respansible party" under CERCLA. These hypotheticals, based loosely on actual cases, serve to warn lenders that environmental liability may well present important issues in lending activities where the borrower has potential significant environment liabilities or where the collateral is affected by environmental contamination. In the event of default. the lender may need to consider environmental Iiability issues as it determines how to best deal with the property. Of course, before approving a loan, a lender may wish to minimize its liability by properly structuring the transaction or even performing an environmental "assessment" or "audit" of the property. Unfortunately, deciding which environmental loan applicants warrant closer security scrutiny is not an easy task. Most lenders would recognize the necessity to be cautious when dealing with refineries. steel mills, metal plating operations and other categories of operations where hazardous substances or other contaminants are associated with the ongoing activity. However, lenders must recognize that even some "non-industrial" facilities such as ollice buildings (friable asbestos) or convenience stores (gasoline underground storage tanks) can present environmental

Hazardous Waste Management Act' and the Arkansas Emergency Response Fund Act.' Enacted in 1980, CERCLA provides for cleanup and remedial action at properties or facilities where a "release" or "threatened release" of hazardous substances has occurred. CERCLA charges the owner/operator of a facility releasing hazardous substances with the duty to either undertake cleanup action or pay for the cleanup costs, In the case of an abandoned facility, the last owner or operator prior to abandonment is to clean up the site. When the cleanup is not accomplished by the present or preceding owner/operator, the EPA is authorized to ellect a cleanup, using funds from a special CERCLA account (the Superfund) and then to obtain reimbursement of the costs from any "responsible party:' Three categories of landowners, among others, may be classified as "responsible parties" regardless of any fault on their part for the contamination that has occurred. These three categories include the present owner or operator. the owner or operator during the dumping of the hazardous substances and the owner or operator who abandoned the "facility: The term "facility" is broadly defined and includes virtually any place in which a hazardous substance or pollutant is found.' The present owner or operator is a responsible party regardless of when the hazardous substance was deposited at the facility and whether or not the present owner or operator did anything to contribute to the pollution, Thus. a person who acquires property years ofter the substance is deposited may be liable. A person who owned or operated a facility when a hazardous substance was released there will be liable regardless of whether that person subsequently sold or otherwise transferred titie to the facility.

Obviously. anyone facing the possibility of acquiring title to a CERCLA site has good reason to fear liability. However, until recently. lenders felt thElY were protected from CERCLA liability because of an important exemption. CERCLA excludes from its definition of "owner" ~:i.egal Framework or "operator" of a facility a penon who. without Recent state and federal statutes have participajing in the management or operation substantially broadened the scope of potential of a facility. holds indicia of ownership primariIy to protect such penon's aec:urlty interest,' liability for those who generate or handle hazardous substances. The principal federal Lenders' confidence in this exemption has been statutes of concern are the Comprehensive Enshaken by the developing case law. vironmental Response Compensation and LiaRecent cases make it clear that anyone who bility Act (CERCLA)' and the Resource Consermakes a secured loan to a present owner or operator of a facility. or to a past owner or operavation and Recovery Act (RCRA).' There are. in tor. can be held directly liable if the lender addition. a number of other federal' and state environmental statutes that regulate to some becomes "overly entangled" in the allairs of the demee the handling of hazardous substances _ _ actual owner or operator of the faciliIY. In United States v. Mirabile. 15 ELR 20994 (E.D. PA. or contaminants, and carry severe penalties for their violation. The important Arkansas auSept. 4, 1985). a bank's motion for summary thorities include the Arkansas Remedial Acjudgment was denied in a CERCLA case because its loan ollicer had sat on an advisory tion Trust Fund Act.' the Arkansas Air and Water Pollution Control Act.' the Arkansas board established to oversee a debtor's opera641Arkansas Lawyer/April 1987

tions. The officer was involved in day-to-day decisions regarding personnel. sales efforts and manufacturing. The court apparently interpreted CERCLA's exemption to mean that a secured creditor must. at a minimum, participate in the day-to-day operational aspects of the Bite before it could be held liable. Unfortunately, United Stat.. v. Maryland Truat Co.. 632 F. Supp. 573 (D. Md. 1986), baa apparently removed a large part of this pratection by ruling that a secured creditor's protection lO8IB only until it forecloses on a CERCLA facility. Maryland Bank & Trust Co. foreclosed on a piece of property which eventually became the subject of an EPA CERCLA action. The bank argued that the purchase of the property at the foreclosure Bale had been necessary to protect iIB security interest. The court was not sympathetic and held that once the bank took full legal title, it was liable as a CERCLA owner. The court reasoned that a mortgagee-turned-owner does not need the protection of a broad reading of the CERCLA exemption - it can protect itself by carefully choosing iIB mortgagor and (if truly innocent of all connection with the problem) by utilizing CERCLA's various third-party defenses (e.g.. act of God, act of war and certain acts of third parties). " Recent amendments to CERCLA may provide some relief to diligent lenders. II Under CERCLA's new "innocent landowner" section, 12 a landowner would not be liable for the cleanup of a facility if the owner inspected the property prior to purchasing, did not cause further contamination and disclosed all inlormation to the appropriate authorities. The Resource Conservation and Recovery Act (RCRA) imposes a comprehensive set of regulatory provisions governing the management of hazardous waste and provides for civil and criminal liability on the part of corporations and individuals. Many thousands 01 businesses (large and small) are subject to RCRA. As with CERCLA, RCRA may subject a property owner or operator to cleanup costs and penalties. It is important to note, however, that RCRA lacks a CERCLA-type security interest exemption. A secured lender that is preparing to foreclose on a facility which is the subject of a RCRA enforcement action may be hard-pressed to escope some percentage of liability.

Ilcmk.

The previously mentioned Arkansas statutes supply the Arkansas Department of Pollution Control and Ecology with an array of environmental enforcement authorities similar to the federal statutes. Two provisions with grave implications for lenders are the socalled "superlien" provisions" which give the ...-_ _ Department a lien on the responsible party's _ _ property equal to the cost incurred by the state in cleaning up a contaminated site. The superlien is limited to the real property of the responsible party that is subject to cleanup and is second in priority to any lien for real

estate taxes upon the property, but It Is superior to all other liens. Obviously, the impact of the superlien can effectively destroy the value of the security. ldeatl\ylng Problem Areas It is absolutely imperative in order to minimize liability that a lender learn to recognize areas of potential environmental risk and identify those areas where the likelihood of liability or patential scope is such that it must be specifically addressed. Two general types of environmental concerns that relate to a piece of property or a facility are hazardous substances or pollutants in or on the property either as a result of current or past activities and ongoing activities which require governmental permits or approvals. The first environmental concern should be of general concern because casual dumping of waste was common in the past. and in rare cases still happens. Vacant lands were olten used as disposal sites, and commercial and industrial facilities frequently contained both formal and informal on-site disposal areas. Leakage from underground tanks and pipelines, areas 01 frequent spills (such as loading or unloading areas and railroad rights of way) and treatment and holding ponds are now being found to present serious problems. The second concern includes permitted stream discharges or air emissions. Even though permitted by a federal or state agency, a lender should remain cognizant of these activities, since permit violations can lead to severe penalties or compliance orders. Further, the fact that an activity is authorized does not prohibit a private party from bringing an action in the event of injury by the discharge. There are a number 01 practical steps that a lender should consider to guard against incurring environmental liabilities. These protective measures include scrutinizing property to be mortgaged in future lending transactions (environmental assessment), avoiding substantial involvement in an existing borrower's operations and inserting various provisions in the loan agreement. Environmental Assessment A lender can avoid becoming involved in a problem or at least quantify its risk by performing itself or having the applicant provide an environmental assessment or investigation 01 the relevant facility. An environmental si te assessment can predict the Editor's Note: Walter G. Wright, Jr., and Douglas B. Ward are aHome s he 路tIle Rock law firm of Mitchell, Williams, Selig & Tucker. Wright is a former assistant counsel to the Petroleum Marketers Association of America in Washington, D.C. Ward is a former law clerk to Arkansas Supreme Court Justice Robert H. Dudley. April 1987/Arkansas Lawyer/65

probability of a site problem. the extent of the problem. the potential financial liability and the cost of cleanup.

Proper covenants and requirements in the loon

Environmental assessments may take on

increased significance due to the new

"

I

d"

innocent an owner

Structuring the Loan Agreement 1. General Covenants

provisions

(f

oun

d

in

agreement may provide some protection from en-

vironmentalliability. The lender may require verious environmental representations. warranties

and indemnities from the borrower. One useful

the 1986 Superfund amendments) with

covenant requires that the borrower will maintain

lenders claiming reliance on such an assessmenlo The "innocent landowner" provision is

and operate the facility in compliance with all applica.ble environmental laws and regulations dur-

newly enacted. and it is too early to know if

ing the term of the loan and that it will not release

reliance on an assessment will successfully

or dispose of any hazardous substances at the fa-

avoid CERCLA liability.

cility except in compliance with all applicable

These assessments can range in complexi·

laws and regulations. The borrower should also

ty from simply requiring bank employees to walk the site and check governmental records

be required to notify the lender of any suits. citations or complaints brought by governmental

to hiring experts, such as environmental en-

or private parties. 2. Additional or Different Security. If the environmental risks are high. a lender may

gineers or hydrologists. to perform extensive soil and groundwater tests. Some banks are apparently requiring loan officers to visit the applicant's property and look for signs of contamination. The property's chain of ownership is also investigated to determine whether past owners may have created hidden con-

demand security in addition to the facility itself. In the alternative. the lender migbt request collateral other than the questionable property or facility itsell. 3. Insurance. A lender will want the borrower to obtain and

tamination problems. Facility records (waste

maintain environmental liability insurance with

storage records. environmental audits. etc.)

adequate limits for the term of the loan. Such in-

and insurance files may also provide useful sources of information. A look at the land uses

swance is becoming increasingly diUicult to ob· tain. Further, the scope of coverage is critical, thus necessitating a careful review of the policy. For

surrounding the facility is a good indicator of past industrial activity. Any permit violations or pending actions may be discovered by a telephone call to the Department of Pollution Control and Ecology and the EPA. Lenders may also consider requiring commercial loan applicants to complete a ques-

example. does a truck terminal's general comprehensive liability poticy cover environmental damage caused by gasoline leaking from an underground storage tank? 4. Notice. During the term of the loan the borrower should be required to provide the lender with copies of all

tionnaire designed to signal problems which

notices it gives to government agencies relating to the release of hazardous substances. Use of the various notification provisions found in (I) and (4) can ensure that a lender does not learn of an envi-

necessitate further investigation. The questionnaire would request information on a va-

riety of topics. including the types of industriron mental problem alter it has reached crisis al processes the facility will use. the equipproportions. However. the lender must be wary ment and the types of waste to be generated. that its input does not extend to "day-la-day" operAvoiding Unnecessary Involvement ations. Lenders holding mortgages on businesses It is probably a sign of the times that many disposing of CERCLA hazardous substances financial institutions will soon be evaluating must take care not to become overly enloans in terms of not just marketing risk and tangled in the management of the enterprise. credit risk, but also environmental risk. Not Precise parameters of permissible lender indoing so invites the risk of writing off a bad volvement are not clear and the safest course loan because contamination has rendered for a secured lender is to minimize its particithe mortgaged property worthless or. even potion in the borrower's business affairs. Cerworse, incurring major cleanup liability as tainly, a lender should be wary of exerting the new "owner" or "operator." 0 any influence on decisions regarding enviFOOTNOTES ron mental or related concerns. Those banks '42 U.S.C. §9601 et seq. whose mortgagors are in default will have to '42 U.S.C. § 6901 et seq. consider whether the likelihood of cleanup li:!Examples include the Federal Water Pollution Control ability makes foreclosure a reasonable apAct. 33 U.S.C. § 1251 et seq.; Clean Air Act. 42 U.S.C. § roach. Where the mortgagor clearly will 1857 el seq.; Toxic Substances Control Act. 15 U.S.C. § P 2601 et seq.; Sale Drinking Water Act. 42 U.S.C. § 300f et never pay and the properly has significant net seq. value despite the environmental liability. the 'Ark. Stat. Ann § 87-4712 e' seq. bank may have no choice but to foreclose. 'Ark. Slat. Ann. § 82-1901 et seq. Where the cleanup liability is much greater 'Ark. Slat. Ann. § 82-4201 et seq. 'Ark. Stat. Ann. § 82-4701 et seq. than the financial interest in the property, '42 U.S.C. § 9601(a) lenders will have to think 101'!9 and hard about _ • U.S.C. § 9601(2OXA) whether they should risk bidding at a foreclo"'I'he CERCLA third-party defenses are found at 42 U.S.C. sure sale. § 9607(h). The lender should closely scrutinize the

1I~;:6~~~~~~)d Amendments and Reauthorization Act of

current case law before making a decision

"See SARA. § 10l(l)

since these are new and volatile issues.

l3Ark. Stat. Ann. §

66/Arkansas Lawyer/April 1987

82-4708. 82-4720

IN MEMORIAM

He was also a member of the American Bar Association and the Pulaski County Bar Association, a former instructor at the Arkansas Law School and a former board member of the Country Club of little Rock and the Family Service Agency. McGehee was a member of the United Methodist Church, where he taught Sunday School for more than 30 years, and a former member of its Board of Stewards. Survivors are his wife, Mary Stewart Schmeisser McGehee, of Little Rock, and two sons, Ahner "Chip" McGehee, III. of Redondo Beach, California, and Stewart B. McGehee, of Little Rock.

James Wesley Atkins Abner McGehee, Jr. Ahner McGehee, Jr., aged 61. of Little Rock, died Sunday, November 23, 1986. Born at Kaufman, Texas, a son of Judge Abner McGehee, Sr., and Margie Ellis McGehee, he was the grandson of Benjamin McGehee, a founder of the city of McGehee, Arkansas. McGehee participated in the Normandy invasion and was a decoding expert assigned to the 82nd Airborne Division in Germany during World War II. On May 7, 1945, he received and decoded the message of Germany's unconditional surrender in the European Theater to Gen. Dwight D. Eisenhower and the Soviet High Command. He attended Little Rock High School and graduated from St. John's Military Academy in Delafield, Wisconsin, and Vanderbilt University in Nashville, Tennessee. He received his law degree from Vanderbilt in 1951. McGehee was a 28-year member of the Arkansas Bar Association and served in its House of Delegates and on its Professional Ethics and Grievances Committee.

James Wesley Atkins, aged 39, of Mountain Home, died Tuesday, February 10, 1987. Atkins was a former assistant state attorney general and former Baxter County deputy prosecuting attorney. He was president of the Mountain Home Chamber of Commerce and had been a real estate agent with Gilbert Realty. Atkins was a graduate of the University of Arkansas, Fayetteville School of Law and a member of the Arkansas Bar Association since 1972. He served on its Professional Litigation, Real Estate Law and Pre-paid Legal Services Committees and was a member of the Baxter County Bar Association. Atkins was a former member of the board of directors of the Ozark Community Center, a Rotarian and a member of the First Baptist Church where he sang in the Adult Choir. Survivors are his wife, Susan

Sturdivant Atkins, of Mountain Home; a son, James Matthew Atkins, of Mountain Home; two daughters, Jennifer Leigh Atkins and Melissa Ann Atkins, both of Mountain Home; his mother, Phoebe Atkins of Mountain Home; and, a

sister, Priscilla C. White of Sherwood.

Judge Gene Bradley Judge Gene Bradley, aged 77, of Blytheville, died Tuesday, November 18, 1986. Judge Bradley was a retired chancellor and probate judge for the 12th Judicial District. He was born on October 8, 1909, in Kennett, Missouri, the son of John Henderson Bradley, a former appellate judge on the Missouri Court of Appeals in Springfield and former commissioner with the Missouri Supreme Court. After graduating from Jonesboro College in Jonesboro, Arkansas, in 1932, Judge Bradley enrolled in the Cumberland School of Law in Lebonon, Tennessee. He graduated in 1933 and was admitted to the Arkansas bar in 1934 and to the Bar of the State of Missouri in 1958. Judge Bradley practiced law in Blytheville until he was elected chancellor and probate judge for the 12th Chancery Circuit in 1960. He retired in 1980 after serving 2D years on the bench. Prior to his retirement, Judge Bradley was elected president of the Arkansas Judicial Council. He was a member of the American Legion and a veteran of World War II. While in the United States Army during World War II, Judge Bradley commanded an Army hospital near England. During that tour of duty, he narrowly survived a near miss by a German V-2 that destroyed his building. Judge Bradley was a 3D-year member of the Arkansas Bar Association and served in 1980-81 as the Arkansas Judicial Council representative to the Association. Survivors are his wife, Joyce Myers Bradley, of Blytheville; a son, John H. Bradley, of Blytheville; a daughter, Milly Ann Burkett, of EI Paso, Texas; a sister, Alletha Nobel, of Kennett, Missouri; and five grandchildren and two greatgrandchildren. 0 April 1987/Arkansas Lawyer/67

Arkansas IOLTA Program

"All it Takes is Interest" By V. Markham Lester Arkansas lawyers have rallied Supreme Court chief justice, two short-term, No one benefits from once again to support a worthwhile associate justices, the current Assuch lunds except the financial inproject 01 the Arkansas Bar Associsociation president. three lawyers stitution where they are located. ation. In only lour short months, appointed by the Association Through 10LTA, this interest can be one out 01 every five Arkansas president and five members of the used to improve the administration lawyers have signed up lor the Arlay public appointed by the gover01 justice in our state. kansas Interest on Lawyers' Trust nor. The Foundation board esThe 10LTA concept is not unique. Accounts (lOLTA) program. tablished a grants committee in Inlact,itisaconceptthathasbeen "Significant" is the only word to January which expects to distribute around for almost 20 years. 10LTA properly describe this developabout $30,000 in grants this year. programs first appeared in the varimen\. Without exaggeration, it ous Canadian provinces and in the may tum out to be the most , . . - - - - - - - - - - - - - - - - - - - - - , Australian states in the midsignificant event in the history 1960's. By 1972, a total 0122 Enol the Arkansas Bar Associaglish-speaking jurisdictions lion. had adopted such programs. What is the 10LTA program 10LTA programs first came to you have been recently hearthe United States in 1976 when ing so much about? Attorneys The Florida Bar petitioned the routinely receive lunds to be Florida Supreme Court to placed in trust lor luture use. adopt an 10LTA program. In the past, Arkansas attorSince that date, programs neys only had the option of have spread throughout the depositing nominal or shortcountry and now include 41 term trust account lunds in a states and the District 01 Conon-interest bearing account. lumbia. That has all changed. On SepCompared to our sister tember 17, 1984, the Arkansas states' programs, the ArkanSupreme Court authorized the sas 10LTA program is the lormation 01 an Arkansas fastest growing 01 any other 10LTA program whereby interprogram. We have already est on lawyers' trust accounts surpassed in participation can be lorwarded to the Arkansome programs such as those sas 10LTA Foundation lor use in Vermont and Idaho which in various law-related public have been in existence for interest programs - to promore than 21 months. But we vide student loans, to provide have a long way to go to be the legal aid to the poor, to improve the The rationale behind the prolargest program in percentage 01 administration 01 justice and to program is simple. No interest is curparticipation. Currently the New mote such other programs lor the rently earned on funds in attorney Hampshire program is the largest benefit 01 the public as are specifitrust accounts which are nominal or voluntary program with over 49 percally approved by the Arkansas cent 01 the total lawyers in that Supreme Court lor exclusively state participating. public purposes. Editor's Note: It takes more than attorneys, The use 01 the 10LTA lunds collecV. Markham Lester is vice president however, to make the 10LTA proted will be determined by the board of the Arkansas JOIJ'A Foundation, gram work. Arkansas banks and 01 directors of the 10LTA FoundaInc., and is a partner in the Little Rock savings and loan associations tion, consisting 01 the Arkansas law firm of Cabe and Lester. have enthusiastically endorsed the 681Arkansas Lawyer/April 1987

IOLTA program. As of January, more than 51 financial institutions have agreed to participate. In fact, 29 of these, including some of the state's largest, participate in the program without charging any service fee whatsoever. The reason for the rapid success of the program can be said to rest in large measure on its simplicity. From the participating attorney's perspective, all he must do is sign up. The IOLTA Foundation takes care of all notification to the attorney's bank. There is no need to change account numbers, order new checks or anything else except post a small notice in his or her office announcing participation in the program. It is not necessary to notify clients beyond posting the notice. From the client's perspective, the placement of funds is irrelevant because the program only involves funds which an attorney would not otherwise invest on the client's behalf. The client would not earn interest on these funds under any circumstances. It might also be added that there are no tax consequences to either the attorney or the client for participating in the program. The IOLTA Foundation receives the interest from participating trust accounts and it is exempt from federal income tax. The effect of the IOLTA program for Arkansas is just short of unbelievable. Attorneys began to sign up for the program in June 1986. Real recruiting efforts did not begin until October. By January 1987, 20 percent of the lawyers in the state had signed up and their participation was already beginning to show great dividends. In 1986 alone, IOLTA collected more than $38,000. It is conservatively projected that if only half of the lawyers in the state signed up, the income each year to the IOLTA program would exceed $250,000. To give you some idea of the impact such funds would have on the state, in only two years the IOLTA program would raise funds equal to all the funds for legal scholarships raised in 20 years by the Arkansas Bar Foundation. In fact, within five or six years the IOLTA program will raise enough funds to equal the Bar Foundation's total endowment. You can begin to see what a significant impact the IOLTA program will have on our state.

It's easy to join. In order for you or your firm to participate in the program, all that is necessary is for you to sign the application form (one is included in this issue of The Arkansas Lawyer) and send it to the IOLTA Foundation. The Foundation will see to it that your bank or savings and loan is properly notified. That's it. As the IOLTA slogan goes, "All it takes is interest."

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CAMBRIDGE

Studies Program A study of Anglo路American jurisprudence in one of the ~r1d's most impressive academic settings.

July 4-16, 1987

~

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ENGLAND Spol1So~d

by

THE UNIVERSITY OF MISSISSIPPI LAW SCHOOL AT DOWNING COLLEGE CAMBRIDGE UNIVERSITY

Our Cambridge Studies Program will offer leclUres and seminars. which will emphasize our English common law heritage. Of special interest will be the opportunity to meet with and discuss the English legal system with barristers, jUdges. and Cambridge scholars. Classes will average three hours per day, providing ample opportunity for independent study and travel. The tuition cost includes a "legal tour" of London, which will give the student an insider's look at such legal institutions as the inns of court, the law courts and the Old Bailey.

For more information contact:

CAMBRIDGE STUDIES PROGRAM 101 Universities Center 3825 Ridgewood Road Jackson, Mississippi 39211 (601) 982-6590

April 1987/Arkansas Lawyer/69

NOTICE TO FINANCIAL INSTITUTIONS DATE: FROM:

TO: Financial Institution Name

Lawyer or Law Firm Name

Address

Address

City

State

Zip

Telephone Number

City

State

Zip

Telephone Number

The undersigned elect(s) to participate in the Arkansas Interest on Lawyers' Trust Accounts Program (I0LTA) as authorized by the Arkansas Supreme Court, Under this program, interest on the trust account described below will be paid directly to the Arkansas IOLTA Foundation, Inc.. rather than being credited to the undersigned:

Account Name

Account Number

The lunds currently deposited to this account. and alliuture deposits, should be placed in an interest-bearing account subject to negotiable orders 01 withdrawal. Interest on the average monthly balance in the account. or as otherwise computed in accordance with your standard accounting practice, should be remitted to the ARKANSAS IOLTA FOUNDATION, INC .. 209 W. CAPITOL AVENUE, SUITE 337, LITTLE ROCK, ARKANSAS 72201. The Foundation's tax identification number is 710611874. You are not required to report the interest income (IRS Form 1099), but il you elect to do so, show the Arkansas IOLTA Foundation, Inc. as recipient. Each remittance must be paid by check at least quarterly. If your institution has trust accounts for more than one lawyer or law firm participating in this program, you may make a single remittance lor all at the same time. Each remittance must be accompanied by a document which shows the exael allocation 01 a lump sum payment among the participating lawyers and firms who have accounts at your institution. This document requirement may be lulfilled by choosing one of two methods: I) Enclose a copy 01 each participating lawyer's or law firm's account statement that is routinely prepared by your institution with each remittance or 2) Enclose an "Interest on Lawyers' Trust Accounts Interest Remittance Report" with each remittance. We hope that you will waive any charges in order to benefit Arkansas citizens, but reasonable service and activity charges may be deducted from each remittance and should be listed on the "Interest on Lawyers' Trust Accounts Interest Remittance Report."

Authorized Signatory or Signatories:

Return this lorm to: Arkansas IOLTA Foundation, Inc. 209 W. Capitol Avenue, Suite 337 Little Rock, AR 7220 I 70/Arkansas Lawyer/April 1987

---------1_1--------IOLTA

FINANCIAL INSTITUTION HONOR ROLL (January 30. 1987) Appreciation is extended to the following financial institutions for their participation in the Arkansas Interest On Lawyers' Trust Accounts Program. Financial institutions denoted by a double asterisk have expressly waived all charges for IOLTA accounts. and institutions denoted by a single asterisk have to date remitted interest to the Foundation without deducting a fee. ASH FLAT First National Bank of Sharp County CHEROKEE VILLAGE First National Bank of Sharp County CROSSETT 'First National Bank of Crossett DUMAS Merchants & Farmers Bank EL DORADO 'Exchange Bank & Trust Co. 'National Bank of Commerce ENGLAND 'Citizens Bank FAYETTEVILLE First National Bank "Northwest National Bank FORT SMITH "City National Bank "First National Bank Merchants National Bank GREENWOOD Farmers Bank HAMBURG 'Farmers Bank

IONESBORO 'Bank of Northeast Arkansas Citizens Bank Mercantile Bank Simmons First Bank

HARRISON Security Bank HOT SPRINGS ..Arkansas Bank & Trust 'First American Bank "First National Bank

PRESCOTT First Federal Savings and Loan

LITTLE ROCK ROGERS First American Bank 'First National Bank & Trust Co. "First Commercial Bank 'Riverside Federal Savings and Loan 'Farmers & Merchants Bank 'Savers Federal Savings and Loan Union National Bank RUSSELLVILLE "Worthen Bank & Trust Co. "Peoples Bank & Trust Co. 'Superior Federal Bank MAGNOLIA Farmers Bank & Trust Co. SEARCY First National Bank First National Bank MORRILTON SILOAM SPRINGS Morrilton Security Bank First National Bank MOUNTAIN HOME "First State Savings Bank SPRINGDALE 'United Federal Savings Bank NEWPORT 'First State Bank TEXARKANA Merchants and Planters Bank State First National Bank NORTH LITTLE ROCK WARREN 'First American Bank 'Riverside Federal Savings and Loan PARAGOULD 'Warren Bank and Trust Co. "First National Bank PINE BLUFF 'National Bank of Commerce

G.A. Tomlinson P.E.

HARRISBURG 'Bank of Harrisburg

PORTLAND 'Peoples Bank

YELLVILLE 'Bank of Yellville

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ATTORNEY HONOR ROLL (January 30. 1987) ARKADELPHIA Hankins & Childers ASH FLAT Samuel F. Beller Dan M. Orr BENTON Sandra Tucker Partridge BENTONVILLE Burrow & Sawyer BLYTHEVILLE East Arkansas Legal Services Brent W. Martin

FORT SMITH Bethell. Calloway. Robertson & Beasley Robert S. Blatt Robert R. Claar Christian & Beland Davis & Cox Harrison & Hewett Jones. Gilbreath. Jackson & Moll Pryor. Robinson & Barry Rose. Kinsey & Cromwell Philip J. Taylor Sargent Law Firm Warner & Smith Western Arkansas Legal Services GREENWOOD Walters Law Firm

CHEROKEE VILLAGE Stewart K. Lambert

HAMBURG Arnold. Hamilton & Streetman Johnson & Harrod Tarvin & Byrd

CLARKSVILLE Roderick H. Weaver Swindell & Bradley

HARRISBURG VanAusdall & VanAusdall

CROSSETT Arnold. Hamilton & Streetman DUMAS Gill. Johnson. Gill & Gill EL DORADO Worth Camp Law Firm Henry C. Kinslow Shackleford. Shackleford & Phillips Spencer. Spencer & Depper ENGLAND William Reed FAYETTEVILLE George E. Butler. Jr. Gary L. Carson Davis. Cox & Wright James R. Jackson Phyllis Hall Johnson Rudy Moore. Jr. Odom. Elliott & Marlin Westphal & Steeken 721Arkansas Lawyer/April 1987

HARRISON Donald E. Bishop Frank C. Elcan II Meadows & Davis Thomas D. Ledbetter Walker Law Firm HELENA East Arkansas Legal Services HOT SPRINGS Central Arkansas Legal Services Vicki S. Cook Evans. Farrar. Reis & Love William W. Green Hobbs. Longinotti. Bosson & Naramore

Wood. Smith. Schnipper & Clay IONESBORO Barrett. Wheatley. Smith & Deacon Henry. Walden & Davis Legal Services of Northeast Arkansas Donn Mixon Val P. Price Walker. Snellgrove. Laser & Langley

LITTLE ROCK H. William Allen Arnold. Grobmyer & Haley Cabe & Lester Catlett. Stubblefield. Bonds & Fleming Central Arkansas Legal Services Davidson. Horne & Hollingsworth Richard C. Downing Eisenkramer. Huddle & Johnson Donald Frazier Friday. Eldredge & Clark Gill Law Firm Givens & Buzbee Hartenstein. Lassiter & Oberlag Hatfield. Robinson. Hodges. Staley. Marshall. Jordan & Shively Hollingsworth & Heller Hoover. Jacobs & Storey House. Wallace & Jewell Ivester. Henry. Skinner & Camp Jack. Lyon & Jones Kaplan. Brewer & Miller Lavey. Harmon & Burnett B. Frank Mackey. Jr. Jean Madden McMath Law Firm Mitchell & Roachell Mitchell. Williams. Selig. Jackson &Tucker Overbey & Deininger Ross & Ross Rose Law Firm

Shults. Ray & Kurrus Simmons S. Smith Skokos. Simpson. Graham & Rainwater Walker. Roaf. Campbell. Ivory & Dunklin Velda P. West Wilson. Engstrom. Corum & Dudley Wright. Lindsey & Jennings Youngdahl & Larrison MAGNOLIA Anderson. Crumpler & Bell Keith. Clegg & Eckert Woodward. Kinard & Epley MONTICELLO Gibson. Gibson & Hashem

MORRILTON Mark Cambiano

MOUNTAIN HOME Frederick S. Spencer The Strother Firm

WARREN Haley, Claycomb & Roper Robert C. Vittitow

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Self-Determination For Your Clients By William A. Martin The Unilorm Rights of the Terminally ill Act, which enahles adults to specify the withholding of lifesustaining medical treatment in the last stages of terminal illness, is one of the bills in the Arkansas Bar Association's legislative package this session. We won't know the bill's fate until after this column appears, but no matter whether we end up with the old Death With Dignity statute or this new law, our clients and their families cannot gain the benefits of advance planning for health care unless they can execute living wills and durable powers of attorney. Modern medical technology can often convert what in earlier times would have been a quick death into a long-term, painful. comatose or vegetable state that no one would choose for themselves or their families. Without clear legal authority to limit or discontinue treatment, medical personnel will do everything they can to keep the heart and lungs going, using respirators or CPR techniques even when there is no chance the patient will ever wake up. Much has been written and said lately about advance health care directives. Robert McCord urged readers to "control your life, sign a

living will" in the Arkansas Gazette on August 4, 1985, and Professor Robert B. LeHar's article in Vol. 39 of the Arkansas Law Review, "Liberty and Death: Advance Health Care Directives and the Law of Arkansas," is must reading for any lawyer who may be called on to help prepare advance health care directives. What becomes quickly apparent is that the right to refuse medical treatment is confused and often litigated. A clear expression of desire about the use of lile-sustaining equipment and durahle powers of

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attorney may reduce this litigation. Beyond that. formal documents vastly increase the likelihood a person can shape some of the conditions of his or her dying, perhaps even avoiding painful treatment or a lingering coma. A durable power of attorney giving a trusted relative or friend the power to make health care decisions - is extremely important. The Arkansas statutes on powers of attorney (Ark. Stat. Ann. Sec. 58-SOl to 511 and 58-701 to 704) do not specifically address using powers of attorney to consent to or refuse medical treatment. but they are probably broad enough to accomplish this result. Although cumbersome, these procedures are the best vehicles we have until and unless the legislature adopts something specifically dealing with surrogate medical care

decision-making and streamlines the process by which people can exercise their fundamental right to refuse medical treatment. During a half-day program on surrogate decision-making at the American Bar Association's 1986 annual meeting, Dr. Joanne Lynn, a wonderfully compassionate physician and professor at George Washington University Medical School. suggested that when lawyers draw wills they should fully advise clients about durahle powers of attorney. She predicts that the day will come when the failure to do so constitutes legal malpractice. We in the legal profession owe it to our clients, their families and to society to encourage medical decision-making at the time clients are thinking about how to dispose of their property after their deaths.o

YOUNG LAWYERS' UPDATE

Taking An Active Role School Mock Trial Competition. Thirty-live high schools from across the state are participating in this year's program. At this level of participation, over 150 lawyers are needed to provide the manpower necessary to coach the teams and judge the various rounds of the competition. The final round will be argued before the Arkansas Supreme Court on May 2. Patricia and Marcia have done a tremendous job in lining up these volunteers and should be commended for their hard work and dedication. finally, the YLS, as one of the co-sponsors of the High School Mock Trial Competition, is responsible for raising the funds necessary to send the eight-

By J. Thomas Ray Edward Boyce. chair of the YLS Senior Citizens' Committee. participated in a one-day seminar in December to assist families with developmentally disabled children. The seminar. sponsored by the East Arkansas Agency on Aging. involved representatives for various legal advocacy groups participating in a panel discussion of legal problems frequently encountered by family members with developmentally disabled children. The YLS sponsored the 6th Annual Trial Practice Seminar at the Sheraton Hotel in Hot Springs on March 20-21. The two-day program featured: United States District Judge G. Thomas Eisele, who gave a judicial perspective on various aspects of trial practice; Jim Jeans of Kansas City, Missouri. who spoke on how trial lawyers can be better communicators; Alston Jennings, who detailed the trial techniques he used to defend the United States Tobacco Company in the recent Oklahoma Snuff Dipper case, and Nick Patton, who discussed ways the plaintiff's counsel can win the big case. At the conclusion of each day's program, the YLS sponsored an afternoon of racing at Oaklawn Park. A special buffet lunch in the Arkansas Room of the Jockey Club was held on March 20. Judging from the attendance and the many positive responses about this year's program, the Trial Practice Seminar is now a well established part of the YLS agenda of permanent projects. All of the income generated by this seminar goes to the YLS to

member winning team and its

fund many projects sponsored by the Section. One of our long-term goals is to sponsor a sufficient enough number of seminars and other income-generating projects to enable the Section to have its own operating budget. rather than depending on funding from the Arkansas Bar Association and Arkansas Bar foundation. In future years, look for us to take a more active role in sponsoring programs that will not only benefit the members of the bar but also generate income that can be used by the Section to fund special projects. During January, Patricia Van Ausdall, chair of the YLS High School Mock Trial Competition Committee, and Marcia Barnes, chair of the Arkansas Bar Association's Youth Education Committee, concluded the recruitment of lawyers to act as coaches, scorekeepers and judges in the upcoming statewide High

lawyer and teacher coaches to Washington, D.C., to participate in the National Mock Trial Competition on May 16-23. In order to do this, the YLS must raise $10,000. Because high school teams from across Arkansas are participating in this competition, and anyone of them might win, lawyers from all areas of the state should be interested in contributing funds to this extremely worthwhile project. D

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IN-HOUSE NEWS LAW SCHOOLS, A.I.C.L.E. AND HOUSE OF DELEGATES

UNIVERSITY OF ARKANSAS SCHOOL OF LAW,

FAYEITEVILLE By J. W. Looney Jake Looney, Mary Beth Matthews and Mort Gitelman attended the American Association of Law Schools meeting in Los Angeles. Looney was on the program of the Section of Agricultural Law and discussed "Federal FarmDebtor Relief Legislation." Matthews was moderator of a panel for the Section on Financial Institutions and was elected to the Section's Executive Board. Looney also spoke to the Benton County Bar Association on the Soviet legal system, to the Arkansas Cooperative Council annual seminar in Hot Springs on cooperative director

liability, to a special seminar in Russellville on farm bankruptcy and to the annual meetings of the Arkansas Cattlemen's Association and

the North Carolina Cattlemen's Association and during the Washington County Beef Shortcourse on the new tax law. Car!ton Bailey presented a paper at the

1986 Minority Law Teachers' Conference in Houston sponsored by the AALS Minority Groups Section. Joan Chapman and Robert B. Leflar were speakers at the Arkansas Bar Association's Health Law Seminar. Leflar also presented a symposium on toxic waste in the Arkansas Union Program Symposium Series and spoke on "Legal Issues in Critical Care at The Surgical Critical Care Conference in Little Rock. Robert A. Leflar's American Conflicts of Law (4th Edition) has been released by The Michie Co. His article "An Early Arkansas Lawyer-Scholar appeared in the Arkansas Law Review, He was a fall speaker in the Hartman Hotz Lectures in Law and Liberal Arts. Rodney Smolla gave a speech on "The Press and the Judicial Protection of Constitutional Liberties" at the conference on the Media and the Bicentennial of the Constitution in Williamsburg, Virginia, and spoke on the First Amendment to the annual Virginia BenchBar-Media Convention in Richmond. His second book, The Law of Defamation, was published by Clark Broadman Publishing Co. in the fall. He also authored two amicus curiae

briefs filed in the United States Supreme Court. Al Witte has been

elected vice president of NCAA-Division I. Mort Gitelman's article, "The Impact of the Statute of Gloucester on the Development of the American Law of Waste" appeared in the Arkansas Law Review. Howard Brill was a speaker at the Mid-Year Meeting of the Arkansas Institute for Continuing Legal Education. The 1986 supplement to his book, Arkansas Law of Damages, has been published. John Watkins chaired the Governor's Committee on Personnel Evaluation Records, a group established to recommend legislation to amend the Freedom of Information Act to deal with public access to employee evaluations and other personnel records.

Linda Malone's article "The Chernobyl Accident: A Case Study in International Law Regulating State Responsibili ty for Transboundary Pollution" has been accepted for publication in the Columbia Journal of Environmental Law. Janet Flaccus article "Discrimination Legis-

lation for the Handicapped: Much Ferment and the Erosion of Coverage" appeared in the University of Cincinnati Law Review. Law School Events During the fall semester a number of distinguished visitors were at the law school.

Professor Wade McCree, Jr .. gave the dedicatory address for the re-dedication of Waterman Hall; the UA Board of Trustees met at the law school and upon motion of Board Chairman Kaneaster Hodges voted to name the law school complex the "Robert A. Leflar Law Center"; Associate Justice David Newbern made a special faculty seminar presentation;

former White House staff member Sarah Weddington spoke at a Student Bar Association-sponsored event, and Professor Bonghee Hahn of the College of Law, Chonbuk National University in Korea, was a special guest late in the semester. Student Activities Student Bar Association officers for this spring are president: Mark Pryor, Fayetteville; 1st vice president: Suzanne Frandolig, Searcy; 2nd vice president: Robin Westbrook, Little Rock; secretary: Mary Windzerlig, Little Rock; treasurer: Tabitha Hubbs, Van Buren; 3rd year rep.: Eric Liepens, Knoxville; 2nd year rep.: Erwin Cain, Saratoga; Ist year rep.: Allan Perry, Arkadelphia; assistant ABA rep.: Dina Wood, Huntsville; and faculty rep.: Ladonna Dollar, Hot Springs. The 1987 Moot Court Board is Gordon Allison, Pine Bluff; Kim Apnl 1987/Arkansas Lawyern7

Stephens. Conway; Michael Barnes. Camden; Brent Sterling, Durant, Oklahoma; J. Cole. Fayetteville; Wendy Lloyd. Hanford, California; Ken McCulloch. Searcy; Richard Worsham. Little Rock; Greg Scharlau. Fayetteville; Bill Kropp. Fort Smith; Brian Huddleston, Batesville. and E. KradeL Fort Smith. Best scores for the intra-school moot court competition went to Shannon Murphy for best brief and M. Barnes and B. Sterling for best oral argument. The Arkansas National Moot Court team, composed of Ed Beauchamp, Elana Cunningham. Elizabeth Levy and Tamra Cochran (alternate) (along with sponsor Prof. Chauncey Brummerl. represented the school in Dallas at the regional moot court competition. A second team of Julie Baker, Lance Alworth and Ben Boyd represen ted the school in a moot court competition in Chicago. The school was represented at the ABA regional negotiation competition in Waco. Texas. by Bill Kropp and Rex Faulkner. This was the first year the U of A participated in this competition.

UNIVERSITY OF

ARKANSAS

AT llITLE ROCK SCHOOL OF LAW By Paula Casey Professor Philip 78/Arkansas Lawyer/Apnl 1987

Oliver discussed the Tax Reform Act of 1986 at the Mid-Year Meeting of the Arkansas Institute for Continuing Legal Education. Professor Oliver also offered 0 course in basic Federal Income Tax concepts for the general practitioner during February and March at the UALR Law School. The Arkansas Bar Association's Law School Committee. chaired by Dennis L.Shackleford. visited the UALR Law School on January 21. Committee members met with faculty, staff, students and UALR officials and attended a reception at

the home of UALR Chancellor James Young. The Pulaski County Bar Association's Board of Directors and the Pulaski County Law Library Commi ttee were invited to attend. Distinguished Prolessor Tom Morgan 01 the Emory University School of Law delivered the Spring 1987 Altheimer Lecture on March 19 in Little Rock. Professor Morgan has taught at the University of Illinois College of Law and has served as dean at Emory. He is the co-author of casebooks and materials on professional responsibility and economic regulation of business. The Science. Law and Technology Altheimer Lecture will feature Roger Dworkin on April 9. Professor Ellen Brantley was appointed by Governor Bill

mony at the Law School presided over by Federal District Judge G. Thomas Eisele. UALR Law School Dean Lawrence Averill welcomed guests. Woodson Walker. president of the Pulaski County Bar Association. presented Judge Brantley a robe on behalf of the Association, Donna Gay. president of the Arkansas Association of Women Lawyers. presented Judge Brantley a gavel and Associate Justice David Newbern, of the Arkansas Supreme Court. administered the oath of office. Judge Brantley replaces Judge Bruce Bullion who resigned last fall. She will serve until the 1988 general election. Prolessor Tim Kennedy's article, "Initiated Constitutional Amendments in Arkansas: Strolling Through the Mine Field." and Dean Averill's article. "A Short History of the School of Law at UALR," were published in the UALR Law Journal. Professor John Pagan was elected in November to the Pulaski County Quorum Court. Professor Robert Wright. of the UALR Law School. and Professor Mort Gilelman. of the University of Arkansas School of Law, Fayetteville, completed a supplement to their book, Cases and Materials on Land Use. 3rd Edition (987). Professor Wright and Professor Susan Webber Wright have a

Clinton to serve as

new addition to their

chancellor and probate judge for the Sixth Judicial District which includes Pulaski and Perry Counties. Judge Brantley assumed her

family. Robin Elizabeth Wright. She was born on December 22, and arrived home on Christ-

new duties on Decem-

ber 19, following a cere-

mas morning.

Joy Durwood joined the UALR Law School faculty as a clinic

supervisor. Professor Durwood. a graduate of the U of A School of Law. Fayetteville. is a Reginald Heber Smith Fellow and is a former staff attorney for Legal Services of Northeast

Arkansas.

A.I.C.L.E.

NEWS

By Dr. Rae Jean McCall Attorneys today realize that they must continue their legal education with some form of advanced legal study if they are to continue to properly represent their clients. The rapidly changing complexion of today's law and its increasing complexities make it necessary that the practitioner keep current on the changes and have a clear understanding of the legal principles involved. One of the most effective methods for keeping current is attendance at a CLE program. AICLE. the non-profit corporation sponsored by the Arkansas Bar Association, UALR School of Law and the University of Arkansas School of Law. Fayetteville. was organized in 1977 for the specific purpose of developing and presenting quality CLE programs for the Arkansas attorney. AICLE has been designed to be financially sell-supporting through the income derived from its courses and publications. This goal can only be achieved by charging tuitions sufficient enough to meet operating overhead and yet reasonable enough to make our courses affordable in comparison to tuitions charged by other CLE

providers. AICLE is your continuing legal education organization. We are

constantly striving to improve the quality of our programs and welcome your ideas and recommendations.

fn October 1986, the AICLE program committee addressed the need for a planned, comprehensive curriculum of CLE in Arkansas. Although the plan is in the infancy stage, the goal is to provide courses en-

abling the practitioner to "acquire" new skills, techniques and knowledge and to make it possible for a lawyer to "maintain and improve" existing skills, techniques and knowledge. In serving the attorneys of Arkansas, AICLE and its staff are dedicated to developing educationally sound programs and publications. Our ability to fulfill this goal is due solely to the fine professional spirit of the very best Arkansas attorneys, judges and law professors who have given most generously of their time, talent and energy to share their expertise with fellow members of the bar. To these planners, lecturers and authors, AICLE extends its sincere gratitude. KUDOS for Previous Prog'rams

Special recognition is due the following persons for serving as program chairs: • James A. McLarty, Dean Jake Looney and Prof. Dent Gitchell for chairing and cochairing the Mid-Year Meeting held January 22-23 on "The Latest in the Law." • William D. Haught

and Prof. Don Pederson for co-chairing the March 6 seminar on "Advising the Farmer in Financial Distress. • Federal Judges G. Thomas Eisele and H. Franklin Waters and Robert L. Jones, Jr .. William R. Wilson, leRoy Autrey, Herschel H, Friday and Robert K. Walsh for planning the March 13 Federal Practice Institute organized by the Federal Practice Committee of the Eastern and Western Districts of Arkansas. • Garland Binns for chairing "A Securities Law Short Course" on March 27. Preview of Coming Events The Labor Law and Labor Relations Seminar is scheduled for April 10-11 at the DeGray State Park Lodge and Convention Center in Arkadelphia. Co-sponsored by the Arkansas Bar Association's Labor Law Section, the National Labor Relations Board and the Labor Education Program at UALR, the seminar will cover major areas of concern to the practitioner in labormanagement relations, May I is the date of the 1987 Tax Awareness Seminar at the Little Rock Excelsior Hotel. Co-sponsored by the Arkansas Bar Association's Section of Taxation, this program will concentrate on aspects

of the Tax Reform Act of 1986 for agriculture and ag ricul t ural-re lated businesses in Arkansas. On May IS, a seminar entitled Financial institutions Law for

Lawyers and Lenders will be held at the Riverfront Hilton in North Little Rock. The pro-

gram will feature panels on agricultural and related issues, in addition to information on officers' and directors' (and lawyers') liability, suits against lenders and federal supervision and takeovers.

For information on these and other AICLEsponsored programs, contact the AiCLE office at 375-3957.

ARKANSAS BAR ASSOCIATION HOUSE OF DELEGATES MEETING JANUARY 24, 1987 The Arkansas Bar Association's House of Delegates met on January 24, 1987, at the Excelsior Hotel in Little Rock. President Richard F. Hatfield presided. The House approved the minutes of its October 4, 1986, meeting, as amended, an unaudited financial statement dated December 31, 1986, and the annual report of the secretarytreasurer.

Phillip E. Dixon, chair of the Membership Committee, reported on its progress to meet the budgeted projection for 1986-87 dues. Dixon asked each member of the House to contact two delinquent members. The House approved 35 applications for membership. Herman Hamilton, chair of the IOLTA Committee, reported that at the close of 1986, the Arkansas IOLTA Foundation had collected more than $37,000, and that

700 Association mem-

bers are participating. John P. Gill. chair of the Bicentennial Committee, outlined plans for the Bicentennial Celebration, including a speakers' bureau in

which members of the Association will speak throughout the state on the Constitution. Neil Deininger reported on efforts to reacquire the Association's special bulk thirdclass mailing permit. Deininger recommended that the Association continue to monitor legislative changes in lieu of litigation. W. Russell Meeks, III, reported that it will be 1988 before mandatory CLE can be implemented. The Arkansas Supreme Court has included funding in its budget for an administrative position to initiate the mandatory CLE program. Until such a position is funded, no further action can be taken by the committee. J. Thomas Ray, chair of the Young Lawyers' Section, reported on this year's YLS activities and responsibilities, including the Practice Skills Seminar, Admissions' Ceremony and High School Mock Trial Competition. Efforts are under way to raise the necessary funds to send the winning team to , Washington, D.C., in May for the National Mock Trial Competition. UALR Law School Dean Lawrence Averill reported on behalf of the Arkansas Statute Revision Commission that the proposed revision of the Arkansas Code is complete and will go before the legislature for adoption. The revision will totally replace the present code. Johnnie Holcomb, Apnl 1987/Arkansos Lawyern9

chair of the Corporate Code Study Committee, reported that due to limited time, the committee was unable to adequately study the proposed code. The House took no action on the proposed code, thereby leaving authority to act to the Legislative Oversight Committee. Martha Miller, the Association's lobbyist, reviewed the eight bills in the Association's package, including a resolution addressing the juvenile Court System, a garnishment bill and the Rights of the Terminally III bill. Portions of the latter are opposed by the Arkansas Medical Society and the Arkansas Hospital Association. There is disagreement between these groups and Phillip Ct!rroll, chair of the Uniform Laws Committee, on certain provisions of the bill. Upon the recommendation of jack C. Deacon, it was moved

and seconded that the Association approve and support those portions of the proposed act which are agreed upon and refer the remaining provisions to the Legislative Oversight Committee. The motion passed. Miller further advised that mandatory seat belt legislation, HB 1143, though not in the Association's package, is supported by the Association.

Miller reviewed legislation being proposed by Governor Bill Clinton which is of interest to the Association and sought direction from the House on the Association's position. In addition to the proposed corporate code previously addressed, the House took the following action on bills or proposals included in SO/Arkansas Lawyer/Apnl 1987

the Governor's package: The gross receipts tax bill. This legislation was referred to the Legislative Oversight Committee.

Joint and Several Liability

Act. E. Lamar Pettus

moved and Randy Morley

seconded that the Association oppose this legislation.

The motion passed. Collateral Source Act. E. Lamar Pettus moved the As-

sociation oppose the Col-

lateral Source Act. The motion was seconded and

passed. Punitive Damages Bill. A motion by E. Lamar Pettus to oppose this legislation

was seconded and passed unanimously.

A bill providing for

isting Association committees. Among the factors considered were whether a committee served a valid purpose, whether it was the appropriate size, whether its current chair was functioning and whether special needs existed. Pursuant to Article X of the Association's Constitution, Stroud moved that the House adopt the following: • that the following committees not be reap-

pointed: (a) Cameras in the Courtroom Committee.

(b) Aviation Law Com-

attorneys' fees in frivolous actions. The House tex>k no action on this legislation.

mittee.

thus delegating action to the Legislative Oversight

tee;

Committee.

Proposed legislation not in the Governor's package

was addressed by the

(c) IOLTA Committee, (dl Tort Reform Commit• that the Bicentennial Committee retain its same

membership and then be discontinued after next

year: • that the LAWPAC Com-

House as follows: Repeal of recent enactments to notice to

mittee be combined with the Membership Commit-

creditors bill, i.e.. Act 1007 of 1985. It was moved and seconded that this legislation be supported by the As-

Committee be combined

sociation. The motion

passed. A proposal to add a 60day county residency requirement in divorce or separate maintenance actions. On motion of Richard L.

Peel. seconded by Charles P. Allen, the House voted to oppose such a measure if

proposed. SB 138-Aproposal to exempt a physician's notes from civil discovery.

Richard L. Peel moved that the Association oppose this legislation. The motion was seconded and passed.

5B 37 -

Legislation to

provide for attorneys' fees in illegal exaction cases. On motion of Charles Carpenter, seconded by Robert

tee: • that the Legal Services with the Legal Aid Committee;

• that the Statute Revision Committee not be reappointed unless proposed legislation is not

passed this year: • that a Committee on Professionalism be added;

• that the Merit Selection Committee remain inactive

but be reappointed; • that the Task Force on Committees be retained for one more year; • that the question of whether the Creditor-

Debtor Rights Committee should be combined with the Consumer Law Committee be taken under advisement; and • that a Criminal Law

Committee be established

this

as a Special Committee and the Criminal Law Section be eliminated.

john F. Stroud, jr., chair of the Task Force on Committees, presented recommendations resulting from its study of the effectiveness of ex-

The motion was seconded by W. Russell Meeks, ill, and passed. The appointment of H. Murray Claycomb to the AlCLE Board of Directors

M. Cearley, the House voted to support legislation.

to fill the vacancy created by the death of Marvin L. Kieffer was approved unanimously. Immediate Past President Don M. Schnipper reported on the Southern Conference of Bar Presidents held in Little Rock on October 23-26, 1986. Sixteen of 20 member associations attended this highly successful conference. Schnipper praised everyone who contributed to make this an outstanding event. The Association's three-year agreement with the UALR Law journal to provide the journal to each member has expired. On motion of Henry Hodges, seconded by Paula Casey, the House voted to convert the expired three-year agreement to an indefinite agreement cancelable by either party on 90 days notice. William A. Martin, executive director, reported on new carpet to be installed in the Arkansas Bar Center, new computers recently acquired by the Association and new phones recently purchased for the Center. President Hatfield reported that we are meeting the goals set for the Association this year. He reviewed the progress and contributions of the Association on legislation, membership, IOLTA, madatory CLE, the Bicentennial Celebration and the Southern Conference of Bar Presidents. President Hatfield also outlined plans for the annual meeting. There being no further business, the meeting was adjourned. 0 Respectfully submitted, Sandra Wilson Cherry Secretary-Treasurer

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_

each

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_

(5ecretary.Treasurer, unless otherwise speclfK'd)

o Oremight Air Courier shipment, add S6.00 o Federal or Slate non-registration clause.5C, 512.00 o If prepaying, add St.;O forsurlace o IRe § t244 comple.e se.-resol., shipping and handling. CXlr.J

dir. min., treatise, law, etc., 54.95 extra

OI"'1:e: 0 Mas.erCard 0 Visa 0 Diner.; Qub 0 American Express Card Number

E:.:pires

Ship 10:

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Zip Code

L

~naturt

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o Please send me your fREE 48 page catalog. ~~

I


APRIL 1987