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Mastering Today's Technology


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Couple all of the benefits described here• and much more, with the prestige of carrying :1 MasterCard that displays our association's idcmification on the front of the card, \\'e think you'lI agree that this is the only credit card you will want ro carry.

SIS,OOU!

TRAVEL BE EFITS ISSUED FREE· Your Arkansas Bar Association Gold MastcrCartr account is issued FREE of an annual fcc for the first year. and with a Icm continuing annual fee'of 530 per year for subsequcm years. Other premium ('.rds COS! 545 to 565!

Low A

UAL PERCENTAGE RATE Your Arkansas Bar Association Gold MasterCard account bears a low annual percentage rate of 15.9% on average daily balances up ro 53.500 and. as an added advantage. the r3tC drops ro 14,9% for that portion of your average daily balance over 53.500. You'll find these rates significantly lower than most other banks or department srore credit card accounts.

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Every time you make travel arrangcmcms using your Arkansas Bar Gold MasterCard account \'ou receive these benefits - FREE of any added charge! • p to 51.000.000 Common Carrier lravel Accidcm Insurance • p to $3.000 Lost Luggage Coverage • Up to 55.000 Emergency Cash and/or Airline Tickets • 24-Hour Travelers Message Service • Emergency Card Replacement • Guaranteed Check Cashing • Up to 53.000 Auto Remal DeduClible Reimbursement • Gold Passage.... Travei Service • Credit Card Registration Service • Acccptcd at over 5 million locations

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I "ish to a.pply for an Arkansas Bar Gold MasterC:lrd accoum "ith credit Imes up 10 515.000. a.nu all other benefits descube,t :lho\'~. BDF) Shuull! m\ appl1catlon for a. Gold Ma.slcrC:ul! accounl nOt be lIIpprO\'cd. thiS rC(lucsl (H·J67 con"tllulCS 01\ appliauon for a Silver 1\laslcrCard account. also ISSUED FREE of all AnnuJI Fee for the first vcar: (please Pnnt) Ol-In '\\1..·.

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RETURN MAILER QUESTIONNAIRE TO:

All attorneys in Arkansas who have been licensed to practice law for five years as of July I. 1988

FROM:

Committee on Specialization in Family Law

Re:

Return mailer questionnaire and notice of interest in receiving APPLICATION (when available) to apply to take examination in Family Law Specialization

Deadline: This questionnaire must be received by May 10, 1988, for applicant to be eligible to apply for and take the first examination. I have read the STANDARDS FOR SPECIALIZATION IN FAMILY LAW IN ARKANSAS in the April 1988 issue of THE ARKANSAS LAWYER. I think I can meet the qualification requirements and I am interested in receiving a notice, an application and knowledge of when the first examination will be given. I understand the following costs will be involved: $5.00 to make APPLICATION to take the examination; (2) $350.00 as FILING FEE to take the examination; (3) $100.00 for ANNUAL RENEWAL FEE alter certification. [All of the above fees are non-refundable]

(1)

The purpose of this questionnaire is to secure a mailing list of those licensed Arkansas attorneys who are interested in subsequently making application, paying the filing fee and taking the examination. This will be the only legal notice mailed to all Arkansas attorneys prior to the first examination. Only those attorneys who are members of the Arkansas bar who respond to this questionnaire and mail it to the designated address by May 10, 1988, will be sent further notice when an APPLICATION and FILING FEE are due and when an EXAMINATION will be given. Two law professors from Fayetteville and Little Rock have been retained and are presently preparing the examination in FAMILY LAW SPECIALIZATION. The topics to be included in this examination will be announced publicly at least 90 days prior to the examination and attorneys who complete this questionnaire will be given notice of such topics. The Honorable Eugene Harris, president of Arkansas Judicial Council, will appoint a special committee of chancellors from the Judicial Council to review and approve this examination. No member of the specialization board will have access to the examination, but the board members will discuss the topics on which the examination is to be given. The final topics will be publicly disclosed as recited above. If any licensed attorney has further questions about the STANDARDS or about the forthcoming APPLICATION, please contact one of the following members of the Board of Specialization in Family Law: (1) Ben Rowland, 604 Three Hundred Spring Building, Little Rock. AR 72201-2422, telephone: 375-3384; (2) Chancellor Warren O. Kimbrough, Sebastian County Courthouse, Fort Smith, AR 72901. telephone: 782-3035; (3) Chancellor Eugene Harris, Jefferson County Courthouse, P.O. Box 8964, Pine Bluff, AR 716lI, telephone: 541-5381; (4) Josephine L. Hart, P.O. Box 2496, Batesville, AR 72503, telephone: 793-7556, (5) Harry T. Moore, P.O. Box 726, Paragould, AR 72451. telephone: 239-2225; (6) George M. Callahan, P.O. Box 1620, Hot Springs, AR 71902-1620, telephone: 321-1200.

_ _ I have read the STANDARDS FOR SPECIALIZATION IN FAMILY LAW IN ARKANSAS and this RETURN MAILER QUESTIONNAIRE. I think I can meet the recited requirements and I request that you put my name on your mailing list to receive the APPLICATION when it is available: FULL NAME & MAILING ADDRESS: LAST NAME (PLEASE PRINT), FIRST NAME STREET ADDRESS OR POST OFFICE BOX CITY

STATE

ZIP CODE


3lI3H 0101

FOLD HERE Place Stamp Here

FAMILY LAW SPECIALIZATION COMMITTEE

Arkansas Bar Association 40lI West Markham Street Little Rock. Arkansas 72201

ATTN: VIRGINIA HARDGRAVE


April 1988 Vol. 22, No. 2 OFFICERS John F. Stroud, Jr.. President Philip E. Dixon, President-Elect Sondra Wilson Cherry, Sec.-Treasurer Vincent W. Foster. Jr.. Council Chair

ARKANSAS

SPECIAL FEATURES

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

EXECUTIVE COUNCIL Madison P. Aydelott, 1Il H. Murray Claycomb John D. Eldridge, 1Il Donald K. Harp Ronald D. Harrison Robert L. Jones, 1Il R. Gary Nutter Robert G. Serio Bobby E. Shepherd James M, Simpson, Jr. Carolyn B. Witherspoon Robert R. Wright, III EX-OFFICIO John F. Stroud, Jr. Philip E. Dixon Richard F. Hatfield Sandra Wilson Cherry Vincent W. Foster. Ir.

Michael H. Crawford EDITOR Ruth M. Williams, Director of Communications

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. 400 West Markham.

Little Rock, Arkansas 72201. Second class postage paid at Little Rock. Arkansas. In all counts, POSTMASTER: send address changes to Arkansas Bar Association. 400 West Markham. Little Rock, Arkansas 72201. Subscription

ra

LCt

Joint Annual Meeting 1988 Phase II: Automating the Law Office, by Charles A, Morgan Transfer of Petroleum Marketing Practices: CAVEATPMPA, by Walter G, Wright. Jr. Plea Bargaining: Does the Machinery Need Oiling? by Bart F. Virden Standards for Specialization in Family Law in Arkansas

46 49 52

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

53

57

62 68 69

1988-!lJ Membership Directory

115 118 The Developing Law

124 In Memoriam 126 Disciplinary Actions 127 Young Lawyers' Update 128 Arkansas IOLTA Program 133 In-House News ON THE COVER:

Bar Association $15.00 per year and to

In "Automating the Law Office: Phase II." Charles A. Morgan of

members $10.00 per year included in

Texarkana continues his review of

price to non-members of the Arkansas

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.

ways to master today's technology. In the January 1988 issue of The Arkansas Lawyer, Morgan oUered a short primer on how to begin the computerization of a law office and the factors to be con-

sidered. In this issue of the magazine. Morgan looks at some of the specific hardware. software and other techno-

logical advances that are available to increase the productivity of today's lawyer. "In the law office of the future, today's technology must be mastered if we are to remain efficient. profitable and productive," he writes.

April 19881Arkansas Lawyer/45


THE PRESIDENT'S REPORT

AFirst Joint Meeting ment of a vital constitutional amendment to create a Judicial Compensation Commission in Arkansas. I know of no greater contribution we can make to the longrange improvement of the judiciary and the administration of justice in Arkansas than by giving our full support to this amendment. I encourage you to send a $100 check made payable to J.C.C.C. to Shirley McFarlin, Judicial Compensation Commission Campaign, lIS North State Street. Little Rock, AR 72201. and to urge your clients and friends to vote for the amendment.

By John F. Stroud, Jr. I hope you are making plans to attend the Annual Meeting in Hot Springs from June 8 to II. The first joint annual meeting of the Arkansas Bar Association and the Arkansas Judicial Council will provide sessions that I think will be of special interest to you. Our featured speaker on Thursday will be Judge William Webster, a former judge of the Circuit Court of Appeals for the Eighth Circuit. a former director of the Federal Bureau of Investigation and the director of the Central Intelligence Agency. There will be several panels of attorneys and trial judges providing insight into child support enforcement. marital property, criminal law procedure, guardianship, adoptions, probate fees, civil jury trials, the new Corporation Code, civil procedure, stress management and the effective use of paralegals. In addition, the new Arkansas Form Book will be presented by Professor Robert R. Wright ill of the UALR Law School. Justice David Newbern of the Arkansas Supreme Court will speak on "Lawyers, Judges and Judicial Ethics" and Supreme Court Chief Justice Jack Holt, Jr., will speak on the new mandatory CLE requirements. Look for a lively discussion on Friday when appellate and trial judges debate the state's leading trial attorneys on the "Behavior and Misbehavior of Lawyers and Judges in the Courtroom." All of this and receptions, firm parties, a style show and other programs for spouses, the annual Awards Luncheon, the "Thursday Night Live" dinner and dance and Gridiron '88 await your registration. My thanks to Robert K. Walsh for arranging these programs with the strong support of both organizations and to the Special Judicial Council Liaison 46/Arkansos Lawyer/April 1988

Committee that worked diligently to make the joint meeting a reality. Long-Range Planning Conference The first general long-range planning conference since 1984 will be held at the DeGray Convention Center at DeGray State Park in Arkadelphia from April 22 to 23. I urge members of the House of Delegates and Executive Council, the presidents of all local bar associations, all committee chairs, all the sections' officers and past oUicers and all of the Arkansas Bar Foundation directors to attend and be a part of planning the programs and the direction of the Arkansas Bar Association for the next four or five years. Judicial Compensation Commission Much work has been done by the Judicial Compensation Commission Campaign and its chair, Dennis L. Shackleford, the Association's Senior Task Force Committee and its chair, E. Charles Eichenbaum, the state trial practice committees and others to obtain the required signatures on petitions and to raise the funds necessary for the enact-

Code of Ethics Bill Early drafts of the Code of Ethics legislation by the Governor's Code of Ethics Commission contained provisions of great concern to the Association's House of Delegates, Executive Council and Legislative Policy Committee (formerly legislative Oversight Committee). We felt some of the provisions were overly restrictive to the practicing attorney and so limiting to a lawyer/legislator and his law firm to deter him from serving in the Arkansas legislature. Accordingly, we presented written and verbal testimony to the Commission last year which resulted in modifications which substantially satisfied all of our objections. We did not undertake to draft the bill for the Commission nor to address issues unrelated to the practice of law. The Association's lobbyist, Martha M. Miller, served us well and spent countless hours attending Commission hearings and meetings and the legislature's special session. The House of Delegates might not have taken a position at its January 23 meeting on the Commission's final draft. but I'm proud it had the fortitude to support the measure since our objections had been met. 0


THE ELECTRIC COOPERATIVES OF ARKANSAS

AMAJOR SOURCE OF ENERGY IN ARKANSAS' DEVELOPMENT. "For a half-century your electric cooperatives have played a major role in the development of Arkansas. "That role has never been more active or important than today. With significant power Cart S. Whillock President, Arkansas capacity in coal and Electric Cooperative Corporation hydro generating plants, the cooperatives offer tremendous incentives to new or expanding business and industry. "Arkansas' work ethic, natural beauty, Mid-America location and excellent water and highway transportation make our state more attractive than ever. "Today the 62% of the Arkansas land area served by the electric cooperatives can attract major industry due to long-term power supply rates. Rural electric power creates jobs and keeps families together. Now and in the future.

"Just as you are committed to building your community through professional leadership, we support your local efforts through an active economic development department. "By working together we pledge to make the next 50 years the greatest in our history. We know the power of cooperation. Because a cooperative is what we are."

aecc

Arkansas Electric Cooperative Corp:lration P.O. Box 9469/ Little Rock. Arkansas 72219

Developing Arkansas' Resources


POINT OF VIEWILETTERS

THE STATE TRIAL PRACTICE COMMITTEE PROGRAM

ABENEFICIAL ENDEAVOR By Judge Warren O. Kimbrough A recent trip to Philadelphia, Pennsylvania, to attend the MidYear Meeting of the American Bar Association afforded an opportunity to visil historical landmarks of early America and discover little known special accomplishments by a number of early Americans who contributed to the development of our great country. Perhaps one of the best known and remembered of these early Americans is Benjamin Franklin, who possessed an uncanny ability to recognize a need, conceive an idea or workable plan and initiate and implement that plan for the benefit of others. The exercise of this ability or ingenuity by Mr. Franklin resulted in many firsts. It is this writer's belief that such interest. dedication and involvement has brought about the successful trial practice committee program in Arkansas. Under the leadership and with the perseverance of Dennis L. Shackleford, past president of the Arkansas Bar Association, programs have been implemented to enhance the quality and professionalism of the bar, bench and justice system for the good of all. Beginning in early 1984, the Association's Long-Range Planning Committee recommended to the House of Delegates that trial practice committees be established in Arkansas. Both the Association and the Arkansas Judicial Council approved the concept for such a program. Pulaski County Circuit Judge Perry Whitmore was

designated the committee chair of the Judicial Council and Shackleford was designated the committee chair of the Association to undertake this endeavor. Shackleford, a well-recognized and respected trial attorney from EI Dorado who had been instrumental in formulating the concept for the program, moved forward with the Committee's support to initiate and create a formal plan and guidelines for appointing trial practice committees. The plan and guidelines stated the purpose and organizational structure for establishing a trial practice committee in each of Arkansas' six Court of Appeals districts. Three trial judges in each district were designated as district committee members by the Honorable George Cracraft, then chief judge of the Arkansas Court of Appeals. Shackleford provided, with notification to the judges, the plan and its purposes and organization, as well as other information, and encouraged the committees to meet and organize. As a result of this introduction and direction, the trial practice committees in late 1985 began to form and organize. By early 1986 the committees - with 13 members each - were able to begin their work. Each committee consists of three trial judges selected by the Judicial Council who in turn select nine trial practicing attorneys from their respective Court of Appeals district. In addition to these 12 members, the Association's State Trial Practice Committee desig-

nates a member to serve as a re-

corder and liaison on each district committee. Since 1986, Shackleford has continued to support. with personal appearances, contacts and correspondence, the trial practice committee program, insuring the solid implementation of this program and its continuing and enthusiastic work. The guidelines for the six District Trial Practice Committees are as follows: STATEMENT OF PURPOSES AND ORGANIZATION

Section 1. Purpose. The purpose of the Trial Practice Committees shall be: To study the practice and procedures in the state courts of Arkansas and recommend to the judiciary

methods to improve the administra路 lion of justice and to efficiently terminate litigation. To advise the judiciary as to the

programs that will assist in maintaining a high level of competency of all attorneys practicing in the state

courts of Arkansas. To undertake a program of continuing legal education for the lawyers and judges as a means of obtaining and enhancing their legal knowledge and professional responsibility. Section 2. Organization. A. The organization of the District Trial Practice Committees shall be as

follows: 1. The president of the Arkansas Judicial Council, Inc., shall appoint three trial judges from each Court of Appeals district to serve as co-chairmen of the District Trial Practice Committee of their district. The appointments shall he for staggered terms so that one trial judge is

appointed each year. April 1988/Arkansas Lawyer/49


STATE TRIAL PRACTICE COMMITTEE: (left to right) Samuel A. Perroni of Little Rock; John Robert Graves of Hope; Dennis L. Shackleford of El Dorado; Bobby McDaniel of Jonesboro; Odell Pollard of Searcy; Norwood Phillips of El Dorado; and Charles R. Ledbetter of Fort Smith. 2. The co路chairmen of each District Trial Practice Committee, upon the recommendation of the other trial

Practice Committees shall meet at such times and places as designated by the committee. An annual seminar

judges [rom the Court o[ Appeals dis-

shall be conducted by each District

trict. shall appoint nine licensed attorneys in the district to serve on the

Committee membership sholl be filled by the co-chairmen to serve the

Trial Practice Committee. Section 4. Reports. The secretary of each District Trial Practice Committee shall submit an annual report to the chairman of the State Trial Practice Committee of the Arkansas Bar Association. The chairman of the State Committee shall present an annual report of the District Trial Practice Committees to the Arkansas

remainder of any unexpired term.

Judicial Council. Inc.. and the Arkan-

District Trial Practice Committee.

The appointments shall be [or staggered terms so that three members

are appointed each year. The initial terms shall be determined by the cochairmen. Vacancies in the District

B. The State Trial Practice Committee of the Arkansas Bar Association

shall consist of seven members. The president of the Arkansas Bar Associ-

ation shaH appoint one voting member of the Arkansas Bar Associa1ion

from each Court o[ Appeals district. for staggered terms so that two members are appointed each year. and one voting member of the Arkansas Bar Association to be chairman to serve for a three-year term. The ini-

tial terms shall be determined by the president of the Arkansas Bar Association. Each member shall serve as secretary to and be a member of the District Trial Practice Committee in

the district from which appointed. Vacancies on the State Trial Practice

Committee shall be tilled by the president of the Arkansas Bar Association to serve the remainder of any unexpired term.

Section 3. Meetings. The District Trial SO/Arkansas Lawyer/April 1988

sas Bar Association.

The single most important undertaking of each committee is an annual seminar. In addition. various meetings are held by the committees which are well attended and approached with interest. dedication and enthusiasm. Each district committee has a good cross-section of representation from the various counties and areas of the district. The trial attorneys and judges participating in the committees' work enjoy the informal exchange of ideas. needs and problem resolution. This good and respectful relationship between the working members of the committees has spilled over into the programs and activities of the committees and to the participants and attendees at the annual

seminars. two of which have successfully been concluded and reported on during 1986 and 1987. The subject matter discussed by the district committees has been varied. but also basic. fundamental and very beneficial. The variety indicates the broadness of subject matter which can be and is available for presentation and consideration by the committees. Topics discussed at annual seminars have included: child custody; settlement of tort claims; examination of witnesses; the anatomy of a trial from the initial interview to the aftermath; discovery; jury selection; major litigation; comments from the bench; serious settlement negotiations; motion procedures; workers' compensation; the Model Rules of Professional Conduct; relationships between the bench. bar and public; significant appellate decisions; civil and criminal rules and changes thereof; calendaring and docketing; voir dire; jury instructions; economics of litigation! discovery; demonstrative evidence; and many other practical and useful topics. The state trial practice committee program has afforded a continuing legal education experience


for attorneys, judges and others. while affording an opportunity to see. hear and learn about the special techniques and expertise of successful practitioners and the available resources and tools of the legal profession. The committees provide a forum for asking questions or presenting problems and allow participants to obtain answers and possible resolutions to problems. In addition, the fellowship provided by the committees encourages a better relationship between the lawyers and with judges and the public. Simply stated, the committees provide an ideal forum for the exchange of ideas and for learning new methods and gaining information about mutual concerns, differing practices and procedures. The program will continue to succeed and be beneficial as long as the members of the bench and bar are willing to serve on the district trial practice committees and as long as other members are willing to be seminar presenters or participants, Interest in the program remains high by all involved and will as long as gocx:l communications are maintained. programs are designed and built around the basics and fundamentals of trial practice and interesting matters continue to be discussed in the tradition of the past several years. This program began with an idea which was developed into a plan, The plan was implemented for the common gocx:l and nurtured by a dedicated, time-generous and ever concerned individual. Shackleford continues to motivate. by example, the trial practice committee members in the state. The future is bright for this program. Its foundation is solid. its purposes are most worthy and its benefits go to those who have or may desire an opportunity to pcalicipate. D Editor's Note: Judge Warren O. Kimbrough is a chancellor in the 12th Chancery Circuit, First Division, and is a member of the Third District Trial Practice Committee. Judge Kimbrough is chair of the Arkansas Bar Association's Family Law Section.

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April 19BB/Arkansas Lawyer/51


LAW, LITERATURE & LAUGHTER (cited hereinafter as "LLL")

As LLL nears the end of its fourth year, I want to thank the hundreds, maybe dozens (okay, a handful), of readers who have contributed ideas, Fred Harrison steered me to a helpful case, It says if your neighbor can't keep his dog from sucking your fowl eggs, you can hunt the dog down and shoot it: "It is . . , common knowledge that when a dog has once acquired the habit of eggsucking there is no available way by which he may be broken of it. and ... no calculable limit to his appetite.... And generally he has a sullicient degree of intelligence that he will commit the offense ... upon every clear opportunity, in such a stealthy way that he can seldom be caught in the act. ... [W]e reject the contention [that] the dog could not lawfully be killed except while in the actual commission of the offense.... Alter such a period of habitual depredation as shown in this case, . . . [one] is not required to wait and watch with a gun until he cern catch the predatory dog in the very act. Such a dog would be far more watchful than would the watcher himsell, and the depredation would not occur again until the watcher had given up his post and had gone about some other task, but it would then recur, and how soon would be a mere matter of opportunity." Hull v. Scruggs, 2 So. 2d 543, 545 (Miss. 1941). Federal Judge Jerry Buchmeyer of Dallas pointed out a suit against Satan that was dismissed because the plaintiff "failed to include with his complaint the required ... instructions for the, , . Marshall for directions as to service of process":

'We question whether Plaintiff may obtain personal jurisdiction over

the Defendant in this judicial district . . . While the official reports disclose no case where this Defendant has appeared as Defendant, there is an unofficial account of a trial in New Hampshire where this Defendant filed an action of mortgage foreclosure as Plaintiff. The Defendant in that action ... raised 521Arkansas Lawyer/April 1988

By Vic Fleming the defense that the Plaintill was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time." U.S. ex rei Mayo v. Satan & His Stull, 54 F.R.D. 282, 283 (W.D. Pa. 1971). Judge Buchmeyer also noted another unusual case in which a plaintiff claimed he had been "taken to the Eye, Ear and Speech Clinic in Newark, while in custody, and that the State ... there unlawfully injected him in the left eye with a radium electric beam. As a result, he claims that someone now talks to him on the inside of his brain. He asks money damages of $12 million , .. [T]aking the facts as

pleaded, and assuming them to be true, they show a case of presumably unlicensed radio communication, a matter ... within the sale jurisdiction of the Federal Communications Commission, 47 U.S.C. ยง15L et seq. [A]side from that, Searight could have blocked the broadcast to the antenna in his brain simply by grounding it. [Citation omitted.] Just as delivery trucks for oil and gasoline are 'grounded' against the accumulation of charges of static electricity, so on the same principle Searight might have pinned to the back of a trouser leg a short chain of paper clips so that the end would touch the ground and prevent anyone from talking to him inside his brain." Searight v, New Jersey, 412 F. Supp. 413, 414-15 (D.N.J. 1976). Bret Qualls showed me a case where, to resolve a copyright claim over a popular song, it was first necessary to define MOJO: " ... a collective noun used to describe one or more talismanic objects believed to have power intrinsic to their nature, to impart power, or ward all evil by being worn close to the body of ... the person to whom the MOJO appertains. A simple example ... would be a rabbit's foot. Other examples of MOJO, mentioned ... in the trial record, include such amulets as black cat bones, shrunken heads, lodestones, hall dollar with seeds, .. , ashes, blacksnake skin, strands of hair and teeth. MOJO is often worn around the neck in a leather bag or carried on the person.... [B]elief in MOJO naturally leads to the conversational gambit. 'Have you got your MOJO working?', or 'I've got my MOJO working.' A person approaching a crisis. such as an examination at school. would be sure to have his MOJO with him, and working." Stratchbomeo v. ARC Music Corp.. 357 F. Supp. 1393, 1396 (S.D.N.Y. 1973). Well. that's all for now. Keep those cards and letters coming welL keep calling on the phone (okay, if you see me on the street, say hello). 0

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CONFERENCE AT-A-GLANCE THURSDAY NNE 9 8:7J-9:50 a.m. lConcunenl M

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Trials JO:30 10 11:00 a.m. ~el"li. Judges and udiciol Ethb 11:00 a.m. 10 Noon

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Awards Luncheon

12~:~bool LuncheolUl

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':30 10 2:45 p.m.

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(Corn;unenl Sessions) "Business Low 'Rules of

Civil Procedure and Evidence: An Ur;te 3:00 10 :50 p.m.

Arkansas Form Book 4:05路4:55 p.m. (Concurrent Session!!)

E V E N I N G

1:30 10 2:.:wl p.rn Bar Croup

Meellngs I,:f)pm. Young Lawyer,'

Section Annual Meeting

/;30-5:00 p.rn Fomily Law Program J.JO /0 6:00 p.m. Friday Film Rece~tion

'Ptllal~l!!

4:30 10 :00 p.m. House Film Reception

7:00-8:00 p.m. Pre!lident-Elllcfs Reception 8:00 p.m. 10

DINNER ON YOUR OWN

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8:00 a.m. Judiciol Counol Boord Meeting 8:30a.m. State Bar Dislrid

Caucuses

9:00 a.m. Judicial Councd BUSlneu Meellng

9.:00 a.m. HouMal Delegoles' Annual Meehng

directOf. ClA

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SATURDAY JUNE II

FRIDAY JUNE 10

anogemenl

7:~Jfti%mN

Mldnighl Bullel Dinnel and Party With Little Joe and the B.K:s

KEYNOTE SPEAKER Judge William Webster Thursday. June 9

Judge William Webster has been director of the Central Intelligence Agency since May 26. 1987. Before assuming the position. he was director of the Federal Bureau of investigation for nearly 10 years. Judge Webster served on the Eighth Circuit Court of Appeals from 1973 to 1978. He received a bachelor of arts degree from Amherst College in 1947 and was awarded an honorary doctor of laws degree from the College in 1975. He received his juris doctor degree from Washington University Law School in 51. Louis. Missouri. in 1949.

uecu\lve Council O!"ganlZQlionol Meeting


r "An Opportunity to Exchange Ideas, Discuss Problems"

V

ariety, excitement. enlightenment. fun! Whatever you want in an annual meeting, we have it all! Annual Meeting '88 promises to be one of the most comprehensive and entertaining events ever presented to Arkansas Bar Association members and the Arkansas Judicial Council. The bench and bar will have the opportunity to exchange ideas, to discuss problems and to participate socially at our first ever joint meeting. Read through this special report for all the activities, workshops, recreation and entertainment you'd hope to find at a once-a-year gathering of the legal profession. It all happens in Hot Springs from June 8 to II. Education Beginning Thursday, we'll offer concurrent sessions in which judges and lawyers will give their perspectives on probate and on civil jury trials. Joining in the discussion of an "Update on Guardianships and Adoptions" and "How to Set Fees in Probate" will be Judges Ellen Brantley, Thomas F. Butt, lim R. Hannah and John M. Pittman. Meanwhile, W. H. Sutton and David Blair will give the plaintiff's and defendant's views of civil jury trials. Lending their insight to the discussion will be Judges Cecil Tedder, Stark Ligon, Perry Whitmore and Harry F. Barnes. Following the concurrent sessions, Associate Justice David Newbern of the Arkansas Supreme Court will discuss "Lawyers, Judges and Judicial Ethics." Then at 11:00 a.m.. Judge William Webster, director of the Central Intelligence Agency, will be our featured speaker. Thursday afternoon, after the Awards Luncheon, you again make the choice. The offerings include "Business Practice" featuring the new Corporation Code or 'The Arkansas Rules of Civil Procedure and Evidence: An Update." Later, "Stress Management for Lawyers and

Judges" and a program on getting the most from paralegals will be held. Also, the new Arkansas Form Book will be introduced. Friday morning begins with programs on family law and criminal law practice. Aiding in the discussion will be Judges Tom Glaze, Warren O. Kimbrough, John Lineberger, Eugene "Kayo" Harris, Gerald Pearson, Jack L. Lessenberry, William Enfield and John Dan Kemp. The morning concludes with a look at the "Behavior of Lawyers and Judges in the Courtroom." Awards Luncheon The Awards Luncheon on Thursday will feature the presentation of the Outstanding Lawyer, Outstanding LawyerCitizen and Outstanding Local Bar Association Awards and the C.E. Ransick Award of Excellence by James M. Moody, president of the Arkansas Bar Foundation. Fifty year members will be honored and the Golden Gavel Awards for outstanding committee work will be announced. Arkansas Bar Association President John F. Stroud, Jr., will preside. In addition, the Arkansas Trial Lawyers Association will present its Outstanding Trial Judge Award. Please join us in honoring the recipients of this year's awards. Gridiron '88 For many, the Pulaski County Bar Association Gridiron production alone makes the Annual Meeting worthwhile. This year's show, "Sherlock Holmes and the Bar Sinister:' features Sherlock Holmes, Doctor Watson and Billy as the head of the Baker Street Irregulars brought into this century to solve the mystery of what makes Arkansas' courts and politicians function. All are invited to discover the solution to these mysteries! Admission will be by ticket only. Curtain time is Friday at 7:00 p.m. Receptions and Sporting Fun mixture of just plain fun activities will be offered throughout the four-day Annual

A

Meeting. Renew old friendships at the President's Reception on Wednesday honoring John and Marietta Stroud - our Annual Meeting opener. No one will want to miss this grand opportunity to visit with our special bonorees. The President-Elect's Reception in honor of Philip and Susan Dixon opens Thursday's evening of fun. Immediately following the reception, you'll be offered dinner and the chance to bop to the sounds of Little Joe and the B.K.'s as the tunes of Buddy Holly, the Beach Boys and Chuck Berry are performed for your enjoyment. For the best in sporling fun, tee up for a golf outing, get ready for tennis and lace up your running shoes. Thursday morning you'll blaze the trail in the annual Legal Run-Around beginning from the front of the Arlington Hotel. Prizes will be awarded to the winners! See the special sign-up forms in the Annual Meeting packet. For Your Spouse On Friday morning, spouses will enjoy brunch and the styles of 1988. A separate program, featuring activities for spouses, will be furnished in the Annual Meeting packet. Please look for it and take it home for your spouse. Discount on Registration Chair Robert K. Walsh and the Special Judicial Council Liaison Program Committee, consisting of Judges Eugene "Kayo" Harris, H.A. Taylor and John Lineberger, have done a superb job in planning an outstanding meeting which we are truly excited about. You are encouraged to pre-register before June 7 and receive a $15 discount off the regular registration fee. Also, be sure to make your reservations early to ensure your accommooations at the Arlington Hotel. Remember, this is a joint meeting with the Judicial Council and a GRIDIRON year. A record attendance is anticipated. We hope all of you will join us in Hot Springs for an ANNUAL MEETING TO REMEMBER!


REGISTRATION AND HOTEL INFORMATION Make checks payable to Arkansas Bar Association. Mail to Arkansas Bar Association, P.O. Box 5130, North Little Rock, AR 72U9. Members 01 the Arkansas judicial Council will receive a separate registration form and register directly with the judicial Council. for information on judicial Council members' registration, contact the Arkansas judicial Department, justice Building, Little Rock, AR 72201. or call 682-2295.

ANNUAL MEETING REGISTRATION FORM Name: Address: Spouse's Name: (must register iJ attending) 'ARKANSAS BAR ASSOCIATION MEMBERS: EARLY REGISTRATION .... . . . . . . . . . . . . . . . . . . . . . . . .. . ... $125.00 .. . . . . . . . . . . . ..$ REGISTRATION AT DOOR ..... .... . .... . . . . . . . ..... . ... $140.00 .. . . ... .. . ...$ 'NON-MEMBER REGISTRATION.

.... . ...... . . . . . .... . .... $200.00 ... . . .. ..... .. .$

'(Registration includes program, president's reception, president-elect's reception, Thursday awards luncheon, coffee breaks, continental breakfast and GRIDIRON '88.) LAW STUDENT SECTION MEMBER ..........................$ 25.00 ...... ......... $ (Includes program, receptions, coffee breaks and continental breaklast) SPOUSE'S REGISTRATION ............. . . ..... . .......... . .$ 25.00 ........... .... $ (Includes receptions, continental breakfast, separate program and GRIDIRON '88) THURSDAY AWARDS LUNCHEON GUEST TICKETS ...... ...... .

...... . ............. . ....$

15.00 ....... .. ..... $

LITTLE JOE & THE B.K.'S. . . . . . . . . . . ... . ...... . ..... . ..... . . .$ 20.00 ... .. ....... .. $ (Thursday DinnerlDance) GRIDIRON GUEST TICKETS ............................ . .. $ 20.00 ... ......... ... $ (Applicable to non-registrants and Law Student members) TOTAL $

o CHECK o VISA o MASTERCARD CARD #

Exp. Date

Signature HOTEL REGISTRATION fORM

The Arlington Resort Hotel &: Spa

I Will be Allending the

JOint Meeting o( the Arkansas Bar ASSOCiation/Arkansas

Please Request a:

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King Bed 02 ObI. Beds Mineral Water Room Holiday (Mmi-Sullel Parlor I I Br. SUlIe Parlor 12 8r. Suite Reservation musl be receIVed prior 10 Valel Parking $4.00 Per Day. Sell Parking Free. Arrival Dale Departure Dale We bonor check one 10 be used Please Pnnt All American Express Name MasterCard Address Vise Credit Card'

] ]

May 18.

1988

]

Phone (

June 8·11.1988

Judicial Council

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Send Holel Reglstralion Form 10 Arlington Hotel. Central and fountain Slloot•. Box Number 5&2. Hot Spungs. AR

11m


Phase

n

Automating the Law Office In the January 1988 issue 01 The Arkansas Lawyer. the first pari 01 this article was published. That article was a shorl primer on how to begin the computerization 01 a law office and the lactors to be considered. This article will outline some 01 the specific hardware. soltware and other technological advances that are available to increase the productivity 01 today's lawyer.

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by WordPerfect Corporation walked away with firstplace honors. Among other features. "WordPerfect" in-

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cludes a spelling checker and thesaurus and the ability to deal with footnotes and endnotes. It also

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in Dallas. Texas. the

"WordPerfect" is soon to Macintosh and Microsoft

has released its newest version of "Word" for the Mac. Both of these programs are a vast improvement over the original "Mac Write"

word processing program L

--'

repealed at the World Trade Center in Boston. Massachusetts. on March 16 to 19. 1988. If you could summarize the hardware being successfully implemented by lawyers. it would fall into two groups: IBM (or compatibles) and Apple Macintosh. The Macintosh. although it has not traditionally been accepted in a professional's office. has made remarkable inroads and has a very dedicated and vocal group of supporters because of i Is ease of use and comparatively short learning curve.

For lawyers who are not yet committed to a particular system. the Macintosh computers should

Star" and "WordStar 2000" (MicroPro International

be released for the Apple

conference at Infomart.

"lawyer's personal work station." This program was

temationaO, "Word" (Microsoft Corporation), "Word-

Corp.).

American Bar Association's

Economics of Law Practice Section. The State Bar of Texas' PEER Committee and the Association of Legal Administrators hosted the Third Annual "Technology in the Law Practice" This conference addressed the personal com puter as a

"MultiMate" (MultiMate In-

be considered as a

beginning point for a personal work station.

By

PERSONAL PRODUCTMTY TOOLS

WORD PROCESSING As discussed in the first article. most attorneys implement word processing as the first step toward oUice automation. Since the first article, several lawyers have asked for specific recommendations as to a word processing program for use in their law offices.

Robert Wilkins. a lawyer from South Carolina who edits The Lawyer's PC, writes that for IBM or IBM compatible personal computers, there are more than 100 word processing programs. The Lawyer's PC recently surveyed more than 100 legal microcomputer consultants seeking recommendations for word processing software for a firm of five or fewer lawyers. "WordPerfect"

Charles

A.

that many Mac users are fa-

miliar with.

After word processing has been automated. in a lawyer's oUice, there are still a number of other programs which can be of great assistance to an attorney. These companion programs, laheled as "personal productivity tools," are: Outlining programs An outline processor is a specialized kind of word processing program. It is designed to facilitate the creation of original text at the keyboard. It encourages the writer to organize his or her thoughts first. from general to specific, in an outline, with the ability to collapse (hide from view) or expand any heading or sub-heading at the push of a button on the keyboard or mouse. Of

Morgan


course, text can be inserted in the outline at any time, hidden from view or recalled with the same ease. For visually-oriented drafters, low-cost outlining programs such as "PCOutline," "Ready" or "Thinktank" can be used in conjunction with most word processors. In fact. many of the more popular word processors, such as Microsoft's "Word" or Ashton-Tate's "Framework," have outlining programs as a part of their package. Outlining programs are to outlines what word processors are to prose. They are excellent for helping a lawyer work unstructured ideas or idea fragments (contract provisions, will clauses, trial outlines, ,. factual situations, etc.) into a structured outline. Spelling and grammar checkers . ~. ;. Some of the spelling programs currently available are "Turbo Light.' ning" (Borland International), "Reference Set" ,. (Reference Software, Inc.), "Synonym Finder" and "Word Finder" (Writing Consultants), "Webster's New World On-Line Thesaurus" (Simon & Schuster) and "Whoops'" (Cornucopia Software, Inc.). Other programs such as "Right writer" (Decisionware, Inc.), "Grammatik II" (Reference Software, Inc.) and "Punctuation and Style" (Oasis Systems) check style, punctuation and word usage. For those who prepare memoranda, opinion letters, briefs and articles, there are now two programs that act as an electronic Harvard Blue Book. These programs are "CiteRite" UURISoft, Inc.) and "The Cite Checker" (Legal Software, Inc.), They check your citations and, if necessary, tell you how to correct them. Redlining programs If you've ever had to compare two drafts of a document and study their

.. ,

.,

differences, you know how frustrating it can be to locate the changes - some of them deceptively inconspicuous. "CompareRite" <TOOISoft, Inc.) is a program that highlights the changes made when a new draft is prepared. It works in conjunction with "WordPerfect," "Word," "WordStar" and several other leading word processing programs. "Document Compare" by Legalware also provides this function for Apple Macintosh users. Desk accessory programs "Date Calculator," "Calendar" and "Time Keeper" by Legalware are desk accessory programs. "Date Calculator" operates in conjunction with any

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you to look up and dial a number while making notes on an electronic note pad. It also generates a report of the calls made or received at the end of the day, week or month. Hypertext "Hypertexi" is a new concept in software. It is a technology for linking together textual information in such a way ihat you can jump from one document to another based upon a key word in the first document. (If you click the mouse on a word in the document. other documents indexed on that word will pop up.) "Hypercard" by Apple Computer is the firsi package for micros designed for the Mac. Lawrence Husick. a patent attorney in Valley Forge. Pennsylvania, has developed several "Hypercard" stacks or applications for keeping time, managing a clieni data base and organizing forms and documents. For Macintosh users, this technology will soon mushroom to all aspects of law practice. Those who have used "Hypercard" should feel confident that it can be an integral part in developing a law firm's substantive practice systems.

SUBSTANTIVE PRACTICE SYSTEMS C. Rudy Engholm, an atiomey and consultant. in his presentation, "The Lawyer's Personal Work ." Station," at the "Tech, ':. ',-.. : .~',. .,. nology in the Law Prac路 tice" conference. defined a "substantive system" as a model which guides a oiher program, permitting a lawyer to lawyer or legal assistant (including instantly compute the number of days novices to the subject area) through between two dates. "Calendar" perthe process of creating a legal result. mi1s an attorney to keep an electronic e.g., preparing a will, filing a divorce. appoiniment book and "Time Keeper" crea1ing a corporation, handling a pro路 allows an attorney to log time without bate matter, etc. Engholm stressed that leaving the software program he or she a complete substantive system will is running. "Sidekick" by Borland is an contain instruc1ions to the user, a mas路 elecironic telephone book that permits ter information list which guides the

.

The Lawyer's PC surveyed more than 100 legal micro-

computer consultants for recommendations on word processing software for a finn of five or fewer lawyers, "WordPerfect" took first-place honors, S8/Arkansas Lawyer/April 1988


user through the process of gathering relevant information. a checklist which directs the lawyer's attention to the decisions which need to be made and a discussion of the law which largely eliminates the need to refer to primary source materials when using the system. A good "system" must also include all of the prerecorded forms containing the hulk of the document contents to he prepared. All information in the "system" should be cross-referenced directly to the instructions. master information list. checklist. forms and discussion of the law. As substantive systems

become commercially availahle, they will probably become the single most important application used by lawyers on their desktop work stations. The American Bar Association's Economics of Law Practice ~ Section has a committee l developing standards for computerized substantive systems to reduce the variances in scope and documentation. The Lawyer's Technical Advisory Committee (LTAC) is prepared to begin testing commercially available substantive systems. Although there are no commercial systems with LTAC's approval, there are dozens of such programs already on the market which are being sold to lawyers nationwide. Some of these commercial programs are: The Personal Injury Case Management System from Shepard'slMcGrawHill. Inc., which helps you organize PI client and case information, organize witness and deposition information, monitor the calendar for a case, create reports, search database information by keywords and generate case documents. It consists of a core program called "Negligence Actions." Four additional modules are available for "Products Liability Actions," "Medical Malpractice Actions," "Automobile Actions" and "Aviation Actions." The BFS Bankruptcy Program from Bankruptcy Filing Systems produces

documents for Chapters 7, I J. 12 and 13 bankruptcies. The program includes its own document generator. Shepard's/McGraw-Hill sells Divorce, Alimony and Child Support: Tax Planning and Calculation. This program prompts a user with questions regarding a client's financial

oping a practice system, you can extend your expertise to others in your office. including support staff without formal legal training. • Client Development - More than half of your work comes tram your existing client base. A corporate practice system can help you to "mine more gold tram that lode" by reminding you to remind your clients to keep their corporate work up-to:. date. Frequently, such ." .,:.. reminders lead to other work. [f a lawyer wants to begin developing his own "system" there are two programs that can assist in the process. For the PC user, there is "Law Process" developed by James Sprowl for the American Bar Foundation and marketed by ..j. .' '. West Publishing Company ." J'" /1////.. as part of a textbook called ...!!._l..c:::::....'==._-=:::::::::",,-_!.II'!.!;#.YI~,fI,fL·~/.f::1If'-... IL_....;,~:..-:J·, Computer Applications in the Law, With "Law Process," you start with your status and then calculates the cashform document and embed fill-inthe-blank questions and logic flow effect on each party to a divorce suit, based on the proposed settlement statements. Based upon your answers, it fills in the blanks, selects the apoptions. The Estate Planning Program sold by propriate clauses, renumbers clauses The Lackner Computer Group, Inc.. is and writes the final document to a an example of an estate planning temfile that most word processors can plate program. This program is used in edit. connection with the "Lotus 1-2-3" or The second product is "Document "Symphony" spreadsheet programs to Modeler" by Legalware of Toronto, perform, in a matter of seconds, estate Ontario, Canada. "Document Modplanning calculations that might otheler" was originally designed. for the Apple Macintosh computer, although erwise take hours. Greg H. Schlender, an attorney in it is now available for the IBM PC if you Boulder, Colorado, has developed a use the 'Windows" operating environment. "Document Modeler" divides the corporate law practice system for use within his own firm. At the "Techscreen into three windows. Questions nology in the Law Practice" conferappear in the upper right window, ence, Greg outlined the following comments about the questions appear reasons for implementing his own corin the upper left window and the docuporate substantive system: ment itself as it is written appears in • Efficiency - Practice systems can the bottom window. Unlike "Law Proallow you to do more work in less cess," you have more flexibility in time. "Document Modeler" in designing the • Quality Control - A practice syspossible types of answers to questem can serve as a checklist for tions. The model can be set to assume making sure that you have considdefault answers and you can offer ered all relevant factors. By develmultiple choice answers. Templates

if.'

Laser printers are the state-ol-the-art equipment for law office use, They're exciting because they are last - up to eight pages a minute at a price 01 about $2000 to $2500, with much higher capacities at higher prices. April 19BB/Arkansas Lawyer/59


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are presently being developed by a number of attorneys nationwide in many different practice areas.

OPTICAL CHARACTER READERS & SCANNERS The technology that will soon be reaching almost every law office is the desktop scanners which are capable of reading text [rom type or printed documents and placing it within the memory at the computer so that the document can be edited, reprinted or reformatted without having to be retyped. SABA demonstrated a hand held scanner tbat sold for less tban $700 and a desktop version that sold for less than $1300. These scanners are for use with IBM compatible equipment. The speed of this equipment is approximately 350 words per minute. At Infomart. MARS Software sbow· cased a "Palantir" scanner which is capable of reading one letter·size page every three seconds. Witb tbis technology, however, goes a price tag that is beyond the reach of most small to midsized law firms. Althougb not particularly useful in most legal applications, image scanners permit you to scan pictures into

graphics files that can be incorporated in a desktop publishing document. These scanners are different from your OCR scanners. although tbe future trend is to merge these functions into one machine. I use a "Dest PC Scan Plus" which has the ability to scan both text and images. On typed text. the "Dest" scanner is very accurate although printed text or unusual fonts arc much slower to "Ie':!d" and have a greater percentage of errors.

PRINTING TECHNOLOGY Laser printers are presently the stateof-the-art equipment for law office use, They're exciting because they are fast - up to eight pages a minute now at a printer price of about $2000 to $2500. with much higher capacities at higher prices. They're quiet and their print quality is superb. The laser printer may never become a total standard, since different types of printers are preferable for different functions, but today's laser printers well may send the daisy wheel printer into retirement. "Postscript" is a system developed by Adobe by which the computer describes the appearance of a page to

a printer. "Postscript" laser printers implement a wide range of font styles and sizes internally and print documents containing multiple type styles much quicker. However, the leastexpensive Postscript laser printer today costs about twice as much as nonPostscript printers. The "Laserjet Series II" from Hewlett·Packard or the "Personal Laser Printer" from General Computer are good choices for nonPostscript printers and the "Apple Laserwriter II" or the "AST Turbolaser" are good choices in "Postscript" printers. In my firm, we have been running an "HP Laserjet" printer for almost three years without doing anything other than keeping it supplied with toner and paper. You may also wish to consider one other option which we are using. We currently have Applelle computers for each secretary and paralegal in our of· fice, These computers are either hooked to a high speed (50 cps) letter quality Qume printer or are interfaced with that secretary's mM "Quietwriter VII." The cost of equipping an IBM electronic typewriter to act as a letter quality printer is approximately $1100. After the interface, cables and other

Desktop publishing provides wonderful tools to produce abominable documents. Although good document design is a learned skill. well-designed style sheets make even a novice's document look classy. 60/Arkansas Lawyer/April 1988


connections are made. the cost is approximately $300 more than the cost of the "Quietwriter VII" typewriter itself

ware and software products. Both can import text from the common types of word processing files.

and permits everyone to have printer

capability without taking up the additional room that the high speed. letter quality printers require. The "Quietwriter VII" can be utilized as a high speed. letter quality printer but. since it is a non-impact printer. it does not permit you to use carbon or NCR paper. Tbe IBM "Wheelwriter III." however. can be interfaced and it does permit impact printing. although it is slightly slower (45 cps) than the mM "Quietwriter VII."

DESKTOP PUBLISHING Engholm recently discussed desktop publishing. which he defined as the area that lies beyond normal word processing and short of traditional "hot-lead" typesetting or photocomposed typesetting. Low-cost laser printers. improved. monitors and excellent software now give ordinary typists the ability to produce typeset-quality documents at prices barely above word processing costs. Because desktop publishing gives so much more control over the appearance of the page. it requires potentially more expertise on the part of the user than word processing. The learn路 ing curve required to move from typing to word processing is about equivalent to moving from word processing to desktop publishing. There are two reasons to introduce desktop publishing into your firm. First. if you already use outside typesetting in any significant volume. you may be able to cut costs substantially. Second. if you want to improve the appearance of your documents and gain control over the process. desktop publishing provides a convenient way to do it. Macintosh choices: "Pagemaker" by Aldus is the program that created the desktop publishing standard. "Ready Set Go:' version 4.0. is another program capable of handling almost any desktop publishing function that any small or larger law office may have. PC choices: While "Pagemaker" is available for the PC. "Ventura Publisher" from Xerox has surpassed "Pagemaker" as the desktop publishing preferred for most PC users as of the time of this writing. It offers incredible Ilexibility and is supported by most third-party bard-

FACSIMILE TECHNOLOGY The general consensus of most lawyers is that the facsimile ("Fax") machine offers many advantages over electronic communication or electronic mail. The Fax technology is much simpler than that of electronic mail. Fax machines are available at a cost of as little as $500. with $2000 being common for some of the most automated models. Many law offices are Iinding that the ability to Fax documents and pleadings to other offices is more economically feasible than having these same documents express mailed and/or delivered by a runner. The newest "Fax alternatives" are the new software programs and hardware that permit your personal computer to be used as a Fax machine. Where the existing computer is already owned. Fax capability can be achieved for as little as $300. One limitation of using your personal computer. however. would be that you are us路 ing a much more expensive form of hardware to serve the purpose of a dedicated Fax machine. Also. while using your computer for word processing. it would be unavailable for use as a Fax machine without having a sophisticated "multi-tasking" software program added to the computer.

ABA COMPUTER路USER GROUPS Jim Eidelman. a lawyer with Eidelman Associates of Ann Arbor. Michigan. and chairman of the Computer Division of the ABA's Economics of Law Practice Section. is constantly preaching to everyone on the real benefits to be gained from belonging to a "user group." For the uninitiated. a "user group" is a club or organization of pe0ple who use a particular type of computer or program or who share some other special interest. The largest groups are those organ路 ized wound a type or brand of computer. Examples include mM. CP/M. Apple. Tandy. Wang and Digital. There are also Practice Applications User Groups. organized by areas of practice such as corporate. litigation. real estate. estate planning. bankruptcy. etc. In addition to the user groups of the Computer Division. the Section's Facilities and Technology Division sponsors user groups centered around par. ticular brands of "dedicated word

processors" such as CPT. Syntrex. Wang. NBI and mM. mini and main frame computers and word processing programs for micros such as WordPerfect. Microsoft Word. WordStar. Samna WId Xywrite. One of the biggest bargains available to Section members is the variety of newsletters that are available at no cost. The ABA user groups publish a newsletter called NETWORK which is available free to all members of the different computer-user groups. It contains helpful hints and general information about what is going on in the various groups. The Word Processing User Groups publish WORD PROGRESS, a quarterly newsletter about word processing applications for lawyers and what's going on in the Word Processing User Groups. The mM PC. Apple. Unix. CP/M and other specialized user groups publish their own newsletters. with helpful information about the benefits available througb the group. software and hardware solutions and the experience of group members. One of the most exciting developments in the user groups is the collection of legal applications WId software into a library of disks for lawyers which can be obtained from the Computer Division headquarters in Chicago. Illinois. for a nominal charge. A great deal of time is wasted. as each of us "re-invents the wheel." This is a bargain that we must utilize. In order to join the ABA computeruser groups. simply request an application form from Robin Roy. ABA Legal Economics Section. 750 North Lake Shore Drive. Chicago. Illinois 60611 or telephone her at 312-988-5598. Some firms report that the installation of personal computers in the office has "taken people off clerical work and put them on the decision path." In the law firm. this transla'tes into secretaries becoming paralegals. Paralegals. it should be noted. are timekeepers whose time is billable. They are no longer part of the overhead. In the law office of the luture. today's technology must be mastered if we are to remain efficient. profitable and productive. Each lawyer must begin now if we are to master these special skills. 0

Editor's Note: Charles A. Morgan, of Texarkana. is chair of the Arkansas Bar Association's Economics of Law Practice Section and is a member of the Smith, Stroud. McClerkin, Dunn & Nutter law firm.

A "user group" is a club or organization of people who use a particular type of computer or prog,wn or who share some other special interest WId which provides a wealth of information WId prog'w,lS for computer-users. April 19881Arkansas Lawyer/Sl


Transfer of Petroleum Marketing Properties:

CAVEAT By Walter G. Wright, II.

H

undreds of service sta路 tions,l grocery convenience stores. 2 car washes and other independent businesses retail motor fuel in Arkansas. The majority of these busi-

Editor's Note: Walter G. Wright, Ir.. is an attorney with the Little Rock law firm of 'Mitchell, Williams, Selig & Tucker. Wright also serves as a counsel to the Arkansas Oil Marketers Association and is a former assistant counsel to the Petroleum Marketers Association of America, in Washington, D.C.

621Arkansas Lawyer/April 1988

PMPA

nesses sell "branded" motor fuel. Branded motor fuel is gasoline, diesel or related fuels sold under the name of a refiner, usually a major integrated oil company. While branded motor fuel is sometimes sold directly to the retailer, more often the refiner sells to wholesalers (referred to as "distributors" or "oil jobbers"), who in tum resell to the retailer. Non-branded (or "private brand") motor fuel is generally sold under an independent motor fuel marketer's own company name. Independent motor fuel marketers who own 10 or more motor fuel outlets or grocery convenience stores are often referred to as "chain retailers."

Drastic price increases resulting from oil embargoes, greater retail competition from chain retailers and nationwide growth of self-service motor fuel' have resulted in continual changes in motor fuel marketing since the 1970s.' These changes include: (1) Conversion of independent

full-service gasoline service stations to refiner or oil jobber owned and operated. high volume, self-service stations;

(2) Conversion of independent full-service gasoline stations to grocery convenience stores

owned and operated by the refiner. oil jobber or chain retailers;

(3) Sale of both full-service and self-service gasoline station


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April 1988/Arkansas Lawyer/63


ded motor fuel and the lease of marketing premises for such distribution. I ' The broader term "franchise relationship" includes the motor fuel marketing obligations and responsibilities of the franchisor and franchisee, regardless of whether these responsibilities are specilied in a current written agreement. 13 Neither the term "franchise." nor the phrase "franchise relationship." is intended to cover aspects of the business relationship, such as tires, batteries, grocery items or credi t card agreements.' This is an important limitation, since motor fuel sales are a minor part of some grocery store or vehicle repair businesses.

properties and subsequent conversion to other commercial uses; (4) Withdrawal and closure 01 service station properties by the refiner or oil jobbers in certain highly competitive areas;~

(5) Acquisition of branded retail motor fuel outlets by private brand chain retailers and investors entering the grocery convenience store market.'

Arkansas attorneys often play a role in transactions such as these through their representation of reliners, oil jobbers, chain retailers, independent service station dealers or parties simply interested in acquiring motor fuel outlet properties. These transactions usually involve typical real estate and contract issues. An aspect of these transactions which is often overlooked, however, is that the transfer of properties leased by branded, independent motor fuel retailers raises dillicult Petroleum Marketing Practices Act ("PMPA")' issues. The PMPA prohibits a branded reliner/oil jobber from terminating or failing to renew a leasel motor fuel supply contract with a retailer without complying with notice provisions and unless termination/non-renewal is based on certain statutory grounds.' Since injunctive relief9 and damages 10 are available in the event of non-compliance, the Arkansas attorney must carefully consider the PMPA when assisting in the transfer or disposition of branded motor fuel properties. Even attorneys familiar with common law and state franchise principles and statutes must exercise care, since the PMPA preempts conllicting state franchise termination/non-renewal provisions. 1I PMPA Overview The PMPA was enacted by Congress in 1978 in recognition of the unique relationship between branded motor fuel marketing franchisors (reliners/oil jobbers) and franchisees (oil jobbersl branded independent retail motor fuel outlets). Congress' purpose in creating this legislation 64/Arkansas Lawyer/April 1988

As a result of the "energy crisis"

was to insure an appropriate balance of rights and obligations between the motor fuel franchisor and the motor fuel franchisee within the franchise relationship. In order for an attorney to determine whether the PMPA is applicable to a particular retail outlet or business, a review of the basic delinitions is required. Generally, the PMPA regulates the relationship between any two parties in the marketing chain of branded motor fuel. including reliners, oil jobbers, wholesale distributors and retailers. The prime factor under the PMPA is that the franchisee be a "branded" distributor, jobber or retailer and be authorized to use a reliner's trademark. An independent convenience store's use of the trademark "Exxon" or "Texaco" on its gasoline pumps and signs is a good example. In contrast. a private brand or unbranded retail motor fuel outlet falls outside the scope of the PMPA. Through two key PMPA delinitions, a franchise relationship is superimposed upon the branded motor fuel distribution system, regardless of whether such a relationship was contemplated by the parties. The term "franchise" includes any contract, oral or written, for the distribution of bran-

and economic changes in the motor fuel marketing segment of the oil industry, reliners and oil jobbers have sought to diversify by utilizing innovative methods for the distribution and marketing of petroleum products. U Consequently, several dillerent types of branded motor fuel leasel supply arrangements have developed over the past several years. While some are within the scope of the PMPA, others are not. A cursory review of three of the common types of agreements should demonstrate the necessity for careful attorney scrutiny to determine PMPA applicability. Lease/Motor Fuel Supply Arrangements Branded Retail Service Station Dealer

A branded retail dealer typically purchases branded motor fuel and leases a service station from a refiner or oil jobber pursuant to a lease/supply agreement. The lease/supply agreement also allows the retail dealer to utilize the supplier's trademark. The PMPA places a "retailer" squarely within the scope of the delinition of a franchisee. I' The term retailer is deli ned to include: ... any person who purchases motor fuel for sale to the general public for ultimate consump-

tion (emphasis added). Whether the retailer is occupying a service station or conven-


ience store, the purchase of branded motor fuel puts the agreement within the scope of the PMPA, The retail dealer usually operates somewhat independently of the oil jobber's or refiner's control. Pump prices are set by the retailer and he determines his own hours of operation. Independence is another factor a court will review in determining whether PMPA protections apply. Note that not all aspects of a branded retailer agreement are within the purview of the PMPA. For example, in Smith v. Atlantic Richfield Company," Arco entered into an "AM/PM" convenience store agreement with the franchisee. In actuality, there were two agreements: (I) a typical motor fuel marketing agreement for the branded sales of Arco motor fuel and (2) a grocery convenience store agreement for the operation of a convenience store. A dispute arose between the parties. Arco terminated only the convenience store agreement. No

attempt was made, however, to terminate the motor fuel agreement. The court noted that the two agreements, gasoline and convenience store, were separate

and distinct. Since the franchisee dealer's right to stay on the premises was not affected, no "termination" had occurred which would invoke protective provisions of the PMPA. A convenience store agreement providing only for the operation of the convenience store was therefore not cov-

ered by the PMPA. Commission Agent

A typical commission agent is an agent who operates a retail motor fuel outlet for the account of an oil jobber or a refiner. The motor fuel supplied by the oil jobber or refiner is marketed by the commission agent who is compensated through receipt of a commission for each gallon sold (e.g., typically "x" cents per gallon). Unlike the retail dealer, title to the motor fuel remains with the supplier and the supplier sets the retail price charged at the pump. No matter what price is established for the motor fuel. the

PMPA "retailer" purchases motor fuel. Since the consignee never takes title to the motor fuel. a purchase did not take place. Caution should be exercised, however. A court may protect a consignee who exhibits a number of indicia of an independent entrepreneur by categorizing it as a "constructive retailer." Case law on this issue is still developing. Franchisee Termination! Non-renewal

agent's compensation does not fluctuate. The commission agent does not purchase motor fuel and therefore may not be a "retailer" as defined by the PMPA. However, a court may look at a number of factors to determine if there is enough "entrepreneurial responsibility" to deem the agent a "constructive retailer. ""The attorney should review the evolving case law to ascertain what factors the courts will consider in deciding whether PMPA coverage is applicable." Retail Level Consignee

The typical retail level consignee operates a retail outlet for his supplier under a consignment service station lease or similar agreement. Under the terms of such an agreement. the consignee rents the outlet by paying either monthly rental or a percentage of motor fuel sold. Motor fuel is supplied to the consignee on a consignment basis. Motor fuel is not purchased (e.g .. title to the motor fuel remains with the supplier and passes directly to the motorist). Pump prices mayor may not be set by the consignee. As with the commission agent. the consignee mayor may not fall within the scope of the PMPA, depending on the precise nature of the relationship." Arguably, the consignee falls outside of the PMPA definition of a "retailer." A

Once it is determined that a particular branded motor fuel outlet fits within the scope of the PMPA, a desired transfer or sale of the property will require proper PMPA notice and termination! non-renewal of the retailer. If the retail motor fuel marketer's PMPA status is unclear, it may be wise to err on the side of caution and follow the PMPA notice and termination/ non-renewal requirements. In some situations the retailer's agreement may be assigned to the new outlet owner. The statutory grounds" for termination are: (I) a failure by the franchisee to comply with any reasonable and material provision of the franchise; (2) a failure by the franchisee to exert good faith efforts to carry out the provisions of the franchise after prior warning by the franchisor of such failure; (3) occurrence of an event which is relevant to the franchise relationship and which makes franchise termination reasonable;" (4) written agreement to terminate the franchise; and (5) a good faith determination by the franchisor to withdraw itself from the geographic area. The grounds for franchise nonrenewal include all of the grounds for franchise termination, plus; (I) failure to agree to franchise changes proposed by the franchisor in good faith and in the normal course of business; (2) numerous customer complaints

of which the franchisee is apprised and does not correct; (3) failure to operate the premises in a clean, safe and healthful manner on two or more previous occa-

sions with proper notification; and (4) a good faith determination April 19881Arkansas Lawyer/65


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by the franchisor to sell, materially alter or convert the premises to a use other than the sale of motor fuel. Note that as to (4), a decision to sell the premises requires the franchisor to first make a bona fide offer to the franchisee to sell the leased marketing premises. If an offer is made by a third party to purchase the premises, the franchisor must give the franchisee a 45-day right of refusal. What constitutes a "bona fide offer" is frequently litigated." In Brownstein v. Arco Petroleum Products Company," the franchisor offered to sell the franchisee the property for $40,000 over fair market value as determined by the franchisor's independent appraiser. The franchisor's own documents recognized that the asking price was above fair market value. The Court rejected the franchisor's position that the PMPA does not require an offer at fair market value as long as the offer is made without malice. The Court said that the offer must at least be made in conformity with the franchisor's general practice for selling the property and a rationale shown for an adjustment in the price. A third-party offer at $40,000 above fair market value might have constituted such evidence. Another section (4) issue often arises when the franchisor wishes to convert the full-service station to a high volume self-service operation. In Baldauf v. Amoco Oil Company, the franchisor (Amoco) notified the franchisee that renewal of the franchise relationship was conditioned upon conversion of the premises to a self-service pump station. The court held that this was permissible as long as the conversion decision was made in good faith and in the normal course of business. Frequently, franchisors use a return of investment formula to demonstrate their motive for the conversion of properties to selfservice stations or grocery convenience stores. Notice Requirements The PMPA notice requirements'24 for termination and nonrenewal are very specific. Basi-

66/Arkansas Lawyer/April 1988

cally, the PMPA requires 90 days' notice prior to the effective date of a termination or non-renewal, except where it would not be reasonable to supply such notice. For example. a franchisor (Chevron) might be justified in terminating a retailer with less than 90 days' notice if misbranding (e.g., sale of Texaco motor fuel at the Chevron branded outlet) is occurring. In this example, a trademark violation would cause the franchisor (Chevron) immediate and continuing injury and justify a quick termination. Notice must be written, posted by certified mail and must contain a statement of the franchisor's intention as to termination or non·renewal. as well as a Department of Energy Summary of Dealers' Rights. Notice requirements are strictly enforced." Remedy A franchisee is entitled to preliminary injunctive relief if he establishes that he has been improperly terminated or not renewed." Specifically, the more lenient PMPA preliminary injunction standard requires the franchisee to show: (I) termination or non· renewal of the franchise or franchise relationship of which the franchisee is a party and (2) the existence of sufficiently serious questions going to the merits to make such questions fair ground for litigation. The franchisee can also recover reasonable attorneys' fees and costs, actual damages and exemplary damages (under certain circumstances) for a PMPA violation. Conclusion Advising those involved in the transfer and sale of branded motor fuel properties requires meticulous review of the PMPA. If the PMPA is applicable, careful compliance with its notice and termination/non-renewal provisions is imperative. Perhaps as important, the conscientious franchisor attorney will structure the franchisee agreements so that maximum flexibility (within PMPA limits) for a later property transfer, sale or conversion are built in. 0


FOOTNOTES 'The state of Arkansas has approximately 983 motor fuel service stations. Fact Book. National Petroleum News 1987. at

124. ~There are

61.000 grocery convenience stores in the United States. Id. at 132.

3A 1986 Amoco Oil Company poll estimates thai 78 percent of United States motorists pump their own gasoline.ld. at 126. 4S ee J. Huey, G. Schwartz and D. Roberts, Curbing Predatory Practices in Florida's Petroleum Marketing Industry. 13 Fla. S.L.Rev. 923 (1985).

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Arkansas service station population has decreased from 1216 in 1982 to 983 in 1986. Fact Book. Notional Petroleum

News 1987, at 124. 'The number of grocery convenience stores grew by 14 percent in 1986. ld. at

126. 'Petroleum Marketing Practices Act. 15

U.S.C. ยง ยง 2801-2806. BId. '15 U.S.C.ยง 2805. IOld. "15 U.S.C.ยง 2806. "15 U.S.C.ยง 2801(1XAXiv). (I)(BXi). "15 U.S.C.ยง 2801(2). ee generally, American Petroleum Instiยท tute. The Origin and Evolution of Gasoline Marketing. (981).

14S

"15 U.S.C.ยง 2801(7). "553 F.Supp. 264 (E.D. Po. 1982). 17See form Stores, Inc. v. Texaco. Inc .. 763 F.2d 1335 (11th Cir. 1985). 18See also Sigmon v. Widenhouse Service. Inc.. 638 F.Supp. 80S (M.D.N.C. 1986). 19S ee Johnson v. Mobil Oil Corp., 553 F.Supp. 195 (S.D.N. Y. 1982); Checkrile Petroleum, Inc. v. Amoco Oil Company, 678 F.2d 5 (2d Cir. 1982). "'15 U.S.C.ยง 2802. "15 U.S.C.ยง 2B02(bX2XC) The PMPA further defines this provision by providing a list of events that would make termination "reasonable." These events include fraud or criminal misconduct by the franchisee. franchisee bankruptcy. 15 U.S.C.ยง 2802(c). 22See Roberts v. Amoco Oil Company. 740 F.2d 802 (8th Cir. 1984). "604 F.Supp. 312 (E.D. Po. 1985). "IS U.S.C.ยง 2804. 2~See Blankenship v. Atlantic Richfield Company. 478 F.Supp. 1016 (D. Ore. 1979). "15 U.S.C.ยง 2805(bX2XA).

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The state's circuit judges were surveyed in November 1987 on their opinions concerning plea negotiations. Twenty-live or 61 percent of the 41 judges responded to the survey. It should be noted some of those judges not responding hear only civil cases. 1. Do you favor plea negotiations in general? .04 percent or one judge said no and that the court allows negotiations out of necessity. 2. Do you di,fOYor plea negotiations in general? See response to preceding question.

3. Do you have a policy ogain,t plea bargains in general? None of the judges responding had policies against plea bargains. 4. Do you OCCilpt pleo bargains on some type. of cases, but Dot others? Sixty-four percenl or 16 judges said they did Dot prohibit pleo bargaining in certain cases, but not others. The 36 percent or nine judges answering ~yes~ do not accept plea bargains 100 percent of the time. One judge commented that a Class Y felony could not be negotiated. 5. If you do allow negotiations. what percentage of recommendations by the prosecutor do you follow? Eighteen judges or 72 percent said they followed the prosecutor's ,ecommendation plea 75 to 100 percent of the time. four judges, or 16 percent. said they followed the recommendations between 50 and 74 percent of the time. 6. Will you allow a defendant to withdraw hi. plea if you don't accept the plea negotiation.? One hundred percent 01 those responding said they would allow a defendant to withdraw his plea.

1. Do you utilize tbe fir.t Offender's Ad? If you use the Ad. do you have any comments on it? Twenty-three judges or 92 percent use the first Offender Act. One judge said he uses the Act on a cose-by-c:ose basis. Most 01 the comments concerning the Act were lovorable, with one judge saying he didn't feel most attorneys were as familiar with it as they should be. 8. Do you feel Rule 25 01 the Arkansas Hule. of Criminal Procedure adequatelyaddres.estbis concern? Only two judges or .08 percent felt Rule 25 was adequate. One reason given was that the agreement should be presented to the court at least 72 hours belore the trial. 9. Should a plea bargained punisbment be less than what one would anticipate from a jury? Thirty-six percent or nine judges felt an agreed upon sentence should be less than one anticipated by a jury. Thirteen judges said "no." Many judges pointed out that a jury is nol allowed to give probation as a punishment and therefore a plea agreement for probation is by definition fess than a jury would give.

68/Arkansas Lawyer/April 1988

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By Bart F. Virden

here are always extremes. From the prosecutor better named "Monty Hall" to the defendant facing the "Wheel of Fortune." defense attorneys encounter a plethora of plea negotiations or bargains in Arkansas' courts. The only thing for certain is the lack of uniformity in applying our criminal laws. The question becomes, "Is the machinery in place to attain consistency?" Rule 25 of the Arkansas Rules of Criminal Procedure states. ''In cases in which it appears that it would serve the interest of the public in the effective administration of justice. the prosecuting attorney may engage in plea discussions for the purpose of reaching a plea agreement:' Opponents of plea negotiations agree with the Random House Dictionary's definition of the term: "Something well worth what is given in exchange. especially in being cheaper than usual." Proponents choose another definition: "An agreement settling what each party shall give and take or perform and receive in a transaction:' Regardless. under the present law. the prosecutor is supposed to hove the discretion to enter into plea negotiations. The machinery, though, needs some oiling. One proposal to make the process run smoother is to replace a few of the "mays" in the Rules with a few "shalls." For example. allow plea negotiations but require courts to review the proposed arrangements. If


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a court doesn't accept a plea negotiation, it would be required to allow a withdrawal of the plea and to set the case for trial. Such a requirement would prevent a judge from accepting a plea but not the bargain, as is possible under the current Rules. At the same time, it would not divest the court of its control over dispositions. The proposal maintains the prosecutorial discretion that is lost in a "no plea bargain" system. Prosecutors have the discretion of charging a defendant by information and in most instances determining whether or not the accused should be tried. A posture of "no deals" takes this discretion away and places it in the hands of a judge who should remain neutral and is specifically prohibited from participating in plea negotiations. If a judge can prohibit a prosecutor from not pressing a case, hasn't the court already commented on the merits of the case? Any discussion of plea bargaining must consider the interests of not only the prosecutor and the court, but the defense attorney, society as a whole, and, most importantly, the defendant and the victim. One alternative in plea bargaining which is becoming increasingly important is restitution to the victim. Proponents of plea bargaining say the likelihood of a victim being re-paid is much greater if a defendant is told restitution is a condition of a suspended sentence than if a defendant faces a fine or prison and restitution. One bonus of such agreements is that they can include some money or property to the

county. Instead of spending money, the county saves and, indeed, makes money on a trial. Many opponents of the plea bargaining process say defense lawyers are in favor of plea agreements because they don't have to work as hard, Many defense lawyers disagree. While a somewhat repugnant concept. some lawyers have said that it's much more lucrative to be in a "no plea agreement district" because you can charge the client a higher fee by telling him he is certain to stand trial. It is very popular for candidates for judicial or prosecutorial positions to lambast the evils of plea bargaining, since plea bargaining is seen by the public as being easy on criminals, In fairness to the abolitionist, plea bargaining is sometimes used to that end. But plea bargaining can also be used in the best interest of all concerned, especially for the victim, since it results in a case being disposed of quickly and economically while giving the victim input into the case. With the question of uniformity resolved, the debate becomes, "Is society truly being served by a 'no plea bargain' system and. if not. is the current system adequate?" Here's how one judge resolves the debate: "I do not favor plea negotiations, but 1 do accept them. Without plea bargaining, we would have to have more pre-sentence investigations. In this district. that would mean hiring an additional probation officer. This district has six courthouses scattered. over 100 miles

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which are served. by one circuit judge {and one chancellor}. f doubt the counties can afford another probation officer and expenses of his office. "I have noted too that some victims desire to dispose of a case by the method we refer to as plea bargain. In any event, 1 do not accept plea bargains where there is a victim, unless the victim agrees. "It is true a victim's wishes are made known in pre-sentence reports. but the above expressed. idea would do away with the necessity of such investigations and reports in many instances. This would be a compromise between the exponents and opponents of plea negotiations. "I would favor legislation prohibiting plea negotiations. However, there should be legislation providing for state funding of increased costs, such as additional probation officers. There is a great deal of travel involved. when a probation officer has to make a roundtrip of 200 miles for an investigation. not to mention the expense of motel and meals. "If plea bargaining is not abolished entirely, 1 think it should be limited to those cases involving a victim and the victim should be a necessary party to any agreement. Cases involving drug violations or other crimes where there is no identifiable victim should not be plea bargained." 0

Editor's Note: Bart f. Virden, of Morrilton, is a member of the Loh, Massey, Yates and Virden law firm. April 1988/Arkansas Lawyer/lI3


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Standards for Specialization in ___~_Cmill_路y Law in Arkansas [Adopted by Committee on Specialization in Family Law on January 23, 1988J The Arkansas Board of Legal Specialization in November 1987. appointed the Committee on Specialization in Family Law to determine the need for and the establishment of the specialty of family law in Arkansas. At its January 23. 1988. meeting. the Committee adopted the "Standards for Specialization in Family Law in Arkansas." Any Arkansas attorney who has been licensed to practice law for five years as of]uly 1. 1988. and who is interested in becoming a board recognised family law specialist is encouraged to review the standards and return the questionnaire inserted in this issue of The Arkansas Lawyer. The questionnaire must be received by May 10. 1988. to qualify for eligibility.

I. Establishment of Specialty Field

The Board of Legal Specialization hereby designates Family Law as a field of law for which recognition of specialists under the Arkansas Plan for Specialization is permitted. A lawyer so recognized shall be entitled to advertise that he or she is a "Board Recognized Specialist in Family Law." 2. Definition of Specialty Field The specialty field of Family Law is the practice of law dealing with all aspects of antenuptial and postnuptial domestic relationships. giving due oonsideration to the tax consequences and court proceedings relating thereto; namely. annulments. absolute divorce. divorce from bed and board. separate maintenance. military divorce requirements. alimony. child support. child custody matter. enforcement of orders. contempt citations. paternity. adoptions. guardianships and the federal aspects of health insurance. pension plan requirements (QDROs). social security. PKPA.

Uniform Soldiers and Sailors Civil Relief Act. international treaties pertaining to children of which the United States is a signatory and other federal acts pertaining to Family Law. The specialty committee may revise the list of examination topics from time to time but shall certify the list of the topics on which the examination shall be given. Certification will be by public notice and to applicants at least three lull months prior to the examination. 3. Applicability of Provisions of Plan of Specialization Recognition and continued recognition of specialists in Family Law shall be governed by the provisions of the Arkansas Plan of Specialization as supplemented by these standards. 4. Standards for Recognition as a Specialist Each applicant for recognition as a specialist in Family Law shall meet the minimum standards set forth in Section 8 of the Arkansas Plan of Specialization.' In addition. each applicant shall meet the following standards: 4.1 Substantial Involvement Substantial involvement shall be demonstrated by a showing of effort and experience measured as follows: 4.1.1 During each of the five calendar years preceding application. the applicant's time spent in the practice of Family Law shall be no less than twenty-five percent (25%) of a normal. lulllime practice of law. 4.1.2 During the five years preceding application. the applicant shall have: A. Tried a minimum of fifteen (IS) oontested Family Law cases as lead counsel in courts of general jurisdiction in this state. in which issues other than. or in

addition to. the dissolution of marriage were submitted to the trier of fact; B. Appeared as lead counsel in a minimum of forty (40) contested Family Law hearings in oourts of general jurisdiction in this state which required the taking of testimony either by deposition or before the court; C. Negotiated forty (40) decrees. temporary orders. miscellaneous orders. and property settlement agreements. and in each instance rendered advice as to the tax effects and applicable federal law pertaining thereof; and

D. Of the malters described above. at least twenty percent (20"10) shall have involved modification of child or alimony (spousal support) or both. and twenty percent (20"10) shall have involved contempt or enforcement proceedings. 4.2 Continuing Legal Education After certification as a specialist. said certification shall continue for so long as the specialist submits written proof of 10 hours of continuing legal education he or she completed during each year of practice in Family Law; said written proof shall be submitted during each calendar year of practice as a specialist. Annually. the committee shall publish and mail to all certified specialists a list of new federal and state enactments and treaties to which the U.S. is a signatory in the field of Family Law as an aid to such specialist in keeping abreast of developments in Family Law. Any specialist who fails to complete the requisite 10 hours per year during that year after certification shall be notified by the plan administrator of the revocaApril 198B/Arkansas Lawyer/lIS


tion of his specialist license; said license shall be restored only upon retaking the specialist examination and passing same. Except as modified herein. all of the provisions of Section 8.3' of the Arkansas Plan of Specialization shall be applicable to continuing legal education. 4.3 Peer Review The applicant must make a satisfactory showing of qualification through peer review by providing five references. of whom two shall be judges before whom the applicant has appeared. Except as modified herein. all of the provisions of Section 8.4' of the Arkansas Plan of Specialization shall be applicable to peer review.

4.4 Examination The applicant shall pass a written

examination

applied

unifonnly to all applicants; said examination shall be administered by a specialty committee and shall be given once every year. The examination shall test the applicant's sufficient knowledge, proficiency and experience in Family Law. 5. Standard for Continued Recognition of Specialist Each applicant for continued recognition as a specialist shall demonstrate that during each of the five years preceding application, the applicant has met the minimum standards set forth in Section 9' of the Arkansas Plan of Specialization and the additional standards set forth above for recognition as a specialist. except that the applicant shall not be required to take an examination.

6. Waiver of Compliance with Standards The Board. upon advice from the Specialty Committee in writing, may waive a showing of compliance with any standard for recognition or continued recognition as a specialist if circumstances so warrant. Said waiver may be conditioned by the Board on meeting substitute requirements; provided, however. that the examination requirement may not be waived. 7. Failure to Furnish Information: Misrepresentation Certification may be denied because of the applicant's failure to furnish the requested information 1I6/Arkansas Lawyer/April 1988

and because of the applicant's misrepresentation of any material fact requested by the Specialty Committee. Certification may be revoked atter it is granted if the Committee finds that the specialist has misrepresented or in any way falsified the annual continuing legal education requirement as to courses and hours completed that the specialist submits to a plan administrator. 0

FOOTNOTES IThe follOWing is an excerpt from the Arkan路 8G8 Plan of Specialization referred to in the text: "8. MINIMUM STANDARDS FOR RECOGNITION OF SPEClAUSTS

'io qualify for recognition as a specialist. a lawyer applicant must demonstrate to the Board. with respect to the specialty. knowledge of the law of this state and competence. must pay any required fee and must comply with the follOWing minimum standards: "8.1 The applicant must be licensed and currently in good standing to practice law in this State; "8.2 The applicant must make a satisfactory shOWing as determined by the Board after advice from the appropriate Specialty Committee of substantial involvement in the specialty during a period to be designated by the appropriate specialty commit路 tee of not less than three years nor more than five years immediately preceding his or her application all according to objective and verifiable standards. Such substantial involvement shall be defined as to each specialty from a consideration of its nature, compleXity and differences from other fields and from consideration of the kind and extent of effort and experience necessary to demonstrate competence in that specialty. It is a measurement of actual experience within the particular specialty according to any of several standards. !t may be measured by the time spent on legal work within the area of the specialty. the number or type of matters handled. within a certain period of time or any combination of these or other appropriate factors. However. within each specialty. experience requirements should be measured by objective standards. In no event shall they be either so restrictive as to unduly limit recognition of lawyers as specialists or so lax as to make the requirement of substantial involvement meaningless as a criterion of competence. Substantial involvement may vary from specialty to specialty, but, if measured. on a time spent basis. in no event shall the time spent in practice in the specialty be less than twenty-five percent (25%) of the total practice of a lawyer engaged in a normal fulltime practice. Reasonable and uniform practice equivalent& may be established. in路 eluding, but not limited to. teaching, judicial. government or corporate legal experience; "8.3 The applicant must make a satisfactory showing as determined by the Board after advice from the appropriate Specialty Committee of continuing legal education accredited by the Board for the specialty,

the minimum being an average of ten hours of credit for continuing legal education. or its eqUivalent. lor each 01 the three years immediately preceding application. Upon establishment of a new specialty, this standard may be satisfied in such manner as the Board. upon advice from the appropriate Specialty Committee, may prescribe or it may be waived if and to the extent suitable continuing legal education courses have not been available during the three years immediately preceding establishment of the specialty; and "8.4 The applicant must make a satisfactory shOWing as determined by the Board after advice from the appropriate Specialty Committee, of qualification in the specialty through peer review by prOViding, as references. the names of at least five lawyers, all of whom ale licensed and currently in good standing to practice law in this State. or judges. who are familiar with the competence and qualification of the applicant as a specialist. None of the references may be persons related to the applicant or, at the time of application. a partner of or otherwise associated with the applicant in the practice of law. The applicant by his or her application consents to confidential inquiry by the Board. or appropriate Specialty Committee. of all such relerences, the appropriate disciplinary body and other persons regarding the applicant's competence and qualification to be recognized as a specialist:' 2"fhe Arkansas Plan of Specialization. para-

graph 9: "9. MINIMUM STANDARDS FOR CONTINUED RECOGNITION OF SPECIALISTS "The period. of recognition as a specialist shall be five years. During such period a Board or appropriate Specialty Committee, for good cause shown. may require evidence from the specialist 01 his or her continued qualification for recognition as a specialist and the specialist must consent to inquiry by the Board. or appropriate Specially Commlltee. regarding the specialist's continued competence and qualification to be recognized as a specialist. Application for and approval of continued recognition as a specialist shall be required prior to the end of each live year period. To qualify lor continued recognition as a Specialist. a lawyer applicant must demonstrate to the Board with respect to the specialty both continued knowledge of the law of this State and continued competence, must pay any reqUired fee and must comply with the follOWing minimum standards: "g. 1 The specialist must make a satisfactory shOWing. as determined by the Board after advice from the appropriate Specialty Committee, of substantial involvement (which shall be determined in accordance with the principles set forth in Section 8.2) in the specialty during the entire period of recognition as a specialist; "9.2 The specialist must make a satisfactory shOWing. as determined by the Board after advice from the appropriate Specialty Committee, of continuing legal education or its equivalent accredited or approved by the Board for the specialty during the period. of recognition as a specialist; and "9.3 The specialist must comply with the requir~~ents set forth in Section 8.1 and 8.4 above.


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April 1988/Arkansas Lawyer/l 17


TIrE DEVELOPING LAW

Significant Changes From 1987 A look at the economics of law practice and natural resources law

By Carol j. Cannedy Economics of Law Practice The Arkansas legislature. in passing Act 519 of 1987. brought about the most significant change in 1987 in the area of attorneys' fees. That Act. codified in Ark. Code Ann. Sec. 16-22-308. allows reasonable attorneys' fees to be assessed and collected as costs against the losing party in certain civil actions. and in particular. those actions brought to recover on an open account,

statement of account. account stated. promissory note. bill. negotiable instrument or contract relating to the purchase or sale of goods. wares or merchandise or for labor or services. unless provided by law or the contract which is the subject matter of the action.

Also in 1987. the legislature passed legislation allowing the recovery of attorneys' fees in actions lacking a justiciable issue. Ark. Code Ann. Sec. 16-22-309. The court. upon finding a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney. shall award attorneys' fees in an amount not to exceed $5.000 or 10 percent of the amount in controversy. whichever is less. One of the key provisions of this statute lI8/Arkansas Lawyer/April 1988

"The Developing Law" is a new feature designed especially for our readers that will be devoted to case synopses in the major areas of law. Responses to a recent survey of Arkansas Bar Association members reflect a desire for case synopses in The Arkansas Lawyer. In the April issue. we have focused on cases affecting the economics of law practice and natural resources law. Future issues of the magazine will carry case synopses affecting financial institutions. real estate. tax. probote and trust. lahar and workers' compensation law.

is that the court may grant this award of attorneys' fees without written motion and with or without presentation of additional evidence. A statutory addition to Ark. Code Ann. Sec. 9-12-309 provides that the court shall award a minimum of 10 percent of the support amount due as attorneys' fees in actions for the enforcement of payment of alimony. maintenance and support provided for in the decree. judgment or order. Other case synopses of interest include: Dempsey v. McGowan. 291 Ark. 147. __ SW2d _ â&#x20AC;˘ (February 2. 1987). This case involved a priority dispute of liens on real property. The trial court awarded attorneys' fees to one of the materialmen. which in effect gave this award equal status with the mechanics' liens. The Arkansas Supreme Court held it was an error to place the materialman's lien and the attorneys' fees for the materialman on the sarne level of priority. There is no statutory provision making attorneys' fees for a supplier of materials or labor a part of the lien. The Court did approve an award of attorneys' fees in favor of the materialman's attorney on the basis of a contract between the supplier and


the mortgagor, though the award was not granted the same priority as the materialman's liens.

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White v, Associates Commercial Corporation, 20 Ark, App, 140, __ SW2d _ (March 4, 1987), White argued that the trial court erred in allowing recovery of attorneys' fees incurred by Associates Commercial Corporation in obtaining possession of White's tractor. Suit was brought in the case upon a conditional sales contract and security agreement. The contract provided for the recovery of reasonable attorneys' fees. The Arkansas Court of Appeals held that even though the parties had contracted for the recovery of attorneys' fees, the Arkansas Supreme Court has consistently held that a party cannot recover attorneys' fees unless such fees are expressly provided by statute. The Court discussed the application of the Uniform Commercial Code, Sec. 9-504, and found that the U. C. C. provides for the payment of reasonable attorneys' fees in cases "not prohibited by law." Arguably, Ark, Code Ann, Sec. 16-22-308, which became effective alter the date of this opinion, would permit the recovery of attorneys' fees in a situation such as the one before the Court in White. Dempsey v. Merchants National Bank. 292 Ark. 207. _ SW2d _ (May 18. 1987). This case presented a question of priority between a materialman's lien and a mortgage. The Arkansas Supreme Court held that attorneys' fees are not proper in an action to foreclose a mortgage and a materialman's lien but no objection was made to the award of attorneys' fees to the appellant (Dempsey) at the proper time; therefore. the point could not be argued for the first time on appeal. Pickens v. State. 292 Ark. 362. __ SW2d. _ crune I. 1987). In this criminal case, the appellant's counsel argued the trial court erred in the application of Ark. Stat. Ann. Sec. 43-2419 (Repl. 1977) (Ark. Code Ann. Sec. 16-92-108) which provides fees for attorneys representing indigents in criminal matters. Counsel requested the Arkansas Supreme Court to strike the $I,<XXJ limitation provided under this statute as being a violation of due process and of appellant's right to the effective assistance of counsel. The Court rejected appellant's request

to reach the question concerning the constitutionality of this statute, but the Court did recognize counsel's entitlement to the maximum award under the statute. Because the trial court allowed only $650 for the actual trial on resentencing, the Supreme Court directed the trial court to award an additional amount in the sum of $350. The Court refused to award the attorney his fees in advance of the second resentencing trial. Arkansas Blue Cross & Blue Shield. Inc. v. Doe. 22 Ark. App. 89. _ SW2d. (1987). Blue Cross & Blue Shield appealed the trial court's award of attorneys' fees pursuant to Ark. Stat. Ann. Sec. 66-3228 (Repl. 1980) (Ark. Code Ann. Sec. 23-79-13) to a pro se litigant. The litigant was a licensed attorney. During the litigation. he served as litigant, advocate and witness in the case. Blue Cross argued that an attorney may not appear for his client as both advocate and witness and that one who acts in such a dual capacity may not be allowed fees for his prior preparation of a case unless he has completely withdrawn from further participation. The Arkansas Court of Appeals concluded that the attorney's right to participate as litigant, advocate and witness is excluded from the provisions of Rule 37 of the Model Rules of Professional Conduct. The Court went on to note that the attorney's testimony did not relate to any contested issue; therefore, the prohibition contained in Rule 37 did not apply to the attorney or his law partners. The Court upheld the award of attorneys' fees holding that it is well settled that attorneys' fees are awarded under Ark. Stat. Ann. Sec. 66-3238 not as property of the attorney, but as indemnification to the litigant. Since the attorney was the litigant, an award of attorneys' fees was proper. Henry. Walden & Davis v. Goodman. 294 Ark. 25, _ SW2d. _ (December 7. 1987). The appellant law firm (Henry. Walden & Davis), which had been discharged by its client (Goodman) prior to the filing of suit, intervened in its former client's action for personal injury damages against a third party. The intervention sought to enforce a lien for attorneys' fees upon the proceeds of any recovery by the client. The law firm asked for

one-third of the former client's recovery as specified in the contract of employment. The trial court held that the client's discharge of the law firm was not justified, but that the law firm could only recover a reasonable fee for the services performed based upon quantum meruit. The Arkansas Supreme Court. after thoroughly discussing the attorney's lien statute. Ark. Stat. Ann. Sec. 25-301 (Repl. 1962) (Ark. Code Ann. Sec. 16-22-301 et. seq.) and the applicable case law, held that the attorney is limited to a quantum meruit recovery for the reasonable value of his services. The Court found the rule announced in Brodie v. Watkins. 33 Ark. 545 (1878). and followed in Berry v. Nichols. 227 Ark. 297. 298 SW2d. 40 (1957), that an attorney employed under a contigency fee contract and discharged without just cause may recover damages for breach or contract. The Supreme Court concluded that this rule is inconsistent with the intent of the attorney's lien statute and the important public policy which favors a client's right to discharge his attorney at any time. The Supreme Court held the attorney's lien statute does not authorize an attorney to recover the full contingency fee under the contract where the contract has not been fully performed. The Supreme Court also held that when a client discharges his attorney, as he has a right to do, he is bound to pay the discharged attorney a reasonable fee for the services rendered.

Editor's Note: Carol ]. Cannedy is an associate with the Smith. Stroud, McClerkin, Dunn & Nutter law firm of Texarkana and works in the litigation section.

By Kevin S. Vaught

Natural Resources Law Perry v. Nicor Exploration, 293 Ark. 417 (1987). In August 1969, the McCarty gas well was completed in Crawford County and various leases were pooled or unitized to form a 640acre unit for the well. In 1983, Mueller. one of the appellants, obtained "top leases" on 22 of the original leases covering approximately 200 acres of the unit. Joined April t9BB/Arkansas Lawyer/l t9


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by the parties executing the top leases, Mueller sought judicial cancellation of the original leases alleging a lack of production in paying quantities from the well. The owners under the 22 original leases contended that the leases were producing paying quantities and counterclaimed. asserting that the top leases constituted a wrongful interference. Based on the evidence. the chan· cellor found that Mueller. et al.. had not established the McCarty unit's lack of production in paying quantities to the lessees. The parties to the top leases argued that the chancellor erred in considering revenues from the unit as a whole. rather than on the basis of individual leases. and contended that there was insufficient revenue to legally consider the unit as a whole. That the original leases in question were within their secondary term and that production in paying quantities to the lessee was required for the perpetuation thereof pursuant to the habendum clauses was undisputed. The court rejec· ted Mueller's. et aI., contentions that the 22 original leases should be considered individually and that the leases were subject only to the lowest priced contract of the five operative gas purchase contracts. In this regard, the court recognized that "no one in the chain of title or chain of purchase makes any distinction as to a particular lessor." Relying upon and analogizing from earlier decisions {Hurley Enterprises. Inc. v. Sun Gas Co.. 543 F. Supp. 359 (W.D. Ark.l. afrd, 696 F.2d 1001 (8th Cir. 1982l and Brixey v. Union Oil Co., 283 F. Supp. 353 (W.D. Ark. 1968)). the court held that "just as the lease is indivisible as to its parts (by virtue of the indivisibility of the habendum clausel, so are the leases in· divisible as to the uni t by virtue of the concept of unitization." Aside "from the logical appeal of appellees' argument and the support of cases such as Hurley and Brixey," the lease provisions normally referred to as pooling clauses provide for the combining or unitization of leases for the creation of a pooled unit. the court said. Consequently. the determination of whether a well is producing in paying quantities to the lessee must be made by examining

the unit as a whole. Despite Mueller's. et al.. further contention that the unit as a whole was not producing in paying quan· tities. the court noted the numerous and conflicting exhibits. computations and testimony presented at trial and gave due deference to the chancellor's superior position in determining credibility and weight. Because of Mueller's, et aI., failure to take all of the gas purchase contracts into account. rather than the lowest priced con tract, the crossexamination of appellants' witness which "revealed that he did not know if some of the expenses used in his calculations were directly related to lifting" and appellees evidence concerning revenues being in excess of direct lifting costs, the chancellor's decision was not clearly erroneous. The federal court in Hurley concluded that an Arkansas court would probably adopt the majority rule concerning the indivisibility of the habendum clause when presented with the issue. In this case, the court indeed noted that position with approval and adopted what is probably recognized as the majority view regarding the determination of production in paying quantities on a unit instead of on a lease basis. Additionally. the court recognized that the expenses to be considered in such a determination are direct lifting costs. Future issues to be addressed by the court are an enumeration of the expenses properly allocated as direct lifting costs, the possibility of excusing periods when expenses exceed revenues and a determination of what con· stitutes a reasonable period of lime. These issues are not specifically addressed by Turner v. Reynolds Metals Co.. 29J Ark. 481. 727 S. W.2d 626 (1986), or the instant case. Enstar Corp. v. Crystal Oil Co.. 294 Ark. 77 (1987). Enstar. et al .. owned three leases acquired in the 1930s covering 241 acres in Columbia County on which four wells were drilled. In 1949, three of the wells were contributed to repressurize the Smackover Formation in the Dorcheat Field Unit. A fourth well was com· pleted in the Cotton Valley Formation upon 80 acres of leasehold under consideration in 1944. It

,


ceased to produce in August 1952. The 80 acres in question were outside the confines of the Dorcheat unit and no other wells had been drilled there by Enstar, et al. In 1974, Crystal acquired new leases covering interests in the 80 acres. It drilled two wells there in 1976 and 1978 which continue to produce. Enstar, et aJ.. sought to quiet title to their leasehold to stop further production by Crystal on the 80 acres and sought an accounting on production taken by Crystal. The chancellor determined that Enstar, et aJ., had breached the implied covenant to develop their leasehold as a prudent operator, as evidenced by Crystal's successful development. and canceled Enstar's, et aI., leases in the 8O-acre tract. In addition, the chancellor deemed Enstar's, et aI., action to be barred by the doctrine of laches due to their delay in challenging Crystal's interest. Enstar, et aI., argued that both of the chancellor's holdings were erroneous. The court clearly equated this case with Byrd v, Bradham, 280 Ark. I I. 655 S.W2d 366 (1983), and Stevenson v. Barnes, 288 Ark. 147, 702 S.W2d 787 (1986), and felt that it was distinguishable from Saulsberry v. Siegel. 221 Ark. 152, 252 S. W2d 834 (1952). The basis for the court's review was Byrd's ennunci· ation of the principles concerning the implied covenant to explore and develop as a reasonable and prudent operator. It said:

a breach by Enstar, et aJ.. of the implied covenant to explore and develop with reasonable diligence. Apparently, Crystal's use of the appellant's own logs in deciding to acquire leases and drill was particularly persuasive to the court. In distinguishing this case from Saulsberry. the court noted that the same information had previously been studied and discounted by Enstar, et aJ.. or their predecessors, and that even accepting Enstar's, et aJ.. argument and evidence concerning the negative impact of oil prices through 1974 upon development. there was no action at all on appellants' behalf until the proceeding was filed in 1981. Initially, some distinctions between this case and other recent cases concerning the implied covenant to explore and develop are noted. In Byrd and Stevenson, actions were commenced by lessors for partial cancellation, prior to entry upon the premises, for any further operations and, apparently, prior to the granting of any other lease to a third party. The court's rationale for partial cancellation is that prior demand for performance is "not always necessary (and) was not required in this case" (Byrd v. Bradham, 280 Ark. II, 14) due to the umeasonable period of delay. Arkansas Oil & Gas, Inc. v. Diamond Shamrock Corp.. 281 Ark. 207, 662 S.W.2d 824 (1984) did involve a top lease of a lease just beyond its primary term, but there

"In oil and gas leases where royal-

were no operations pursuant

ties constitute the chief consideration,

thereto and the court provided a reasonable time to further develop the leasehold prior to forfeiture. The court has previously stated that a "good reason for ordering conditional rather than absolute cancellation upon finding a breach of the covenant is that the question of reasonableness of development is a difficult one, generally approached ad hoc . , ," in Roberson Enterprises v. Miller Land & Lumber, 287 Ark. 422, 700 S.W.2d 57, 59 (1985). Having had the opportunity to review the briefs in the instant case, there were factual allegations, particularly with respect to events prior to Crystal's operations and the chronology of contacts between certain appellants and Crystal, which are not evidenced in the opinion and were apparently unpersuasive to the court. The

an implied covenant exists that the lessee will explore and develop the property with reasonable diligence ... The duty to explore extends to the entire tract . .. especially where paying

quantities of oil have been found on a

of the tract. "... due deference must be given to the judgment of the lessee in determining whether to drill, but the lessee must not act arbitrarily ... The lessee's obligation to explore is a continuing one ... Production on only a small portion of the leased land does not justify allowing the lessees to hold the entire leasehold indefinitely, thus depriving the lessor of receiving royalties from another arrangement." Byrd v. Bradham, 280 Ark. II, 13 & 14, 655 S.w.2d 366 (1983). Based upon the evidence, the court concluded that the chancellor was clearly justified in finding part

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disparate actions of the parties based upon the some log information appears to be the crucial point in this particular case, rather than any elements of actual or constructive knowledge of appellants' leasehold. There is a possibility that decisions in this area are and will be somewhat confusing to those attempting to divine a reasonable course of action because of result-oriented decisions proceeding from a weighing of the equities, which tend to serve as confirmation of the ad hoc approoch noted in Roberson. Wallace v. Missouri Improvement Co.. 294 Ark. 99 (l987). Missouri Pacific Railroad obtained title to certain lands in Logan County by virtue of a land grant from the United States. In 1934, the railrood deeded land to Owens, reserving all minerals. Owens subsequently conveyed the land to Glass. Since the severance of the mineral interest. it has been separately assessed for tax purposes. The mineral assessment was not subjoined to the surface assessment, but was included in a separate portion of the same tax book. In 1942, this tract of land and others were to be condemned by the U. S. for use by Fori Chaffee. The Declaration of Taking said that "the full fee simple title" to this tract was being taken. Glass was made a party defendant and received just compensation from the U.S.; however, it was stipulated that the railroad - the record owner of the severed mineral interest - was not made a party, did not receive any notice of the taking and did not receive any compensation for its severed mineral interest. In 1948, the U.S. quit claimed the tract back to Glass. The successors of the railrood and Glass became the competing claimants to the mineral interest. The chancellor held that the U.S. had never acquired title to the severed mineral interest; consequently, title was in the railrood's successor, rather than the successor under the quit claim deed from the U.S. Appellant contends that the U.S. intended to and did acquire the full fee simple title to the lands in question by virlue of the federal condemnation proceeding. There was no question regarding the right of the U.S. to take the


severed mineral interest. but due process under the U.S. Constitution dictates notice, a reasonable opportunity to be heard and just compensation for any taking. Although there were no cases directly on point. the court reviewed several cases between 1876 and 1984 which addressed takings and concluded the same principles were applicable. Procedural rules require the government to join as defendants those persons known to have or claim an interest and "all persons whose names can be ascertained by a reasonably diligent search of the records." The court then concluded that the separate mineral assessment for tax purposes "was and is a matter of public record contained in the same tax book ... Certainly a reasonable search of the records would have revealed . . . the owner of this separate property interest. Such a search was a necessary prerequisite to the condemnation and no attempt to cure this defect was made by the government." It said, "No notice of any kind was given . . . basic constitutional requirements of notice and a reason-

able opportunity to be heard are mandatory prerequisites to divest a property owner of his interest. In the absence of any notice, actual or constructive, the government did not acquire the separate mineral rights and did not convey these rights " This is a case of first impression and the opinion has bOOn quoted from at length because of the questions and observations which flow from the language employed. The decision appears contrary to the court's prior holdings concerning the requirement of subjoinder as pertaining to severed mineral interest. e.g., Garvan v, Potlatch Corp., 278 Ark. 414, 645 S.W2d 957 (1983), and Dawdy v. Holt, 281 Ark. 171, 662 S.W 2d 818 (1984), but somewhat in accord with Ark. Code Ann. Sec. 26-26-1112 (Act 961 of 1985) which provides that county assessors may now maintain separate mineral assessment subject to certain limited conditions. The severed mineral interest of the railroad was evident by an examination of tax deed records; consequently the court's reliance upon the existence of the tax assess-

ment was unnecessary to the conclusion reached in the case. Additionally, the effect apparently being afforded to tax records for notice purposes exceeds or contradicts that given in other states which have considered the question, e.g.. tax books "are not kept as a record of titles to real estate and do not constitute constructive notice to a proposed purchaser of record title that the person listed there as owner has any interest in the land" in B.W. & Leo Harris Co. v. City of Hastings, 59 N.W2d 813, 815 (Minn. 1953).

This case emphasizes the importance of review regarding the procedures and documents pertaining to a condemnation proceedings instead of assuming that the U.S. acquired the full fee simple interest. 0

Editor's Note; Kevin S. Vaught is an attorney for TXO Production Corp .. a subsidiary of Texas Oil & Gas Corp., and a member of the Executive Council of the Arkansas Bar Association's Natural Resources Law Section.

April 1988/Arkansas Lawyer/123


IN MEMORIAM

w.

Jane Knight

w.

lane Knight, age 37, of Little Rock. died Sunday, lanuary 10, 1988. Knight was an assistant United States attorney for the Eastern District of Arkansas. She served as pardon and extradition adviser to former Governor Frank White from 1981-82 and had formerly served as corporate counsel with SD Leasing Inc. Knight received a juris doctorate degree from the University of Arkansas at Little Rock School of Law in 1979 and was licensed to practice law. While attending Law School, she worked as a court reporter for the Pulaski County Chancery and Probate Court, as a paralegal for the Pulaski County Prosecuting Attorney's Office and as a legal secretary for the U.S. Attorney's Office. Knight was a member of the Arkansas Bar Association, a former

member of its House of Delegates and a former chair of its Law School Liaison Committee. She was also a member of the Pulaski County Bar Association, Arkansas Association of Women Lawyers, the Association of Trial Lawyers of America and the American Bar Association. She 1241Arkansas Lawyer/April t988

served as the ABA Law Student Division liaison from 1978-79 and was a recipient of the Division's Silver Key Award for outstanding service in both 1977 and 1978. She was also a member of the Arkansas Law Enforcement Officers Association, the National Association of Extradition Officials, the American Correctional Association and was a member and 1982 chair of the Network for Executive Women. Knight was a member of the Phi Alpha Delta law organization and the Senior Women's Scholastic Honorary Society of Alpha Sigma Upsilon. She was a member of the board of directors of United Cerebral Palsy of Central Arkansas since 1984 and a member of Second Presbyterian Church. She served as co-chair of the Arkansas Attorneys for Reagan-Bush and was legal adviser to the ballot security program of the Arkansas Republican Party in 1984. She was the 1987-88 president of the UALR Law School Association. Survivors are her mother, Wanda Adams Knight of Little Rock, and a brother, Ion Knight of Topeka, Kansas. A scholarship in memory of Knight has been established by the Arkansas Bar Foundation. Contributions may be made to the W. lane Knight Scholarship, Arkansas Bar Foundation, 400 W. Markham, Little Rock, AR 72201.

Caldwell Tucker Bennett Caldwell Tucker Bennett, age 69, of Batesville, died Tuesday, December I, 1987. Bennett was a former prosecuting attorney and a retired Army Reserve major.

Bennett was born at Louisville, Ky., the son of lames Charles Bennett and Mary Caldwell Bennett. He served 20 years as prosecuting attorney for Independence County and was a member of Phi Alpha

Delta legal fraternity. Bennett was a member of the Arkansas Bar Association, Independence County Bar Association and the American Bar Association. Bennett was also active in the Civitan Club, White River Shriners and the Gideons. He was a deacon of the First Baptist Church. During World War II, Bennett served in the India-Burma-China Theater and retired as a major in the Army Reserve. He was commander of the local military intelligence unit.

Survivors are his wife, Polly Gay Bennett of Batesville; three daughters, Nancy Caldwell Hillard of Little Rock, Marion Gay King of Mountain Home and Mary Rebecca Singleton of Marion; and six grandchildren.

Dan Paschall Chisholm Dan Paschall Chisholm, age 82, of Little Rock, died Thursday, January 19, 1988. Chisholm was regional attorney

at Little Rock for the federal Agriculture Department for 27 years. He retired from the position in 1970. He joined the staff of the Department's legal section at Amarillo, Texas, in 1935 and served as regional attorney at Atlanta for two years before transferring to Little Rock in 1943. Though a staunch Democrat, he retained his patronage job during Republican administrations. As regional attorney, Chisholm helped acquire the millions of acres set aside for the Ouachita National Forest and parcels of land that later became part of the Buffalo National River. Since retirement, he had been counsel for the Rural Endowment and a municipal judge at Cammack Village. A son of Joseph McHenry Chisholm and Ida Paschall Chisholm, he was a grandson of Dr. Dan Paschall, a Confederate surgeon who worked


on a cure for spotted fever. Chisholm also was a descendant of Robert Morris, a signer of the Declaration of Independence, and of Jesse Chisholm, for whom the historic Chisholm Trail was named. Born at TerrelL Texas, Chisholm attended Vanderbilt University and graduated from the University of Missouri Law School. He was a member of the Arkansas Bar Association for 30 years and a member of the Texas Bar Association, the Vanderbilt Alumni Association, the Wilderness Society and Trinity Episcopal Cathedral. Survivors are a son, Dan P. Chisholm, Jr., of Little Rock; a daughter, Ann Chisholm of Phoenix, Arizona; and three grandchildren.

W. D. Murphy. Jr. W. D. Murphy, Jr., age 75, of Batesville, died Thursday, December 24, 1987. Murphy was born at Batesville, a son of Walter D. and Leona Magness Murphy. He was a graduate of the University of Arkansas at Fayetteville. After receiving a law degree from Duke University Law School, Murphy returned to Batesville to begin his law practice. He was a former senior partner in the Murphy, Post. Thompson, Arnold and Skinner law firm. Murphy had been a prominent Batesville civic leader since the early I 940s, when he became secretary of the Batesville Development Corporation which brought the International Shoe Company to the city. He served as secretary of the Arkansas College board of trustees from 1976-85 and was a member of the board's executive committee. Murphy and his wife established the W.D. Murphy, !r .. and Ann Binsburg Murphy Scholarship for history students at Arkansas College and he was the recipient of the Arkansas College Distinguished Alumnus Award in 1983. He was president of the Batesville Chamber of Commerce in 1957 and had been president of the Batesville Kiwanis Club. Murphy was a member of the Arkansas Bar Association and had served in its House of Delegates and on its Executive Committee, Juris-

prudence and Law Reform Committee and Professional Ethics and Grievances Committee. Murphy was a former examiner

for the Arkansas Board of Law Examiners. was a former member of

the Batesville City Council and Batesville School Board and was the recipient of the Kiwanis Citizenship Award in 1986. He was a member of the First United Methodist Church of Batesville. Survivors are his wife, Elizabeth Ann Binsburg Murphy of Batesville; a son, Joseph Daniel Murphy of Batesville; a daughter, Mary Margaret Murphy Baker of Los Angeles, California; a sister, Barbara Bobbin of Monticello; and two grandchildren.

Robert Nabors Shaw Robert Nabors Shaw, age 77, of Mena, died Tuesday, January 5, 1988. Shaw was a former state legislator, municipal court judge and special Arkansas Supreme Court justice. He served in the state legislature from 1937 to 1941 before entering the Navy as a lieutenant during World War II. After the war, he moved to Polk County and began his law practice. He was a municipal court judge in the 1960s and was also a special justice on the Arkansas Supreme Court. Shaw was a graduate of the University of Arkansas at Fayetteville School of Law. Shaw was a 40-year member of the Arkansas Bar Association and served in the House of Delegates from 1974 to 1977. He was a former

president of the Lions Club, the Southwest Arkansas Bar Association and the Arkansas Fox Hunters Association and a former member of the Polk County Industrial Commission. He was a member of the First United Methodist Church and the Union Bank board of directors. Survivors are his wife, Juanita Shaw of Mena; a brother, W.E. Shaw, Jr., of Marked Tree; and two grandchildren.

John Ford Smith. Sr. John Ford Smith, Sr., age 87, of Augusta, died Thursday, January 14, 1988. Smith was a former state senator and representative and was a former chancellor of the Fifth Judicial District. A native of Ballinger, Texas, Smith was a graduate of Arkansas College and Cumberland University. He was a former professional baseball player in the Sou thwestern League, Piedmont League and Cotton States League. He was a 43-year member of the Arkansas Bar Association and was president of the Arkansas Judicial Council from 1960-61. Smith was secretary of the Augusta School Board from 1935-61 and was a member of the Augusta Bank board for more than 40 years. He was a member of First United Methodist Church. Survivors are his wife, Katherine L. Smith of Augusta; a son, John F. Smith, Jr., of La Marque, Texas; a daughter, Katherine Corcoran of Stanton, Neb.; and two grandchildren. 0

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DISCIPLINARY ACTIONS November to December The Arkansas Supreme Court Committee on Professional Conduct from November to December 1987, issued one letter of reprimand and accepted the surrenders of license from Drew Luttrell of Mountain Home and Ronald D. Heller of Little Rock. The Committee took no action of a disciplinary nature on 80 informal complaints against attorneys and voted "no action warranted" on eight formal complaints. The Committee issued three letters of warning.

RONALD D. HET.I.ER Surrender of License Ronald D. Heller, of Little Rock, voluntarily surrendered his license to the Committee on Professional Conduct in November. Heller was issued two letters of reprimand by the Committee in September and October 1987 for violations of Rules 1.3 and 3.2 of the Model Rules of Professional Conduct involving diligence and expediting litigation. In a petition, Heller said that during the past year he had developed an inability to adequately take care of his practice. He said the total rea-

son for the problems were being expored through professional help, but alcohol was the "major factor." Heller was charged in November 1987 with theft for the alleged unauthorized withdrawal of funds from an estate he administered. He has pleaded innocent to a felony theft charge that he made unauthorized withdrawals of about $11,067 from an account he established as administrator of the estate.

DREW LUTTRELL Surrender of License Drew Luttrell. of Mountain Home, voluntarily surrendered his license to the Committee on Professional Conduct in November. Luttrell was reprimanded in August and December 1986 by the Committee. In a petition, Luttrell said that the Committee was considering several complaints filed against him. In one complaint. a former client alleged that he hired Luttrell in August 1986 to represent him in a child support matter but never heard from him. He said that attempts to contact Luttrell had been unsuccessful. In another

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complaint, Frank J. Huckaba alleged that Luttrell had misappropriated funds from an estate. He also alleged that Luttrell had failed to provide an accounting to the court concerning the estate, had failed to file an inventory in the estate and had mishandled real estate belonging to the estate. In addition, the Committee instituted a complaint against Luttrell based on a newspaper article in the Baxter Bulletin. The January 21, 1987, article said that Luttrell had been held in contempt. sentenced to 48 hours in jail and fined $250 for failing to communicate with a client he had been appointed to represent. In an affidavit. Luttrell said he doubted he could successfully defend himself against the complaints.

WILLIAM A. MURPHY Letter of Reprimand William A. Murphy, of Sheridan, was issued a letter of reprimand by the Committee on Professional Conduct in December for violation of Rule 1.3 of the Model Rules of Professional Conduct involving diligence. The complainant said he had hired Murphy to collect a default judgment against his stepson and had paid Murphy $67.25 for filing fees. He said he'd spoken with Murphy once concerning the judgment. despite numerous attempts to contact him by telephone. The complainant learned from the Grant County Sheriff's Office that nothing had been filed in the matter. The complainant went to Murphy's house and, following a confrontation, Murphy said he would return the money. The complainant did not receive any refund from Murphy. In a response, Murphy said he had received the filing fee from the complainant and cashed the check but had not filed the writ. He said the complainant did not request a return of his money and he was unaware that he wanted it back until he received the complaint. Murphy said he did return the fee to the complainant. 0


YOUNG LAWYERS' UPDATE

Overcoming Obstacles situated can be priceless and discussions on how to deal with conflicts and adversity occur at every bar meeting. Fellowship as well as programs on ethics, client trust funds and conflicts of interest are available throughout the year. Don't let a mistake in arithmetic, an error in judgment or a moment of weakness become your undoing. Won't you become involved? The Young Lawyers' Section is pleased to provide this assistance:

By Michael H. Crawford It is easy to lose sight of the privileges accorded those who practice law. Pressures from business and personal and financial matters often seem to overshadow even the most successful case. Imagine for a moment how the future must have looked to those West Memphians who suffered through a tornado, only to face flood waters washing away all their worldly possessions less than a month later. Many Arkansas attorneys did pause and reflect on West Memphis' unfortunate situation. Shortly alter the December tornado, our Disaster Relief Committee was already in action. Within 48 hours following the tornado, a substantial list of volunteers was amassed by the Committee to provide free legal services to victims. The service was later extended to those threatened by flood waters.

Overcoming obstacles is a task all practicing young lawyers must face each day. While probably not as devastating as a flood or tornado, the results of professional and personal pressures can destroy one's practice, family and person. The large number of disciplinary actions seen in The Arkansas lawyer attests to these pressures. Several young attorneys have surrendered their law licenses in the past two years. Most, if not alL are intelligent and resourceful pe0ple who faced bright futures. AIL however, were subjected to the immense pressures which come to

bear in this profession. While some may shrug their shoulders and declare that our fallen comrades simply lacked the integrity and honesty necessary to

• Statute of Limitations Handbook:

Don't let a deadline pass you by. The revised edition of the Handbook will be available at the Association's Annual

Meeting on June 8 to II in Hot Springs. Best of all. it's free to members. • Practice Skills Course: This educational seminar, held in conjunction with the Arkansas Institute for Continuing

practice law, I must respectfully disagree. Maintaining a successful law practice while adhering to a reasonable code of professional conduct is a formidable task. We are all tested daily with situations involving conflicts of interest. client funds, confidential information and moral decisions. In addition, the handling of criminaL domestic, commercial and civil matters is fraught with pressures. The fellowship of the bar becomes evident when disasters such as West Memphis occur. Unfortunately, the everyday problems of our peers - those problems that can ultimately destroy both the person and the practice - are often ignored. The Young Lawyers' Section offers a variety of programs and resources to help overcome adversity. It is important to become involved in bar activities in order to alleviate stress and find solutions to problems. The opportunity to talk to those similarly

Legal Education. offers new and practicing attorneys a comprehensive two and

one-hall day course to "bridge the gap" between law school and the everyday practice of law.

• Swearing-In Ceremony: The Young Lawyers' Section, with substantial assistance from Association staff, hosts a reception following the ceremony for new admittees to the Arkansas bar. A packet of information is provided to each new attorney.

• Profits and Partnerships: The Young Lawyers' Section will hold a presentation with a variety of speakers and information to assist young lawyers in dealing with senior partners and division of profits. Several case scenarios will be presented on different types of firms. You will not want to miss this interesting and useful discussion.

Watch for the Young Lawyers' Section newsletter - the YLS HEARSAY - for more information. If you have a suggestion for a program which will assist young lawyers in overcoming obstacles, please write or call me at 455 Grand, Hot Springs, AR 71001, 624-5731. 0 April 19881Arkansas Lawyerll27


Arkansas IOLTA Program

Remarkable Progress Made in 1987 and Wyoming approved IOLTA plans, bringing the total o( participating jurisdictions to 47. The Arkansas Supreme Court changed the composition of the Foundation's board of directors by allowing the chief justice to appoint a designee and by substituting two lawyers (or the associate justice positions. The Foundation's board of directors for 1988 are in place and new officers were elected in January. R. Christopher Thomas is serving as the chief justice's designee. The attorney appointments include Mark Lester and Sam Perroni of Little Rock, Phyllis Hall Johnson of Fayetteville, Stephen M. Reasoner of Jonesboro and Bobby Shepherd of El Dorado. John F. Stroud, Jr. fills the Association president's position until June when Philip E. Dixon assumes office. The lay members are Arnold Doubleday of Hot Springs, Eddie Colen of Warren, John Harding of Roland and Bob Yopp of Jonesboro. This year's officers are Mark Lester, president;

By Susanne Roberts A quick review of 1987 shows the remarkable progress achieved by the Arkansas IOLTA Foundation, Inc. Eighteen percent of the bar had enrolled in the program by the end of 1986. The percentage of lawyer enrollment increased to 27 percent by January 1988. While 1986 closed with 46 financial institutions signed up, by the end of 1987, we had 76 financial institutions participating. Forty-eight of those didn't charge a penny for IOLTA accounts. The Foundation deposited $18,591.17 in IOLTA income in 1986, and $160,014.62 in 1987. The courts were active regarding IOLTA issues in 1987. The Eleventh Circuit Court of Appeals affirmed the constitutionality of Florida's voluntary IOLTA program, and the United States Supreme Court denied certiorari to review the case on October 19, 1987. State supreme courts in Alabama, North Dakota

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Phyllis Hall Johnson, vice-president; R. Christopher Thomas, secretary; and William A. Martin, treasurer.

The latest trend among IOLTA programs is to consider converting voluntary programs to a comprehensive or opt-out status. Opt-out programs consider an attorney enrolled unless he expressly elects not to participate in IOLTA. Comprehensive programs require that all attorneys with client trust accounts belong to IOLTA programs. There are now 10 comprehensive programs, seven opt-<lut programs and 30 voluntary programs in the country. The American Bar Association IOLTA Commission submitted a resolution in February 1988 to encourage each state with a voluntary program to convert to a comprehensive program. The Commission's report noted that the average percentage of lawyers participating in voluntary IOLTA programs falls between 20 and 30 percent. The report compared incomes of selected voluntary and comprehensive programs based on October 1987 statistics. Arkansas was compared to Iowa: State

/I Eligible Years in Attorneys Operation

Iowa Cd

4,250 3.812 (26'%)

Arkansas (v)

2 2

Tolal Income $1.850,790 $

131.822

The report prefers comprehensive IOLTA plans because they generate substantially more revenue, eliminate costly and time consuming recruitment campaigns, allow lawyers to avoid the ethical issues involving compensating balances and because they are successful. 0


IOLTA

FINANCIAL INSTITUTION HONOR ROLL Uanuary 15, 1988)

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 lee.

ARKADELPHIA Elk Hom Bank 'Merchants & Planters Bank & Trust

CO.

ASHDOWN First National Bank

ASH FLAT First National Bank 01 Sharp County

BATESVILLE The Citizens Bank 01 Batesville 'First National Bank ,Independence Federal Bank

CAMDEN First National Bank 01 Camden

CAVE CITY 'Bank of Cave City

CHEROKEE VILLAGE First National Bank 01 Sharp County

CONWAY 'First State Bank

CROSSETT 'First National Bank 01 Crossett

DUMAS Merchants & Farmers Bank

EL DORADO "The Exchange Bank & Trust Co. 'National Bank 01 Commerce

ENGLAND 'The Citizens Bank

FAYETTEVILLE First National Bank McDroy Bank & Trust "Northwest National Bank

FORT SMITH "City National Bank 01 Fort Smith "The First National Bank The Merchants National Bank 01 Fort Smith

GREENWOOD Farmers Bank

HAMBURG 'Farmers Bank

HARRISBURG 'The Bank 01 Harrisburg

HARRISON The Security Bank

HOPE Citizens National Bank

HOT SPRINGS "Arkansas Bank & Trust "First National Bank 01 Hot Springs 'One Bank 01 Hot Springs 'Savers Federal Savings & Loan

JACKSONVILLE "First Jacksonville Bank

JASPER 'Newton County Bank

JONESBORO 'Bank of Northeast Arkansas Citizens Bank 01 Jonesboro Mercantile Bank Simmons First Bank of Jonesboro 'United Federal Savings & Loan

MOUNTAIN HOME 'First State Savings Bank

NEWPORT 'First State Bank of Newport Merchants & Planters Bank

NORTH UTTLE ROCK 'One National Bank 01 North Little Rock Twin City Bank

PARAGOULD 'First National Bank

PINE BLUFF National Bank of Commerce 'Savers Federal Savings & Loan Simmons First National Bank

PORTLAND 'The Peoples Bank

PRESCOTT First Federal Savings 01 Arkansas

ROGERS 'Farmers & Merchants Bank 'First National Bank & Trust Co.

RUSSELLVILLE "Peoples Bank & Trust Co. 'Superior Federal Bank

liNCOLN

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UTTLE ROCK 'First Commercial Bank 'Home Savings Association One Bank 01 Little Rock 'Savers Federal Savings & Loan Union National Bank of Little Rock "Worthen Bank & Trust Co.

MAGNOUA 'Farmers Bank & Trust Co. First National Bank of Magnolia

MALVERN 'Malvern National Bank

MENA 'First National Bank 01 Mena

MONETTE 'Monette State Bank

SILOAM SPRINGS First National Bank

SPRINGDALE First National Bank 'United Federal Savings Bank

TEXARKANA 'Commercial National Bank State First National Bank of Texarkana

VANBUREN 'Citizens Bank & Trust Co.

WARREN 'Home Savings Association 'Warren Bank & Trust Co.

YELLVILLE 'The Bank of Yellville

MORRILTON 'First National Bank of Conway County 'Morrilton Security Bank April 198a/Arkansas Lawyerll29


IOLTA

ATTORNEY HONOR ROLL Uanuary 15, 1988)

ARKADELPHIA

CONWAY Hartje, DuPriest & Collier

Steve DeMott Hankins & Childers McMillan, Turner & McCorkle Henry Morgan Sanders & Hill Janice Williams Wheeler Wright. Chaney & Berry

DERMOTT Gibson & Gibson Don E. Glover

ASHDOWN Hawkins & Metzger

DUMAS Gill. Johnson, Gill & Gill

ASH FLAT Samuel F. Beller Dan M. Orr

ELDORADO James B. Bennett Worth Camp Law Firm Ronald L. Griggs Law Offices Henry C. Kinslow Landers & Shepherd Legal Services of Arkansas Shackleford, Shackleford & Phillips Spencer, Spencer, Depper & Guthrie Denver L. Thornton

BATESVILLE Steve Bell David M. Clark C. Eric Hance Harkey, Walmsley, Belew & Blankenship Highsmith, Gregg, Hart, Farris & Rutledge Hively & Ketz Murphy, Post. Thompson & Arnold Gary Vinson BENTON Sandra Tucker Partridge BENTONVILLE Burrow & Sawyer Clark & Clark Gocio & Dossey Lawrence & Huffman Little, McCollum, & Gecrge Skaggs & Chase BLYTHEVILLE John H. Bradley East Arkansas Legal Services Brent W. Martin CAMDEN Edwin Keaton David McMahen Roberts, Harrell & Lindsey CAVE CITY Keith Watkins CHEROKEE VILLAGE Stewart K. Lambert CLARENDON Raymond R. Abramson CLARKSVILLE Roderick H. Weaver Swindell & Bradley l3D/Arkansas Lawyer/April 1988

CROSSETT Arnold, Hamilton & Streetman

ENGLAND William Reed FAYETTEVILLE Arens & Alexander Ball, Mourton & Adams Gecrge E. Butler, JI. Gary L. Carson Davis, Cox & Wright Larry R. Froelich William Russell Gibson Hanks, Gunn & Borgognoni Curtis E. Hogue James R. Jackson Jill R. Jacoway Phyllis Hall Johnson Jones & Reynolds Mashburn & Taylor McAllister & Wade Ronald M. McCann Richard L. Miller Rudy Moore, Jr. Walter R. Niblock Law Offices Odom, Elliott & Martin Richard P. Osborne Ozark Legal Services Joe B. Reed Jim Rose ill Raymond C. Smith Lanny K. Solloway Jay N. Talley Westphal & Steenken

FORT SMITH Bethell. Calloway, Robertson & Beasley Robert S. Blatt Brittain Law Offices Christian & Beland Orville C. Clift Robert R. Claar Davis & Cox David L. Dunagin Mark E. Ford Gean, Gean & Gean Hardin, Jesson & Dawson Harrison & Hewett Josef V. Hobson Stanley M. Holleman Jones, Gilbreath, Jackson & Moll Barry D. Kincannon Paul R. Post Pryor, Robinson & Barry Rose, Kinsey & Cromwell Sargent Law Firm David L. Schneider Stephen M. Sharum Shaw, Ledbetter, Hornberger & Arnold Philip J. Taylor Walker & Morris Warner & Smith Western Arkansas Legal Services GREENWOOD Walters Law Firm HAMBURG Arnold, Hamilton & Streetman Johnson & Harrod Tarvin & Byrd HARRISBURG VanAusdall & VanAusdall HARRISON Donald E. Bishop Elcan & Sprott Thomas D. Ledbetter Meadows & Davis Walker & Campbell

HELENA East Arkansas Legal Services HOPE Graves & Graves HOT SPRINGS Daniel D. Becker Central Arkansas Legal Services Vickie S. Cook Evans, Farrar, Reis & Love


Frances M. Finley William W. Green Robert S. Hargraves Henry, Cox & MacPhee Hobbs, Longinotti, Bosson & Naramore Lane, Muse, Arman & Pullen Miller, Goldman & Ridgeway Ray Owen, Jr. Eudox Patterson Byron Cole Rhodes Thacker & Pennick Wood, Smith, Schnipper & Clay JACKSONVILLE Vaughan & Bamburg JASPER Martin Law Firm Karen B. Walker JONESBORO Barrett, Wheatley, Smith & Deacon Anthony W. Bartels Warren E. Dupwe Bill D. Etter Martha P. Gilpatrick Michael R. Gott Hugh W. Harrison Henry, Walden & Davis Paul E. Hopper Howard & Howard Randall W. Ishmael Legal Services of Northeast Arkansas McDaniel & Wells Donn Mixon Penix Law Firm Val P. Price Rees Law Firm Seay & Bristow Walker, Snellgrove, Laser & Langley LAKE CITY Woodruff & Huckaby LINCOLN Boyce R. Davis LITTLE ROCK H. William Allen Anderson & Kilpatrick Arnold, Grobmyer & Haley Brent Baber Barber, McCaskill, Amsler, Jones & Hale Barron & Coleman Robert L. Brown Cabe & Lester Catlett, Stubblefield, Bonds & Fleming Cearley Law Firm Central Arkansas Legal Services Ralph M. Cloor, Jr. Tripper Cronkhite Davidson, Home & Hollingsworth

Neil Deininger Richard C. Downing Eichenbaum Law Firm Kathryn P. Eisenkramer Donald Frozier Friday, Eldredge & Clark Gill Law Firm Givens & Buzbee Gruber Law Offices John T. Harmon & Associates Hartenstein, Lassiter & Oberlag Hatfield & Jordan Hollingsworth Firm Hoover, Jacobs & Storey House, Wallace & Jewell Mike Hulen Ivester, Henry, Skinner & Camp Jack, Lyon & Jones Kaplan, Brewer & Miller Collins Kilgore Laser, Sharp & Mayes Lavey, Harmon & Burnett Richard L. Lawrence Legal Services of Arkansas B. Frank Mackey, Jr. Madden, Huddle & Johnson Everett O. Martindale Matthews & Sanders Mays & Crutcher Robert McHenry McMath Law Firm Meeks & Carter Martha M. Miller Mitchell & Roachell Mitchell, Williams, Selig & Tucker Overbey Law Firm Perroni, Rauls & Looney Mary J. Pruniski Richard QuiggIe Rose Law Firm Ross & Ross Shults, Ray & Kurrus Walter Skelton Skokos, Simpson, Graham & Rainwater Simmons S. Smith Morris W. Thompson Walker, Roof, Campbell. Ivory & Dunklin Velda P. West Whetstone & Whetstone Wilson, Engstrom, Corum & Dudley Wright, Lindsey & Jennings Youngdahl & Youngdahl MAGNOLIA Anderson, Crumpler & Bell Keith, Clegg & Eckert Woodward, Kinard & Epley

MALVERN Glover, Glover & Roberts MENA Joe H. Hardegree

Legal Services of Arkansas MONTICELLO Gibson, Gibson & Hashem Legal Services of Arkansas MORRILTON Mark Carnbiano Dale Lipsmeyer MOUNTAIN HOME Frederick S. Spencer The Strother Firm NEWPORT Boyce & Boyce Larry Hartsfield Legal Services of Northeast Arkansas James Mclarty Thaxton, Hout. Howard & Nicholson NORTH LITTLE ROCK Steven R. Davis Basil V. Hicks, Jr. Douglas House Ed Phillips Barry A. Sims Charles R. Singleton Wood Law Firm PARAGOULD Goodwin, Hamilton & Moore Jon A. Williams PINE BLUFF Bairn, Gunli, Mouser, Bryant & DeSimone Bridges, Young, Matthews, Holmes & Drake Central Arkansas Legal Services Betly C. Dickey Dickey Law Firm Eugene Hunt Leon N. Jamison Maxie G. Kizer Thurman Ragar, Jr. Ramsay, Cox, Lile, Bridgforth, Gilbert, Harrelson & Starling POCAHONTAS Riffel. King & Smith Wilson & Castleman PRESCOTT McKenzie, McRae & Vasser ROGERS Croxton & Boyer Stephen A. Geigle Jim Johnson James G. Lingle Thurston Thompson Marian J. Wagner Williams, Brinton, Jackson & Pace RUSSELLVILLE Bullock & McCormick

April 19881Arkansas Lawyer/131


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E. Kent Hirsch Rodney P. Owens Penix & Taylor James O. Strother Odell Taylor

VAN BUREN Gary Cottrell Morril H. Harriman, JI.

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WARREN Haley, Claycomb & Roper Robert C. Vittitow

TEXARKANA Autrey & Autrey Dowd, Harrelson & Moore Karlton H. Kemp, JI. Lavender, Rochelle, Barnette, Franks & Amold Smith, Stroud, McClerkin, Dunn & Nutter

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

UNIVERSITY OF ARKANSAS SCHOOL OF LAW, FAYEITEVIilE By J. W. Looney Faculty Activities • Wylie Davis wrote a tribute to a former Illinois colleague entitled "Is George T. Frampton Human?" which appeared in the lIlinois Law Review. • Lonnie Beard's "Pick Your Poison: Difficult Choices Face Many Cattlemen" appeared in Farm Futures, • Jake Looney's discussion "Educational Directions in Agricultural Law" appeared in the Alabama Law Review. • Don Pedersen's article "Agricultural Labor Law in the 1980's" was published in the Alabama Law Review. • Robert A. Lellar's review of Cases and Materials on Appellate Practice and Procedure by Robert Martineau appeared in the University of Cincinnati Law Review. • Robert Laurence has an article in the Arizona Law Review entitled "Learning to Live with the Plenary Power of Congress over the Indian Nations: An Essay in Reaction to Professor Williams' Algebra:'

• Charles Carnes' article "OSHA Field Sanitation Regulations Adopted for Hard Workers - Finally" appeared in the Journal of Agricultural Taxation and Law. • Linda Malone will have two articles coming out in the U.S.C. Journal of Environmental Law - "A Fifteen Year Overview of the Coastal Zone Management Act" and "State Coastal Legislation and Coastal Erosion." She is also submitting an article on the conservation provisions of the 1985 farm bill for publication in the AgricuIturai Law Update and an article on farmland preservation for publication in the Journal of Agricultural Law and Taxation, • Rod Smolla delivered a speech in October before the Dallas Bar Association Annual Media Awards Banquet on "Reportage on the Private Lives of Political Candidates." He has been named project director of the Libel Reform Project of the Annenberg Washington Program on Communications and Policy Studies of Northwestern University. He also delivered a lecture on libel before the Southern University Presses Conference. STUDENT ACTMTIES Kimbro Stephens was elected to a two-year term on the Supreme Senate of Delta Theta Phi Law Fraternity, International.

The new members of the Moot Court Board are: Antoinette Barksdale, Tim Cheatham, Jeff Dixon, Monte Estes, Louis Etoch, Charolyn Jarrells, Sheila Jones, Chris Kirby, Don Parker, Lisa Pruitt, Valencia Rainey and Helmut Talton. The National Moot Court Team traveled to Tulsa, Oklahoma to compete in the RegionaI Competition. Representing the School were Michael Barnes, Eileen Krodel and Jeff Cole. The team of Terry Coalter and Chris Carter and the team of Helmut Talton and Jeff Speer represen ted the school in the Regional ABA Negotiation Competition. FUNDS RAISED FOR CHILDREN'S HOUSE The Student Bar Association sponsored an auction in November to raise money for abused and neglected children. The SBA en tered the auction hoping to raise at least $500-$600 for these children but raised more than $2500 instead. The following items drew a lot of attention: Dean Looney's "Russian Odessey," which sold for $I85; Professor Mary Beth Matthew's dinner at home, which went for $II5; and Robert A. Lellar's 1938 "Conflicts of Law," which tipped the scales at $230. The most novel item was Professor Joan Chapman's teddy bear and a

lunch at Hugo's which dazzled and stunned the audience with a bid of $172.50. In addition, big money went for big parties. Professor Ray Guzman's dinner for eight. including wine and champagne, brought home a whopping $475! Professor Atkinson's party for 20 brought the house down with a final bid of $675! Beneath all the money raised, and the fun, the most important aspect of the auction was that the professors and students at the Law School reached out to help hurting, suffering and abused children, and said "We care."

CONGRESS APPROVES FUNDS FOR AGRICULTURAL CENTER As a part of the budget reconciliation bill, Congress approved a $370,000 grant for this fiscal year to establish the National Agricultural Law Research and Information Center at the Law School. This legislation, under the guidance of Senator Dale Bumpers, contemplates an annual appropriation of approximately $500,000 to support the Center, once established. The Center will provide a central clearinghouse for agricultural law information and will supplement the Young Law Library with significant purchases of library research materials. A national biblioApril 198a/Arkansas Lawyer/133


graphic network will be established to provide agricultural law information. In addition, a staff of six professionals will be employed to not only develop the information center. but to

conduct short and longterm research in various areas of agricultural law. 0

UNIVERSITY OF

ARKANSAS AT LITI1E ROCK SCHOOL OF

LAW By Paula Casey The Council on Legal Educational Opportunities recently announced that the UALR Law School will host the summer 1988 program for this region. Associate Dean Paula Casey attended a training session for CLEO program directors in Washington, D.C. in February. Dean Lawrence H. Averill, Jr.. Professors Frances Fendler, Arthur Murphey, Ken Gould and Associate Dean Casey attended the annual meeting of the Association of American Law Schools in Miami, Florida in January. Professor Fendler also attended a workshop on insider trading which was held in conjunction with the meeting. Dean Averill. who was recently appointed to the Ad Hoc Committee on Legal Education and Estate Planning of the American College of Probate Counsel. attended a meeting of the Committee in Houston 1341Arkansas Lawyer/April 1988

in December. The Council of the American Law Institute recently elected Dean Averill to its membership. The Institute's membership is composed of judges, lawyers and law teachers who are interested in improving the law and legal education. The Law School hosted its annual day of visitation in February. Guests included members of the Arkansas Bar Association's Law School Committee, Association President John F. Stroud, Jr., PresidentElect Philip E. Dixon and Executive Director William A. Martin, the Pulaski County Bar Association's Board of Directors and the Pulaski County Law Library Board. Professor Gene Mullins attended the AALS Workshop for constitutional law professors in Washington, D.C. Professor Jim Spears discussed computer programs for Interest on Lawyers' Trust Accounts programs at a meeting of IOLTA directors sponsored by the American Bar Association in Philadelphia in February. Donaghey Distinguished Professor Robert R. Wright III is editorin-chief of a committee which is revising the Arkansas Fonn Book, The revised Book will probably be a two-volume set and is expected to be available in June, 1988. Charles Goldner is a visiting professor at the Law School for the Spring 1988 semester and is teaching corporations and local government law. Professor Goldner was formerly associated with Nixon, Hargrave, Devans and Doyle in Washington, D.C .. and practiced in

the areas of municipal finance and commercial real estate development. He received a J.D. degree from the University of Oklahoma and an LL.M. from Georgetown University. James White, the Rohert A. Sullivan Professor of Law at the University of Michigan Law School, delivered the Spring 1988 Altheimer Lecture in March. Associate Dean Casey participated in a discussion of recent decisions in family law at the Mid-Year Meeting of the Arkansas Bar Asso-

1988. The competition was sponsored by the Arkansas Board of Trial Advocates. ABOTA president Gordon Rather coordinated the competition. The students also represen ted the Law School at the National Trial Competition in Oxford, Mississippi. in February. Professor Dent Gitchell was the faculty sponsor. 0

A.I.C.L.E.

NEWS By Rae Jean McCall

ciation.

Kathryn Fitzhugh, ref-

The Arkansas Insti-

erence/circulation li-

tute for Continuing

brarian at the UALR Law Library, has compiled a 26-page bibliography and research guide to federal tax research. Free copies are available in the library at the reference desk. A bibliography on international business transactions is also available free at the reference desk. The bibliography was compiled by Professor Murphey. Adjunct faculty members for the Spring 1988 semester include Byron M. Eiseman, Jr., estate planning; Robert Jesperson, alternative dispute resolution; Sam Perroni. litigation skills; John Wesley Hall. Jr., administration of criminal justice; Jerry Malone, banking law; James Moore, employment discrimination; Harold Simpson, health law; and John Forster, trial advocacy.

Legal Education is a service business dedicated to serving the continuing education needs of the legal community in Arkansas. As such, we take our business seriously. Through the efforts of many individuals, much progress has been made in the development of programs and services to benefit the practicing attorney in Arkansas. It is predicted that mandatory CLE will soon be a reality in Arkansas. The proposed guidelines for this effort presen t some in teresting challenges for AICLE. The AICLE Program Committee, chaired by David M. "Mac" Glover, of Malvern, is constantly reviewing the feedback from participants at our seminars and other sug-

STUDENT NEWS Brad Cazort. Mariam Hopkins, Martha McAllister, Ann West, Mary Wiseman and Carol Worley participated in the intramural Henry Woods Trial Advocacy Competition in January,

gestions from members

of the practicing bar in Arkansas. Through this information. new programs, delivery methods and services are explored. One example of a worthwhile suggestion resulted in the initiation of the Arkansas Quarter-


Iy CLE Planner. This publication provides the attorney with a resource for planning attendance at CLE functions during a calendar quarter. The reactions to this effort have been extremely positive from members of the bar. A plan recently adopted by the Arkansas Institute for CLE expands the delivery of continuing education programs by initiating a Video Replay Network throughout the state. The plan includes establishment of regional sites located throughout Arkansas to host a videotape replay of live programs. Participants may register for the video replay schedule soon after the "live" program at a location relatively close to their offices. The plan calls for local or county bar associations to serve as network members in the administration of this delivery system. Dependent upon response from these organizations, the Network should be operational in July, 1988. Preview of Upcoming Programs Co-sponsored by the Labor Law Section of the Arkansas Bar Association, the National Labor Relations Board, the American Arbitration Association and the Labor Education Program at UALR, the Annual La路 bor Law and Labor Relations Seminar will be held on April 8-9 at the DeGray State Lodge in Arkadelphia. The seminar will feature sessions on "Right to Strike in the Public Sector: the Arkansas Experience," "Superfund Compliance Regulations," "Implementing a Drug Testing Program" and "The Special Problems of AIDS in

the Workplace," in addition to other timely topics. The Annual Securities Law Seminar. cosponsored by the State and Federal Securities Committee of the Arkansas Bar Association, will be held on April 20 at the Little Rock Hilton Inn. Topics for the seminar will include "An Update on What is a Security," "Restrictions on Transfers," "New Legislation" and "BrokerDealer Regulations and Litigation. A one-day seminar entitled Debtor-Creditor Update will be held on April 29 at the Holiday Inn West in Little Rock. This program will feature recent developments affecting debtors and creditors and provide an overview of the Arkansas DebtorCreditor System. The Tax Awareness Seminar. scheduled for May 6 at the Excelsior Hotel. will concentrate on Retirement Plan Distribution Issues. Cosponsored by the Section on Taxation of the Arkansas Bar Association, the program will cover "Required Distribution Rules," "Taxation of Qualified Plan Distributions," "Qualified Domestic Relations Orders" and "Estate Planning Aspects." Co-sponsored by the Financial Institutions Law Section of the Arkansas Bar Association, the Financial Institu路 tions Law Seminar will be held on May 13 at the Little Rock Hilton Inn. The program will include current issues affecting banks and savings and loan organizations in addition to recent legislation. A new program entitled The Arkansas Advocacy Institute will be held on May 17-21. Co-

sponsored by the UALR School of Law, this program has been modeled after the "NITA" program to include extensive hands-on training in the skills of trial advocacy. Professor Dent Gitchell is serving as the program director for this new venture. Registra-

tion for participating in this Institute is limited to 24. The program will feature a host of faculty selected from the best of trial attorneys in Arkansas. Look for individual program mmouncements on each of these programs or call A1CLE at 375-3957 for 0 information.

ARKANSAS BAR ASSOCIATION HOUSE OF DELEGATES MEETING January 23, 1988 The Arkansas Bar Association's House of Delegates met on January 23, 1988, at the Excelsior Hotel in Little Rock. President John F. Stroud, Jr., presided. The House approved the minutes of its October 24, 1987, meeting, an unaudited financial statement dated December 31, 1987, and the annual report of the secretary-treasurer. MEMBERSHIP REPORT Philip E. Dixon, chair of the Membership Committee, reviewed applications for membership and reinstatements. The membership in the Association to date is 3,283, an increase of 87 members over last year. RESOLUTIONS James H. McKenzie,

chair of the Resolutions Committee, moved for the adoption of Resolution 88-1 on confidentiality of tax returns and Resolution 88-2 on the overvaluation penalty of the Internal Revenue Service. Both motions were seconded and passed. JUDICIAL COMPENSATION COMMISSION Dennis L. Shackleford, chair of the Judicial Compensation and Disability Committee, reviewed the upcoming campaign to place the Judicial Compensation Commission amendment on the ballot in November 1988. Shackleford asked each member of the House to contribute $100 toward the $100,000 necessary to finance the campaign for the amendment and to be responsible for obtaining signatures on at least live petitions. MANDATORY CLE W. Russell Meeks III reported that plans for implementation of mandatory CLE are progressing and that the Arkansas Supreme Court is in the process of establishing an administrative position necessary for implementation. Mandatory CLE is expected to be in place by June 1988. ETHICS CODE Vincent W. Foster, Jr., chair of the Execu ti ve Council, reviewed the Association's efforts since the last House meeting regarding the proposed Ethics Code. Webb Hubbell. a member of the Governor's Code of Ethics Commission, reviewed the objectives of the Commission in drafting the proposed Code. The House also heard from Martha M. Miller, the Association's lobbyist, and PresApril 1988/Arkansos Lowyer/135


ident Stroud regarding efforts to protect the interests of the Association's membership. Lamar Pettus moved that the House adopt a "do pass" resolution regarding the proposed Code. The motion was seconded by J. Thomas Ray. Jack A. McNulty then moved for adoption of an amendment to the "do pass" motion limiting it to those portions of the proposed Code applicable to the practice

of law. The motion to amend was seconded but failed. The motion for a "do pass" resolution then came to a vote and passed. Miller asked that the record reflect her abstention on both votes regarding the proposed Code. She then reviewed several items of interest which are scheduled to be addressed by the Arkansas legislature during its special session in January.

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BY-LAWS CHANGE Robert R. Wright III moved that the name of the Legislative Oversight Committee be changed to the legislative Policy Committee. The motion was seconded and passed. REPORTS James A. Buttry reported on behalf of the Debtor/Creditor System Editorial Boord. Frank Sewall. acting chair of the Group insurance Committee, moved that the Association accept a 35 percent rate increase on the premiums applicable to the group plan of major/medical insurance effective

March I, 1988. Sewall also moved that the plan administrator be directed to immediately commence investigating the possibility of alternative plans of insurance and report to the Group Insurance Committee at a special meeting in May 1988. The motion was seconded and passed. Robert L. Jones III, chair of the Long Range Planning Committee,

Range Planning Conference scheduled at Lake DeGray on April 22 to 23, 1988. Following Thomas L. Overbey's report for the Committee on Incorpo-

ration, Ralph M. Cloor, Jr .. moved that the House terminate the study of the possible incorporation of the Association and thank the Committee for its efforts. The motion was seconded and passed. John G. Lile ill reported that the Computerized Legal Research Committee was seeking further information on the use and cost of a LEXIS group membership program. Executive Director William A. Martin gave the mid-year report to the House. President Stroud reported on plans for the annual meeting and the Long Range Planning Conference. There being no further business, the meeting was adjourned. 0 Respectfully submitted, Sandra Wilson Cherry

1~~;~;~~iiiiiiiiiiiiiiCiCiCi~~~~::r:e:p~0:r~te:d.OlnatlhjeDLODnig II ARKANSAS

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CITY

STATE THIS ORDER IS NOT VALID UNLESS SIGNED

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ZIP

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'Price SUbject to change without notice. LEGAL DIRECTORIES PUBLISHING COMPANY, INC. 2122 KIDWELL STREET P.O. BOX 140200 DALLAS. TEXAS 75214-0200 Telephone: (214) 824-8092 Facsimile: (214) 821-8553

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lY/1LUAAl E. BROlY/N. Pruidtnl Honorar)' Mnllbtr of lIN Nal;onal AJJocifltion oj ugal St,'rtlarin -


APRIL 1988