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The Arkansas

Lawyer

A publication of the

Arkansas Bar Association

Vol. 44, No.4, Fall 2009

online at www.arkbar.com

Tribute to the late Judith Ryan Gray

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Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail: ahubbard@arkbar.com editor Anna K. Hubbard executive director Karen K. Hutchins Editorial Board Gordon S. Rather, Jr., Chair Judge Wiley A. Branton, Jr. O. Milton Fine, II Judge Victor A. Fleming William D. Haught Jim L. Julian Philip E. Kaplan Mary Beth Matthews Drake Mann David H. Williams Teresa M. Wineland OFFICERS President Donna C. Pettus Board of Governors Chair Frank B. Sewall President-Elect Jim L. Julian Immediate Past President Rosalind M. Mouser Secretary F. Thomas Curry Treasurer William A. Martin Parliamentarian Charles D. Roscopf Young Lawyers Section Chair Anthony W. Juneau BOARD OF GOVERNORS Thomas M. Carpenter Richard C. Downing Causley Edwards Robert R. Estes, Jr. Amy Freedman David M. Fuqua Charles L. Harwell L. Kyle Heffley Anthony A. Hilliard Sean T. Keith Paul W. Keith Roy Beth Kelley Harry A. Light Laura E. Partlow Jerry D. Patterson Brian H. Ratcliff John C. Riedel Brian M. Rosenthal John T. Vines Tom D. Womack Dennis Zolper

LIAISON MEMBERS Zane A. Chrisman David B. Vandergriff Jack A. McNulty Karen K. Hutchins Judge Kim Bridgforth Carolyn B. Witherspoon Judge Harry A. Foltz

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. 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 to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2009, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 44, No. 4

features

3 Judith Ryan Gray - A Tribute By Judge Beth Deere and David M. “Mac” Glover 12 Toxic Judicial Elections: A Proposed Remedy Jusctice Robert L. Brown

16 Flag on the Play! Penalties, Late Charges and Attorney’s Fees in Arkansas W. Christopher Barrier

20 A Place to Call Home: Siting Manufactured Housing in Arkansas Walter G. Wright and Harry W. Hamlin 24 The Infinity Project Takes on Dearth of Women on the 8th Circuit Kayce Green

26 Supreme Court Justice Carroll D. Wood L. Scott Stafford

28 Book Review — “A Pryor Commitment: The Autobiography of David Pryor” Phillip H. McMath Contents Continued on Page 2

Lawyer The Arkansas Vol. 44, No. 4

in this issue

columns

Association News

6

Webinar Calendar

10

CLE Calendar

27

Donna C. Pettus

Board of Governors Meeting

30

Young Lawyers Section Report

Legislative Timetable

31

Anthony W. Juneau

Congratulations to New Admittees

33

Judicial Advisory Opinions

34

Lawyer Disciplinary Actions

34

In Memoriam

49

Arkansas Bar Foundation Memorials and Honoraria

51

Classified Advertising

52

President’s Report

Your Name in Print For information on submitting articles for publication, go to www.arkbar.com and click on The Arkansas Lawyer or email ahubbard@arkbar.com.

Arkansas Bar Association

2224 Cottondale Lane Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District C-1: James E. Scurlock Delegate District C-2: Jerrie Grady Delegate District C-3: Keith Chrestman, Brant Perkins, Teresa M. Franklin Delegate District C-4: Curtis Walker Delegate District C-5: A. Jan Thomas, Jr., Marshall A. Wright, Winston B. Collier Delegate District C-6: Charles E. Clawson, III, Shane A. Henry Delegate District C-7: William N. Reed Delegate District C-8: Brandon C. Robinson, Paul T. Bennett, Charles D. Roscopf Delegate District C-9: Timothy R. Leonard, Matthew J. Shepherd, C.C. Gibson III, Phillip A. Pesek Delegate District C-10: Shivali Sharma, and Open Position Delegate District C-11: John C. Finley, III, J. Philip McCorkle Delegate District C-12: Jacob M. Hargraves, Jonathan D. Jones and Open Position Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson Delegate District A-1: Vicki S. Vasser, Anthony W. Juneau, Anthony W. Noblin, Kristin Pawlik and Open Position Delegate District A-2: Brock Showalter, Buddy Chadick, Tim Tarvin, Debby Thetford Nye, Paul D. Reynolds, W. Marshall Prettyman, Jr., Robert R. Estes, Jr., Charles M. Duell, Troy L. Whitlow, Suzanne Clark and Open Position Delegate District A-3: Stephen C. Smith, Farrah L. Fielder, C. Michael Daily, Jeffrey D. Rickard, Joel D. Johnson, Stephanie Harper Easterling Delegate District A-4: Patrick C. McDaniel, John C. Riedel Delegate District A-5: Brent Capehart Delegate District A-6: Emily Sprott McIllwain Delegate District A-7: Jerry D. Patterson Delegate District B: Gwendolyn L. Rucker, Mitchell L. Berry, M. Stephen Bingham, Michelle H. Cauley, David P. Glover, Jay L. Shue, Jr., Elizabeth Thomas Smith, Joel M. DiPippa, Khayyam Eddings, Christian Harris, Ka Tina R. Hodge, Jeffrey Dale Wood, Gill A. Rogers, Alan G. Bryan, Tim J. Cullen, JaNan A. Davis, Jennifer W. Flinn, Anne Hughes White, Brendan T. Monaghan, Tasha Sossamon Taylor, Patrick L. Spivey, Shaneen Kelleybrew Sloan, Jason Earley, Jerald “Cliff” McKinney, II, John P. Perkins, III, Victor D. “Trey” White, Mark W. Hodge, Cathy Underwood, Jodie Lynn Hill, Grant M. Cox Law Student Representatives: Austin Easley, University of Arkansas School of Law; Aimie Lockwood, UALR William H. Bowen School of Law

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The Arkansas Lawyer

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Tribute

Judith Ryan Gray — A Tribute

“Blessed is the influence of one true, loving human soul on another.” ~ George Eliot (Mary Ann Evans)

By Judge Beth Deere and Judge David M. “Mac” Glover Judith Ryan Gray loved lawyers and dedicated virtually all of her professional life to promoting the legal profession. She served the Arkansas Bar Association for forty years – officially as our Associate Executive Director, but in fact, as our anchor, organizer, program planner, promoter, recruiter, and ambassador extraordinaire. It is not accurate to say that Judith was the face of the Bar Association. She would never have it so; rather, she worked behind the scenes, so that the rest of us got credit for her masterly planning. But if Judith was not the face of the Bar, she surely was its heart. Judith had remarkable influence throughout the state – not only with lawyers, but also with judges. Federal judges appointed her to merit selection panels and investiture committees; state judges regularly relied on her expertise in planning their appearances at legal education meetings; Bar Presidents and their spouses blessed her name; and lawyers honored her with countless awards over the years in appreciation of her unparalleled service to the legal profession. Newly minted lawyers looked to Judith as a mentor, guide, and career counselor. She served on scholarship committees for countless law students, applying her uncanny knack for ferreting out budding legal talent. She had a particular eye for diamonds-in-the-rough. Judith was genuinely touched and grateful for all of the honors and accolades, but she remained humble and thoroughly down-to-earth. Judith was not a daughter of the South exactly – at least not by birth. She was born in Newfoundland, Canada, and was molded by her Irish heritage. But southern graciousness came second nature to Judith. She was an expert on protocol, which was fortunate because she frequently was called upon to calm flustered Bar Presidents, smooth ruffled feathers, and untangle knotty social issues that would have set Emily Post aswoon. She well knew fine china and the feel of quality paper, but she never let niceties leave anyone in the room feeling overwhelmed, out of place, or unwelcome. For all of her kindness, class, and polish, Judith had a backbone of steel. On matters of principle, there was no retreat. She was famous for gently – but summarily – dispatching outsized egos to their proper places. (We affectionately refer to this procedure as being “Judithized.”) She had a quick wit, but found no humor in gibes, barbs or stereotypes. Judith’s stalwart championing of lawyers and our profession was legendary and went far beyond objecting to bad lawyer jokes. She once took on the United States Postal Service on our behalf. As it happened, the postal powers-that-be put the Association on notice that its non-profit status was being cancelled on grounds that the Association was not primarily an educational, i.e., charitable, entity. Judith took great umbrage at this decision. She gave the local postmaster what-for, and continued to fight the battle for two full years – alas, to no avail. Never mind the loss of a discounted mailing rate; Judith’s outrage was at the very idea that anyone – including the Postmaster General – would question the Bar Association’s dedication to

the education and enlightenment of its members. Her skirmish with the federal equivalent of “city hall” occurred a quarter of a century ago, but Judith’s Irish ire at the slight never abated. She proudly became a naturalized United States citizen and enthusiastically swore her allegiance, but it can now be told that she never forgave the United States Post Office. Judith’s remarkable effectiveness stemmed, in large part, from her core belief that credit is infinitely divisible. She often quoted President Harry S. Truman’s aphorism: “It’s amazing what you can accomplish when it doesn’t matter who gets the credit.” She was at once an optimist and a realist – always expecting the best of people, but ready with a backup plan. What would Judith Gray want her legacy to be? How should we remember her? The Law According to Judith teaches that the law is a noble profession, a calling that requires us to conduct ourselves uprightly – to serve and to volunteer. We can honor Judith by making the time – and creating the opportunity – to mentor a young lawyer; to support a law school scholarship; to teach a class; to present a continuing legal education program; to volunteer for a community project; to represent a person who cannot afford a lawyer. Indeed, our ultimate honor to Judith’s memory would be our commitment to becoming the lawyers – and people – Judith Gray always thought we were. Beth Deere is a United States Magistrate Judge for the Eastern District of Arkansas. David M. “Mac” Glover serves on the Court of Appeals for the State of Arkansas.

Portrait Unveiling Ceremony l to r: Paula Harvie, Mark Gray, Barbara Rugienius, Brenda Cleary and (present but not pictured) Ruth Ann Ryan The Arkansas Bar Foundation and Arkansas Bar Association hosted a portrait unveiling ceremony to honor the memory of Judith Ryan Gray on September 24, 2009, at the Arkansas Bar Center. Gray’s photographic portrait was unveiled by her son, Mark Gray, of Alexandria, Virginia. Her four sisters (see above) and other family members Trey and Jana Williams were present as well. The portrait is displayed in a prominent location on the first floor of the Arkansas Bar Center.

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The Arkansas Lawyer

www.arkbar.com

President’s Report

by Donna C. Pettus

Catching Up to Techno Bears We call our oldest grandson “technobear.” He loves all toys having to do with technology. His young life at age six is very different in that respect from the lives many of us knew as children. His future will be as well. If we want to understand him, we have to catch up with him. In a sense, our lives as lawyers are also that way. If we older lawyers want to understand the younger ones, we’ve got to catch up. For the Bar Association to serve all our members well not only do we have to catch up, we have to prepare for the future. We have to predict. We must become a techno-bar. It is not only the law that is ever changing and dynamic. The way we deliver, receive it, and use it is ever changing as well. My husband started a solo practice some 35 years ago. Of course in those days he operated on a shoestring and hired his young wife (me) to be his secretary. I was not a good typist. But I bravely hit the keys on that little Olivetti electric typewriter and forged through five pages of carbon paper and numerous white-outs and mistakes. He tolerated it all pretty well. It wasn’t too very long before we could afford a copy machine. Then came a “mag” card typewriter that allowed us to run rough drafts and make final corrections before the document was run in the smooth. I thought I was in heaven. That did not last long. In the 1980’s, we were introduced to computers and our world changed dramatically. We can never get comfortable with the status quo. While I have talked a great deal about tradition and its importance, I know the importance of looking forward. So does your Association. I have said, somewhat bravely, that your Association is entering a new era. I believe it is true. We will do so carefully but with a certain amount of “faith

leaping” as well. One of the ways we are doing so is by engaging in a thoughtful process of long range planning. There is a stellar group of committee members from all over the state and diverse areas of practice engaging in this process right now. Here are some of the ideas and goals being discussed: I. Improve the public understanding of the legal system. a. Sponsor legislation requiring high school civics education. b. Partner with our courts’ projects to make web-based civics games available to each student. c. Partner with Arkansas television stations and local bar associations to present a lawyerstaffed call-in opportunity for citizens. d. Find additional ways to use innovative technology to communicate the Bar’s message to the general public. II. Promote access to justice. a. Reevaluate the Association’s overall message regarding pro bono and access to justice issues among the bar. b. Consider an option on the annual dues statement to contribute an additional amount for access to justice efforts. c. Periodically review access to justice activities from other states and bar associations. III. Promote a fair, impartial, and independent system of justice. a. Identify approaches that will relieve pressure on the courts (e.g. alternative dispute resolution). Find ways to streamline, reduce court loads, and demonstrate how to deliver a more effective and efficient product. b. Develop relationships with strong business leaders in the community (e.g. Chambers of Commerce leaders). c. Educate the public about the judicial system. Continue to promote civics edu-

cation within Arkansas high schools and continue support of the Justice Teaching program. IV. Promote professionalism and civility within the profession. a. Promote community activity within the profession through the bar. b. Promote diversity. c. Establish a mentoring program. This list is not all-inclusive, but you can see there is a great deal of forward thinking. It’s happening not only in long range planning but with the things we are doing right now, including the development of a new website and database and social networking with Facebook, LinkedIn and Twitter. Our goal is to use these social media tools to connect to the members and for the members to connect with each other. At a site such as LinkedIn, members will be able to find out more about their colleagues, see who they have recommended for certain services, and leave private messages for each other. It can help to create a network of people to use for consulting, filling job openings, and other similar uses. If we do it right, we will have a closer and stronger bar. We will provide the kind of networking never before available to our members and we will be a very grown up techno-bar. Most of all we want to be in a good position so that when social media becomes “the medium” we are ready with the knowledge and resources to handle it. If we do not change and grow we will be a techno-bar left in hibernation. Check out this You Tube video by the Connecticut Bar Association that talks about how bar associations and law firms are embracing the new technologies: http://www. youtube.com/watch?v=WyLgIvTaQY0.n

Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

5

Association News The Law Related Education Committee Received Community & Educational Outreach Award

atters To You

and intimidating, it really has a of rules, and require someone n broken. Judges, like referees, he outcome as long as it is fair. d a loser, but our Constitution ort video and instructor’s guide, brate our country’s most noble

mpartial and Independent Judiciary

ASSOCIATION SYSTEM MATTERS TO YOU” SIC BY ADRIAN TILLMAN AY BY NICK ROGERS TRT: 20 MIN

mmittee

www.arkbar.com

Why the American Legal System Matters To You

“Every generation has an obligation to pass on to the next generation the principles that this country was founded on.” Governor Mike Beebe

The Arkansas Bar Association’s Law Related Education Committee received the Community and Educational Outreach Award WHY THE AMERICAN LEGAL SYSTEM MATTERS TO YOU at the National Association of Bar Executives Annual Meeting in Chicago on July 31, 2009. The committee received the award for its production of the DVD “A Level Playing Field: Why the American Justice System Matters to You.” The free 20-minute video was designed to help educate students about the American judicial system. A short excerpt from the DVD can be seen on YouTube at the following site: http://www.youtube.com/ watch?v=tDvzw4QfI_g. Please contact the Association at (501) 375-4606 to make plans to present the DVD to your local school. DVD and Instructor’s Guide

Falasco Honored for Pro Bono Work

Arkansas Bar Center

l to r: Colonel Charles Singleton, Joseph R. Falasco and Captain Tom Lee Joseph R. Falasco, an attorney with Quattlebaum, Grooms, Tull & Burrow PLLC, was awarded the Arkansas Exceptional Service Medal by Governor Mike Beebe. Representatives from the Arkansas National Gaurd presented the award in appreciation and recognition of Falasco’s successful pro bono representation of an active duty member of the Arkansas National Guard. Falasco was recognized for his nearly 100 hours of pro bono legal work on the guardsman’s case which began in circuit court in July 2007 and culminated with a favorable ruling from the Arkansas Supreme Court in June 2009.

Space available for: n Meetings n Receptions n Mediations n Arbitrations n Depositions n Visiting attorneys n Video Conferencing n Free for members

Wendy Darling Arkansas Bar Association Receptionist

Constitution Day

Colette Honorable at Central High School on Constitution Day Arkansas Public Service Commissioner Colette Honorable was one of the many Association volunteers who presented “A Level Playing Field” to high school students throughout the state in celebration of Constitution Day, September 19, 2009. 66

The The Arkansas Arkansas Lawyer Lawyer

www.arkbar.com www.arkbar.com

Wendy Darling has been hired as the Association’s Receptionist. Wendy brings a wealth of experience to the Association including work as a medical secretary, administrative assistant and office manager. Wendy received an Associates Degree in Liberal Arts from Arkansas State University-Beebe. She lives in Cabot and has two daughters, Madisyn (8 years old) and Cheyenne (3 years old).

To reserve call 501-375-4606 or 800-609-5668

Association News

Oyez! Oyez! ACCOLADES McMath Woods partner Phillip H. McMath was admitted into the Arkansas Writers’ Hall of Fame. Susan Polk won the American Bar Association on Women in the Profession’s 20th Anniversary Essay Competition on gender diversity. The Texarkana Young Lawyers Association received three awards at the annual ABA convention held in Chicago on August 3, 2009. These included a 1st place Comprehensive Affiliate Award and Special Recognition for their newsletter, The Footnote. The Arkansas Bar Association Government Practice Section presented the Outstanding Government Attorney Award to Anthony W. Black, General Counsel for the Department of Information Systems. Mr. Black was also awarded the Young Alumnus of the Year award from the University of Arkansas at Little Rock College of Business. Cathy Underwood, Paralegal Instructor for Pulaski Technical College, recently became the first certified TrialDirector trainer in Arkansas. Cliff McKinney of Quattlebaum, Grooms, Tull & Burrow PLLC recently became the first attorney in Arkansas to obtain the LEED® (Leadership in Energy and Environmental Design) Accredited Professional designation. APPOINTMENTS AND ELECTIONS W. Kelvin Wyrick Sr. of Texarkana has been appointed to serve Miller and Lafayette counties as circuit judge. Wyrick fills the Division II position of the Eighth Judicial District South left vacant by the death of Judge Jim Hudson. Andrew Bailey was elected to serve as the President of the Baxter County Bar Association for 2009-2010. Sebastian County Circuit Judge Harry A. Foltz has been elected President of the Arkansas Judicial Council. The Sebastian County Bar Association announces that for 2009-2010, Coby W. Logan of Daily & Woods, P.L.L.C. has been elected President, Sonya K. Hall of First National Bank of Fort Smith has been elected Vice President, and Kathryn A. Stocks of Warner, Smith & Harris, P.L.C. has been elected Secretary / Treasurer. Judge James O. Cox, Judge Mary S. McGowan and Judge Barbara A. Halsey were appointed as an Arkansas Judicial Delegation to the National Conference of State Trial Judges. Philip E. Kaplan of Williams & Anderson has been named by Arkansas Governor Mike Beebe as the Board Chairman of the newly constituted Martin Luther King Commission. Mr. Kaplan has also been named by Chief Justice Hannah as the Arkansas representative to the American Bar Association Commission on the American Jury. Janet L. Pulliam of Williams & Anderson has been appointed by the American Bar Association Health Law Section as the Vice Chair of the Employee Benefits & Executive Compensation Interest Group. Edward H. Schieffler of Helena-West Helena was appointed to serve as a member of the Board of Visitors of Phillips Community College of the University of Arkansas. Michael Barnes of Wright, Lindsey & Jennings LLP was named president of the Arkansas Association of Defense Counsel for 2009-2010. The University of Arkansas - Fort Smith named Kyle D. Parker to the new position of Vice Chancellor for Planning and Technology. WORD ABOUT TOWN Eric L. Worsham of Baim, Gunti, Mouser, Havner & Worsham, PLC was appointed to serve as Chair of the Administrative Law Division of the Arkansas Trial Lawyers Association. Baim, Gunti, Mouser, Havner & Worsham, PLC welcomed the addition of Camille Edmison-Wilhelmi as an associate attorney, practicing primarily in the areas of consumer bankruptcy and litigation. The firm also announced the opening of a fifth office at 212 Center Street in Little Rock. The firm has additional offices in Pine Bluff, El Dorado, Hot Springs, and Hot Springs Village. David A. Bailey of Siloam Springs is now a Visiting Professor at the University of Arkansas School of Law in Fayetteville. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. is pleased to announce that M. Scott Hall has joined the firm as an associate in the Northwest Arkansas office. Andy Taylor joined Cullen & Co., PLLC in August of 2009 where his practice focuses on appellate practice, commercial and residential real estate, and general civil litigation. Christopher Brockett has opened his own firm and will specialize in federal and state tax controversies, probate, litigation, estate and business planning, and corporate law. His new contact information is Hatfield & Sayre, 401 West Capitol Ave., Suite 502, Little Rock 72201. Shaneen Kelleybrew Sloan recently became a partner in the Little Rock law firm of Hyden, Miron & Foster, PLLC where she will continue her practice in the areas of tax, estate planning, probate and business law. Quattlebaum, Grooms, Tull & Burrow PLLC announced that Billy C. Pharis joined the firm, practicing primarily in the areas of bankruptcy and debtor creditor rights. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. announced the completion of new construction on its Rogers office located at 5414 Pinnacle Point Drive, Suite 500. The firm also announced that Leigh Anne Yeargan who leads the firm’s Labor and Employment Team moved from the firm’s Little Rock office to Rogers. Wilson & Associates, P.L.L.C. announced that J.P. Sellers is a new attorney located in the Little Rock office. We encourage you to submit information for publication in OYEZ! OYEZ! To do so, please send information to: ahubbard@arkbar.com. Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

7

News Joyce Bobbitt Marks 25th Anniversary with the Arkansas Bar Foundation Medical Insurance Options for Members of the Arkansas Bar Association The Arkansas Bar Association has partnered with Regions Insurance to provide two Medical Insurance options for Members of the Bar Association and their employees. Option 1 is Full Medical Insurance. Regions Insurance has a number of insurance carriers to which they can submit applications for one person or a group of two or more people. These carriers require full medical underwriting. l to r: Ann Dixon Pyle and Joyce Bobbitt May 10, 2009, marked Joyce Bobbitt’s 25th anniversary working as Bookkeeper and Administrative Assistant for the Arkansas Bar Foundation. “Her loyalty, work ethic and commitment to the Foundation and its Fellows are invaluable,” said Ann Dixon Pyle, Executive Director of the Arkansas Bar Foundation. “She is an asset to this organization and it has been an absolute pleasure to work with her for the past fourteen years.” Foundation President David Vandergriff said, “Joyce’s work behind the scenes is greatly appreciated by the leadership of the Foundation. The Foundation Board is grateful for her years of service and hard work.”

Option 2 is LIMITED Medical Insurance. This insurance is for Individuals only and is Guaranteed Acceptance. This insurance is subject to preexisting conditions, but once you have been insured for one year the preexisting conditions are covered. There are various plans available. Employees of Bar Association Members may also submit applications for either Option 1 or Option 2 independently of their employers.

$

Value of Membership Free online legal research with Arkansas VersusLaw $ave on annual fees

Free meeting space at the Arkansas Bar Center $200/day value

Free video conferencing at the Arkansas Bar Center $250/day value

Arkansas Bar Foundation Mid Year Dinner Friday, February 12, 2010 The Little Rock Club

Discounts on ArkBar Practice Handbooks $ave over $50/book

Discount on the ArkBar Annual Meeting $ave over $200

Discounts on ArkBar CLE Seminars $ave $60/Day

Free Weekly Case Summaries

Free subscriptions to The Arkansas Lawyer and ArkBar weekly e-bulletins priceless!

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The Arkansas Lawyer

www.arkbar.com

Young Lawyers Section Report

by Anthony W. Juneau

Community Service: Our Responsibility

18

ife to

and L

Go:

Law Day

k for ndboo s al Ha n A Leg g Arkansa Youn

May 1, 2010

tion

First Edi tion ed by Prepar Associa as Bar s Section Arkans Lawyer Young

The Young Lawyers Section (“YLS”) is off to a great Bar year. One of the YLS’s primary projects for the year is the Wills for Heroes Program. Through the Wills for Heroes Program, the YLS will offer free wills and other estate planning documents to Arkansas’s fire fighters, police officers, and first responders. This program will allow the YLS to say “Thank You” to those who provide a great service to our state and its citizens. Co-chairs Brandon Moffitt (Little Rock) and Zach White (Heber Springs), have done a great job organizing this project. Additionally, several YLS members from all three Bar Districts have expressed a willingness to volunteer their time and abilities to assist with the Wills for Heroes Program. Over the next several months, the YLS volunteers will begin scheduling times to meet with the “heroes” to prepare their estate planning documents. The YLS is also in the process of raising money to distribute the “18 & Life To Go: A Legal Handbook for Young Arkansans” publication (“Handbook”). This publication will provide high school seniors with a brief overview of Arkansas law on topics such as contracts, real estate, torts, family law, and criminal law. The YLS’s ultimate goal is to place a copy of this publication into the hands of every high school senior in the state. We estimate that it will cost $20,000 to $30,000 per year to publish the Handbook. Over the last three months, we have spoken with several state departments and corporations about funding this worth-

while project. Although we have not yet obtained the money necessary to print the requisite number of handbooks this year, I am confident that we will obtain the needed funding. To view a copy of the Handbook, please visit the Association’s website at www.arkbar.com. On October 1 & 2, the YLS presented the “Bridging the Gap: Filling the Gap Between Law School and Practice” CLE Seminar at the UALR Bowen School of Law. Topics discussed included mediation, solo practice planning, estate planning, bankruptcy, family law, and e-discovery. Every year, the Bridging the Gap seminar provides a great opportunity for young lawyers to learn various aspects of the practice of law from experienced and qualified attorneys. As always, the YLS is grateful to the members of the Bar, which included both state and federal judges, who donated their valuable time to present at this CLE. The newest members of the Arkansas Bar Association were sworn in at the Arkansas Supreme Court on October 23, 2009. The YLS greeted the new attorneys and provided them with literature about the Association, as well as a Statute of Limitations Handbook. As its name indicates, The Statute of Limitations Handbook, which was updated by the YLS two years ago, provides the statute of limitations for all causes of action in Arkansas. All new admittees are automatic members of the Association’s Young Lawyers Section. As discussed in the Summer 2009 edi-

“Through the Wills for Heroes Program, the YLS will offer free wills and other estate planning documents to Arkansas’s fire fighters, police officers, and first responders. This pogram will allow the YLS to say “Thank You” to those who provide a great service to our state and its citizens.” tion of The Arkansas Lawyer, the YLS will conduct more “meet and greet” events this year than it has in the past. In September, IVIZE, a litigation support and discovery management company, sponsored a social event in Little Rock, which was well attended by members of the YLS. IVIZE has also expressed an interest in hosting an event in Fayetteville, which is expected to take place in November. Members of the YLS will receive notification of the Fayetteville event, as well as all other social events, by e-mail. The YLS consists of all members of the Association who are under the age of thirtysix and/or who have practiced for less than five years. The YLS is always in need of volunteers to assist with its many projects. If you are interested in volunteering your time and abilities to the YLS, please contact me at 479-464-5657 or by e-mail at tjuneau@ mwlaw.com. n

Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

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Upcoming Webinars Record Retention and Destruction

Wednesday, October 28, 2009 12:00 - 1:00 p.m. 1 CLE Ethics Hour Speaker: Todd L. Newton, Mitchell, Williams, Gates & Woodyard P.L.L.C., Little Rock Covers the type of records to be retained, retention periods, e-mail retention, security issues, litigation holds, and destruction issues.

Media Savvy Litigation in the Internet Age

Thursday, November 12, 2009 12:00 - 1:00 p.m. 1 CLE Ethics Hour Speaker: David Margulies, The Margulies Communications Group, Dallas, TX This program focuses on how the Internet has changed the way attorneys interact with their clients, the public and the news media.

The Anatomy of a Small Estate

Wednesday, November 18, 2009 12:00 - 1:00 p.m. 1 CLE Hour Speakers: Dan C. Young, Rose Law Firm, Little Rock and Claibourne W. Patty, Attorney at Law, North Little Rock A fundamental program designed for new attorneys, attorneys unfamiliar with the Arkansas Probate process, or trust and estate attorneys who want to brush up on their basic skills. The session will cover when a small estate administration is appropriate, drafting the affidavit of small estate, notice requirements, and real estate matters.

Due Diligence in Bankruptcy Exemption Analysis: Representation of the Migratory Debtor

Tuesday, December 1, 2009 12:00 - 1:00 p.m. 1 CLE Hour Speaker: Tim Tarvin, Assistant Professor of Law, University of Arkansas School of Law, Fayetteville Addresses the representation of debtors who have relocated to Arkansas prior to filing, and those who are considering relocating from Arkansas. The program covers the special due diligence considerations for counsel under those circumstances that present a trap for the unwary.

For more information contact Lynne Brown 800-609-5668 or 501-375-4606 lbrown@arkbar.com OR go to www.arkbar.com

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It is more important than ever to understand your 401(k) fees. 401(k) fees can be assessed as explicit out-of-pocket expenses or charged as a percentage of assets. These expenses can be charged to either the sponsoring law firm or the plan’s participants. Often they are assessed both ways, in some combination to the firm and its participants.

Unique 401(k) Plans for Law Firms

HOW IS THE ABA RETIREMENT FUNDS PROGRAM DIFFERENT FROM OTHER PROVIDERS? TWO REASONS: 1. The ABA Retirement Funds program was created by a notfor-profit organization within the ABA to provide a member benefit, not generate revenue for the ABA. 2. The ABA Retirement Funds program achieves the necessary economies of scale with over $3 billion invested to eliminate all explicit fees for firms, and provide investments for participants with low asset based fees. Let the ABA Retirement Funds program provide you with a cost comparison so you can better understand your direct 401(k) fees, and see how we can help you to provide an affordable 401(k), without sacrificing service, to your firm. For more details contact us by phone (877) 947-2272, by email abaretirement@us.ing.com or on the web at www.abaretirement.com

You should consider the investment objectives, risks, charges and expenses of the investment options carefully before investing. Please refer to the most recent Program prospectus for such information. For a copy of the Prospectus with more complete information, including charges and expenses associated with the Program, or to speak to a Program consultant, call 1-877-947-2272, or visit www.abaretirement.com or write ABA Retirement Funds P.O. Box 5142, Boston, MA 02206-5142 - abaretirement@us.ing.com. Please read the information carefully before investing. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute, and is in no way a recommendation with respect to any security that is available through the Program. 04/09 Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer 11

Toxic Judicial Elections: A Proposed Remedy by Justice Robert L. Brown*

Photograph courtesy of the Arkansas Supreme Court

G

“The Old Order Changeth, Yielding Place to New.” Alfred Lord Tennyson

et prepared. In a relatively short period of time, there will be at least five elections for positions on the Arkansas Supreme Court and maybe more. In 2010, two elections will take place. An election will be held to fill the seat formerly held by Justice Tom Glaze and currently held by Justice Elana Cunningham Wills, who was appointed to fill Justice Glaze’s unexpired term. A second election will be held for the seat currently held by Justice Annabelle Clinton Imber who is retiring, effective January 1, 2010. In 2012, Justice Jim Gunter will be up for reelection, and he will be able to run again. In 2014, two justices’ terms will end – Justice Don Corbin and my term. Justice Corbin and I will be effectively precluded by state law from running again due to retirement forfeiture after the age of 70.1 In 2016, Chief Justice Jim Hannah’s and Justice Paul Danielson’s terms will expire, and because they will be over age 70, they will not run again. What is radiantly clear is that in the next few years the composition of the court will undergo a sea change. But just as importantly, five elections for vacancies will most likely be contested. The same cannot be said for the two races where incumbents will be running because incumbents have a decided advantage.2 Arkansas has been fortunate in that it has not fallen victim to the toxic and vitriolic judicial campaigns of our sister states or to the considerable expense those campaigns have engendered. To give you some idea, judicial campaigns for the supreme court in Alabama in 2008 cost $5.3 million. They cost $9.3 million in Illinois in 2004. A 2008 election for the high court in Wisconsin cost approximately $6 million, with $4.8 million contributed by special interest groups and $1.2 million raised on behalf of the candidates themselves. In Michigan, the price tag for Chief Justice in 2008 exceeded $7.5 million.

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The Michigan race is illustrative. Michigan Chief Justice Cliff Taylor was defeated by challenger Diane Hathaway in an election called an “orgy of negativity.”3 A number of attack ads were run on television by both candidates, the majority of which were paid for by special interest groups, including the Michigan Democratic and Republican parties and the Michigan Chamber of Commerce, at a cost in excess of $3.8 million.4 Taylor raised, in addition, a Michigan record of over $1.9 million, and Hathaway raised $752,000. Here is a sampling of the ads: •The “Good Soldier,” a Democratic ad that depicts Taylor as a pawn of business groups who has prevented women from suing their employers when harassed and even raped in the workplace. •“Terrorist Sympathizer,” A Republican ad, citing a decision by Hathaway to give an Arab American probation, ends by saying, “Probation for a terrorist sympathizer? We’re at war with terrorists.”5 Perhaps the most egregious and offensive ads in recent memory were run in a Wisconsin supreme court race where the first African-American justice in Wisconsin, Justice Louis Butler, was also the first incumbent justice to lose an election in 40 years. Butler’s challenger, Michael Gableman, ran WillieHorton-type ads, one of which involved a picture of an African-American offender and the following voiceover: “Louis Butler worked to put criminals back on the street. Like Ruben Mitchell who raped an 11-yearold girl with a learning disability. Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?” A judicial commission later found the ad to be false and in violation of the judicial code. The response on Justice Butler’s behalf was to air ads accusing Gableman of being “soft” on sex offenders. In short, demagoguery and outrageouslyhigh campaign contributions are emerging as the twin ingredients for success in supreme court elections. And when high-dollar contributions are made in connection with a particular case, the integrity of the judiciary is instantly sullied. This occurred in a notorious case that was decided by the United

States Supreme Court last June. A West Virginia Supreme Court justice got the benefit of a $3 million contribution to his campaign through a special interest group and then cast the deciding vote in favor of the company owned in part by that contributor.6 Sounds like the scenario in John Grisham’s The Appeal, doesn’t it? The Court held that the facts of that case required the justice to recuse because his sitting on the case violated the plaintiff ’s rights under the Due Process Clause. The probability of actual bias, according to the Court, necessitated recusal. Though Arkansas has escaped these poisonous elections for the most part, the storm clouds may be forming due to controversial decisions by my court. One commentator speculated last May that because of the court’s decision striking down part of the General Assembly’s tort reform legislation as unconstitutional, a long-term strategy by tort reformers would be to put new justices on the court, which would pit big business against trial lawyers.7 The Arkansas Supreme Court has taken minor steps to safeguard the integrity of the judicial campaign process. For example, under the recently revised Judicial Code of Conduct, which became effective July 1, 2009, a formal campaign for a judgeship may begin no earlier than 365 days before the date of the election, and the parameters of raising money no earlier than 180 days before the election and 45 days after an election were retained.8 Plus, the Code provides that judicial candidates shall not make pledges or promises on cases or matters likely to come before the court that are inconsistent with an impartial performance of their duties.9 The Code also prohibits judicial candidates from knowingly making false and misleading statements and provides, by comment, that the assailed opponent may make a public response.10 But more substantial action needs to be taken if we are to ward off the abuses in the judicial election process that have afflicted our sister states. a. Judicial Campaign Oversight Committees. The prophylactic mechanism for campaign abuses that has gained the most currency in our sister states is the judicial campaign oversight committee.11 Fourteen states have these committees: (1) to educate judicial candidates about relevant judicial canons of ethics and campaign finance regulations; (2) to evaluate judicial campaign materials

and answer candidates’ questions about campaign ads and tactics; (3) to disclose to the public any candidate misconduct; and (4) to refer the offending candidates to an official discipline entity.12 These oversight committees may be “official” committees, which means created by either state supreme courts, judicial disciplinary entities, or mandatory state bar associations.13 Or they may be “unofficial” committees established by voluntary bar associations, such as Arkansas has, or by groups unaffiliated with state government.14 A major disadvantage of an official committee is that, as a state actor, it is limited in criticizing candidate speech by the First Amendment.15 Without those constraints, an unofficial committee is generally free to protest misleading and demagogic political speech. A second advantage of an unofficial committee is that it generally has a more diverse membership, as opposed to purely political appointees, which gives it more credibility with the public.16 On the diversity point, the American Bar Association recommends that committee membership be divided equally between lawyers and non-lawyers. The National Ad Hoc Advisory Committee on Judicial Campaign Conduct goes further and advocates that oversight committee membership include community leaders like clergy, doctors, farmers, former legislators, and any other person who may have stature in the community. A media representative would clearly add heft to the committee. An established oversight committee would then furnish all candidates, as well as their campaign committees, with information about candidate do’s and don’ts under the applicable canons of judicial ethics and conduct, including acceptable and unacceptable campaign behavior, campaign finance regulations, the judicial campaign committee’s rules and procedures, and sample complaint forms.17 To drive the ethical point home, the over-

Justice Robert L. Brown has served on the Arkansas Supreme Court since 1991.

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“Though Arkansas has escaped these poisonous elections for the most part, the storm clouds may be forming due to controversial decisions by my court. One commentator speculated last May that because of the court’s decision striking down part of the General Assembly’s tort reform legislation as unconstitutional, a long-term strategy by tort reformers would be to put new justices on the court, which would pit big business against trial lawyers.

sight committee would next ask judicial candidates to sign voluntary pledge agreements. Samples of what candidates might pledge include: •that they have read and understand the applicable provisions of the Code of Judicial Conduct; •that they will take personal responsibility for all campaign statements and campaign materials; •that they will publicly disavow and condemn inappropriate advertising and campaign materials from outside interest groups; •that they will allow the oversight committee to preview their advertising and campaign materials on the basis of guidelines published by a state bar association; •that they will abide by the judicial campaign oversight committee’s established procedures; and •that they will request that their supporters also comply with the Code of Judicial Conduct.18 The hammer in other states to encourage signing the pledge has been the media’s publication of lists of those who do and do not sign pledges. In 2006, the incumbent chief justice of the Alabama Supreme Court refused to sign a pledge, and he was defeated by a challenger who did sign. A signed pledge by the judicial candidates also provides a basis for the oversight committee’s response.19 For example, in 2006, the Kentucky Judicial Campaign Conduct Committee issued a 14

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press release criticizing a supreme court candidate who had failed to abide by his signed pledge. The press release read: “We think Judge Johnson’s view of judicial campaigning is off the mark, and not in keeping with the campaign agreement that we offered to candidates this summer–an agreement he signed.” Johnson subsequently lost the election. By far the most critical function of the oversight committee is to monitor judicial campaign conduct. The catalyst for action against offending conduct would be a filed complaint by a third party, but the committee would also have the power to act on its own initiative.20 A rapid response to serious campaign misconduct, including misleading and inaccurate television ads, is mandatory. Without such a response, the damage will have been done in short order. A few oversight committees in other states designate subcommittees to act as rapid-response teams.21 Nevada’s oversight committee, for example, has a total of 28 members but designates a subcommittee of five to immediately decide matters related to unfair campaign tactics. In order to ensure expeditious responses, these subcommittee members are on-call during the last three weeks before the election. The New York State Bar Association proposed a model committee that would meet within two business days from the receipt of a complaint in order to ensure a quick response to egregious campaign activity. Another hammer employed by oversight

committees is the authority to condemn campaign misconduct publicly. All oversight committees report that they first ask the offending candidate to disavow misleading and offensive campaign conduct.22 As a last resort, committees will issue press releases or report conduct to the appropriate judicial disciplinary authority or both. One example of a committee’s response to campaign conduct occurred when a judicial candidate in Florida claimed in her campaign literature and a speech that she had prior legal experience working for both the State’s Attorney General and Public Defender. Her experience, however, at both offices had been as a short-term legal intern. The state oversight committee issued an advisory opinion that the candidate had misrepresented her experience and noted it was “saddened and disheartened” by the “lack of candor” from this candidate. b. Voters’ Guides. In 2002, a national poll conducted by the Justice at Stake project revealed that 81 percent of the polled state court judges believed that states should provide voters’ guides to the public on judicial candidates prior to judicial elections. Perhaps more importantly, 92 percent of voters polled expressed support for a voters’ guide.23 A second illuminating poll on judicial-selection issues was conducted in 2002, which involved 830 Illinois voters. Seventy-eight percent of those Elections continued on page 40

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FLAG ON THE PLAY! PENALTIES, LATE CHARGES AND ATTORNEY’S FEES IN ARKANSAS by W. Christopher Barrier

P

enalties on the diamond, gridiron, court or rink are intended to discourage undesirable behavior, from delay of the game to spearing with a hockey stick. In the legal context, penalties of various kinds may have that same purpose, but they can also serve to compensate for losses. They are not favored by the courts and, hence, they may be enforceable or not, depending on which purpose is ascribed to them by the judicial referee.1 In a period of rising rates of loan default, especially loans secured by real estate, lenders do not often have the luxury of worrying about collecting the penalties represented by late fees or legal fees or pondering legal theory. However, because these fees can become an issue in workouts and takeouts and lenders, borrowers and especially lawyers need to know the rules before they take the field. Crosstraining in other areas can also provide useful conditioning. Offensive holding… The most troublesome situation regarding penalties arises in takeouts of delinquent loans, especially those that have matured. Suppose you as lender hold a note with a $1,000,000 principal balance that calls for a late payment penalty of five percent of past due installments and the note balloons without being paid off. Late charges on monthly installments may be less than $200 each, while the ballooned default in this case may call for a penalty of $50,000. No problem. It’s negotiable and having the penalty in place makes a handy pry pole for settlement, right? Maybe. Suppose the borrower has obtained a takeout lender for the entire balance, probably through a sale of a portion of the encumbered assets. Suppose also that the borrower has accepted the increase in the interest borne by the loan after default and is also prepared to reimburse the lender every cent of its out of pocket expenses, all of which are verifiable– but none of the late payment penalty. Suppose finally that the borrower says his sale will crater if he has to come up with much additional cash–and you have reason to believe that is actually true. Where does that leave your lender’s lawyer in terms of (a) your negotiating position, and (b) possible lender liability? Hard times mean tough calls… Well, first keep in mind that the issue also can come up in the context of deeds in lieu of foreclosure, when the tendered property satisfies only part of the debt and there is a workout for the rest. How that remaining balance is calculated may turn on the inclusion

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or exclusion of late charges, especially if late charges for more than one monthly default have been included. It also can come up in utilizing non-judicial foreclosure. The terms of that statute–especially as to minimum bid amounts, distribution of proceeds, amounts needed to reinstate and calculation of deficiencies–arguably do not include late penalties, monthly or otherwise, in the process at all unless they represent actual collection costs.2 So, don’t be caught off-sides. Gentlemen, this is a football… Again, resolving these issues in each of these contexts depends in part on understanding the nature of late charges and penalties. Despite the use of the term “penalty,” late charges are in fact intended as a type of liquidated damages and not as a means for penalizing (i.e., punishing) the shortcomings of the borrower. They are included in contracts to be payable on a default, such as not making a monthly payment within the grace period permitted in the documents. They are intended to approximate the extra effort and expense expended by the lender in collecting past due payments. Attributing a specific amount of collection expense to the collection of one isolated, discrete loan payment is really not practical, so the parties may agree to a standard late fee of perhaps five percent of the overdue payment.3 The classic liquidated damages situation occurs in contracts to purchase real estate. Should a buyer refuse to go through with a purchase for which he has contracted, the buyer may rightly insist that damages are inappropriate at the time, because the seller has not been damaged–she still has a property which is worth the purchase price, so she is just as well off as she was before. On the other hand, if the seller can prove the agreed price was actually greater than the parcel’s fair market value at the time of the default, the buyer has some exposure.4 Forfeit the game? To avoid the argument over value, the parties may agree on earnest money which can be forfeited and treated as a reasonable approximation of the damage caused by the breach. Real estate contracts frequently provide that the seller’s acceptance of the earnest money does not preclude him from seeking “actual” damages–but legally it does.5 Likewise, if the earnest money is significantly more than the local standard, can the buyer argue that at least part of the earnest money represents punishment rather than legitimate compensation? Probably so.

In any event, in the lending context, where the borrower can indeed document the actual expenses of the lender, can the lender collect any of the penalties called for by the loan documents, especially if the penalty relates to the balloon, not a monthly payment? Yes and no. Tell it to the ref... Penalty interest at a rate which would have been legal at the time the note was signed, due to the default, has become interest on a short-term note with an uncertain pay-off date, which arguably can justify a higher rate. Also, in some notes, rates may rise (or fall) according to an outside index. A rate which rises due to the borrower’s own behavior seems at least as reasonable. So that is very likely collectable in Arkansas. However, there are commentators who note that many states require default interest to not only be legal, but also “reasonable.”6 Those same commentators also argue that “reasonable” is too restrictive a standard, and that only “unconscionable” rates should be prohibited. In the commercial context in Arkansas, borrowers typically negotiate default interest rates that don’t even come near the “unconscionable” strike-zone.7 However, others let slip through the loan documentation process penalty interest “at the highest rate allowed by applicable law.” Due to federal preemptions, that may mean no ceiling at all.8 If litigated, the likely outcome would be a rate that meets the “reasonable” test, not the “unconscionable” measure, given judicial antipathy to penalties. That is almost a certainty if the loan has come due because the lender has the right to call it for any reason, not just on default.9 Don’t rough the kicker… Lenders frequently coordinate pay-offs of existing loans with the making of new loans, since they want to keep their funds invested as productively as possible. Further, they could expend time, expense and effort on underwriting loans that don’t get made because the funds weren’t available due to another borrower’s default. So a penalty in some amount, and related to the amount of the balance, may actually represent a variety of liquidated damages. But, on a loan of any size, that lost-opportunity expense is more likely to fall in the one-two percent range than the five percent.10 So, lenders should not push it, as a matter of negotiation. On the other hand, is it dangerous to even include late penalties in loan documents if they may not be enforceable? No. In the first place, some portion of the late fee can almost always be justified as

liquidated damages, especially the monthly late fees. Secondly, as to lender liability, the situation is not the same as when an employer seeks to enforce a clearly invalid covenant not to compete against a former employee.11 In the latter case, a person’s ability to earn a living is at issue, not dollars and cents, and bargaining power is significantly out of balance. In the current climate, worthy borrowers may frequently call at least as many plays as their lenders. Delay of the game… If a borrower is three months late when the lender declares a default, can the lender require payment of all three late charges as a condition to reinstatement? It will usually take more time, effort and expense to collect three past due payments than just one. So multiple charges arguably can be justified. However, that is no slam dunk.12 Having to pay the opposing team’s legal fees can certainly be more painful than other penalties and provisions calling for their award that are common in all manner of documents, from notes to bills of assurance. In particular, the documents often call for reimbursement of legal fees if legal action is needed to enforce the document. Stay in the strike zone… For the first half of my legal career, absent a few specialized areas, the only contractual documents whose breach could occasion assessment of attorney’s fees were promissory notes. Ark. Code Ann. § 4-56-101. No drafting around it. Since 1989, virtually any contract (even open accounts and including leases)13 may provide for an award of attorney’s fees to the enforcing party, at the trial court’s discretion. Ark. Code Ann. § 16-22-308–just the opposite of Ark. Code Ann. § 4-56-101 (and the common law).14 Under this section, if the parties want to go back to each party

W. Christopher Barrier practices real estate and business law with Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. in the firm’s Little Rock office.

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“Before insisting on a significant late charge, as to loan payments, rent or POA assessments, the collecting entity should compare the charge to actual expenses and lost-opportunity costs that can be reasonably estimated and should also remember

judicial hostility to penalties generally.

attorney’s fees. Solid waste late fees are also collectable because of statutory authorization.22 Pre-pay or punt… Pre-payment penalties are another matter, and typically are justified on two grounds. First, as a matter of contract, a lender almost certainly can prohibit prepayment altogether, so allowing it only on certain conditions is no stretch. And a penalty with at least some relation to maintaining the lender’s return on the investment represented by the note is clearly reasonable, not punitive. However, when a note has been prepaid from the proceeds of a foreclosure sale, adding the penalty may look to the courts like piling on, which may also be the case with prepayment from insurance proceeds.23 paying their own fees, or dividing them equally, they have to say so. Workout negotiators need to remember both that discretionary feature of the statute and the optional one, and also a few other rules of construction. In Asbury Auto. Used Car Center v. Brosh,15 the contract contained (a) an arbitration clause, (b) a severability clause, and (c) a fifty-fifty expense clause in any such arbitration. (So far, so good.) But, the arbitration clause was struck for lack of mutuality, and the court would not sever the 50-50 piece out of the wreckage and apply it to litigation. Contractual terms spelling out provisions for attorney’s fee awards are enforceable as written (but not re-written).16 The Arkansas Residential Landlord – Tenant Act of 200717 has a rather elaborate structure as to leases coming within its terms (which, despite the title, includes commercial leases).18 Regarding awards of attorney’s fees (primarily in landlord claims of default), a tenant’s only defense to such an award is a good faith claim that the landlord’s demand is factually or legally incorrect.19 Unintentional grounding… So, what other causes of action are left that cannot include awards of attorney’s fees? Well, most torts and other debts and claims not arising in a contract or lease context, and without some statutory hook. Interestingly, recovery of legal costs has been permitted with regard to collection of condominium fees even without the benefit of Ark. Code Ann. § 16-22-308.20 By statute, condominium bylaws “must necessarily” set forth the manner “of collecting from co-owners” for “common expenses.”21 Such bylaws, under Ark. Code Ann. § 18-13-116(a)(i), may provide for collection of “any other expenses lawfully agreed upon…” which the Damron case declared to include 18

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Clear play-calling needed… By the way, if a lender intends to prohibit prepayment altogether, it needs to say so. A note whose installments are payable “on or before” each payment date is pre-payable, although the lender may attempt to argue that the interest may also need to be prepaid. In some instances, statutes may alter the bargaining rights of the parties regarding pre-payment. Lenders may not impose prepayment penalties on loans secured by farm land that are harsher than those set forth in Ark. Code. Ann. § 23-32-203, unless the parties waive its application in a specific way. However, the calculations required by this statute are impossible to apply, so no lender should fail to get the waiver, even when using a version of this statutory formula. Otherwise, the lender risks a healthy penalty if it is found to have read the statute incorrectly. Defend your position… As suggested previously, penalties have to be wrestled with and justified in non-lending real estate transactions as well, notably charges for late rent payments and forfeiture of earnest money. Upping the rent for holding over after a lease has expired looks more like penalty interest, given its impact on efforts to re-let the space, than an arbitrary penalty, which may make it justifiable, but courts are hostile to the notion.24 Use of penalties (like sports metaphors) has crept over into venues divorced from lending or leasing. Property owners associations (POA) may well take advantage of Ark. Code Ann. § 16-22-308 to collect overdue assessments, although that is not clear. However, Flag on the Play continued on page 43

Is giving through a community foundation right for your clients? Seven questions for estate and financial advisors.

© 2006 COF & CFA

1. Do I have clients who care deeply about their local community? 2. Do they give to more than one charitable cause? 3. Are they interested in creating a personal or family legacy in their community? 4. Are they considering the creation of a private foundation, but concerned about cost and administrative complexity? 5. Would they like to stay personally involved in the use of their gift dollars? 6. Do they want to receive maximum tax benefit for their charitable contributions under federal law? 7. Do they place a priority on sound financial management of their contributions? If you answered yes to any of these questions, your clients will benefit from knowing more about Arkansas Community Foundation. ARCF can help your clients secure the maximum tax deduction, involve family members, focus on grantmaking and obtain visibility or anonymity, as desired. The Foundation preserves and protects individual and corporate investments and charitable intentions forever through the power of endowments. For more information on partnering with Arkansas Community Foundation, contact Melissa Stiles at 501-372-1116 or visit arcf.org. “The Foundation staff has a wealth of knowledge about what charities are doing the best work in different areas of Arkansas and are very helpful through their satellite offices in providing broad-based information on charities by location and field of interest.” – Jim Harris, Friday Eldredge & Clark, Little Rock

Union Station • 1400 West Markham, Suite 206 • Little Rock, AR 72201 501-372-1116 • 888-220-2723 • arcf.org

Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

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A Place to Call Home: Siting Manufactured Housing in Arkansas By Walter G. Wright, Jr. and Harry W. Hamlin1 The typical Arkansan probably considers the ownership of a home one of his or her most important goals or accomplishments. Likewise, most Arkansas communities try to support home ownership by increasing the availability of quality housing. Of course, housing is only “available” if it is affordable. A community trying to expand home ownership will therefore work to increase the inventory of affordable housing accessible to its population. The cost to construct or purchase a site-built house can obviously be significant. As a result, some portion of the average community’s population may not be able to afford even moderately priced structures. Communities will therefore have an interest in including in their housing mix relatively inexpensive structures. This has led to significant efforts to minimize the cost of the available residential structures. Manufactured homes are, in some instances, a viable method of addressing affordable housing objectives. For various reasons, manufactured structures will usually cost less per square foot than a sitebuilt house. However, the ability of manufactured housing to address residential housing needs has faced governmental obstacles. Some communities in Arkansas and other states have or had ordinances that restrict, or make more costly, the siting of manufactured housing. For example, a municipality may have an ordinance prohibiting the placement of manufactured homes in areas zoned for single family residences. These, and related zoning classifications, have sometimes forced manufactured housing into areas set aside for groups of structures known as “trailer parks” or small lot subdivisions. Consequently, the potential affordability benefits of a manufactured house would only be available if one chose to live in these developments which are sometimes on the periphery of a town. The federal government along with several states and communities began considering some years ago whether home ownership might be increased by better integrating manufactured housing into housing inventories. Congress and a number of states enacted legislation that provides a process for minimizing certain governmental impediments to siting manufactured housing. The result has been the identification and elimination of some state or local governmental requirements that make it more difficult for manufactured homes to play a substantive role in providing an affordable housing choice. Of particular relevance, the Arkansas General Assembly enacted legislation in 2001 that requires each Arkansas community to provide a residentially zoned area for manufactured housing.2 Arkansas lawyers are frequently asked to advise both governmen20

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tal and private entities on legal issues associated with the development of residential housing. These issues sometimes include the use and/or siting of manufactured housing. Municipalities, developers, financial institutions, non-profit housing providers and/or real estate investors may have varied perspectives on manufactured housing issues. By way of example, a municipality may need to determine the extent to which manufactured housing can be regulated in view of the preemptive provisions found in certain Arkansas and federal statutes. Similarly, an attorney working on the development or financing of a project proposing to utilize manufactured housing must be cognizant of the tools available to address local ordinances or codes that restrict the siting of these structures. This article addresses these issues and the related legal authorities. I. Manufactured Housing A. The Development of Manufactured Housing The commercial production of manufactured housing began in the 1920s.3 The public has tended, in the past, to refer to manufactured structures as ‘mobile homes or trailers.’ However, over the last several decades, manufactured homes have increased in both squarefootage and the range of construction materials. As will be discussed, federal regulations have probably reduced, to some extent, the historical distinctions between manufactured housing and site-built homes. Congress coined the term “manufactured housing” in 1980, generally referring to factory-built housing that has been constructed in conformance with certain United States Department of Housing and Urban Development regulations. B. Production and Distribution of Manufactured Housing The construction of manufactured houses in enclosed production facilities provides significant efficiencies. For example, production of a manufactured structure is not subject to weather delays. Further, economies of scale are provided by the ability to make aggregate or volume purchases of labor and materials. As a result, the cost to construct a site-built home usually exceeds a similarly sized manufactured house. Once constructed, the manufactured house is either transported to a retailer for sale or to the location at which it will be installed. C. Financing the Purchase of a Manufactured Home The purchase of a manufactured house might be financed through either governmental or private sources. The manufactured housing

industry has worked to achieve similar treatment for manufactured homes and site-built structures in terms of underwriting criteria. However, the evolution of manufactured housing from the travel industry has sometimes caused confusion as to whether these structures should be treated as personal property or permanent housing.4 In most states, when a manufactured home is placed on a permanent foundation, it changes from personal property to real property. Arkansas has adopted a three-part test primarily focusing on whether the home is intended to be permanent.5 This issue can affect a traditional lender’s view of these structures as potential collateral for loans. Some may be reluctant to provide financing primarily due to a lack of familiarity with manufactured homes which may be a significant factor for those planning to develop a project involving manufactured housing. Lending programs and requirements for manufactured housing may differ depending upon the type of support system used (e.g., perimeter wall block, “piers and blocks” or wooden pilings). Unfortunately, loan underwriting often still results in disparities between loan terms for site built homes and manufactured homes generally being more favorable for site built homes. Regardless, many traditional financial institutions will finance the purchase of manufactured homes and there are a number of specialized lenders who have developed loan products specifically for manufactured homes. Another source of private financing is the manufactured home retailers. Their retail sale contracts will often be sold to financial institutions. In addition, manufactured houses are also eligible for mortgage insurance programs of the Federal Housing Administration and Veterans Administration. D. Role in Housing Markets Over twenty-two million Americans reside in approximately ten million manufactured homes.6 Twenty percent of every new home started is a manufactured house.7 The demand is probably driven, to some extent, by improvements in the structures and their relative affordability. Manufactured houses are found in greater numbers in the south than other areas of the United States.8 They are also more common in smaller communities and rural areas. This may be due to a combination of lower land costs and an absence of zoning restrictions in unincorporated areas. Likewise, the reduced costs associated with the production of a manufactured house, along with the lower maintenance expense have made these structures particularly attractive to moderate or lower income households. The affordability benefits provided by manufacturing may become especially important in view of tightening credit standards. E. The Perception of Manufactured Housing Manufactured homes have sometimes been perceived as inferior or less aesthetically pleasing than site-built housing. Accordingly, local governments have, on occasion, on their own initiative or due to pressure from individuals or groups, used their zoning authority to isolate or exile manufactured housing. The proponents of these measures argue that such zoning restrictions ensure compatibility of land

uses, maintenance of a balanced housing stock, and promotion of a sense of homogeneity of housing and community. Manufactured housing proponents respond that there is no evidence these structures are incompatible with site-built homes. They argue studies support the argument that the placement of manufactured homes has little or no effect on the value of surrounding properties. Proponents also point to improved production, design and appearance arguing that the appearance of manufactured houses has evolved to the point that many structures are similar in appearance and are as well built as site-built homes. Manufacturers presumably recognize that greater acceptability by consumers and the community in general is more likely if the structures are as “house-like” as possible. II. Relevant Federal Law on Manufactured Housing Production A. National Manufactured Home Construction and Safety Standards Act of 1974 1. Background In the 1970s, Congress concluded that the federal regulation of the production of manufactured houses would improve the quality and durability of these structures. This determination led to the 1974 enactment of the National Manufactured Housing Construction and Safety Standards Act (“NMHCSSA”)9. The NMHCSSA required

Walter G. Wright, Jr. is a member of the Little Rock law firm Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. and serves as General Counsel to the Arkansas Manufactured Housing Association. Harry W. Hamlin is a member of the Little Rock law firm Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. and serves as General Counsel to the Arkansas Manufactured Housing Association. Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

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the federal Department of Housing and Urban Development (“HUD”) to promulgate and periodically revise regulations addressing various aspects of the production of manufactured houses. The statute defines a manufactured house as “one that has a permanent chassis and is designed to be used with or without a permanent foundation.”10 2. The HUD Code The federal regulation promulgated pursuant to the NMHCSSA is known as the HUD Code.11 The HUD Code has a unique status as the only federal residential building code. This federal code applies uniform construction and safety standards to both single or multi-section “manufactured houses.” A “manufactured home” is defined as “a structure, transportable in one or more sections . . . which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation . 12 Building standards for manufactured housing have been subjected to federal regulation, in part to establish practical, uniform, and, to the extent possible, performance based federal construction standards for these structures.13 An advantage of this approach has been that technological improvements in safety and construction standards are transferred to the industry on a national basis much faster and more efficiently than if numerous local codes had to be revised. This better enables the consumer to benefit more quickly from national research and quality control.14 Unlike most state or local standards, the HUD Code is not prescriptive. In other words, it does not mandate the use of specific materials or measurements. Instead, the HUD Code contains engineering design and material performance standards. This system is supposed to better ensure that a unit is constructed according to the federally approved design. These federal performance standards do not include the activities required to install a manufactured home. The State of Arkansas’s efforts to regulate manufactured housing are channeled through the Arkansas Manufactured Housing Commission (“AMHC”). The Arkansas Manufactured Homes Standards Act15 requires that the AMHC do what is necessary to comply with the NMHCSSA, including providing for the enforcement of the federal HUD Code. The Arkansas definition of “manufactured home” is identical to the federal statute.16 22

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3. Local Government Preemption The Congressional desire to standardize manufactured housing production as expressed in the NMHCSSA has sometimes collided with the traditional interest of local government in the regulation of the erection of structures. Local government’s oversight activities have usually included the construction and/or siting of both site-built and manufactured housing through building standards or zoning codes. Congress both anticipated and addressed this potential conflict by placing in the NMHCSSA language preempting inconsistent state and local requirements. (a) Preemption Language The NMHCSSA provides that: Whenever a federal manufactured home construction and safety standard established under this (chapter) is in effect, no state or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any manufactured home covered, any standard regarding construction or safety applicable to the same aspect of performance of such manufactured homes which is not identical to the Federal manufactured home construction and safety standard.17 In other words, the federal statute expressly prohibits state or local governments from enacting construction or safety standards that differ from the HUD Code.18 The statute’s purpose is to promote the uniformity and comprehensiveness of the HUD Code. The preemption provision enables manufacturers to use standardized building materials and components regardless of where the structure is sold, constructed, or erected. State and local governments do retain the right to establish standards for both the stabilizing and support systems of manufactured homes and the foundations on which those manufactured homes are installed. (b) Conflicts with Local Government Standards Some local standards or codes were in conflict with the NMHCSSA’s preemption provision at the time of the statute’s enactment in 1974. Subsequently enacted local requirements have also, on occasion, run afoul of the NMHCSSA. The courts have therefore periodically adjudicated whether some aspect of a local ordinance or code has

been preempted by the federal program. Examples include: i. The Third Circuit Court of Appeals held that the NMHCSSA preempted a local municipality’s ban of manufactured homes from a zoning district based on safety standards, but did not affect the zoning of manufactured homes in general.19 ii. The Fifth Circuit Court of Appeals held that the NMHCSSA did not preempt a local zoning ordinance prohibiting the placement of “trailer coaches” on any lot within city limits except in a “duly authorized trailer park” because the provisions of the ordinance were not linked to local safety and construction standards.20 iii. The Eleventh Circuit Court of Appeals held that a local ordinance was preempted because it attempted to impose greater safety requirements for manufactured homes than those mandated by the NMHCSSA.21 (c) Permissible Local Requirements Not all local requirements affecting manufactured housing are preempted by the NMHCSSA. The most common examples of unaffected local ordinances are zoning codes. The federal courts have held that NMHCSSA preempts only construction and safety standards and does not apply to local zoning ordinances that regulate the placement of dwellings in the community.22 Zoning involves the division of land into zones and within these zones, regulation of both the nature of land usage and the physical dimensions of uses including height, setbacks and minimum area. These programs are used by communities to protect the rights of property owners while promoting the general welfare of the community. The key objective of a zoning classification is to place particular activities where they are most appropriate considering the compatibility of the uses and the established development pattern. The process of establishing and periodically revising ordinances or codes is usually undertaken by a municipal planning staff and commission which make recommendations to ultimate decision makers such as the community’s board or council. Opportunities for public input on these recommendations or decisions are provided at certain steps in the process. The question of what zoning classifications are, or should be, applicable to manufactured homes has often been the subject of debate and/or litigation. The NMHCSSA does not limit the authority of local government to establish zonHomes continued on page 44

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The Infinity Project Takes on Dearth of Women on the 8th Circuit by Kayce Green

Sonia Sotomayor’s swearing-in as an Associate Justice of the United States Supreme Court is a milestone for all seekers of justice, both on and off the bench.1 Her story is an inspiration for women and minorities in our country, specifically since women and minorities make up half of our workforce and are grossly underrepresented on the most powerful court in the nation.2 Sotomayor is the third woman confirmed to the high court in its 219-year history. While we are witnessing progress in terms of gender diversity on the federal bench, there is still much work to be done. In 2008, a group of practitioners and academics formed a group that is diligently working to equalize the gender balance and create more diversity on the federal bench, specifically the Eighth Circuit Court of Appeals. The Infinity Project’s mission is twofold—to increase gender diversity on the federal court and to cultivate respect for the rule of law. The Infinity Project focused on the Eighth Circuit because it had the worst track record in terms of diversity than any other federal appeals bench. As women began to enter the legal profession in large numbers in the 1970’s and 1980’s, leaders in the profession began observing the impact of gender bias in the courts. To this end, Judge Diana E. Murphy organized a gender task force for the Eighth Circuit in 1993 at the request of the then-current Chief Judge Richard S. Arnold. The Infinity Project tai24

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lored their focus to one aspect of the study— the court as employer. The study determined that the work force in the Eighth Circuit is predominantly female, but most of these jobs are staff positions. In contrast, most of the management positions are men and, in particular, judges tended to be male.3 Furthermore, the study found that the Eighth Circuit has “proportionately somewhat fewer women judges when compared to the national collective circuit average.”4 The task force recommended that the Court take steps to ensure equal opportunity for the advancement by women into higher positions within the court, including judicial positions. It has been sixteen years since the task force identified the acute gender inequality in the Eighth Circuit, and the statistics are still unsettling. Sixty-one judges have served on the Eighth Circuit Court of Appeals since its inception in 1891, and only one has been a woman. Eleven judges currently sit on the appellate court. Only one woman, the Honorable Diana E. Murphy, joins them. Since 1995, nine people have been appointed to the Eighth Circuit Court of Appeals; all nine appointments have been men.5 Although President Clinton nominated Bonnie Campbell in 2000, her appointment was not voted on by the Senate Judiciary Committee, preventing the Senate from participating in a full hearing on her nomination. The Infinity Project strives to continue the work of the task force, and the project believes it is necessary to have a bench that reflects the whole of society so that judicial decisions reflect diverse life experiences and points of view. This goal is not incompatible with electing the most qualified persons for judicial positions. The Infinity Project does not endorse specific female candidates, nor does it disregard the qualified men who uphold justice as they serve on the federal bench. The Infinity Project seeks to encour-

age qualified women to serve and does not want these women to be overlooked simply because they are women. The Eighth Circuit is comprised of seven states and ten districts: Arkansas (eastern and western), Iowa (northern and southern), Minnesota, Missouri (eastern and western), Nebraska, North Dakota, and South Dakota. The founding committee of the Infinity Project met in October 2008 and worked to identify two people from each state to formulate state-specific goals and to carry out the larger vision of the project.6 Arkansas delegates are Professor Terri Beiner, Nadine Baum Distinguished Professor of Law at the William H. Bowen School of Law, and Denise Hoggard, partner with Chisenhall, Nestrud, & Julian in Little Rock, Arkansas. Beiner and Hoggard, in conjunction with the Arkansas Association of Women Lawyers (AAWL) have spent a decade identifying the “gender problem” and encouraging women to speak up. The problem is not a lack of qualified women; however, women are still not being appointed at the same rate as men based upon the number of women attorneys compared to men attorneys. In 2006, AAWL held a conference that functioned as a primer for women interested in pursuing political office, specifically judicial office. To increase the likelihood of women being selected for the appellate level, women need to be elected to public office or the bench in their respective states, or appointed in the federal system. The Infinity Project seeks to encourage women to put themselves out there and gain confidence in their abilities. “Our Justice system should be based upon Kayce Green received her J.D. from the William H. Bowen School of Law in 2009. She has recently been admitted to the Arkansas Bar.

wisdom, not gender,” says Hoggard. “It has to be qualifications driven—if you’re not the best candidate, the fact that you’re a woman should not be determinative. The quality of the jurist should be pivotal in every appointment. But women should be considered on the same footing with men. Brilliant legal minds are not limited by gender.” The women who began the Infinity Project have been busy. In twenty-five years of practice, Hoggard has seen profound progress. “My generation and the women behind me are still being served by women who came before us, such as Hillary Clinton, Annabelle Clinton Imber, Paula Casey, Judith Rogers, and Elisjane Roy, breaking barriers as they went.” The Infinity Project carries out these goals on a grassroots level. Beiner, Hoggard, and other Arkansas women are supporting qualified candidates to apply and run for judicial office. When considering the next appointment for the Eighth Circuit, their hope is that there will be a multitude of qualified, ready women to step in and serve justice. While the project began primarily in the Eighth Circuit, the Infinity Project hopes that its efforts spread to the other circuits for two vital reasons. First, as evidenced with Sotomayor’s recent appointment from the Second Circuit, the federal appeals courts are “pipelines” to the United States Supreme Court. The more women serve on the appellate courts, the higher the probability of appointment to the Supreme Court. Second, gender inequality undermines the rule of law. The court’s reputation and integrity is based on its ability to represent all people fairly and effectively by “safe-

guarding the constitutional rights of men and women, as well as vulnerable and disadvantaged minorities.”7 Our diverse community commands a diverse judiciary that is both true to the rule of law and flexible as to allow for a grand evolution of legal thought. For more information regarding the Infinity Project, please visit http://www.hhh.umn. edu/centers/wpp/infinity/. Endnotes: 1. http://www.dol.gov/wb/stats/main.htm. 2. Mary R. Vasaly, “Exercising Leadership:

A Call to Diversify the Judiciary,” The Woman Advocate, Spring 2009 at 13. 3. Gender Fairness Task Force, Final Report & Recommendations of the Eighth Circuit Gender Fairness Task Force, 31 Creighton L. Rev. 9, 11 (1997). 4. Id. at 12. 5. Federal Judicial Center, U.S. Court of Appeals for the Eighth Circuit—Judges, Jan. 13, 2008, http://www.fjc.gov/public/home. nsf/hisc. 6. Id. 7. Exercising Leadership at 13.

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Arkansas Supreme Court Historical Society

Supreme Court Justice Carroll D. Wood by L. Scott Stafford Carroll D. Wood was one of the few justices to serve more than thirty years on the Arkansas Supreme Court. Despite his long tenure on the high court, Wood would hardly merit mention in most histories of Arkansas had it not been for his foray into gubernatorial politics in the 1904 Democratic primary election. Wood was born in 1858 on a farm in Ashley County. He graduated from the University of Arkansas in 1879 and then “read law” in the office of his older brother. After his admission to the bar in 1880, he moved to Monticello, where he joined another brother in the practice of law. He was elected prosecuting attorney of the 10th District (Ashley, Bradley, Chicot, Cleveland, Dallas, and Drew Counties) in 1882 and served two terms in that office before moving to the circuit court bench of the same district. During his second term on the circuit court bench, he was elected to the recently created Position No. 4 on the Supreme Court. Wood’s rise to high state office coincided with that of Jeff Davis, the Arkansas version of the populist demagogues who swept the southern political landscape as the nineteenth century drew to a close. Davis was born in 1862 and admitted to the bar at age 19 following two years at the University of Arkansas and one year at Vanderbilt Law School. He served as prosecuting attorney before being elected attorney general in 1898 and governor in 1900. Throughout his colorful political career, Davis championed the cause of the state’s poor, rural farmers. In addition to big corporations, the “High Collar Crowd” (the Arkansas political elites, particularly those in Little Rock), and the “Old Red Harlot” (Arkansas Gazette), Davis frequently targeted the “Five Jackassses” on the Arkansas Supreme Court. Wood gained a reputation as an adversary of Davis shortly after the governor won the 1902 Democratic primary. Davis removed former Governor James P. Eagle, who happened to be the president of the state Baptist Convention, from the commission set up to oversee construction of a new state capitol. Davis, Eagle, and Wood were all members of the Second Baptist Church in Little Rock. In response to the removal of Eagle, Wood and two other church members brought charges against Davis, accusing the governor of repeated instances of drunkenness. Following a trial 26 26 The TheArkansas ArkansasLawyer Lawyer

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before the congregation, Davis was expelled from the church. In 1903 anti-Davis forces persuaded Justice Wood to take on the governor, who had announced his intention to become the first Arkansas governor to be elected to a third term. Between June 1903 and the Democratic primary in March 1904, Davis and Wood literally “slugged it out” in one of the most rambunctious political campaigns in Arkansas history. The early days of the campaign were relatively calm, with the boisterous governor and the dignified justice making the normal series of joint appearances at political rallies around the state. The physical phase of the contest opened in Hampton on July 14, 1903, when Davis began haranguing the “corrupt” Arkansas Supreme Court. Wood grabbed Davis by the collar and tried to punch him, but supporters of the candidates intervened and broke up the fight. The incident made national headlines, undoubtedly to the chagrin of Wood’s business backers. The New York Times headlined its article of July 15, 1903, “Judge Collars Governor–Arkansas Supreme Court Justice Tries to Assault Gov. Davis in a Joint Debate.” At Bismark on August 25, 1903 , the sharptongued Davis attacked Wood’s personal integrity. He accused Wood of a conflict of interest involving an out-of-state corporation attorney, John Dos Passos (whose illegitimate son of the same name would gain fame as a novelist). Wood jumped to his feet and delivered a haymaker aimed at the governor. In dodging the punch Davis tumbled off the speaker’s platform. The Hot Spring County sheriff arrested Wood for assault and battery, but the charge was later dropped. The headline in The New York Times read, “A Governor Knocked Down–Arkansas Supreme Court Justice the Aggressor in a Warm Political Debate.” The match was renewed in a December 18, 1903, joint appearance in Hope. This time Davis was the aggressor. Enraged by a comment in Wood’s speech, Davis rose and began beating the justice over the head with a gold headed cane which had been presented to the governor by the 1899 General Assembly. The blows dented the head of the cane and bloodied Wood’s head. This time both candidates

Portrait painted by Adrian L. Brewer

were arrested and later convicted of disturbing the peace, but Wood probably gained some satisfaction in the fact that the governor was also convicted of aggravated assault. The New York Times article of December 20, 1903, was headlined “Governor Strikes Judge–Gov. Jeff Davis of Arkansas and Judge C.D. Wood Come to Blows - Both Arrested.” By the spring of 1904 informal polls of county officials and small town newspaper editors indicated that Wood stood a good chance of unseating Davis. Unfortunately for Wood, his supporters underestimated Davis’ ability to turn out large numbers of poor voters from the backwaters of the state. On election day Wood managed to surpass the votes garnered by earlier Davis challengers, but Davis claimed a clear 57 percent vote majority. After serving an unprecedented third term as governor, Davis was elected to the United States Senate. Following his loss in the 1904 Democratic primary, Wood returned to a quieter life on the Supreme Court, where he served for the next 25 years. Additional reading: •Raymond Arsenault, The Wild Ass of the Ozarks: Jeff Davis and the Social Basis of Southern Politics (Temple Univ. Press, 1984) •Drew-Ashley County ArArchives Biographies, http://files.usgwarchives.net/ar/drew/bios/ wood453bs.txt (October 13, 2009) •The New York Times Archives at http:// www.nytimes.com/ This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@arkansas. gov; Phone: 501-682-6879.

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Alternative Dispute Resolution Conference March 12, 2010, Little Rock Advanced Estate Planning & Trust Administration April 23, 2010, Little Rock Financial Instituions May 7, 2010 (tentative), Little Rock Environmental Law May 13-14, 2010 (tentative), Rogers 112th Annual Meeting June 9-12, 2010 Arlington Hotel & Hot Springs Convention Center Best of CLE June 21-25, 2010, Little Rock Best of CLE - Northwest June 29-30, 2010, Springdale, AR For more information contact Lynne Brown or Kristen Scherm 800-609-5668 or 501-375-4606 lbrown@arkbar.com or kscherm@arkbar.com OR go to www.arkbar.com

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Book Review

A Pryor Commitment: The Autobiography of David Pryor by David Pryor with Don Harrell (Little Rock, Ark.: Butler Center for Arkansas Studies, 2009), 388 pages.

Book Review by Phillip H. McMath David Pryor’s autobiography, “A Pryor Commitment” (how could there be a better title?), is essential reading for anyone interested in politics. His story is sustained by an aw-shucks charm, laugh-out-loud humor (my goodness, the Dallas County beauty pageant!), but most of all by the fascinating drama of Pryor’s long march from small town South Arkansas obscurity to the very epicenter of American power. To be great at politics, and really anything, it seems one has to be assigned the task at birth. Pryor relates the local joke that on his first day (8/29/34) he asked the doctor and nurse for their votes. No doubt he got them! He ran for president of the third grade and in a close race promised God that if he won, which he did, he’d never run for anything else! But David doesn’t say how he worked things out with the Almighty thereafter. He comments, “When people ask me, ‘How did you get into politics?’ I have to answer that I was born with that instinct - an irresistible pull.” Precisely. And no one did it better - getting votes, that is. David Pryor from beginning to end (1960-1997) racked up an incredible 11-1 win-loss number — three terms in the legislature, three in Congress, two as governor, and three as a U.S. Senator. He was in the wilderness all of two years, and his one defeat was to a powerhouse incumbent named John McClellan who eked out a saved-by-the-bell runoff victory. No major Arkansas political figure can beat Pryor’s record. Early in his book, one is reminded of the intellectually fashionable Hedgehog and Fox comparison. Here Pryor’s ‘66 congressional race with Richard Arnold comes to 28

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mind. Arnold was definitely a Fox: Phillips Exeter, Yale, first at Harvard Law, Supreme Court clerk, a polyglot fluent in Hebrew, Latin, Greek, and French. Richard was more than merely brilliant; he was a genius who had money, prestige, oodles of friends, and impressive connections. Astoundingly gifted, the Arnolds are as close to meritorious aristocracy as America ever gets. Then there was the Hedgehog. Oh heck, just for fun let’s make it down home, let’s say a Coon Hound. David’s family was well established, comfortable, and prominent, and his father was a successful businessman who had enjoyed one term as sheriff, but the Pryors exerted no real influence beyond the county line. After Camden High, Pryor was a Fayetteville frat-rat before he returned to start a newspaper, The Ouachita Citizen, then went to the legislature till the Citizen’s red ink ran him back to the University for law school. Home again, he hung up a dual shingle with the very capable Harry Barnes, and their most famous case involved a stolen Coon Dog (a critter that George Fisher later unleashed to be David’s inseparable companion). Of course, any Arkansawyer knows that a Coon Dog is a Coon Dog; he can’t become a bird dog or lap poodle. In other words David Pryor was not an academic, nor really a journalist; a monoglot, he speaks a delightfully mellifluous South Arkansas patois that oozes off his tongue like sorghum knifed out of a silver bucket; and he was much too accommodating to be a sue-the-bastards trial lawyer. In short, David Pryor was/is, will always be, a politician. To be sure, the Fox is clever and knows many things, but the Hound knows one big thing. He knew how to tree voters in his neck

of the woods. See, in Arkansas, politics is personal – eye-to-eye, mano a mano, so, after consuming a couple of pickup truckloads of fried catfish, fried chicken, fried hushpuppies, fried potatoes, fried onions, cold slaw, and several hindquarters of barbequed coon, he went on to Washington in a full-bellied, tail-wagging trot. Pryor sums up his strategy succinctly: Many modern professionals dismiss this one-on-one approach, but I not only believed in it, I loved doing it. When political historians write the definitive story of Arkansas politics, they are bound to agree that Clinton, Bumpers, and Pryor all had one thing in common - the belief that politics is more than local; it’s exceedingly personal. Right! Always honest about his obstacles and those who helped him, David relates that one moment he was eating crow in an El Dorado parking lot trying to raise $1,069 for a TV lift to his D.C. destination, and almost by magic it seemed, “Miss Bertie” Murphy limoed up with her checkbook. In a trice Congressman Pryor was riding around with LBJ eating ice cream. Most assuredly the latter was lots sweeter than crow. Yet, we must ask, “Who is David Pryor, after all?” And “What does he stand for?” He is, to be sure, a committed liberal, yet an idealist tempered by the realism of limits. Still, there comes a time when one must take risks. Pryor’s gift was to know when. Pryor’s risk-taking is perhaps underappreciated. Let’s tick them off: his little shoestring newspaper took on both the Hussman

publishing monolith and the Faubus machine all at once; his first race against an incumbent legislator was a gamble he could’ve easily lost; elected, he became a leader of the “Young Turks” that had the guts to buck Faubus when few dared; at the tumultuous ‘68 Democratic Convention in Chicago, Pryor voted to seat the racially-integrated delegation from Mississippi; he lost his courageous roll-of-the dice chance to unseat that ole stone-faced defender of special interests, John McClellan; and as governor he used the National Guard to break the Pine Bluff firemen’s strike, thus forever forfeiting the support of his old friend, organized labor. Yet he confesses to being troubled about his caution on Civil Rights and Vietnam. Realistically, on the former, he could have done little more than he did; and, on the latter, his description of his ‘68 Convention Vietnam speech as “tortured” is accurate, but everything ever said or done about that war is that way. Another underestimated aspect of his career is his defeat of Faubus in the ‘74 governor’s race. In a word, he was a brave reformer when it was not easy. And his Congressional work on aging was prescient; if nothing else,

it defined the problem, which is always half the battle. More profoundly, he is deeply appreciated by almost everyone because, in his low-key, self-effacing way, one senses the powerful surge of a subterranean passion for a better world and the commitment to build it. Yet we hardly need reminding that moral passions sometimes are more imperious, intolerant, and willful than the more mundane ones, and that people in their grip, especially those who know the intoxication of power, can frequently evince an unearned superiority spawning arrogance, intolerance, or even tyranny. But it’s equally clear that David Pryor, while remaining a committed powerseeker and reformer, never manifested any of these noxious qualities. Indeed, as a supremely successful politician, he is almost unique in that he possessed ambition without egotism, self-regard without vanity, and hope without illusions. He is one of our greatest figures. Don’t miss his book.

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Phillip H. McMath is a partner with the McMath Law Firm in Little Rock and an oft-published author of articles, plays and books.

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Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

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Board of Governors Report Board of Governors August Meeting Report The Association’s Board of Governors met August 7-8, 2009, at the Embassy Suites in Rogers with Chair Frank B. Sewall presiding. President Pettus updated the Board on the Supreme Court’s approval of the Association’s petition concerning citation to unpublished opinions. President Donna C. Pettus made a presentation concerning the plans for a Leadership Academy. The goal of the Academy is to teach lawyers to be leaders in their community and the Association. 2010 Annual Meeting Chair Gwen Rucker made a presentation on the plans for the 2010 Annual Meeting. The Board authorized President Pettus to appoint a taskforce to study venue options for the 2011 and later annual meetings. The Chair of the Young Lawyers Section, Tony Juneau, presented the YLS report. He reported on efforts to secure funding for the “18 and Life to Go” publication with the goal of providing copies to all high school seniors in the state. He further discussed the Wills for Heroes program in which the YLS is providing basic estate documents for police and fire departments. Treasurer Martin presented the minutes of the April 17 and 18, 2009, Board of Governors which he had taken in his former capacity of Secretary/Treasurer. Treasurer Martin presented the Association’s Financial Report. He expressed budgetary concerns due to the economic downturn and various unusual expenses such as the need for new computer servers and the new database software. He introduced the Association’s newly hired accountant Jon Dor as a new member of the staff in charge of Finance and Administration. Professor Frances Fendler, UALR Bowen School of Law, provided information to the Board of Governors regarding the fiduciary responsibility of being a member of a board. The Board approved the Document Retention and Destruction Policy presented by PastPresident Lamar Pettus, Chair of the Governance Committee. The Board will present the policy to the House of Delegates in January. Governor Dennis Zolper presented the report of the Arkansas Bar Political Action Committee (PAC). The Board approved three amendments to the PAC By-Laws, including changing the PAC mailing address, approving the increase of the minimum contribution to the PAC to the amount of $30, and providing that members of the PAC Executive Committee shall continue to serve in their respective capacities until their successors are elected or appointed as the case may be. Governor Sean Keith presented the Legislation Committee’s plans concerning the upcoming General Assembly fiscal session and reminded the Board of the time line for proposed legislation as part of the Association package, which can be found on page 31 of this magazine. Arkansas Bar Foundation President David Vandergriff updated the board on activities of the Foundation and invited all to attend the portrait hanging ceremony in honor of Judith Ryan Gray. 30

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Chair of the Membership Development Committee, Governor Brian Rosenthal, reported membership is ahead of last year and requested that each Board member contact attorneys in their areas concerning the benefits of Association membership. Governor John Vines updated the board on behalf of the Membership Benefits Committee on efforts being made to educate the membership on benefits. Jackson Farrow presented a report on behalf of the Investment Committee explaining the continued efforts to follow the guidelines set forth in the Association’s Investment Policy. Zane Chrisman reported on the action of the Long Range Planning Committee and the CLE Committee. President Donna Pettus made the President’s Report thanking the Association sponsors and provided the results of the most recent elections for the House of Delegates and Board of Governors. President Pettus announced the appointment of Board of Governors Chair Frank Sewall, Parliamentarian Charles D. (Chuck) Roscopf, Governor Brian Ratcliff to an “at large” position on the Board and Governor Laura Partlow to the 2BG position. She announced the appointments of Association Committee Chairs and the schedule for Board meetings for the balance of the bar year. At the President’s request, the Board voted to disband the Task Force on the Code of Judicial Conduct, Task Force on Judicial Discipline Procedures, Organization and Redistricting Committee, and Professionalism Task Force all of which had completed their assigned tasks. President Pettus informed the Board that Jack McNulty will continue to serve as lobbyist for the Association. The next meeting of the Board of Governors will be held at the Arkansas Bar Center in Little Rock December 11-12, 2009. n

Mock Trial Volunteers Needed Please consider becoming a volunteer for this year’s Mock Trial Competition. It is a rewarding way to introduce high school students to the legal system. If you would like more information please contact Rando Hicks at rhicks@arkbar.com or go to www.arkbar.com.

Legislative Timetable Legislative Timetable for the 2011 Legislative Session One important aspect of the Bar Association’s legislative program is developing a legislative package for the biennial regular sessions of the legislature. The bills in the legislative package are presented as improvements to Arkansas law and the Association works hard for their passage. Members of the Association are encouraged to submit proposals for new laws or amendments to existing laws especially in their practice area where they are more likely to recognize the need for changes or additions. To get a proposed bill made a part of the Bar Association’s Legislative Package and thereby be sponsored by the Association and have the full support of the Legislation Committee and its lobbyist, deadlines have been established by the Bar Association’s governing body. For the 2011 session of the Arkansas General Assembly those deadlines are as follows: January 30, 2010 Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. April 2010 Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates. June 2010 House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. June - September 2010 Jurisprudence & Law Reform Committee and Legislation Committee modify package in accordance with directions from House of Delegates.

If you are a Section Chair, be certain that your members have been canvassed for any legislation to be sponsored by your section. Individuals wishing to propose legislation should go through the appropriate Section in order to avoid delays.

Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

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Congratulations New Members Admitted to the Practice of Law October 2009 Stephanie Nicolo Ashley Joshua Lawrence Bailey Sergio Barron Jonathan William Beck Anna Ruth Betts Jackson Tyler Blackwell Ashley Ann Bowen Andrew A. Russell Bozarth Aaron R. Brasel Phillip Meyer Brick Daniel Christopher Brock Richard Aaron Brooks Robert Anthony Brooks Linda Dawn Brown Kristin Huntington Bryant Mary Claire Butt Elizabeth Brummet Carr Christopher Chad Causey Jeffrey Lee Claybrook William David Clements Andrew Joseph Collins Bryce Dalton Cook Chasey Jane Cox Brandon Michael Crawford Courtney Michelle Davis Tracey Dennis Margaret Diane Depper Landon Drew Dixon Anh-Thu Cecille Doan Samuel Frank Eastman Marjorie Elizabeth Fisher Adam Barrett Fogleman Whitney Lane Foster Matthew Lee Fryar Jamie Kel Fugitt Megan Cecily Gammill Natalie Marie Garland Darren Alexander Gibbs Benjamin Amos Gibson Carla Roschelle Gibson Christopher William Givens Richard Blakely Glasgow Traci Elizabeth Graham Lillian Katherine Green John Franklin Griffee Kendel William Grooms Andrea Ann Gubanski Bethany Ann Gulley Lorielle Marie Gutting Alex Vivon Guynn Willie Siegele Haley Joh Grant Hall

Katie Eileen Harlan Russell Darren Harper Jackie Bernard Harris Heath Robert Hasenbeck Brett T. Hays John Kenneth Helbling Christine Marie Hendrickson Kasi Renee’ Hill David Michael Hogue Brooke Erin Hollis Amanda Vernell Hopson Tina Marie Huddleson Ronald Christian Hunt Anna Meredith Imbeau Maryna Olexandrivna Jackson Grace Keegan Johnson Will Thomas Jordan Thomas Edwin Kendrick Toni Michelle Koehler Charles Clayton Lamey Lacey Michelle LaRue Michael V. Lauro, Jr. Clayton Lee Layson Adam Mansfield Lentz Laura Elizabeth Levine Tory Hodges Lewis Kimberly Dale Logue Paul David Love Deidre Lorae Luker Cheslee Denise Mahan William Taylor Marshall Francis Joseph Martin Diana Ellen Maxwell Danny Walter McCarter Christopher Lynn McFarlin Emerson Conner McNair Katie Lynne Mehl Timothy Ernest Meitzen Buffie Brooke Merryman Justine Ann Middleton Melvin Justin Minton Barrett S. Moore Sloane Edward Morgan Nathan St John Morgan Geoffrey Dale Neal Preston Randall Nelms Thomas William Nichols Jennifer S. O’Kelley Kendrick Blain Overstreet David Wallace Parker Christian Noel Parks Amon Parker Pendergist

Timothy Erin Penhallegon Adam Francis Perdue Lindsey Carroll Pesek John David Pettie Sara Elizabeth Pitman Benjamin K. Pollitzer Gary Lee Purnell Virginia Ann Raffaelli John Michael Rainwater Joseph Alan Ramsey Emily Erin Reynolds Adrianna Faith Rios Pamela Dawn Roberts Mark Ashley Robertson Colby Trent Roe Nathan Ellis Roop Mary Kathleen Rutherford Nathaniel Thomas Rutledge William Clinton Saxton Amber Renee Schubert Jonathan Patrick Sellers Daniel Hurley Smith Celeste Anne Spencer John McKay Stacks Timothy Aaron Steadman Linda Diane Stuckey Molly Katherine Sullivan Priscilla Sierra Summers DeAnna Pratt Swearingen Stephen Hilton Terry Brooke Ashley Thompson Robert McGill Veach Samantha Sizemore Vernetti Vincent Michael Ward Wesley Wayne Ward Lee Benjamin Warden Lyndsey Kay Weber Lydia Trieu Whetstone Danielle Marie Whitehouse Jenny Wilkinson Wayne Grant Williams Derrick LaShun Williams Debra Susan Wilson Qiana Nicole Wilson Rebecca Lea Worsham Elizabeth Lee Young Patrick McGeorge Young Kesha Maria Zaffino John Robert Zaharopoulos Kacey Dawn Ziegler

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Judicial Advisory Opinions and Lawyer Disciplinary Actions Judicial Advisory Opinion The following is an excerpt from a press release from the Judicial Discipline and Disability Commission. Advisory Opinion 2009-04 August 20, 2009 In 1995 this committee issued an advisory opinion that was intended to cover issues likely to arise in judicial campaigns. JEAC 9504. Since that time this committee has issued additional opinions; the Canon on judicial elections was revised following the adoption of Amendment 80 in 2000; judicial opinions have altered the constitutional framework; and, effective July 1, 2009, Arkansas has a new Arkansas Code of Judicial Conduct. Accordingly we take this opportunity to address again issues likely to arise. Our power is limited to issuing our advisory opinions on the Code itself. In doing so, we consider the Canons, the Rules, and the Comments adopted by the Court. When appropriate, we look to the Task Force of the Arkansas Bar Association and the two memoranda it submitted to the Court, as well as legislative history from the American Bar Association. As we have said before, we do not have the

authority to address constitutional issues (JEAC 2006-02), possible conflicts with statutes (JEAC 93-04), or the wisdom of the provisions. When appropriate we will incorporate prior opinions that we believe are still controlling. (Full text is available online at http://www.state.ar.us/jeac/ opinions/adv_opin_2009-04.pdf) Lawyer Disciplinary Actions Final actions from July 1, 2009, through September 30, 2009, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SURRENDER JOHN DAVID HARRIS, Bar No. 89151, of Little Rock, petitioned for, and on September 17, 2009, the Supreme Court

accepted, the surrender of his law license in lieu of disbarment proceedings after his adjudication of guilt and conviction of felony offenses in federal court on July 31, 2009. SUSPENSION ALICE WARD GREENE, Bar No. 95197, of North Little Rock, Arkansas, was suspended for forty-eight (48) months and was ordered to pay $750.00 restitution, for violations of Rules 1.2(a), 1.3, 1.4(a) (3), 1.4(a)(4), 1.16(d), 8.4(d). She was also reprimanded and fined $1,000.00 for her failure to respond to the Formal Complaint, all by Committee Findings & Order filed August 21, 2009, on a Complaint filed by William T. Jackson in Case No. 2009-037. Mrs. Greene was hired by Mr. Jackson to pursue a guardianship matter for his mother. Mr. Jackson paid Mrs. Greene the fees as and when requested. Mrs. Greene first filed for guardianship in 2003. She allowed that Petition to be dismissed for failure to take action. She then re-opened the guardianship proceeding in 2006. Mrs. Greene did obtain a temporary order of guardianship for Mr. Jackson; however, she failed to follow through and obtain a permanent Order of

Depression, Stress, Addictions... Believe it or not, this is an uplifting story. The American Bar Association estimates that 20% of lawyers suffer from substance abuse ... twice the number seen in the general population. A Johns Hopkins’ study found that practicing lawyers ranked highest in major depressive disorder among 104 occupational groups. So, where’s the uplifting part? That’s where Arkansas Judges and Lawyers Assistance Program comes in. Our services are completely confidential and free—paid for with your annual Bar dues. Yours, your colleague’s, or your family member’s can be the next uplifting story. But we do our work quietly, confidentially, and professionally, so the stories stay with us. Personal Solutions for Positive Change 501-907-2529 confidential@arjlap.org www.arjlap.org 34

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Lawyer Disciplinary Actions Guardianship. Mrs. Greene moved out of her office and failed to tell Mr. Jackson. He was given no notice. Mrs. Greene abandoned her client. Mr. Jackson called her on numerous occasions but was never able to make contact with Mrs. Greene.

REINSTATEMENT

REPRIMAND

CAROLE DIANE SEXTON, Bar No. 92053, of Fort Smith, was reinstated on September 21, 2009, to active status from disability inactive status in Case No. CPC 2006-173.

JEFFREY KEARNEY, Bar No. 91249, of Pine Bluff, Arkansas, was reprimanded and fined $1,000.00, for violations of Rules 1.1, 1.3, 3.4(c), and 8.4(d). He was also reprimanded for his failure to respond to

SUSPENSION - STAYED WILLIAM M. HOWARD, Bar No. 87087, of Pine Bluff, Arkansas, had his law license suspended for four (4) months, for violations of Rules 1.1, 1.3, 3.4(c), 8.4(d). Imposition of the suspension is stayed for one year subject to conditions of supervised probation, by Committee Findings & Order filed September 29, 2009, on a Per Curiam Order Complaint in Case No. 2009-061. Mr. Howard represented Marcus Young in an appeal of the denial of a Rule 37 Petition. In December 2008, Mr. Howard filed a Motion for Rule on the Clerk, stating he believed the time for filing a notice of appeal was tolled when he filed a motion for reconsideration following the Rule 37 denial. On January 15, 2009, the Arkansas Supreme Court issued a Per Curiam Order stating the Motion for Rule on the Clerk would be treated as a Motion for Belated Appeal. Rule 2(e) of the Arkansas Rules of Appellate Procedure–Criminal provides that “...no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken.” The Court noted that the order denying Mr. Young’s Petition for Rule 37 Relief was entered on April 3, 2007. Mr. Howard filed a Motion for Rule on the Clerk on December 19, 2008, exceeding the eighteen (18) month rule in Rule 2(e). The Motion for Rule on the Clerk, treated as a Motion for Belated Appeal, was denied and the matter was referred to the Committee. After a hearing on September 18, 2009, Committee Panel A suspended Mr. Howard’s license for four months, but withheld imposition, or stayed, the suspension, taking into account his prior disciplinary history on appeal issues.

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Lawyer Disciplinary Actions the Formal Complaint, all by Committee Findings & Order filed July 7, 2009, in Case No. 2009-021. The Arkansas Supreme Court granted appellee’s Motion to Dismiss Appeal in the matter of Toth v. Arkansas Department of Human Services, 09-97. Mr. Kearney represented the Appellants in an attempt to appeal an Order Denying Motion to Intervene in a parental rights termination matter. Mr. Kearney filed a Notice of Appeal from the Order but it was not within 21 days as required by Supreme Court Rule. Mr. Kearney did not have his clients sign that Notice as required by Rule 6-9. Mr. Kearney did not file a response to the Motion to Dismiss Appeal. JOHN A. LEWRIGHT, Bar No. 2002054, of Cassville, Missouri, was reprimanded and fined $1,000 for violations of Rules 1.3, 3.4(c), 5.5(a), 8.1(b), and 8.4(d). He was also cautioned for his failure to respond to the Formal Complaint, all by Committee Findings & Order filed August 4, 2009, in Case No. 2009-050. Mr. Lewright is a Missouri lawyer also licensed in Arkansas. He represented Timmy Davis in the case of United States v. Timmy Davis, United States Court of Appeals for the Eighth Circuit, Case No. 07-2687, on appeal from the United States District Court for the Western District of Arkansas. Lewright twice disregarded an Order to Show Cause directing him to file a brief or face dismissal of the appeal. He was removed from the case and the Court of Appeals referred the matter to the Missouri Chief Disciplinary Counsel, with a notation that Mr. Lewright was not admitted to the Bar of the Court of Appeals for the Eighth Circuit. In December 2008, the Missouri Supreme Court accepted a joint stipulation of facts and recommended discipline, and Lewright was reprimanded and assessed a $750 fee. Missouri then referred the matter to Arkansas. Mr. Lewright had also not paid his annual Arkansas license fee. Mr. Lewright was served with a formal complaint and failed to timely response, which, pursuant to Section 9.C(4) of the Procedures, constituted an admission of the factual allegations of the formal complaint and extinguished his right to a public hearing. CAUTION JIMMY RAY BAXTER, Bar No. 78012, of Benton, Arkansas, was cautioned and ordered 36

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to pay $670.00 in restitution by Committee Consent Findings & Order filed August 21, 2009, on a Complaint filed by Judy Reed in Case No. 2009-059, for violations of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 3.4(c). Mr. Baxter was hired by Ms. Reed to help resolve a dispute Ms. Reed was having with a relative as to real property left to Ms. Reed in her deceased aunt’s will and also to probate the aunt’s will. Ms. Reed paid Mr. Baxter $670.00 for his representation. After Ms. Reed paid Mr. Baxter, she had very little contact with him. Ms. Reed sent several emails to Mr. Baxter in an attempt to get a status update on her case. After her attempts to contact Mr. Baxter went unanswered, Ms. Reed made several requests to Mr. Baxter to return the will. Mr. Baxter failed to file the probate action and he also did not return the will to Ms. Reed. BOBBY K. KEETER, Bar No. 77076, of Mena, Arkansas, was cautioned by Committee Findings & Order filed September 4, 2009, on a Complaint filed by Elvira Lettiere in Case No. 2009-047, for violations of Rules 1.3, 1.4(a)(3), and 1.4(a)(4). Ms. Lettiere hired Mr. Keeter in 2004 to represent her in pursuing claims against Wal-Mart. Ms.

Lettiere claimed that Mr. Keeter did not maintain contact with the opposing party in the early stages of attempting settlement. Mr. Keeter filed suit for Ms. Lettiere, but then failed to respond to discovery requests. Mr. Keeter obtained an Order to Dismiss the lawsuit without prejudice (non-suit) without informing Ms. Lettiere. She learned of this fact after filing her grievance with the Office of Professional Conduct. Mr. Keeter did not re-file the matter within the year after obtaining the Order of Dismissal, and Ms. Lettiere’s ability to pursue her legal claim is now lost. CHERYL K. MAPLES, Bar No. 87109, of North Little Rock, Arkansas, was cautioned by Committee Findings & Order filed August 4, 2009, on a complaint filed by Barbara Field in Case No. 2009-028, for violations of Rules 1.1, 1.3, 3.4(c), 5.5(a), and 8.4(d). Ms. Maples filed a lawsuit in California and signed the Complaint as counsel for John Does 1-4. She is not licensed to practice law in California. Ms. Maples placed another attorney’s name on the pleading as being licensed in California. She had not spoken with the California licensed attorney in the six months before filing the complaint. He

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Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

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Lawyer Disciplinary Actions was no longer actively licensed in California of California admitting all of the conduct was when she filed her suit, but was on inactive her fault and not that of the other attorney. status and ineligible to sign pleadings in California. A Motion to Strike was filed, to WILLIAM H. MCKIMM, Bar No. 78110, which Ms. Maples did not respond in any of Mount Ida, Arkansas, was cautioned by fashion. Her lawsuit was dismissed. Ms. Committee Consent Findings & Order filed June 09 Handshake AR Lawyer Ad:Layout 1 6/29/09 10:41 AM Page 1 Maples filed an Affidavit with the State Bar September 4, 2009, on a Complaint filed by

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Betty Pass Simmons in Case No. 2009-075, for violations of Rules 1.3, 1.4(a)(4), and 8.4(d). Mr. McKimm was hired in September 2006 to represent Ms. Simmons in two Social Security matters, and a contract was signed between them. When he would return calls, Mr. McKimm informed Ms. Simmons that he had filed her appeal on the Social Security matters. Mr. McKimm did not follow up on whether Social Security received any notice of appeal nor did he take any more action to seek remedies or relief for Ms. Simmons. She contacted the Social Security office and learned that she had no appeal filed. Nothing had been received by Social Security on her behalf from Mr. McKimm. Mr. McKimm caused Ms. Simmons to lose a certain amount of funds she will not be able to recoup, since she will have to begin the process again. Mr. McKimm acknowledged that he may owe Ms. Simmons some restitution and advised he would work with her new counsel in determining what that amount may be. B. DALE WEST, Bar No. 89192, of Monticello, Arkansas, was cautioned by Committee Consent Findings & Order filed August 21, 2009, on a Per Curiam Order Complaint in Case No. 2009-078, for violations of Rules 1.1, 3.4(c), and 8.4(d). On June 25, 2009, the Arkansas Supreme Court granted Mr. West’s Motion for Rule on the Clerk in the matter of Antonio Daniels v. State of Arkansas, CR09-370. Mr. West failed to make certain the requirements of Rule 4 of the Rules of Appellate Procedure - Criminal were met in the Order Extending Time to File the Record on appeal. The Order also did not contain a due date for the record to be filed. When an Order which was compliant was finally completed, the date given by the Circuit Judge was one month earlier than the date on which Mr. West had tendered the record. The Court did not refer Mr. West to the Committee, but the conduct is the same cases as where attorneys have been referred. This matter took two remands to Circuit Court to obtain a compliant order.

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Lawyer Disciplinary Actions INJUNCTION: KEITH LAMONT BRYANT, SR., d/b/a Keith Bryant, Personal Injury Consultant, of Little Rock, Arkansas was issued an Injunction Order filed September 18, 2009, in Pulaski Circuit Court Case No. CV 2009-5366, to cease the unauthorized practice of law. Mr. Bryant engaged in the unauthorized practice of law in violation of Ark. Code Anno. §16-22501. Mr. Bryant is not licensed as an attorney in the State of Arkansas. On February 15, 2008, Mr. Bryant entered into a contract with a Mr. Rogers, to assist Rogers in the recovery of losses in a personal injury claim, with Bryant to receive fifteen percent (15%) of any recovery. According to the contract, should Mr. Roger obtain the services of a licensed attorney, Mr. Bryant was to keep a lien against any recovery for his reasonable charges. Any settlement check was to be disbursed from Mr. Bryant’s business account, at which time he would keep his fifteen percent (15%) and then pay Mr. Rogers eighty-five percent (85%). Mr. Bryant had previously been found by the Committee on the Unauthorized Practice of Law to have engaged in the unauthorized practice of law in another complaint to the Committee. n

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Elections continued from page 14

polled answered that they lacked adequate information to choose candidates for the Illinois Supreme Court.24 Of those responding who said that they were unlikely to vote in judicial elections, the biggest reason they gave was lack of information about the candidates. What 80 percent of the voters underscored was the need for an official state voters’ guide. What typically goes into a voters’ guide is information about the duties and term of the elective office; the education, professional background, and community involvement of the candidate; a personal statement from the candidate on why he or she is running and is the best person for the job; a photograph of the candidate; and the candidate’s contact information.25 What is not included, though the voting public would dearly love to have it, are the candidates’ positions on controversial issues.26 At this writing, 25 states have some form of voters’ guide for appellate judicial races, which are disseminated by entities like the Secretary of State, the League of Women Voters, the bar association, or an oversight committee.27 Three additional states have judicial evaluation reports available on sitting appellate judges prepared by state bar associations.28 Some states, like North Carolina, have enacted legislation to fund the distribution of voters’ guides to all households in the state.29 A collateral benefit of a voters’ guide would be to give the voting public much needed information about the candidates, which would

serve to offset and correct erroneous information that might surface in an opponent’s false advertisement. In short, all the evidence supports the fact that voters’ guides would be a boon in helping educate the public about the candidates and in inspiring more voter interest in judicial campaigns. One stumbling block in implementing a voters’ guide system has been the high cost of mailing voters’-guide pamphlets statewide. This has been a factor in some states, although several states, like Alaska, Oregon, Washington, and Utah, have funded the mailing by state appropriation.30 It has also been advanced that posting the voters’ guide on the Web would accomplish the same end as a mail-out. The Web, of course, would be accessible to a large segment of our state’s population, but a high percentage of Arkansas households do not have Internet access. Again, this militates in favor of some form of voter-guide pamphlet mailed to the voters. Other states, like North Carolina, have used funds from $3 taxpayer checkoffs and attorney license fees to pay for the mailout. North Carolina reports that it mailed 3,700,000 voters’ guides in 2008, which were published at a cost of $0.38 each. c. Public Funding of Judicial Campaigns. The most tantalizing, and controversial, proposal to offset high-dollar campaigns has been to use public money to fund state supreme court races. The argument is that this would eliminate the suspicion of “bought” justices and curtail demagogic campaigns. Opinions, though, are varied on this issue.

Public funding for judicial appellate races is clearly gaining some traction. North Carolina has it, and six other states at this writing are actively considering it. Certainly, public funds as an additional revenue source would make campaigns more competitive. One commentator, however, gives a reality check to this line of reasoning.31 According to Professor Roy Schotland of the Georgetown University Law Center, public funding is “being oversold” and would not eliminate all personal contributions or independent spending for television ads like the highly effective Swift Boat ads in the 2004 presidential campaign. Then there is the problem of how do you pay for the public funding? Taxpayer checkoffs on state income tax returns? Use of bar dues? A state appropriation? As one Ohio Supreme Court Justice put it, “You could probably get more interest in the General Assembly for legislation to keep cats on a leash.”32 And yet if rowdy and toxic campaigns become the norm in Arkansas, not to mention a West-Virginia-type contribution scandal on the bench, public funding of supreme court races could well develop wings and soar. All three of these remedial programs merit serious consideration by the Bench and Bar with a view toward implementation. Our Supreme Court justices are popularly elected, and that will continue to be the case for the foreseeable future.33 So long as we select our justices by a vote of the people, prudence demands that we seek antidotes to the plague of campaign abuses that has afflicted our sister states. We have been forewarned by their experiences, and we must take precautions.

TSCHIEMER LEGAL BRIEFING QUALITY, CONSISTENCY AND REASONABLE PRICES “HANDLING ALL YOUR BRIEFING NEEDS” • Writing briefs to the Arkansas Court of Appeals and Arkansas Supreme Court, the federal circuits and the U.S. Supreme Court. • Shorter projects undertaken include motions in limine, summary judgment, trial briefs, and general legal research. • From the author of “Weekly Case Summaries,” available for members of the Arkansas Bar Association on its web site. • For a list of decisions, see the web site of Tschiemer Legal Briefing, as updated when the appellate courts are in session.

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Endnotes: *My law clerk, Brian Pipkin, provided me with excellent research and counsel on this article. My summer intern, Ray Mangum, was also very helpful. 1. Arkansas law provides that justices who assume office after the age of 70 forfeit their retirement. Ark. Code Ann. § 24-8-

215 (2009). 2. Incumbents can be shown on the ballot as “Justice.” Sitting elected judges may also run with “Judge” in front of their names. See Ark. Code Ann. § 7-7-305(c)(1)(B) (2009). 3. Press Release, Justice at Stake, Michigan Court Race is Nation’s Dirtiest, Watchdog Group Says (October 31, 2008). Justice at

Stake is a nonpartisan organization devoted to keeping courts fair and impartial through public education and work “for reforms to keep politics and special interests out of the courtroom.” 4. With non-partisan judicial elections due to the adoption of Amendment 80, Arkansas should not be subject to independent ads run by political parties. That, however, does not preclude other special interest groups from weighing in and running ads. 5. See Press Release, Justice at Stake, supra note 3. 6. See Caperton v. A. T. Massey Coal Co., Inc.,129 S. Ct. 2252, 173 L. Ed. 2d 1208 (U.S. 2009). 7. Doug Smith, Court Bites Fat Cats, Ark. Times, May 14, 2009. 8. Arkansas Code of Judicial Conduct Rules 4.2(B) & 4.4(B)(2). 9. Id. at Rule 4.1(A)(13). 10. Id. at Rule 4.1(A)(11) and Comments 7-10. 11. The Arkansas Bar Association currently has a committee to respond to unfair criticism of judges to deal with instances where the media or a litigant wrongfully criticizes a judge. The authority of the committee does not extend to campaign abuses. 12. American Bar Association, Ensuring Judicial Independence in the 21st Century: Judicial Campaign Conduct Committees, at www.abanet.org/judind/resourcekit/conductcomm.html. 13. Id. 14. Id. 15. William Fortune & Penny J. White, Judicial campaign oversight committees’ complaint handling in the 2006 elections: survey and recommendations, 91 Judicature 232, 234 (2008); Barbara Reed & Roy A. Schotland, Judicial Campaign Conduct Committees, 35 Ind. L. Rev. 781, 790 (2002). 16. Reed & Schotland, supra note 13, at 790. 17. American Bar Association, supra note 10. 18. National Ad Hoc Advisory Committee on Judicial Campaign Conduct, Effective Judicial Campaign Conduct Committees: A How-To Handbook at 25 (National Center of State Courts, 2004). 19. Fortune & White, supra note 13, at 236. 20. Ad Hoc Committee, supra note 16, at 28. The Ad Hoc Committee strongly recommends that oversight committees have the power to review campaign conduct in the absence of a complaint, particularly in egregious cases of campaign

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misconduct. Some oversight committees require that complaints be in writing, with many also requiring that the complaints be signed. Some oversight committees allow complaints to be e-mailed, while others require complaints to be mailed, faxed, or personally delivered. 21. Id. at 29. 22. Fortune & White, supra note 13, at 235. 23. See Cynthia Canary, Know Before You Go: A Case for Publicly Funded Voters’ Guides, 64 Ohio State L.J. 81, 89 (2003). 24. Id. at 90. 25. Id. 26. The new Code of Judicial Conduct in Arkansas provides that a judge shall not “in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of a judicial office.” Ark. Code Jud. Conduct Rule 4.1(A)(13). 27. “Judicial Campaigns and Elections,” American Judicature Society (June 5, 2009). 28. Id. 29. Id. 30. Peter Brien, The Next Step In Election Re-

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THOMAS E. OSMENT, JR. PLLC Attorney at Law #5 Innwood Circle, Suite 111 Little Rock, AR 72211 Tel: 501.590.5385 Fax: 501.223.3999 Email: gosment1@comcast.net form, 28 J. Legis. 87 (2002). 31. Roy Schotland, Justice in Peril, 21 Geo. J. Legal Ethics 1229 (Fall 2008). 32. Nate Ellis, ABA Recommends Public Funding of Judicial Races, Local Doubts Persist, Daily Rep. (Ohio, July 24, 2001) (quoting Justice Paul Pfeifer). 33. Amendment 80, section 18(A), to the Arkansas Constitution does authorize the General Assembly to refer a merit-selection proposal to a vote of the people, but there has been no detectable sentiment in the legislature to do that. n

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their documents also call for penalties in hopes of modifying behavior of home owners, but POAs frequently confuse the penalty box kind with the liquidated damages variety. Specifically, they may also attempt to fine behavior, from back yard goat roasts to maintaining weed lots, in which case there is really no way to measure the impact on property values of those transgressions. And what is an “appropriate” penalty may be a really tough call at the line of the scrimmage. Conclusion: Before insisting on a significant late charge, as to loan payments, rent or POA assessments, the collecting entity should compare the charge to actual expenses and lost-opportunity costs that can be reasonably estimated and should also remember judicial hostility to penalties generally.25 Earnest money forfeiture amounts should make sense as liquidated damages. Lenders should not lose desirable workouts over unreasonable fees. All need to be sure their demands for attorney’s fees have a statutory basis. All can contract for penalty interest if the rates are legal, but not without some limits. Lenders should not be buffaloed by lender liability trash talking. And all should take care to distinguish spirited play from unnecessary roughness. Endnotes: 1. Canadian Mineral Co. v. Creekmore, 226 Ark. 980, 984, 295 S.W.2d 357, 360 (1956); Cooley v. Lovewell, 95 Ark. 567, 568, 130 S.W. 574 (1910); Bright v. Glass, 38 Ark. App. 71, 80, 831 S.W.2d 149, 155 (1992). 2. Ark Code Ann. §§ 18-50-101, et. seq., especially §§ 107, 109, 114. 3. Metlife Capital Fin. Corp. v. Wash. Ave. Assocs., 159 N.J. 484, 732 A.2d 493 (1999). 4. McGregor v. Echols, 153 Ark. 128, 239 S.W. 736 (1922). 5. Hearrell v. Rogers, 7 Ark. App. 230, 646 S.W.2d 703 (1983). 6. Steven W. Bender & Michael T. Madison, The Enforceability of Default Interest in Real Estate Mortgages, 43 Real Prop. Tr. & Est. L.J. 199, 202, 204 (2008). 7. Ibid. 43

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8. 12 U.S.C.A § 1831u(f) (West 2009). 9. Ark Code Ann. § 4-3-108 sets out the rules of the game here. 10. Interview with Arkansas banker. 11. Stebbins & Roberts, Inc. v. Halsey, 265 Ark. 903, 582 S.W.2d 266 (1979). 12. Tackett v. First Savings of Ark., 306 Ark. 15, 22, 810 S.W.2d 927, 931 (1991). 13. Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995). 14. Murchie v. Hinton, 41 Ark. App. 84, 848 S.W.2d (1993). 15. 364 Ark. 386, 220 S.W.3d 637 (2005). 16. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994). 17. Ark Code Ann. § 18-17-701 et seq. 18. Ark Code Ann. § 18-17-708. 19. You must pay the rent. 20. 295 Ark. 533, 750 S.W.2d 402 (1988). 21. Ark. Code Ann. § 18-13-108(b)(4). 22. Freeman v. Curry, 299 Ark. 263, 772 S.W.2d 586 (1989). 23. Surprisingly, there is almost no case law on point. A deliberate default to avoid a high interest rate, and with a new lender in the wings, may be an exception, but the prevailing legal philosophy exemplified by the Arkansas cases cited in this article would seem to discourage the extra hit as to a genu-

inely distressed borrower, and even more so an involuntary casualty loss. 24. Moll v. Main Motor Co., 213 Ark. 28, 210 S.W.2d 321 (1948). 25.The reasonableness of the approximation is crucial. Johnson v. Jones, 33 Ark. App. 149, 152, 807 S.W.2d 39, 41 (1991); Muradian v. Haley, 12 Ark. App. 138, 140, 671 S.W.2d 210, 212 (1984). n

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Lawyer Disciplinary Actions Homes continued from page 22

ing classifications specifying acceptable locations for manufactured housing as long as the requirement is not based on compliance with construction, safety, and energy standards stricter than the HUD Code. In other words, the federal preemption provision is only triggered if the zoning ordinance includes building or construction standards. Consequently, a community’s decision as expressed in its zoning code to “restrict” manufactured housing from a locational standpoint is usually unaffected by the NMHCSSA. This can pose a problem in some situations if the zoning based restrictions restrict the supply of suitable manufactured housing sites in a community. III. Relevant Arkansas Law on Manufactured Housing Siting A. Arkansas Municipality Authority to Establish Zoning Codes An Arkansas municipality’s power to establish zoning and related requirements is derived from certain state statutes.23 Municipalities are provided the authority to enact ordinances, which are necessary for the safety, to preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants. This statutory authority is limited or enhanced

based on the classification of the municipality, but generally includes the ability to regulate certain aspects of building construction.24 For example, first and second class cities have authority to adopt zoning ordinances. However, only first-class cities are granted the authority to regulate the building of houses. Many Arkansas communities have historically attempted to restrict the placement of manufactured housing through the use of zoning ordinances or codes. For example, in Robertson v. City of Lowell,25 three mobile homes were placed on a tract of agricultural land, contrary to a local zoning ordinance restricting them to mobile home parks. The court held that the mobile homes were not permitted as non-conforming uses. In Rolling Pines Ltd. Partnership v. City of Little Rock26 the City of Little Rock’s zoning ordinance did not allow manufactured homes in R-2 zoning districts as a matter of right. The court upheld a Little Rock zoning provision that only authorized manufactured homes as a conditional use if they met the following standards: (1) a pitched roof of three (3) in twelve (12) or fourteen (14) degrees or greater; (2) Removal of all transport elements; (3) Permanent foundation; (4) Exterior wall finished so as to be compatible with the neighborhood;

Tom M. Ferstl, MAI, SRA, J.D. J.T. Ferstl, MAI, J.D. 621 E. Capitol Ave. Little Rock, AR 72201 Phone: 501-375-1439 or 501-376-1439 Fax: 501-375-8317

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(5) Orientation compatible with placement of adjacent structures; (6) Underpinning with permanent materials; (7) All homes shall be multi-sectional; and (8) Off-street parking per singlefamily dwelling standard. The court upheld a determination that manufactured homes were not compatible with the established neighborhood standards such as the presence of brick homes in this area of Little Rock. The 2008 Arkansas Court of Appeals decision in Forest Glade Management, LLC v. City of Hot Springs27 addressed a City of Hot Springs zoning code provision. The code required that all manufactured homes sited in the city, after the effective date of the ordinance, have been manufactured subsequent to October 25, 1994.28 A mobile home park challenged the Hot Springs code provision arguing it exceeded the state statutory authority provided to municipalities. Specifically, the mobile home park stated that the city did not have the authority to use or address the structure’s age in its code. The Arkansas Court of Appeals found that the City of Hot Springs provision was a valid exercise of its police power because the zoning ordinance referenced the 1994 federal regulations addressing standards for mobile home construction (i.e., the HUD Code). The ordinance was therefore found to bear a rational relationship to the health, safety and welfare of the citizenry since it established certain minimum standards for mobile homes placed within the City of Hot Springs. B. Elements of the Arkansas Affordable Housing Accessibility Act A number of states, over the past several years, have recognized the potential role of manufactured housing in addressing housing needs. Some states require municipalities to consider the role of manufactured housing in their comprehensive planning. Other state legislative initiatives have reduced local governmental obstacles.29 Arkansas is one of those states. In March 2003, the Arkansas General Assembly enacted the Arkansas Affordable Housing Accessibility Act (“Accessibility Act”) to better ensure the availability of affordable housing in Arkansas communities.30 The Accessibility Act attempts to promote affordable residential housing without compromising cities’ concerns with land value depreciation and aesthetic challenges. It also provides that Arkansas communities must treat manufac-

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tured homes and any other form of residential housing equally. The federal HUD Code plays a key role in the implementation of the Accessibility Act. This is due to the fact that the Arkansas statute prohibits municipalities from establishing ordinances or regulations incorporating standards for manufactured home construction or safety not identical to the HUD Code. Arkansas municipalities are also prohibited from establishing an ordinance or code that includes standards for manufactured home installation inconsistent with the state standards for installation set forth under § 20-25106 and the design of the manufacturer.31 The Accessibility Act also requires that local zoning ordinances permit the placement of manufactured homes on individually owned lots in at least one or more residential districts or zones within the municipality.32 Local codes are not allowed to impose regulations or conditions on manufactured homes that prohibit the placement of manufactured homes or that are inconsistent with the regulations or conditions imposed on other single-family dwellings permitted in the same residential district or zone.33 Further, municipalities cannot establish or continue in effect any ordinance or regulation that restricts the placement of manufactured homes to mobile home parks, subdivisions, or land-lease com-

munities. However, Arkansas municipalities may establish reasonable regulations or conditions for the placement of manufactured homes within their jurisdiction, including, but not limited to: perimeter foundation enclosures; connection to utilities; building setbacks; side or rear yard offsets; off-street parking; construction of carports, garages, and other outbuildings; entries and exits, porches, decks, and stairs; and other regulations or conditions that are applicable to other single-family dwellings in the same residential district or zone.34 In contrast to manufactured housing, municipalities are free to regulate mobile homes. The term “mobile home” is defined by the Accessibility Act as: “. . . a dwelling unit constructed in a factory before the enactment of federal standards.”35 A municipality can prohibit the placement of mobile homes in all residential districts or zones or restrict the placement of mobile homes to designated mobile home parks, subdivisions, or land-lease communities. Consequently, whether a structure fits within the scope of the Accessibility Act term “mobile home” can be important. Local governmental codes are not the only source of manufactured housing restrictions. Deed restrictions and bills of assurance36 are sometimes used by private parties to prohibit

twitter Follow us on twitter: ArkBar or restrict the ability of a property owner to erect manufactured houses on one or more properties.37 The Accessibility Act specifically excludes real property covenants and bills of assurance from the previously described prohibitions.38 Historic districts are also exempt from the Accessibility Act. C. Implementation of the Arkansas Affordable Accessibility Act 1. Community Zoning Analysis The enactment of the Accessibility Act required Arkansas communities to assess whether

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their zoning schemes complied with the statute. Neither these assessments nor the changes required to attain Accessibility Act compliance have likely been simple, either legally or politically. 2. Interpretation of the Accessibility Act The scope of the Accessibility Act preemption provision has not been addressed by the Arkansas appellate courts. However, the Arkansas Attorney General was asked to opine on an Accessibility Act issue in 2007.39 The opinion was in response to a request by Senator Shane Broadway to Arkansas Attorney General Dustin McDaniel in regard to City of Benton Ordinance No. 22 of 1992.40 The Attorney General stated that the Benton Ordinance had a provision for “Special Districts” that could possibly authorize the establishment of residential districts that would include “manufactured homes” as required by the Accessibility Act. However, he noted there was no information indicating that Benton had established such districts. Consequently, the Attorney General stated: “Moreover, in my opinion, the requirements of the Affordable Housing Accessibility Act are not satisfied by the possibility that the City might, at some point, authorize the place-

ment of manufactured homes in a residential district.” IV. Conclusion Both the State of Arkansas and its various communities face challenges in the pursuit of an increase in home ownership. These challenges are likely to be exacerbated, at least in the short term, by the problems facing the United States economy. Therefore, the availability of the means or methods to reduce housing costs will continue to be critical. An important question is whether manufactured housing can play a substantive role in providing affordable housing. Traditionally, many communities opposed any role for manufactured housing other than placement within a trailer park or similar development. The evolution of these structures within the last few decades into a viable alternative or substitute for site-built structures has raised questions as to wisdom of some of the governmental hurdles. The combination of these federal and Arkansas authorities delineate the extent to which state and local government can regulate the use of manufactured housing. Consequently, attorneys advising clients regarding these and related issues must be cognizant of both the federal HUD Code and the Arkansas Accessibility Act.

Stay in touch Please make sure we have your current e-mail address contact btarkington@arkbar.com Endnotes: 1. The views in this article are solely those of the authors and do not necessarily represent those of any organization with which they are or have been associated. 2. Arkansas Affordable Housing Accessibility Act, Ark. Code Ann. §§ 14-54-1601–1606. 3. For example, Sears, Roebuck and Co. sold complete “house-kits.” Jerry Weitz, Manufactured Housing: Trends and Issues in the ‘Wheel Estate’ Industry, American Planning Association, Winter 2004.

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4. Robert W. Wilden, Commission on Affordable Housing and Health Facility Needs for Seniors in the 21st Century, Manufactured Housing and Its Impact on Seniors (Feb. 2002), http://govinfo.library.unt. edu/seniorscommission/pages/final_report/ manufHouse.html (manufactured housing was historically financed with personal property loans because of its perceived mobile nature; however, they also received mortgage financing if the manufactured home was affixed to a permanent foundation); Shelter Ins. Co. v. Richmond, No. CA 87-45, 1987 WL 12074 (Ark. App. June 10, 1987) (affirmed trial court’s holding that mobile homes were by definition more than stationary homes). 5. In Pledger v. Halvorson, 324 Ark. 302, 921 S.W.2d 576 (1996), the Arkansas Supreme Court set out the three part test to determine whether a manufactured home is real or personal property. The determination is based on: (i) whether the item is annexed to the real property; (ii) whether the item is appropriate and adapted to the use or purpose of the real property to which it is connected; and (iii) whether the annexation is intended to be permanent. 6. Jerry Weitz, Manufactured Housing: Trends and Issues in the ‘Wheel Estate’ Industry, American Planning Association, Winter 2004. 7. J. Beamish, R. Goss, J. Atiles, & Y. Kim, Not a Trailer Anymore: Perceptions of Manufactured Housing: Housing Policy Debate, Fannie Mae Formulation, 2001. 8. William Apgar, Allegra Calder, Michael Collins & Mark Duda, An Examination of Manufactured Housing as a Community-and Asset-Building Strategy, report to the Ford Foundation by Neighborhood Reinvestment corporation with the Joint Center for Housing Studies of Harvard University, Sept. 2002. 9. 42 U.S.C. §§ 5401-5426. 10. 42 U.S.C. § 5402(6). 11. 24 C.F.R. §§ 3280.1 – 3280.904. The HUD Code is applicable to manufactured housing therefore distinguishing these structures from other types of housing such as mobile homes or trailers. 12. 24 C.F.R. § 3280.2. 13. 42 U.S.C. § 5401(b)(3). 14. The Arkansas governmental body implementing the HUD Code is the Manufactured Housing Commission (“AMHC”). The agency adopts uniform standards for the building of manufactured homes and enforces these standards. Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998). 15. Ark. Code Ann. §§ 20-25-101 – 113. 16. Ark. Code Ann. § 20-25-102(10). 17. 42 U.S.C. § 5403(d). 18. 42 U.S.C. § 5403(d). 48

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19. Lauderbaugh v. Hopewell Township, 319 F.3d 568 (3d Cir. 2002). 20. Texas Manufactured Hous. Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1100 (5th Cir. 1996). 21. Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1525 (11th Cir. 1988). 22. See Ohio Manufactured Hous. Ass’n. v. Canton, No. 5:97 CV 1190 (N.D. Ohio, Dec. 4, 1998). 23. Ark. Code Ann. § 14-55-102. 24. Ark. Code Ann. § 14-56-201 states that municipal corporations shall have the power to: (1) regulate the erection, construction, reconstruction, alteration, and repair of buildings; (2) make regulations for the purpose of guarding against accidents by fire; (3) require the use of fireproof or fire-resistant materials in the erection, construction, reconstruction, alteration, or repairs of buildings; and (4) provide for the removal of any buildings, or additions thereto, erected contrary to this prohibition. 25. 297 Ark. 51, 759 S.W.2d 212 (1988). 26. 73 Ark. App. 97, 40 S.W.3d 828 (2001). 27. No. CA 08-200, 2008 WL 4876230 (Ark. App. Nov. 12, 2008). 28. October 1994 is the effective date of the federal HUD Code. 29. For example, the State of Virginia requires approval of manufactured housing as a right in zoning classifications such as agricultural districts. 30. S.B. 407, 84th Leg., Reg. Sess. (Ark. 2003). 31. Ark. Code Ann. § 14-54-1603. 32. Ark. Code Ann. § 14-54-1604. 33. Id. 34. Id. 35. The Accessibility Act references the HUD Code in defining this term as: “Federal standards” means that the Federal Manufactured Home Construction and Safety Standards, 24 C.F.R. 3280, promulgated by the United States Department of Housing and Urban Development under the authority of 42 U.S.C. § 5401 et seq. as it existed on January 1, 1976 . . . means a dwelling unit constructed in a factory in accordance with the federal standards and meeting the definitions set forth in the federal standards and under § 20-25-102. 36. In White v. McGowen, 364 Ark. 520, 222 S.W.3d 187 (2006) the court addressed whether a structure violated a covenant prohibiting “trailers.” The difference between a mobile home and a manufactured home was discussed in Welch v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992). 37. Such restrictions are not favored by law and will be strictly construed against limitations on the free use of land. Forrest Construction v. Milam, 341 Ark. 1, 43 S.W.3d 140 (2001). If the

language of the covenant is clear and unambiguous, application of such restrictions will be governed by the intent of the parties. 38. Ark. Code Ann. § 14-54-1606. 39. Op. Ark. Att’y Gen. 2007-252 (2007). 40. Op. Ark. Att’y Gen. 2007-252 (2007). n

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In Memoriam and Barry in Fort Smith. He is survived by his mother; his wife, Mary Ann Robinson; his daughter and son-in-law, Elizabeth and Steven Quattlebaum; his son, Jonathon Robinson; and two grandchildren.

Zenola M. Hilliard Zenola M. Hilliard of Pine Bluff died July 27, 2009, at the age of 60. She graduated from the University of Nebraska at Omaha in 1976 and earned her juris doctorate degree from Creighton University in 1979. She began her legal career at Omaha Legal Aid Society, and then moved to Pine Bluff. She was a former “Reginald Heber Smith Fellowship Attorney” with Central Arkansas Legal Services 1979-1981. For the next twenty years 1982-2002, she headed her own law firm in Pine Bluff – the Hilliard Law Office. In 2002, she returned as a staff attorney to the Pine Bluff office of the Center for Arkansas Legal Services until 2009. She served as attorney for the City of Reed, Arkansas 1988-1997 and the Westside Sewer Improvement District No. 35 1989-1998. She was Municipal Judge of Gould, Arkansas 1998-2001. She was a member of VOCALS and a pro bono volunteer attorney during her years in private practice. She was a member of the Jefferson County Bar Association and Arkansas Bar Association, where she served on the Family Law and Probate & Trust Law Sections. She is survived by her husband, R.L. Tisdale, her mother, a daughter and many relatives. “She touched the lives of so many in her community and state. Zenola’s life stood as a testament to the cause of justice and the right of every citizen, regardless of their financial means, to have access to the justice system,” according to an obituary submitted by Arkansas Legal Services. H. Clay Robinson H. Clay Robinson of Little Rock died on August 22, 2009, at the age of 74. He graduated from Little Rock Senior High School, attended Georgia Tech and earned a juris doctorate degree from the University of Arkansas Law School in Fayetteville. He practiced law in Little Rock and Fort Smith, primarily with the firm of Pryor, Robinson

Judge Ernie E. Wright Judge Ernie E. Wright of Harrison died August 6, 2009, at the age of 93. He graduated as valedictorian of his Berryville, Arkansas High School class in 1934. He earned the A.B. and J.D. degrees at the University of Arkansas in 1938 and 1940. He was elected prosecuting attorney for the 16th Judicial District of Arkansas. After serving 15 months in that office, he resigned and entered the U.S. Army as World War II was in progress. He served for the most part in the U.S. Air Force until the war ended. In 1948, he was elected a presidential elector for Harry S. Truman. Mr. Wright practiced law in Mountain Home and was elected Chancery Judge of the 11th Chancery District of Arkansas in 1954. He served in that office until he retired after more than 20 years of service. In 1979, he was appointed by Governor Bill Clinton as chief judge of the newly created Arkansas Court of Appeals, and he served through 1980. Over the next several years, he was appointed numerous times as Special Judge of the Court of Appeals and as Special Justice of the Arkansas Supreme Court. He served on the executive committee of the Arkansas Judicial Council and as president of the council. He chaired a federal land commission on the Buffalo River National Park in 1996. On his 90th birthday, the Arkansas Supreme Court issued a per curiam order honoring him for his services to the state of Arkansas. He is survived by his wife, Alyce (Aline); his son

Warren; his daughter, Carolyn Gander, and one grandson.

Isaac Alexander Scott, Jr. Isaac Alexander Scott, Jr. of Little Rock died August 26, 2009, at the age of 75. He was a graduate of Hall High School (1952); Harvard College (A.B. 1956), where he received the Oak Leaf Cluster for outstanding service to Adams House; and the Law School of the University of Arkansas at Fayetteville (L.L.B. 1959), where he was Associate Editor of the Arkansas Law Review (1957-1959) and a member of Blue Key. He was an attorney with the law firm of Wright, Lindsey & Jennings LLP for over 33 years. He valued his extended family at the firm, his friends and colleagues for so many years, according to an obituary in the Arkansas Democrat-Gazette. He was a Sustaining Member of the Arkansas Bar Association where he served on the Editorial Board for Handbooks, the Debtor/Creditor Law Committee, Sustaining Member Committee, and the Business Law and Civil Litigation Sections. He was a Fellow of the Arkansas Bar Foundation. He was a member of the American Bar Association, the Pulaski County Bar Association (President 199798, former Treasurer); Pulaski County Bar Foundation (President 2004-2005); Debtor Creditor Bar Association of Central Arkansas and American College of Bankruptcy, where he was a Fellow. He was a founder and a member of the original Board of Directors of the Legal Aid Bureau. He received the Sidney S. McMath Award from the Pulaski County Bar Association. He is survived by his wife of fifty-two years, Elaine Hoffman Scott; children Melissa Scott, Caitlin Scott and Bran Scott; and one granddaughter.

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In Memoriam Carroll Burke Wheeler Carroll Burke Wheeler of Texarkana, Texas, died August 12, 2009, at the age of 92. He was a special agent for the FBI, an attorney and special counsel to the City of Texarkana. He was a member of the Arkansas Bar Association where he served on the Business Law, Probate and Trust Law, Real Estate Law, Health Law and Taxation Sections. He was the first president of the Texarkana Bar Association. He is survived by his daughter, Anne Wheeler and one grandson. Robert S. “Bob” Blatt Robert S. “Bob’ Blatt of Fort Smith died June 21, 2009, at the age of 73. He was a 1957 graduate of Tulane University, where he received his bachelor’s degree and a 1972 graduate of the University of Arkansas Law School. He was a member of the Arkansas Bar Association, the Sebastian County Bar Association, Arkansas Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, the Arkansas Trial Lawyers Association, and the National Trial Lawyers Association. He is survived by his wife, Marcene; three daughters, Shannon Blatt, Rhonda Russell and Darla Cupit; a son, Mark Lowery; two grandchildren and one great-grandchild.

Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s work in making scholarship funds available for law students, aiding in education of the public about legal matters, supporting projects that assist in improving and facilitating the administration of justice and funding other law-related charitable efforts. Contributions may be sent directly to the Arkansas Bar Foundation. The staff appreciates having the name of the family member to whom acknowledgments should be sent. Please feel free to call the Arkansas Bar Foundation at 501.375.4606 or 800.609.5668 for further information.

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Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period July 1, 2009 through September 30, 2009: In Memory of Robert S. “Bob” Blatt B. Jeffery Pence Judge Robert T. Dawson In Memory of Judith Ryan Gray Designated to the Judith Ryan Gray Annual Meeting Endowment Eugene “Kayo” Harris and Georgia Elrod Harris Judge Alice F. Lightle Jeffrey and Lester McKinley Rosalind and Kirby Mouser Judge J. Thomas Ray Charles B. Roscopf Judge Cindy G. Thyer David B. Vandergriff In Memory of Zenola Hillard Jefferson County Bar Association In Memory of James J. Glover Liz and David Powell In Memory of Judge James S. Hudson, Jr. Judge John R. Scott In Memory of Mrs. Freda Jones Cathi Compton and Judge William R. Wilson, Jr. In Memory of Ralph C. Murray Judge James G. Mixon In Memory of Clarine L. Ransick Cathi Compton and Judge William R. Wilson, Jr. In Memory of Katherine Rather Philip E. Kaplan In Memory of Judge Andree Layton Roaf Adjoa A. Aiyetoro Lakesha Bolden Justice Robert L. Brown Charlene Fleetwood Judge Marion A. Humphrey Jefferson County Bar Association Judge Henry L. Jones, Jr. Dianna Kinsey Rosalyn Middleton

In Memory of Judge Andree Layton Roaf (Cont.) Judge Olly Neal Judge John M. Pittman Gwendolyn L. Rucker Danyelle J. Walker Melanie Yelder In Memory of H. Clay Robinson Judge Bradley D. Jesson Fred S. Ursery In Memory of Mary Anne Roscopf Justice Robert L. and Charlotte Brown Judge Lawrence E. Dawson In Memory of Kent J. Rubens Judge Cindy G. Thyer In Memory of Sarah Ann Presson Runnells Edward T. Oglesby Judge John B. and Sue Plegge Laura Hensley Smith In Memory of Isaac A. “Ike” Scott, Jr. Mr. and Mrs. Philip S. Anderson Justice Robert L. and Charlotte Brown Ruthe and Phil Kaplan Judge James G. Mixon Rosalind M. Mouser Judge John B. and Sue Plegge Liz and David Powell Laura Hensley Smith Judge John F. and Marietta Stroud, Jr. Fred S. Ursery In Memory of Judge Ernie E. Wright Justice Robert L. and Charlotte Brown

Honorarium and Scholarship Contributions E. Charles Eichenbaum Scholarship Peggy and L.R. Jalenak, Jr. Wilson & Associates Ethics Scholarship Wilson & Associates, P.L.L.C.

Vol. 44 No. 4/Fall 2009 The Arkansas Lawyer

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Mark your calendars Arkansas Bar Association Annual Meeting

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June 9-12, 2010

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The Arkansas Lawyer - Fall 2009