The Arkansas Lawyer Fall 2012

The Arkansas

Lawyer

A publication of the

Arkansas Bar Association

Inside: Character Evidence Obscenity Laws Social Media in the Workplace

Vol. 47, No. 4, Fall 2012 online at www.arkbar.com

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Our team of experts understands how to: • Leverage technology to support, simplify and protect your practice; • Manage your technology infrastructure from backing up your information to hosting your critical technology assets; • Free you to focus on your practice without worry for your technology investment.

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Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com editor Anna K. Hubbard executive director Karen K. Hutchins Editorial Board Mary Beth Matthews, Chair Judge Wiley A. Branton, Jr. Keith L. Chrestman Brandon J. Harrison Anton Leo Janik, Jr. Jim L. Julian Philip E. Kaplan Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Charles L. Harwell Board of Governors Chair David R. Matthews President-Elect Jim Simpson Immediate Past President Tom D. Womack Secretary F. Thomas Curry Treasurer William A. Martin Assistant Treasurer Shaneen K. Sloan Parliamentarian Marie-Bernarde Miller Young Lawyers Section Chair Vicki S. Vasser President-Elect Designee Brian H. Ratcliff BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chaddick, Jr. Richard C. Downing Frances S. Fendler Amy Freedman Buck C. Gibson Amy C. Grimes Denise R. Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Troy A. Price John C. Riedel Brian M. Rosenthal Jay Shue, Jr. Brock Showalter Shaneen K. Sloan Danyelle J. Walker Dennis Zolper

LIAISON MEMBERS Thomas A. Daily Harry Truman Moore Judge Robert Edwards Jack A. McNulty Karen K. Hutchins Judge Mark A. Pate Paul W. Keith Richard L. Ramsay 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 2012, Arkansas Bar Association.

All rights reserved.

The Arkansas

Lawyer Vol. 47, No. 4

features

10 The Admissibility (and Inadmissibility) of Character Evidence Dent Gitchel

16 Obscenity Laws? What’s the Point Anymore (Not that there Was)?

John Wesley Hall

24 Managing Social Media in the Workplace Dylan H. Potts and Jenny Holt Teeter 30 Keeping Up with the Tweeters: The Challenge for Jury Instructions Teresa Wineland 32 Chief Justice Joseph Morrison Hill J.W. Looney 34 Report from the 2012 National Conference of Commissioners on Uniform State Laws Lynn Foster 38 Credit Card Transactions and IOLTA Accounts: What You Need to Know Amy Dunn Johnson Contents Continued on Page 2

Lawyer The Arkansas Vol. 47, No. 4

in this issue Association News

6

Congratulations to New Members

8

columns President’s Report

Member Spotlight–Attorneys & Their Hobbies

22

Charles L. Harwell

CLE Calendar

33

Young Lawyers Section Report

Board of Governors Report

36

Judicial Disciplinary Actions

40

Attorney Disciplinary Actions

40

Arkansas Bar Foundation Memorials and Honorarium

50

In Memoriam

51

Classified Advertising

52

5 9

Vicki S. Vasser

Your Name in Print The Arkansas

Lawyer

A publication of the

Arkansas Bar Association

Vol. 47, No. 2, Spring 2012 online at www.arkbar.com

For information on submitting articles for publication, go to www.arkbar.com Publications/AR_Lawyer_magazine.aspx

Inside Attorney Oath of Admission Revised to Add a Pledge of Civility 175th anniversary of the first published Arkansas Supreme Court decision

or email ahubbard@arkbar.com

Arkansas Bar Association

2224 Cottondale Lane Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew Curry, Leon Jones, Kristin Pawlik, William J. Trentham Delegate District A-2: Chad L. Atwell, Stan B. Baker, Suzanne Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Matthew L. Fryar, Tina M. Hodne, Joshua D. McFadden, Curtis L. Nebben, W. Marshall Prettyman, Jr. Delegate District A-3: Aubrey Barr, C. Michael Daily, Shannon Foster, Lisa-Marie France Norris, Colby Roe Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Michael E. Kelly Delegate District B: John T. Adams, Amber Wilson Bagley, James Paul Beachboard, Eric Scott Bell, M. Stephen Bingham, Phillip M. Brick, Jr., Franki Coulter, Grant M. Cox, Jason Earley, Khayyam Eddings, Stephen R. Giles, Christian Harris, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Justin Hinton, Matthew House, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, Cliff McKinney II, Whitney F. Moore, Chad Pekron, Gwendolyn L. Rucker, Shaneen K. Sloan, Aaron L. Squyres, Adam Wells, Thomas G. Williams, Dan C. Young, Kimberly Young Delegate District C-1: Roger Colbert Delegate District C-2: Michelle Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, G. S. Brant Perkins Delegate District C-4: Jobi Teague Delegate District C-5: Albert J. Thomas III, A. Jan Thomas, Jr., William “Zac” White Delegate District C-6: Charles E. Clawson III, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Paul T. Bennett, Jackie B. Harris, Jessica Yarbrough Delegate District C-9: John R. Byrd, Jr., Timothy R. Leonard, Leslie Jo Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: J. Joshua Drake, Wade T. Naramore Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson Law Student Representatives: John Crabtree, University of Arkansas School of Law; Matt Pedicini, UALR William H. Bowen School of Law

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The Arkansas Lawyer

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At the end of the day...

Who’s Really Watching Your Firm’s 401(k)?

And, what is it costing you?

YES

NO

Does your firm’s 401(k) feature no out-of-pocket fees?

Does your firm’s 401(k) include professional investment fiduciary services?

Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors?

If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email joinus@abaretirement.com to learn how we keep a close watch over your 401(k).

Who’s Watching Your Firm’s 401(k)?

The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program.

C12-0201-010 (2/12)

Create Your Power Practice Arkansas Bar Association Practice Handbooks

Build Your Library with handbooks on substantive areas of state and federal law written by expert attorneys and judges.

Arkansas Bankruptcy Handbook

NEW! Statute of Limitations now available for purchase in printed

Arkansas Debtor/Creditor Handbook Arkansas Domestic Relations Handbook

format and as an epub version (to be viewed on computer, phone or tablet). $25 each or $40 for both (for members).

Arkansas Probate Handbook

Statute of Limitations is still available as a free

Handling Appeals in Arkansas

download to members.

Revocable Trusts for the Arkansas Practitioner Standards for Examination of Real Estate Titles in Arkansas

http://www.arkbar.com/ pages/solhandbook.aspx

NEW Debtor/Creditor Handbook The Debtor/Creditor Handbook compiles the enormous changes in commercial law affecting debtors and creditors over the last 18 years, including the significant revisions to Article 9 of the Uniform Commercial Code and Arkansas’s usury law. Don’t miss out on this guide to debts and judgments!

Order an ArkBar Handbook today!

Go online to www.arkbar.com/pages/Practice_Handbooks.aspx Members SAVE over $50 per book!

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President’s Report

by Charles L. Harwell

Fall, ‘tis the Season?

Except for the dread of winter which inevitably follows, fall should be my favorite time of year, particularly this year. Temperatures have moderated. Much welcomed rain brought green back into our outdoor palette.

Soon nature’s display of autumn hues will amaze us again. Baseball playoffs will soon start. After an up-and-down year, it appears that my beloved Detroit Tigers will once again make it into the post-season. They are a talent laden team barely satisfying the high expectations of their followers at the start of the season. We true Tiger fans hope it will be their year. It is part of the cycle of life where we anticipate, experience, complete and then reminisce about our passions. Fall means that football season is underway. The Razorbacks also have failed to meet pre-season hopes and dreams. But we have basketball to look forward to, because autumn sounds the call to another season of another sport. And fall is when we celebrate Thanksgiving, when we stop and count our many blessings. Yes, fall has much to commend it as a favorite season, especially this year. As I travel around our state on behalf of this great Association, I am reminded that I need to take in the moment, cheer my teams, and enjoy the season. I encourage each of you to do the same.

We remain in the season of renewal with our Association. To state the obvious, the lifeblood of any organization is its members. The Arkansas Bar Association, as a voluntary bar, is totally dependent upon the continued support of its members. Indeed, it must recruit and retain members every year. So our cycle of life for the Association begins in spring, but continues throughout the year. Our hard-working Membership Development Committee, co-chaired by Michael Harrison and Bill Mann, is seeking to achieve a goal of 5600 members by the end of the bar year. We need your help. Please ask the next lawyer you encounter if he or she is a member of the Association. And, if not, why not? Encourage your colleagues to be

part of our work. We are presently at 4905 members. That means it will take a concerted effort by us all to achieve our aim.

To convince others of the value of membership, share your story of how the Association has benefitted you. Perhaps it is Fastcase, a cutting edge research tool. Or perhaps your favorite benefit is the great work done by Robert Tschiemer to bring us summaries of the appellate decisions of our courts. Maybe you want to tout the member discounts for CLE throughout the year, including Mid-Year in Memphis and the Annual Meeting in Hot Springs. Why not brag about section membership, which through the Association’s website and listserv capability gives you the opportunity to electronically sound out issues you face in your practice area with your colleagues?

As we approach the next meeting of the legislature, we need to be reminded of a benefit which is too often overlooked. We maintain a presence in the legislature with a full-time lobbyist, Past President Jack McNulty, who does a superb job representing the interests of lawyers. His work is done in conjunction with the Legislation Commitee, currently chaired by Bob Estes, which meets each week during a legislative session to review every bill being considered.

Familiarize yourself with the many benefits of belonging to the Association. Develop your Arkansas Bar Association “elevator speech,” where, in the 30 seconds you have to converse with somebody, you hit the relevant high points, show you have thought about the subject and can convey the passion needed to close the deal. Once you have that speech rehearsed, visit the membership directory on the Bar’s website and find those in your area whose names are missing from our rolls. Make the call. This is the season for you to show your true colors.

Speaking of true colors, I want to commend each of you who give of yourself, your time, talents and money, to help make legal

services available to those who could not otherwise have access. We need each and every volunteer. This country is facing precipitous times, indeed, a crisis. This is taken from the Arkansas Access to Justice (AATJ) website: One in five Arkansans live at or below 125% of the federal poverty level and are eligible to receive free civil legal services. Yet every year, nearly half of qualified Arkansans who contact a legal aid provider for help with civil legal issues are turned away due to a lack of sufficient resources. Numerous others don’t qualify for legal aid because their income exceeds the eligibility threshold, yet they still can’t afford attorneys to help them.

The legal issues that affect Arkansas’s poor involve the most basic human needs: protection from domestic violence, economic security for the elderly and disabled, and safe and habitable housing, to name a few.

Those who are unable to obtain legal aid or afford an attorney are left to navigate the legal system on their own, often with lasting repercussions. Lack of access contributes to cycles that keep people in poverty and has negative consequences for our system of justice, and ultimately the rule of law.

It cannot be over-stated: we need each of you to give of yourselves, again and again.

The funding has shrunk and will continue to dry up. Our obligations as lawyers include helping to provide access to our justice system. See Rule 6.1 of the Arkansas Rules of Professional Conduct. Never has the call been more urgent. Visit the AATJ website at www.arkansasjustice.org to volunteer or donate money. This is the season. Along with winter, spring and summer. n

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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Association News Congratulations to members of the Arkansas Bar Association celebrating their 25th year of practice

Loral Ashton Adcock D. Franklin Arey III Coleen M. Barger Michael D. Barnes Donald R. Betterton Claire Borengasser Brian P. Boyce Brad Broadaway Brian A. Brown Bunny Bullock Kimberly D. Burnette Mark Burnette John Logan Burrow Brad A. Cazort Norman G. Cox Ray F. Cox, Jr. Bradley C. Crawford Ed Daniel IV John Charles Edwards Sharon E. Foster Price C. Gardner Jane B. Gaskill Charles Alan Gauldin Lonnie L. Grimes Barbara A. Halsey Mark K. Halter Sara M. Hartness William P. Hegmann Kathleen A. Hillegas Mariam T. Hopkins Parker Sanders Huckabee

R. Read Hudson Bruce P. Hurlbut Harry Simmons Hurst, Jr. Michael E. Kepesky Hugh R. Laws Tabitha Hubbs Lipscomb Benjamin C. Lipscomb Lizabeth Lookadoo Martha J. McAlister Pace J. McConkie Suzanne McCormick Robert Kenny McCulloch Robin W. Mickel Stuart P. Miller Randy P. Murphy David G. Nixon Anne Elizabeth Orsi Steven Lee Parker Neal R. Pendergraft Joe R. Perry Phillip A. Pesek Carla S. Powell Troy A. Price Ann C. Purvis Brian H. Ratcliff J. Scott Schallhorn Edward H. Schieffler Frances E. Scroggins Stephen M. Sheppard D. Brent Sterling Amy Lee Stewart Donald L. Thompson, Jr. Frederick P. Thorne, Jr. Kelly B. Tidwell Benny Martin Tucker John D. Van Kleef Guy Alton Wade Lee R. Watson Ann West Thomas G. Williams

New Children’s Room Pulaski County prosecuting attorney’s Sixth Judicial Office recently created a Children’s Interview Room to be utilized by prosecutors and investigators when dealing with child victims and witnesses. The room was designed to create a calm and soothing environment for the children.

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The Arkansas Lawyer

www.arkbar.com

LeAnne P. Burch Promoted to U.S. Army Brigadier General LeAnne P. Burch of Monticello was recently promoted to Brigadier General in the U.S. Army Reserves (USAR), with an assignment as Chief Judge (Individual Mobilization Augmentee), U.S. Army l to r: Chipman and Burch singing Court of Criminal Appeals. A promotion the Army Song at the ceremony. ceremony conducted by the Army’s Judge Advocate General, LTG Dana K. Chipman, was held at the Supreme Court building on August, 18, 2012. LeAnne has been in the military 26 years, with 14 years of active service.

She is one of only two Brigadier Generals in the USAR JAG Corps and is the second woman lawyer to be promoted to that rank in the USAR JAG Corps. For more information on LeAnne’s service go to the What’s New Section of www.arkbar.com.

Association Members represent Arkansas in American Bar Association Delegate Positions

H. William Allen

Carolyn B. Witherspoon

H. William Allen of the Allen Law Firm in Little Rock recently retired as the state delegate to the American Bar Association. His years of service stand as a testament to his dedication to the legal profession and the fundamental structures that support it.

Carolyn B. Witherspoon of Cross, Gunter, Witherspoon & Galchus, P.C. in Little Rock recently retired as the Arkansas Bar Association delegate to the American Bar Association and began her service as the state delegate for the American Bar Association.

ADVERTISE in the next issue of The Arkansas Lawyer Go to www.arkbar.com

Association News Brian H. Ratcliff New Arkansas Bar Association President-Elect Designee

Oyez! Oyez!

Accolades Robert M. Ford of Wynne was inducted in the Arkansas Sports Hall of Fame Class of 2012 in recognition of his accomplishments as a player, coach and scout. Vince Morris, Director at the Arkansas Legal Services Partnership, was recognized by the American Bar Association as one of the nation’s 2012 Legal Rebels. Amy Dunn Johnson, Director of Access to Justice Commission, recently received the Robert Wood Johnson Foundation Community Health Leaders Award for 2012. Arkansas Business selected the following members in the 2012 “20 In Their 20s” class: Melissa Bandy, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. and Nathan Rutledge, Crews & Associates. Cross, Gunter, Witherspoon & Galchus, P.C. received the 2012 Alfred P. Sloan Award for Excellence in Workplace Effectiveness and Flexibility. The National Association of Retail Collection Attorneys (NARCA) presented its 2012 Community Service Award to the Little Rock, Arkansas, law firm Hosto & Buchan, PLLC.

Appointments and Elections Jeanne L. Seewald, formerly with Williams & Anderson, has been elected president of the Collier County Bar Association in Naples, Florida. Jeanne is the managing partner of the Southwest Florida offices of the law firm Hahn Loeser & Parks LLP. Arkansas Bar Association President Charles Harwell appointed Cristina S. Monterrey chair of the International & Immigration Section and Paul W. Keith chair of the Civil Litigation Section. Michael Millar was elected chair of the Natural Resources Section. John Wesley Hall was elected treasurer of the National Association of Criminal Defense Lawyers.

The Sebastian County Bar Association announced the following officers: President: Sam Terry, First National Bank, Fort Smith; Vice-President: Rebecca Hattabaugh, Ledbetter, Cogbill, Arnold & Harrison, LLP.

Word About Town Quattlebaum, Grooms, Tull & Burrow PLLC announced that Grant M. Cox has joined the firm as an associate. The Law Office of Taylor King & Associates announced that Bret A. Thompson, C. Noelle Skaff and Kaylen Lewis have joined the firm. Haley Burks recently joined The Rose Law Firm in Little Rock as an Associate Attorney. Jose Alfaro recently joined the Monterrey & Tellez Law Firm as an Associate Attorney. Toney Brasuell and Jason Files recently formed the firm of Files & Brasuell located at 300 South Spring Street, Suite 604 in Little Rock. Smith Hurst, PLC announced that Nicole LeCointe and Nick Reynolds have joined the firm as attorneys. Grayson & Grayson, P.A. in Heber Springs announced that Ginger Lewellyn Harper has joined the firm. Jason Horton opened the Jason Horton Law Firm located at 114 West Broad Street, Texarkana, Texas. Jason Roberts joined LOGS Network as Senior Vice President of Business Development & Acquisitions.

Pro Bono Spotlight Byron Cole Rhodes recently volunteered to assist U.S. military personnel with legal issues pursuant to Operation Enduring Freedom, Operation Iraqi Freedom and Operation New Dawn through the Towbin Healthcare Center at the Veterans Administration Clinic in North Little Rock.

We encourage you to submit information for publication in Oyez! Oyez!

Please send to ahubbard@arkbar.com.

Brian H. Ratcliff Brian H. Ratcliff of El Dorado is the new President-Elect Designee of the Arkansas Bar Association. He was elected without opposition at the close of nominations on October 31st.

Brian is a partner with Shackleford, Phillips, & Ratcliff, P.A. in El Dorado.

He has devoted his leadership skills to nearly all aspects of the Association since the beginning of his legal career. His commitment began by serving on the Young Lawyers Section (YLS) Executive Council and then as chair of the YLS. He has served on and chaired numerous committees, including the 2004 Annual Meeting Chair. He is a tenured member of the House of Delegates and recently completed a three-year appointment to the Board of Governors. He also served a three-year appointment on the Executive Council. He is the recipient of the Frank C. Elcan II award and has been honored with three Golden Gavel awards for his leadership roles in the Association. He served as President of the Arkansas Bar Foundation in 2008-2009. He also served as President of the Arkansas Association of Defense Counsel and President of the Union County Bar Association.

Brian earned his undergraduate degree in economics/business from Hendrix College and his Juris Doctor from the University of Arkansas at Little Rock School of Law. Brian will serve a one-year term as President-Elect beginning in June 2013 before assuming the office of President at the Association’s 2014 Annual Meeting.

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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Congratulations Aaron Stephen Ablondi Joel Thomas Addington Jose Manuel Alfaro Elizabeth Joyce Armstrong Angela C. Artherton John David Atkins Martha Lyn Ayres Martha Anneliese Bacon William Curtis Bailey Richard Tyler Barham Katie Len Bell Alexander Stephen Bigger David Biscoe Bingham Tyler Daniel Bone Tawnie Rae Boyd Ashley Paige Breech Ivan Hunter Bridges Eric Shannon Brock John Blake Burckart Sydney Leigh Butler Michael Anthony Cantrell Meredith McNeil Causey Adam John Chromy Sara L. Chronister Nicholas Lynn Coleman Sarah Slocum Collins Samantha Cook Nicholas Patrick Corcoran Luke Daniel Bruce Charlie Davis Kaleigh Davis Max R. Deitchler Joe Aaron Denton Kent Andrew Devenport Tomas Holt Duck Erica Faythe Durr Brian Daniel Eaton Cody Wayne Eenigenburg Neemah A. Esmaeilpour Rebecca Morgan Ferguson Tiffany Erin Fields Erica Fitzhugh 8

The Arkansas Lawyer

Robert Alexander Gaines Maricella Cecilia Garcia Cody E. Gilbert Tobi Ruth Gilbert Brooks Page Gill Hannah Margaret Gillispie Blake Bryant Goodsell Bryan Gregory Griffith James D. Haley Joseph Christopher Hall Samuel Laban Hall Nancy Lauren Hall Richard Seth Hampton Katie Danielle Harris Jacquelyn Backus Harrison Ashley Lorrin Haskins Erin Kimberly Hawkes Keisha Janeene Hazelwood Stephanie Vondran Hedger Sarah Elizabeth Hendrix Marceliers Hewett II Jillian Danielle Hicks Meredith Ann Hoberock Malcolm Lewis Hogue Meredith A. Hoover Robert Gerald Hopper Matthew Lee Howard Michelle Rene’ Jaskolski Victoria H. Jones Leon Ralph Kassab Geoffrey Davis Kearney William Cody Kees Heather M. Kees Calista Jane Kersh Daniel Scott Ketcher John Samuel Kooistra Chin Kang Kuay Amanda Marie LaFever Amanda Denise Land Veronica Kay Lawson Kaylen Suzanne Lewis Sarah Catherine Little

www.arkbar.com

to the new members admitted to the practice of law October 2012

Brindon Chase Mangiapane Carly Suzanne Marshall Clay Garrett McClung Kenneth Wade McDougal Matthew McFarlin Daniel Ryan McGinley James Christopher McNeal Malcolm Noble Means Carla L. Miller Lauren Elizabeth Miller James Landrey Miners Ryan Ashley Minney Hamilton Moses Mitchell Eric Carl Moore William Stewart Moore Adrienne Christine Morris Jaimie G. Moss Joshua GQ Mostyn Bradley Ross Mullins Tiffany Renee Murphree Jamie Lorraine Newburg Caleb Johann Norris Bridget Hillebrand Norton Rachel A. Orr Valerie L. Palmedo-Goudie Jonathan Craig Parker Robert Clyde Patton Gladiola A. Pelayo-Ramirez Ben Perry Sonya Catherine Platt Laura Melissa Pope Sarah Pourhosseini William Marshall Prettyman Andrew Michael Raines Ryan L Rainwater Nathan Read David William Reckert Timothy Paul Reed Ryan Robert Renauro Bourgon Burnelle Reynolds Nick Reynolds Amos J. Richards

Eric Dylan Roberts Danielle Elders Robertson Hannah Deanne Roe Andrew Blake Rollins Whitney Danielle Romans Jason Michael Ryburn Nicolas J. Sasso Skye Sterling Sebring Andrew Kent Shelor Sarah Ann Shirley Stephen Anthony Shoptaw Bradford Ray Shumpert Keri Ann Sims Claudia Noelle Skaff Drew Edward Smith Laura Rebecca Sossamon Matthew Clifford Stauffer Mickey Lynn Stevens Christopher Matthew Stevens Erin Michelle Sudduth Matthew D. Swindle Lawrence Justin Tate Isabelle Vassaur Taylor Jeffery S. Thomas BreiAndrew Thompson Breanna Renee’ Trombley Jonathan Silvanus Udoka Ryan Keith Wallace Jeremiah Morgan Wax Samuel Joseph West Joshua Lee West John Francis Willems Charley Elise Williams Seth Francis Williams Jennifer Renae Williams Sammi Gene Wilmoth Jordan Purnell Wimpy Jacquelin E. Wohlschlaeger Christopher S. Woodard Adrienne Lynn Woods Colleen Alexandra Youngdahl

Young Lawyers Section Report

by Vicki S. Vasser

Down, Set, Hut...Into Service with Young Lawyers Section As I begin this Young Lawyers Section Report, I, like, many of the Arkansas Bar membership, am enjoying a favorite fall pastime—football. Whether you grew up playing under the Friday night lights, cheering from the sidelines as a cheerleader, like I did, or you were simply a loyal fan from the stands rooting for your local team, to have success on the field, it takes talented players working as a team. Some football players excel as defensive linemen, others demonstrate skill as running backs, or maybe it is the gift of a strong leg, leading the team by kicking field goals.

Just as you need offense, defense, and special teams clicking on all cylinders to be a successful football team, the Association’s Young Lawyers Section would be unable to accomplish anything without the work of the talented members who serve on the YLS committees.

The YLS Executive Council suited up and kicked off its “season” by conducting a retreat on July 13th at Matthews, Campbell, Rhoads, McClure, & Thompson PA in historic downtown Rogers. The results of the retreat brainstorming session were published in the most recent Fall 2012 YLS InBrief newsletter. The retreat concluded with a community outreach activity in Fayetteville at Cobblestone Project’s The Farm, which is an initiative designed to use agriculture to help the under-resourced in Northwest Arkansas.

To have a strong team, one must always continue the recruiting efforts. The Social/ Recruiting “team” celebrated the start of the fall school year by co-sponsoring events at both law schools. On August 16th, Northwest Arkansas YLS members joined University of Arkansas law students and faculty members for the Back-to-School BBQ at the UA Road Hog Park. On August 20th, Central Arkansas

YLS members joined UALR School of Law alumni at a reception to welcome the return of law students. Area YLS members gathered for a tailgate social/happy hour on November 8th.

The Legal Education “team” is hard at work, exploring funding opportunities for the translation of the YLS “18 & Life to Go Handbook.” The YLS’s Statute of Limitations Handbook will soon be more readily accessible to Association members with its conversion to an epub format, downloadable from all smartphones and ipad devices. YLS representatives were on hand for the October 5th swearing ceremony at the Justice Building, as we recruited the 170 new attorneys to become actively involved in the in the Bar and YLS and take advantage of the Bar’s Lawyer-2-Lawyer Mentor Program. YLS Council members helped promote the mentor program at the two–day YLS sponsored CLE “Bridging the Gap.” Thank you to Association members who offered their time and talents to help make the CLE program a success.

An important aspect of our YLS “team” is the work of the Minority Outreach committee. On September 21st, Cory Childs kicked off the 2012-13 Campus Road Tour at Southern Arkansas University in Magnolia, where they encouraged minority students to explore law as a career choice. Please stay tuned for other stops as the Campus Road Tour will be coming to a city near you soon!

The YLS team would not be complete without its Citizenship Education committee. This team has been busy evaluating some of the existing YLS handbooks for updating.

Specifically, this team is focusing on revising the Consumer Law Handbook and the Senior Citizens Handbooks. Please contact Grant Cox if you are interested in assisting with the

revisions. A collaborative effort between YLS and Family Law Section is underway to create a resource for victims of domestic violence.

If you would like to be a part of this effort, please contact Stephanie Linam.

The community service/pro bono committee is the “special team” of YLS, as its objective is to make a difference in communities across the state and provide opportunities for members to engage in pro bono legal services. YLS members partnered with both law schools to provide pro bono estate planning on October 25th and volunteered their time at the Rice Depot in Little Rock on November 9th. When the YLS Council conducts its meeting at the mid-year meeting in Memphis, the Council and other YLS members will conduct another community outreach activity in an effort to leave the YLS mark of service on another community.

Just as the game of football requires 11 players on the field from each team in order to play ball, the Arkansas Bar Association YLS requires its committees working together as a team to make the YLS and its members a success. We want to recruit YOU for our YLS team! n

l to r: Crystal Newton, Stephanie Linman, Vicki Vasser and Jessica Yarbrough at the Swearing-in Ceremony

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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The Admissibility (and Inadmissibility) of Character Evidence

By Dent Gitchel Note: Although the evidentiary rules governing character evidence generally apply to both criminal and civil cases and to all parties, I shall sometimes refer to the party against whom evidence is offered as the “defendant” for the sake of simplicity. In most instances the Arkansas Rules of Evidence are substantively the same as the Federal Rules of Evidence. This article focuses on the Arkansas Rules. However, I shall point out differences between the Arkansas and Federal Rules where they exist.

I. Why do we have special evidentiary rules governing character evidence?

We use our assessment of other people’s character routinely in our daily lives when making such decisions as whether to eat in a person’s restaurant, enter into a business transaction with him, or let him extract one of our teeth. Our assessment of a person’s character powerfully affects what we believe he or she will do or has done.

The word “character” refers to the kind of person one actually is. The term can be used in a general sense, as in “a person of noble character,” or in a more specific way to describe a person’s tendency to act a certain way in particular situations, as in “the kind of guy who’ll fleece you out of a nickel if he gets the chance.”

Other than our personal experiences, there are three possible sources from which we can acquire information upon which to base our inferences about another’s character. First and most persuasive is specific information about the person’s previous behavior. Second is the opinion of another person. Third is the person’s reputation in the community.

When we move from everyday life into a courtroom, we must consider the extent to which we should allow evidence of a person’s character to be used against him or her. Any of the three above sources of information could constitute evidence of a person’s character if allowed.

As we discuss the rules governing the admissibility of character evidence, it is important to keep these three kinds of evidence in mind because the rules differ with regard to which, if any, of these three methods of proving character may be used.

Although we consider character as a matter of course in our everyday lives, a trial presents a unique situation in which basing a decision on a person’s character may lead to injustice. Our system of justice is based on the premise that a person should be held guilty or liable only if he or she committed the act with which he or she is charged—not because of the kind of person he or she is. The most despicable person should be found not guilty or not liable if he or she did not do what he or she is accused of and the paragon of virtue should be convicted or held liable if he or she committed a crime or civil wrong. Because jurors, like all of us, are so accustomed to considering character when making decisions it is highly likely that they will do so if they hear that evidence. Therefore, the Rules of Evidence place special restrictions on the introduction of character evidence.

II. What does the term “character evidence” mean?

“Character evidence” is evidence from which an inference may be drawn concerning a person’s propensity to act a certain way. If the evidence is offered to support an argument that a person acted on the 10

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occasion in question in accordance with his usual way of acting, the rules governing admissibility of character evidence apply. The argument would go something like this: “George is the kind of guy who has a tendency to rob liquor stores. Therefore, ladies and gentlemen, you may consider his propensity to rob liquor stores as evidence that George robbed Herman’s Liquor Store on the night of July 12, 2012.”

Remember, “character evidence” is generally prohibited only if it is offered solely for the purpose of proving propensity to act a certain way.

If it is offered for any purpose other than propensity the rules governing “character evidence” do not apply.

III. The general rule: “character evidence” is not admissible if offered to prove propensity to act. The first clause of Rule 404(a) and the first sentence of Rule 404(b).

Because it is highly likely that jurors will place undue emphasis on the character of a defendant in determining guilt or liability, the law of evidence places a general ban on evidence of a person’s character when it is introduced to show that the person acted in accordance with his or her usual way of acting. This ban is found in the Arkansas Rules of Evidence in the first clause of Rule 404(a) and reinforced in the first sentence of Rule 404(b). Section 404(a) states: (a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particularly occasion... [subject to exceptions which I shall discuss later].

Section 404(b) restates the prohibition, but applies it only to specific act evidence: (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

Because of the narrow scope of the rules prohibiting character evidence, it is first necessary to determine whether an item of evidence is offered for the purpose of proving propensity to act in accordance with the character trait. Many matters that would be excluded if they were offered to prove propensity may be admissible if they are offered for any purpose other than to prove propensity. If evidence is offered for any other purpose the court weighs its probative value pursuant to Rules 401 and 402 against its tendency to prejudice the jury (or its other negative effect

on the trial) pursuant to Rule 403. Consequently, the first question a lawyer must address is whether an item of evidence is actually offered to prove propensity.

IV. Things that look, smell and taste a lot like propensity evidence, but are not.

Evidence that may seem to be propensity evidence at first glance but is not falls into two categories: (1) when character itself is an essential element in the case, and (2) when character is not an essential element, but the evidence is offered to prove something other than propensity. (a) When character itself is an essential element.

“Character evidence” is prohibited only when it is offered as circumstantial proof to support an inference that a person acted in conformity with that trait of character. In that case, the person’s character is not an element that must be proved. Rather, it is merely an inference in a chain from which action may be inferred.

On the other hand, when a person’s character is itself the element to be proved, the evidence of her character constitutes direct proof of that element and does not fall under the special rules governing “character evidence.” When character is the element to be proved, the regular rules of relevance1 and negative effect2 govern, leaving the admissibility decision wholly to the discretion of the trial judge. An example of “character in issue” arises when negligent entrustment is pleaded in an automobile case. The driver’s “character” (defined as a propensity to drive unsafely) is an element that must be proved.3 When character is itself an element that must be proved, any of the three methods of proving it (specific instances, opinion, and reputation) may be utilized.4 It is worth noting that a person’s “reputation,” as distinguished from her actual character, may be an element, as in a defamation case where the plaintiff’s reputation is an element that must be proved in order to establish injury to that reputation. In such a case the rules governing character evidence do not apply.

(b) Evidence of specific instances of conduct offered to prove something other than propensity to act the same way. Rule 404(b).

Rule 404(b) is probably the subject of more litigation than any other evidence rule. It comes into play when character is not an element that must be proved, but a party nevertheless offers evidence of a person’s conduct on occasions that are not a part of the present action. Rule 404(b) states unequivocally in its first sentence that evidence of other acts is not admissible to prove propensity. But the Rule goes on to state:

It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Note that the Rule says the evidence may be admitted, not that it shall be admitted. Even after the proponent of the evidence puts forth a legitimate, non-propensity purpose for offering the evidence (thus getting past the general ban on character evidence) the court has discretion under Rule 403 to exclude the evidence if it determines that the evidence’s negative effect substantially outweighs its probative value.

The danger of admitting such evidence is that the jury will inevitably consider it for the forbidden propensity purpose no matter what other purpose it is offered for and no matter what limiting instruction the

“The ancient Greek philosopher Heraclitus said that ‘a man’s character is his fate.’” court gives. It is virtually impossible for the jurors to set aside all of their life experiences and refrain from using the evidence, at least unconsciously, for the forbidden inference of consistent action on the occasion in question. In order to minimize this danger, when evidence of other acts is admitted for a non-propensity purpose the opponent of the evidence is entitled to a cautionary instruction to the jury if he or she requests it.5 Whenever “other acts” evidence is offered, the opponent should object that it constitutes inadmissible character evidence. The proponent must then respond to the objection by stating the non-propensity purpose for which the evidence is offered. Once the response is stated Rule 404(b) is satisfied. However, the proponent of the evidence is not

Dent Gitchel is an Emeritus Professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock and a member of the Arkansas Bar for over 40 years.

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www.arlegaltech.com yet home free. The court must now exercise its discretion under Rule 403 and weigh the evidence’s probative value on the non-propensity issue against the danger that the evidence may be used by the jury to draw the forbidden propensity inference. Unless the court finds that the danger of prejudice or other negative effect substantially outweighs the evidence’s probative value on the non-propensity issue, the evidence should be admitted.

Rule 404(b) states broadly that the evidence may be admissible for “other purposes.” Then it gives us a “such as” laundry list of examples. Several of the examples on the laundry list sound suspiciously like propensity. For instance, where intent is in issue, the argument could be, “Because Adam intentionally stabbed someone before, you can infer that he is the sort of person who has a propensity to stab intentionally, therefore it is more likely that he intentionally stabbed Bobby on the occasion in question.” Why is this not prohibited by Rule 404(b)? The answer lies in the language of Rule 404. The Rule prohibits evidence that a person acted in accordance with the propensity, not that he had a particular state of mind.

Therefore, when a person’s state of mind is the 12

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issue, proof of his or her other acts that go to prove the existence of that state of mind may be admissible under Rule 404(b).

Note that in a federal criminal trial the prosecution is required, upon request by the defendant, to give reasonable notice of its intention to offer 404(b) evidence.6 In a federal case where the defendant is accused of sexual assault or child molestation, either criminal or civil, the court is permitted to admit evidence of the defendant’s similar acts to “be considered for any matter to which it is relevant.”7 These provisions override Rule 404(b) in those cases. Therefore, in these federal cases because the other act evidence, if admitted, may be considered for any relevant purpose, it may be considered for propensity.

V. How can propensity be proved if allowed?

The rules that generally ban propensity evidence are not absolute. Even if evidence is offered solely to prove propensity, the rules that generally ban character evidence are subject to exceptions. Let us consider the types of proof that may be available to prove propensity when one of the exceptions applies.

As I discussed earlier, information that can form the basis for an inference about another’s character can come from three sources: (1) that person’s actions, (2) another person’s opinion of his character, or (3) information about his reputation. Each of these sources of information constitutes a type of evidence that could be used as proof of his character if allowed by the Rules.

We need to keep these three types of evidence in mind as we discuss the exceptions to the general exclusionary rule because the exceptions treat each type of evidence differently.

VI. The exceptions to the general rule barring introduction of propensity evidence.

Let us assume that evidence is offered to prove propensity. Rule 404(a) contains three exceptions to the general rule prohibiting introduction of such evidence. Two of them exist only for the benefit of criminal defendants.

The third is available to any party in either a criminal or civil case, but is limited to proof of one issue—the truthfulness of witnesses. In the following sections I shall discuss each of these exceptions and the types of evidence that may used to prove each. (a) The exceptions that apply only in criminal cases. Rules 404(a)(1) and 404(a)(2).

(1) Character of the accused in a criminal case. Rule 404(a)1).

This exception is sometimes referred to as the “mercy rule.” Much is at stake in a criminal case. The defendant may lose her life or her freedom and the law has long recognized that criminal defendants come to the courtroom with the deck stacked against them, no matter how the jury is instructed on the presumption of innocence. Consequently, the law cuts a criminal defendant some slack, granting her two exceptions to the rule barring propensity evidence.

The first is the option to offer evidence of a pertinent trait of her own character. For example, in a case involving a violent act, the criminal defendant may offer evidence to show that she is a person of peaceful character.8 She may not, however, utilize all of the three methods of proof. She is limited to opinion or reputation testimony. She may not introduce evidence of her specific other acts.9 Despite the possible benefit to the defendant afforded by this exception, the defendant’s decision to “place her character in issue” may have negative consequences. By presenting this opinion or reputation testimony she opens the door for the prosecutor to introduce like evidence to rebut it.10 Further, the prosecutor is allowed to cross-examine her character witnesses regarding her other specific acts in order to test the reliability of the witness’s opinion or the accuracy of the reputation.

Let us assume a case in which the defendant is accused of a violent act where the prosecutor would not be allowed to introduce evidence of an unrelated violent act. If the defendant introduces opinion or reputation evidence that she is a person of peaceful character, the prosecutor may not only call his own character witnesses to give their own opinions or to give reputation testimony that contradicts the testimony of her witnesses, he may also crossexamine her character witnesses concerning their knowledge of her other, unrelated violent acts that would otherwise be inadmissible. For example the prosecutor could ask, “In forming your opinion of the defendant’s peaceful character, did you know that she assaulted Billy Joe with a knife in Myrtle’s Bar & Grill last July 23?”

(2) Reputation of the alleged victim in a criminal case. Rule 404(a)(2).

The criminal defendant also has the option to offer evidence of a pertinent character trait of the purported victim. This issue arises most

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often when a defendant pleads self-defense and offers evidence that the alleged victim had a violent character. As is the case when the defendant offers evidence of her own character, she is limited by Rule 405(a) to opinion or reputation testimony. By introducing this evidence, she opens the door to rebuttal evidence by the prosecution, including inquiry on cross-examination of her character witnesses into specific instances of the alleged victim’s conduct.

Further, in homicide cases, whenever the defendant introduces evidence that the victim was the first aggressor—any kind of evidence, not just character evidence (for example, testimony of an eyewitness)—the prosecution may offer opinion or reputation evidence of the peaceful character of the alleged victim.11 In federal court there is an additional disadvantage of offering evidence of the alleged victim’s character. Not only may the federal prosecutor offer rebuttal evidence concerning the alleged victim’s character, he may also offer evidence that the defendant has that same character trait.12 It should also be noted that this exception is overridden in Arkansas criminal prosecutions for rape or incest by the so-called “rape shield

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law,” which provides special rules restricting evidence of the alleged victim’s prior sexual conduct.13 The Federal Rules of Evidence also contain a somewhat similar “rape shield” provision, which applies in all cases involving alleged sexual misconduct, both criminal and civil.14 A discussion of the provisions of the rape shield laws is beyond the scope of this article. (b) The exception that applies when evidence is offered to show a witness’s propensity to lie. Rules 404(a)(3), 607, 608, and 609.

Whenever a witness takes the stand, a new issue is added to the case—the witness’s credibility. Credibility may be tested in several ways. For example, the opponent may offer evidence to contradict the witness, introduce the witness’s prior inconsistent statements, or attempt to show that the witness is biased. In addition to other means of attacking a witness’s credibility, the opponent may attempt to show that the witness is a liar. This is pure propensity evidence—the evidence is offered to support an inference that the witness has a propensity to lie from which jurors may conclude that she lied in this case.

Rule 404(a)(3) is the exception to the gen-

eral ban on propensity evidence that allows lawyers to do this. Rule 404(a)(3) states the exception this way: Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

Let me emphasize that unlike the first two exceptions this exception applies to every witness and is available to all parties in both civil and criminal cases.

Rule 404(a)(3) refers us to Rules 607, 608, and 609. Rule 607 is the rule that allows us to impeach our own witnesses. It is included in Rule 404(a)(3) simply to make clear that we may use propensity evidence, as well as other methods of impeachment, to impeach our own witnesses.

Rules 608 and 609 impose limits on the kinds of evidence we may use to support the argument that a witness has the character trait of being an untruthful person. Rule 608(a) governs the admissibility of opinion and reputation evidence of a witness’s untruthful character. Rule 608(b) governs the admissibility of evidence of specific instances of a witness’s conduct relating to character for untruthful-

ness. Rule 609 governs the types of criminal convictions that may be used to support an inference that a witness is a liar. Let us discuss each of these rules separately.

(1) Opinion and reputation evidence.

Rule 608(a).

The first thing to note is that opinion or reputation of a witness’s truthful character is not admissible until the witness’s character for truthfulness has been attacked. Not just any kind of attack on credibility will trigger admissibility of evidence of truthful character. Impeachment by contradiction, by prior inconsistent statement, or for bias does not open the door. Only after the witness’s character for truthfulness has been attacked —either by presenting opinion or reputation testimony concerning the witness’s character for untruthfulness, or by questioning on cross-examination regarding the witness’s specific untruthful acts, or by presenting evidence of the witness’s prior conviction —may the lawyer who called the witness put opinion or reputation witnesses on the stand to testify to the witness’s truthful character.

Rule 608(a) places the decision whether to open the door to evidence of a witness’s truthful character squarely on the shoulders of the party assailing the witness’s credibility.

If that party stays away from attacking the witness’s character for truthfulness the door will not be opened to opinion and reputation testimony of the witness’s truthful character.

(2) Evidence of a witness’s specific untruthful acts other than criminal convictions. Rule 608(b).

Evidence of a witness’s own truthful acts is prohibited on direct examination. Likewise, as we have seen, character witnesses whose testimony is permissible under the exceptions contained in Rules 404(a)(1), 404(a) (2) and 608(a) are limited to opinion or reputation testimony. Rule 608(b) opens the door to specific act evidence just a crack for the cross-examiner. The rule gives the court discretion to allow cross-examination questions concerning a witness’s own untruthful acts. In the case of a character witness, the cross-examiner may ask questions concerning the truthful or untruthful acts of the person who is the subject of his or her testimony.

What if the witness denies the other

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Evidence continued on page 47

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Obscenity Laws?

What’s the Point Anymore (Not that there Was)?

Pompeii- a view of an ancient picture in excavations of Pompeii.

By John Wesley Hall

I

was really introduced to the law by Deep Throat with Linda Lovelace. When I was a baby lawyer 39 years ago, I was a deputy prosecuting attorney, and it fell to my lot to prosecute obscenity cases. Since I didn’t know what I was doing, I prosecuted Deep Throat with one of my mentors, W.C. “Dub” Bentley, in Pulaski Circuit Fourth Division. It made me really wonder even more about obscenity prosecutions: What was the point? Nearly 40 years later, if there ever was a point, does it still exist?

I’ve been on both sides. You all know me as a hard-core Justice Blackstyle First Amendment absolutist.1 When I was a deputy prosecuting attorney, I subordinated my personal opinion as directed by my boss.2 I’ve long since represented adult bookstores, not that there’s much call for that work these days. But, when it happens, it can be spectacular.

And fun.3 Deep Throat, 1973 I was sworn in as a lawyer on August 31, 1973. On September 1, 1973, Deep Throat, first released in 1972, started its first Arkansas showing at the Adult Cinema, 310 Rock Street, Little Rock. As I recall, it ran for about three weeks, and there was a long line out to the street for every show. The operators were prosecuted, fined $2,000 each (not much compared to what they made), and they appealed.4 The crux of the appeal was that the Arkansas obscenity statute at the time could not comply with the Supreme Court’s new, more un-free-speech-friendly Miller standard,5 something that I found legally confusing myself. The Arkansas Supreme Court had no difficulty with that issue, and I argued it. But, then, neither did any other court post-Miller.

“Nothing can stop this” The same year we tried Deep Throat, William Rotsler, a cartoonist and artist (whose magnificent mural above is at the entrance to the LAPD’s Parker Center) and later an adult film producer, said “Erotic films are here to stay. Eventually they will simply merge into the mainstream of motion pictures and disappear as a labeled sub-division. Nothing can stop this.”6 The man was a visionary. Admit it; didn’t we all know it, at least intuitively?

Consider the course of technology. Erotic imagery dates from humankind’s ability to make images, from cave drawings7 to HD Internet movies. England’s first obscenity prosecution treated it as a common law crime in 1663, and it was a boisterous nude drunk on a balcony who

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apparently offended somebody.8 Japanese hard core prints as “sex manuals” were prolific starting in 1660.9 Fanny Hill is credited with being the first “modern” erotic novel published in 1748.10 But it sure wasn’t the first effort to memorialize erotic art. When Pompeii was unearthed in the 1860s, vast stores of erotic art were found, and the Victorians promptly did what Victorians were known to do: They hid it away, pretending it didn’t exist.

The word “pornography” has Greek and French roots, and it came to the United States via New Orleans about 1842. The English made a half-hearted attempt to legislate against “pornography” in 1857.11 The first “adult” film, probably the second film ever made, was made in England in 1895.12 Enough ancient history. After the 1970s and its adult theaters and peep show booths came the nascent home video revolution. Soon, nearly every home had a VCR. Then came camcorders, and then DVDs. Then came digital recorders for less than $100, even iPhones. But, in the late 1990’s came the unstoppable force of the unstoppable adult film industry: The Internet. Moving right along with technology has been the adult film industry.

For 30 years now, the adult industry has been the most powerful player in the digital wars of videotape and DVDs. They went to DVD before Disney. Remember the Blu-Ray v. HD-DVD battle? The adult film industry decided the technology for the rest of the world when it went Blu-Ray.13 Computer video upgrades and broadband benefit all Internet video, which gets better and faster every year. Not just YouTube, Netflix, Hulu, Yudu, but YouPorn, PornHub, and thousands of other free pornography websites. With all these free adult pornography sites, who needs to buy it anymore?

But people still do. The statistics of actual sales of adult pornography on the Internet alone are at once unfathomable and unascertainable. It’s largely just a wild guess because we just cannot accurately define it. From a 2006 study:

• • • •

Pornography Time Statistics Every second – $3,075.64 is being spent on pornography.

Every second – 28,258 internet users are viewing pornography.

Every second – 372 internet users are typing adult search terms into search engines.

Every 39 minutes – a new pornographic video is being created in the United States.14

Today? Double it; triple it. You’re probably in the ball park. Seventyeight percent of the population of North America has access to the Internet.15 And from that same 2006 article: • • • • • • •

Internet Pornography Statistics Pornographic websites: 4.2 million (12% of total websites) Pornographic pages: 420 million Daily pornographic search engine requests: 68 million (25% of total search engine requests) Internet users who view porn: 42.7% Monthly Pornographic downloads (Peer-to-peer): 1.5 billion (35% of all downloads) Worldwide visitors to pornographic web sites: 72 million visitors a month Internet Pornography Sales: $4.9 billion

Today, double or triple it again. Sales are $4.9 billion, but what about the huge number of free pornography sites, some with millions of videos posted. Too poor or too cheap to buy it? Plenty is free on the Internet.

“We’re number 6! We’re number 6!”

Arkansas, with less than one one-hundredth of the nation’s population (0.87%), is the sixth largest state consumer of Internet pornography, total. Not per capita, not per thousand: total.

Top Ten Internet Pornography Consumption by States (per thousand broadband users)16 Utah 5.47 Alaska 5.03 Mississippi 4.30 Hawaii 3.61 Oklahoma 3.21 Arkansas 3.12 North Dakota 3.05 Louisiana 3.01 Florida 3.01 West Virginia 2.94 Compare to this map of the outcome of the 2008 Presidential Election;17 red for Republican, blue for Democrat:

... a long cold lonely winter.” I can understand some of the other red states because people living in repressed areas need access to pornography to keep their sanity,18 while often showing their state hypocrisy by maintaining that it needs to be banned or prosecuted.19 You can’t find an R rated movie in a theater in Utah, but they sure want hard core pornography in the privacy of their homes.

Is there a correlation between hard-core pornography consumption and sex crimes? Maybe. Forcible rape is a crime of violence, incidentally involving sex, and it is not for sexual pleasure. There is utterly no correlation between consumers of adult pornography and sexual desires for children. You’d think I would not have to say that, but I do. Those offended by other people seeking pleasure in adult imagery want to associate availability of adult pornography with child molestation20 when there is absolutely no logical correlation. Indeed, it is completely counter intuitive. Child pornography, yes; there is a potential correlation, but not perfectly because it is well established that many viewers of child pornography are not necessarily “contact offenders.”21 Adult pornography is not even the same genre because child pornography is a crime of violence against a child that is perpetuated by the transfer of the image.22 Where adult pornography is widely available, all forms of adult rape go way down.23 According to the Bureau of Justice Statistics24 and the Center on Juvenile and Criminal Justice,25 rape has been declining for many years. Ever asked why? Is it availability of pornography or is it irrelevant? Parts of Europe eased restrictions on pornography many decades ago, and they have far fewer reported forcible offenses against adults compared to the United States.26 Could it be because of the greater prevalence of pornography? Some will say “never,” but some will say “obviously”; your answer depends entirely on where you started the question.27 Finally, adult pornography is now so well established that the City of Los Angeles has taken steps to regulate production by at least requiring performers to wear condoms.28 Apparently California’s porn stars are regulated by the California Division of Occupational Safety and Health.29 What is the point?

Back to the question posed in the title: What is the point of the Arkansas obscenity laws? If they ever had any point, have they outlived their usefulness? Has technology made them completely irrelevant?

Without any doubt.

Arkansas has always felt a paternalistic attitude toward “protecting the morals” of the citizenry, like morality needs legislating. Arkansas’s first obscenity law was apparently passed in 193130 because of “grossly obscene” magazines coming into Arkansas by mail, motor carriers, and express companies. In 1961, Arkansas adopted the “Arkansas Law on Obscenity,”31 which legislatively adopted the Supreme Court standard at

Now, reconsider the list above, with those same color codes: Utah Alaska Mississippi Hawaii Oklahoma

Arkansas North Dakota Louisiana Florida West Virginia

Of the top 10 states in Internet pornography consumption, eight voted Republican in 2008. It’s easy to understand Alaska, because “it’s

Little Rock criminal defense lawyer John Wesley Hall is Past President of the National Association of Criminal Defense Lawyers (200809). He is listed in Best Lawyers in America, Criminal Defense, and a Fellow in the American Board of Criminal Defense Lawyers.

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the time.32 In 1967, Arkansas legislated against obscene motion and still pictures for “moral” purposes,33 as if that should be a basis for any legislation.34 Arkansas, too, attempted to ban the rock musical “Hair” coming to Robinson Auditorium, as happened elsewhere in the South.35 After 1973’s Miller v. California, it was no longer necessary to legislate every time the Supreme Court spoke. That was fine until some state legislator, never content to keep well enough alone and always defending “morality,” decided to import the Miller definition into yet a new confusing statute in 1981.36 This statute at least mandated a statewide standard of obscenity.37 Two obscenity trials, 2010-11 Now, let’s fast forward to September 2010 and April 2011: Two obscenity trials, one in Forrest City, one in Clarksville. Similar approaches from the defense, completely different approaches by the prosecutors, same outcome: Not guilty. Why? I didn’t try the Forrest City case, but I knew the lawyers who did. And I did what all good lawyers do; I talked with them thereafter, looking for what worked for them. That case was prosecuted, according to press accounts and the defense lawyers, like it was a religious crusade and the defendant owners were vile.

The jury’s attitude after a week long trial was, apparently, “So what?” The store sits on I-40 at a lonely rural interchange, and the customers are passing through. Little likely is sold locally. “How much sales tax revenue was left behind you say?”

Clarksville was as subdued as possible. The

prosecutor was a true gentleman throughout, putting on a matter-of-fact case, but pulling no punches. After all, overzealousness failed in Forrest City. The defendants were three sales clerks. It took a day to get a jury, and at least one-third of the prospective jurors made it real clear that they didn’t want their tax dollars spent on the prosecution or even attempting to tell the citizens what they could buy or not buy at the store. Johnson County? Still, this is America, 2011. A little different than Little Rock 1973.

The store is huge. I estimated it held 70-80,000 hard-core DVDs, with helpful signs of what was where: Marital Aids to whatever, about 15 categories. When a part of the stock was sold, it would be replaced through the sales record, and product would just show up via UPS. The clerks just took the money or credit card and put it in a bag.38 Testimony established that the officers went to the store three times, looked around for up to 30 minutes, picked three or four of what were probably the most potentially offensive, and brought them to the sales clerk. Then they culled it down to one movie from each of the three sales clerks for the charge.

I raised three essential defenses, any of which could have been good enough for the jury to acquit. With a general verdict, we don’t know.

The jury could have concluded that the sales clerk did not know individually what they had just sold, the “knowing” element.39 Or, the jury could have concluded that the material, while sexually insipid and maybe offensive for the average consumer, just wasn’t obscene, or shouldn’t be considered obscene.40 Lastly,

was the overarching and looming effect of the Internet, and I had to do this in the closing argument and gently. There is this strange Arkansas case that says the statewide community standard governs obscenity but the defense can’t prove what it is by showing what else is out there; the jury just has to know.41 Now, however, nearly everybody has access to this same material on the Internet in the privacy of their own home if they want to see it. Nobody has to drive to an adult store to acquire it.

Nobody in the entire world was forced to watch these videos except the trial judge and the 12 members of the jury. I wouldn’t buy it, you wouldn’t buy it, but does anybody have the right to tell us what we can buy or download to watch in the privacy of our own homes?

And sex is a part of free speech that people have to share and explore, as the Supreme Court said 55 years ago in Roth: However, sex and obscenity are not synonymous. ... Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.42 Alleged obscenity on the Internet cannot be regulated in the privacy of one’s own home under Stanley v. Geogia.43 Indeed, nothing can because the Internet is literally the 21st Century Technological Wild, Wild West—utterly ungoverned and ungovernable.

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What percentage is considered tax-free income? What immediate

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19

Prosecuting the Free Market With the Internet being the source of over 99% of the pornography available in sixthranked Arkansas, why are we even thinking about wasting the valuable time of police, courts, prosecutors, and juries with what an adult book store sells to adults willing to buy?

We have already over-criminalized the law to the point of absurdity.

With the Internet making literally anything in digital form instantly available, both the legal and illegal, obscenity laws against adult pornography are now past being absurd and a waste of time. Why prosecute a store for selling in the community what the Internet provides the same community for free or a price?

Because one can touch a DVD, that makes it worse than a digital download? Because a store is sitting there reminding us of sex? That’s the only difference, because we sure don’t need to be reminded.

Wait awhile, and adult book stores may just cease to exist, purveyors of analog porn in an increasingly digital world.

Endnotes: 1. When the First Amendment says “no law,” how can it be interpreted to mean “some law”?

See, e.g., Patrick McBride, Mr. Justice Black

20

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and His Qualified Absolutes, 2 Loy. L.A. L. Rev. 37 (1969), available at: http://digitalcommons.lmu.edu/llr/vol2/iss1/3.

2. Ark. R. Prof. Cond. 1.2(b).

3. Except for the future of the individual defendant on the line.

4. Herman v. State, 256 Ark. 840, 512 S.W.2d 923 (1974). I want to know what jerk went to the Supreme Court Clerk’s Office in 1974 and checked out the original Deep Throat 16mm print in my name. They still blame me for it.

5. Miller v. California, 413 U.S. 15 (1973).

6. Eric Schaefer, Dirty Little Secrets: Scholars, Archivists, and Dirty Movies, The Moving Image 2.2 at 5 (2005).

7. Pascal Boyer, Paleolithic Art: awesome— but not religious (Cognition and Culture Institute, Feb. 23, 2009) (“The themes of parietal [cave] art suggest that most artists were young men, in feverish pursuit of both girls and game, young men who would derive some vicarious pleasure from depicting in lavish detail what could be experienced all too rarely in the flesh. This would seem to reduce a lot of rock art to the level of common graffiti.”).

8. A Book Named “John Leland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413, 438 (1966) (Douglas, J., concurring) (apparently the

drunken man’s message was disagreeable with somebody in power).

9. Gian Carlo Calza, Poem of the Pillow and Other Stories by Utamaro, Hokusai, Kuniyoshi, and Other Artists of the Floating World 7 (2010).

10. Frederick S. Lane, Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age at 11 (2000).

11. Obscene Publications Act 1857 (20 & 21 Vict. c.83).

12. Stephen Bottomore, Stephen Herbert, and Luck McKernan eds., Who’s Who of Victorian Cinema: A Worldwide Survey (1996) (Albert Kirchner).

13. http://www.macworld.com/article/50627/2006/05/pornhd.html.

14. http://internet-filter-review.toptenreviews. com/internet-pornography-statistics.html.

15. http://www.internetworldstats.com/stats.htm.

16. Benjamin Edelman, Red Light States: Who Buys Online Adult Entertainment? 23 J. Econ.

Perspectives 209 (2009). Note that number 1 is about double the consumption of number 10.

17. Reproduced from the N.Y. Times.

18. Scott Shane, “Pornography Is Found in Bin Laden Compound Files, U.S. Officials Say,” N.Y. Times (May 13, 2011).

19. Id. (Bin Laden chastised America: “You

have brainwashed your daughters into believing they are liberated by wearing revealing clothes, yet in reality all they have liberated is your sexual desire.�).

20. So said a preacher in Clarksville to a public assembly when they were organizing to oppose the opening of Adult World. There have been no reported child abductions in Clarksville before or after Adult World opened.

21. United States v. Johnson, 588 F. Supp. 2d 997, 1006 (S.D. Iowa 2008); United States v.

C.R., 792 F. Supp. 2d 343, 375 (E.D.N.Y. 2011).

22. New York v. Ferber, 458 U.S. 747 (1982).

23. Todd Kendall, “Pornography, Rape, and the Internet,� Stanford Law School, Law and Economics Seminar (Fall 2006), and republished Clemson Dept. of Economics (July 2007).

24. Jennifer L. Truman, “Criminal Victimization, 2010,� US DoJ, BJS (September 2011).

25. Mike Males, “The decline of rape,� LA Times (Feb. 17, 2007).

26. U.N. Office on Drugs and Crime, Rape at the National Level, Number of PoliceReported Offences (2003-2008). Child pornography is still prosecuted almost everywhere, at least in Europe. Freya Petersen, “Huge child

porn ring busted; Europol arrest 112 so far, graphic video seized,� globalpost.com (Dec. 16, 2011).

27. “[W]here one comes out on a case depends on where one goes in.� United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

28. Rong-Gong Lin, “L.A. City Council OKs law requiring condom use by porn performers,� LA Times (Jan. 18, 2012).

29. Susan Abram, “Porn ordinance in effect today,� LA Daily News (March 4, 2012) (“County officials have said enforcing condom use on adult film sets fall within the jurisdiction of the state’s Division of Occupational Safety and Health.�).

30. 1931 Ark. Acts 155.

31. 1961 Ark. Acts 261, now Ark. Code Ann. § 5-68-401 et seq.

See § 5-68-402(a) (purpose of legislation is to protect morals of the people).

32. Ark. Code Ann. § 5-68-403(2) (“‘Obscene’ means to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.�), from Roth v. United States, 354 U.S. 476, 487 (1957).

33. 1967 Ark. Acts 411, now Ark. Code

Ann. § 5-68-203.

34. If the morals of the people were important, we wouldn’t have had to hear literally endless news stories in 1998-99 on whether President Clinton lied about oral sex. That should have ended for all time the debate over government as a protector of morals. You want small government, but you want to regulate our minds and bodies.

35. Compare Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546 (1976) (“Hair� could not be enjoined).

36. 1981 Ark Acts 28 (Ex. Sess.); Ark. Code Ann. §§ 5-68-301–5-68-308.

37. Ark. Code Ann. § 5-68-301.

38. Trivia: When is Adult World at its busiest?

Sunday afternoons.

39. So said one juror after the trial.

40. Another consideration for prosecutors is this: Make a jury watch eight hours of hard-core video, you’ll bore them to death, and numb them to what they are seeing. After awhile, maybe they’re not offended. This jury was bored.

41. Dunlap v. State, 292 Ark. 51, 60-61, 728 S.W.2d 155, 160-61 (1987). I made a record on Arkansas being sixth-ranked for adult pornography consumption on the Internet as a part of the “statewide community standard.�

42. United States v. Roth, note 32, supra.

43. 394 U.S. 557, 568 (1969). n

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Member Spotlight — Attorneys & Their Hobbies 1. Joe McCay makes custom handmade guitars that are known for their original bracing patterns and hand-tuned tops. 2. Josh McFadden propagates the original strain of California boysenberries. 3. Judge Cliff Hoofman raises honey bees on his farm near Enola on the Cadron Creek. 4. Charlie Harwell with his grandsons Cooper and Jackson in his woodshop. 5. Joe Falasco has been doing pottery for about 20 years.

6. Little Rock District Judge Vic Fleming writes crossword puzzles in his spare time.

Photo reprinted with permission of the Arkansas Democrat-Gazette. 7. Joel DiPippa blogs about food, drinks, and men’s style at SouthernAsh.com. 8. Tiffany Kell is an avid fly fisherman and former guide. 9. Josh Mostyn catches huge smallmouth all over Northwest Arkansas. 10. William Prettyman wishes he could catch John Mostyn’s fish.

11. Steve Davis (#66) is a former Team Silverback motorcycle racer. 12. Paul Prater is an award winning mind reader, performer and entertainer and is pictured here demonstrating the bed of nails. 13. Robert K. Jackson is a scuba diving instructor with Rick’s Dive ‘N Travel in North Little Rock.

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See more photos with stories on “What’s New” on www.arkbar.com.

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Managing Social Media in the Workplace

By Dylan H. Potts and Jenny Holt Teeter I. Introduction

I

n today’s fast-paced digital society, we place a premium on “staying connected.” Our social and professional lives are intertwined with such social media outlets as Facebook and Twitter. In its first quarterly

earnings report to the Securities and Exchange Commission, Facebook reported that as of June 30, 2012, it had 955 million total users.1 Twitter reported that it had 140 million users in March of 2012.2 These

social media outlets provide efficient avenues for communications and can become effective business tools for advertising and other promotional activities. While the benefits of social media are unquestionable, employers are now facing difficult policy decisions as they balance employee rights with business interests.

Many of these policy decisions impact workforce morale and can lead to significant employer liability if handled improperly.

Recent case law is illustrative of employer pitfalls now arising in regulating employee social media access. Consider the following hypothetical—you, the employer, have an employee who is frustrated over a position transfer and protests the move to her supervisor. After the supervisor fails to transfer the employee back to her previous position, the employee logs onto Facebook and describes her feelings towards her supervisor using several expletives and also criticizes the employer in the process. Question—is the employer justified in terminating this employee for her Facebook comments?

Answer—no, according to the National Labor Relations Board (NLRB).3 According to the NLRB, the employer’s policy against disparagement of the company through any media outlet was unlawful because it could reasonably be construed to restrict Section 7 activity.4 The NLRB further found that the employee engaged in protected concerted activity because her Facebook status generated a discussion about working conditions amongst fellow employees.5 Therefore, the employee’s termination was considered unlawful.

Realizing the potential liability presented by operating without a social media policy, employers have responded by crafting policies to regulate their employees’ social media behavior. However, many 24

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of these social media policies are overly broad and infringe upon employees’ Section 7 rights under the National Labor Relations Act (NLRA).6 Balancing legitimate employer interests with employee rights is essential in the development of an effective and legal social media policy.

II. General Confidentiality and Privacy Issues When considering employment policies, confidentiality and privacy interests are of general concern for employees and employers alike. Employees like to know that their personal information in the possession of the employer will remain confidential. This employee interest continues to evolve as federal laws such as Family Medical Leave Act and Americans with Disabilities Act further regulate employers’ handling of employee personal information. Likewise, employers want to ensure that employees preserve the confidentiality of certain company information and that employees will not use company property in a manner that would subject confidential company information to public disclosure. These confidentiality and privacy interests have evolved over decades of employer/ employee relations and continue to remain highly relevant today.

For employers, technology has created further need to protect and restrict disclosure of proprietary electronic information, inasmuch as with one email transmission, a disgruntled employee can reveal to the world the employer’s inner workings including client data, customer lists and financial information.

In preserving confidentiality of company records, employers may create policies to ensure that company property is used properly and not abused by employees. Employers often institute internet site restrictions and routinely review employee emails to confirm that company property is being used for its intended purpose.7 While employees often believe that they possess a reasonable expectation of privacy in their activities while on the employer’s network,8 this belief is often misplaced, as employees’ privacy rights are generally limited to only those instances where the matter intruded upon is “intensely private.”9 Employers can reinforce their right to monitor employee communications on the employer’s network by placing the employees on notice that their emails and Internet activities will be monitored.10 With notice of an employer’s policy of monitoring network activity, it is difficult for employees to claim that they have a reasonable expectation of privacy. Courts will typically balance a company’s interest in preventing unprofessional conduct or illegal activity over its network against any privacy interest an employee can claim in those activities, and this analysis typically favors employers.11 Regulating social media presents similar challenges for employers. Social media can be misused by employees and, thus, subject employers to liability, create confidentiality issues, and result in significant public embarrassment.12 Other more specific employer concerns regarding employee use of social media may include: (1) the use of offensive language or posting of inappropriate materials; (2) the disparagement of the company and its directors, officers and employees; (3) the harassment of co-workers; (4) the transmission of computer viruses; (5) or the general lack of employee performance due to their use of social media outlets.13 Properly crafted social media policies better protect employers against this type of misuse and may further help mitigate damages flowing therefrom.

III. Drafting an Effective and Legal Social Media Policy When crafting a social media policy, employers must remain mindful of employee rights protected by the NLRA. The NLRA protects employees’ rights to “engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection” (referred to herein as “Section 7 rights”).14 For an activity to be “concerted activity,” an employee must act “with or on the authority of other employees and not solely by and on behalf of the employee himself.”15 The NLRB is the administrative body charged with investigating and preventing any person or company from engaging in violations of the NLRA.16 If an unfair labor practice is determined, the NLRB can issue cease and desist orders and take other action warranted under the circumstances.

Employers and lawyers alike frequently operate under the mistaken belief that the NLRA does not apply to non-union employers.

However, the NLRA only excludes from its definition of “employer” state and federal government employers and any employer subject to the Railway Labor Act. Most other employers are prohibited from interfering with rights provided to employees under the NLRA.17 Employers will violate section 8(a)(1) of the NLRA when a work rule

is enforced that “reasonably tends to chill employees in the exercise of their Section 7 rights.”18 If an employer’s social media policy is overly broad in nature so that it encompasses certain Section 7 activities, it may violate the NLRA and an action by a disgruntled employee could be brought to the NLRB. The NLRB, through its acting general counsel, has recently provided examples of acceptable and unacceptable social media policies in a series of memoranda.19 These memoranda address such topics as materials employees are prohibited from posting online, overly broad policies that infringe upon employee rights, and general do’s and don’ts for employers in regulating employee social media usage.

These memoranda provide employers with an excellent resource to rely on in the creation of social media policies and the administration of such policies in the employer/employee setting.

A. Specific Examples of Unlawful Social Media Policies One of the common themes presented through the NLRB memoranda is the potential illegality of overly broad, vague or ambiguous social media policies that infringe upon employees’ Section 7 rights.

A social media policy that is vague or ambiguous in its application to Section 7 rights or provides no limitations or examples that would signal to employees that the policy does not restrict Section 7 rights is unlawful.20 On the other hand, a social media policy that sets clear boundaries that restrict its scope by including examples of conduct that is clearly illegal or unprotected to the point where the policy could not be read to cover Section 7 rights is lawful.21 In Memorandum OM 11-74, the acting general counsel of the NLRB described an employer’s internet/blogging policy that prohibited employees from engaging in “inappropriate discussions.”

This language was considered overly broad and could reasonably be construed to restrict Section 7 activity.22 The policy did not attempt to explain the meaning of “inappropriate discussions” or limit its scope through specific examples to exclude Section 7 activity and was, therefore, considered unlawful in its application.23 Other specific examples offered by the NLRB of inappropriate social media policies include a policy that prohibited employees from using social media to engage in “unprofessional communication that could negatively impact the Employer’s reputation or interfere

Dylan H. Potts is a shareholder and director of Gill Ragon Owen, P.A. and chairs the Employment Practices Group.

Jenny Holt Teeter is a senior associate of Gill Ragon Owen, P.A. and is a member of the Employment Practices Group who assists employers with compliance and policy issues.

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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with the Employer’s mission or unprofessional/inappropriate communication regarding members of the Employer’s community.”24 According to the NLRB, this type of restriction violates Section 8(a)(1) “because it would reasonably be construed to chill employees in the exercise of their Section 7 rights” and could also encompass protected statements about employment practices.25 Further, according to the NLRB, such policy contains no limitations or examples that would indicate to an employee that Section 7 rights were excluded from the prohibition.26 Further, a policy requiring employees to seek approval from their employer to identify themselves as the employer’s employees on a social media site and to expressly state that their comments are their personal opinions and do not necessarily reflect their employer’s opinions likely violates the NLRA.27 A provision of this type is considered overly broad and also damaging to the employee’s Section 7 right to engage in concerted activity.28 Further, requiring employees to explicitly state that their comments are their own and not those of their employer after each comment posted places an unreasonable burden upon employees who seek to exercise

their Section 7 rights.29 Another social media policy that required employees generally to “avoid identifying themselves as the [e]mployer’s employees unless discussing terms and conditions of employment in an appropriate manner” was also found to be unlawful.30 Aside from the overly broad nature of the term “appropriate” in this policy, the NLRB views this requirement as restricting protected activities such as criticizing terms and conditions of employment and the employer’s labor policies.31 The NLRB has also found that policy provisions prohibiting the use of a company’s name or service marks outside the course of business without prior approval of the company violate the NLRA.32 The NLRB concluded that employees have a Section 7 right to use their employer’s name or logo in conjunction with protected concerted activity, such as to communicate with fellow employees or the public about a labor dispute. The NLRB further concluded that because this provision could reasonably be construed to restrict employees’ Section 7 rights, it violated the NLRA.33 Finally, a policy prohibiting employees from publishing any representation about

their employer without prior approval by senior management was determined to be overbroad by the NLRB and in violation of the NLRA because it interfered with employees’ Section 7 rights.

As the preceding examples demonstrate, it is imperative that employers carefully construct social media policies that provide specific limitations and examples that make it clear to employees that their individual Section 7 rights are protected; otherwise, these policies will be considered overbroad.

B. Specific Examples of Acceptable Social Media Policies While employees have a wide range of rights and liberties in this area, employers do have a protectable interest in regulating social media. The NLRB has upheld as lawful social media policies that contain rules prohibiting employees from engaging in certain behaviors via social media. Such policies typically list prohibited actions such as breaching confidentiality, harassment or disparagement of other employees or disparagement of the company. With the necessary specificity, such policies have been consistently upheld as lawful. Specific examples of acceptable social

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media policies include: • a policy that “precluded employees from pressuring their coworkers to connect or communicate with them via social media.”34 This policy did not restrict Section 7 activities because it was “sufficiently specific in its prohibition against pressuring coworkers and clearly applied only to harassing conduct;”35 • a policy that prohibited the use of social media to “post or display comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidat28

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ing, harassing, or a violation of the employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” Once again, this policy was upheld as lawful as the policy clearly identified egregious misconduct and was not utilized to discipline Section 7 activities36; • a policy containing a rule prohibiting “verbal or other statements which are slanderous or detrimental to the company or any of

the company’s employees.”37 This rule was found on a list of 19 rules prohibiting such egregious conduct as sabotage and sexual or racial harassment.38 The NLRB found that the rule could not reasonably be read to encompass Section 7 activity because “slanderous” and “detrimental” activities were egregious activities that did not involve concerted activity and could be lawfully prohibited. The NLRB also upheld a policy prohibiting conduct “that tends to bring discredit to, or reflects adversely … on the Company” and prohibiting “conducting oneself unprofessionally or unethically, with the potential of damaging the reputation of a department of the Company.”39 While the NLRB agreed that the policy was a bit overbroad and vague and would have preferred to see explicit Section 7 right exclusions, it found the policy to be lawful because the totality of the evidence led to a conclusion that the rule was not aimed at conduct related to Section 7 activities, but was related to crimes and other misconduct, such as giving proprietary information to competitors.

From a review of these “acceptable” social media policies it is apparent that the NLRB favors specificity over generalities. As such, significant interest should be placed on tailoring a policy specific to the needs of the underlying company as one size may not fit all as related to an enforceable policy.

IV. Closing Practitioners, prior to drafting a social media policy, should first consider the nature of the client’s business and the protectable interests involved. Once they are determined, significant interest should be placed upon the specific employee activities subject to regulation. A cookie-cutter form policy found through a Google search may not address the specific needs of the Practitioner’s client’s business or comply with NLRB standards.

There is no one-size-fits-all social media policy; companies will need to carefully craft their policies to incorporate industryspecific concerns while maintaining necessary employee rights. In this digital age, social media will continue to thrive and employees will continue to connect with others and voice their opinions (and, oftentimes, their displeasure) with their working environments. Inevitably litigation will further shape the landscape of employer/ Social Media continued on page 49

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Keeping Up with the Tweeters: The Challenge for Jury Instructions

By Teresa Wineland

A A

rkansas Model Jury Instruction – Civil 101 has undergone major revisions in the last decade as courts and counsel struggle to ensure that litigants receive a fair trial in the face of the information superhighway.

Jurors have long been instructed not to talk about a case among themselves or with others during a trial. They have been told not to read or listen to reports about it in the media. They have been told not to do any research or investigation on their own. Since at least 2005, they have been specifically admonished not to do any research on the internet. Information from such extraneous sources is suspect, as it is not subject to the tried and tested rules of evidence and the rigors of cross-examination.

In 2010, AMI 101 was amended to advise jurors that they must turn their cell phone, pagers and other communication devices off while in the courtroom. They were told they could not use these devices for any purpose when in the jury room during deliberations, and could only use them during recesses.

In keeping with the exponential rate at which the use of electronic devices is permeating society, AMI 101 has continued to evolve with each subsequent edition of the AMI Civil. The 2011 version told jurors they must turn their devices off while in the courtroom and during deliberations. They could not use any electronic device to find out anything about the case or to communicate their own thoughts or with anyone else about the case. The instruction specifically prohibited tweeting, texting, blogging, emailing, and posting information on a website, social network or chat room.

AMI 101, and its closing instruction counterpart AMI 3502, were extensively rewritten in the 2012 edition of the AMI Civil.

While carrying over the 2011 provisions, the instructions are now even more specific, listing some of the electronic devices in popular use, including iPhones, smartphones, Blackberrys, PDAs, and iPads.

Other terms are mentioned that identify sources of information available electronically, including Facebook, MySpace, Twitter, Google, Wikipedia, Google Earth, Podcasts, streaming video and audio, and RSS feeds. These lists will have to be reviewed regularly to stay current in the fast-changing world of technology and the internet.

The goal is to get the message across to jurors that they must leave their normal technology-dependent lifestyle behind at the court-

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house steps, and rely on the lawyers, the judge and the witnesses in a case to tell them what they need to know. Those of us who live by our laptops and smartphones know how hard it is to ignore our electronic lifelines for even a short time, and jurors are no different.

The current AMI 101 attempts to ease and facilitate the deprivation of electronic research and communication by explaining to jurors why it is important for them to make this sacrifice for the duration of a trial. If jurors are being asked to give up their addiction to the use of these devices, they need to know why, both to increase the level of compliance and to make the demands of jury service more acceptable.

Is it working? While it may be too early to tell, Arkansas is seeing its share of trials tainted by juror misconduct in violation of prohibitions contained in the AMI. In Dimas-Martinez v. State,1 tweeting by a juror during the trial was one of the grounds for the reversal and remand of a capital murder verdict. At the close of the evidence on the sentencing phase of the trial, the juror tweeted “Choices to be made. Hearts to be broken. We each define the great line.” The trial court questioned the juror about the tweeted message, and confirmed that the juror had not made up his mind about how he was going to decide the case, nor had he discussed the particulars of the case with anyone. Despite this questioning by the court, the juror continued to tweet during the trial, even tweeting “It’s done” when the jury had reached its verdict but before it was announced. The Supreme Court, after noting that one of the persons following the juror’s tweets was a reporter, said: Because of the very nature of Twitter as an online social media site, Juror 2’s tweets about the trial were very much public discussions. Even if such discussions were onesided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.2 The Court was also concerned about the fact that the media had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court.3 Importantly, it was not contended that the twitter messages

themselves were prejudicial to the defendant; rather, it was the fact that the juror had demonstrated an intentional disregard of the trial court’s specific admonition not to tweet about the case.4 “[T]he circuit court’s failure to acknowledge this juror’s inability to follow the court’s directions was an abuse of discretion.”5 Thus, regardless of the content of a communication made by a juror during a trial, the fact that the juror engages in any communication in violation of a prohibition imposed by the court jeopardizes a verdict and can result in expensive and time-consuming mistrials and retrials.

The Dimas-Martinez Court pointed out the dangers of electronic devices in a courtroom, stating: [W]e take this opportunity to recognize the wide array of possible juror misconduct that might result when jurors have unrestricted access to their mobile phones during a trial. Most mobile phones now allow instant access to a myriad of information.

Not only can jurors access Facebook, Twitter, or other social media sites, but they can also access news sites that might have information about a case. There is also the possibility that a juror could conduct research about many aspects of a case. Thus, we refer to the Supreme Court Committee on Criminal Practice and the Supreme Court Committee on Civil Practice for consideration of the question of whether jurors’ access to mobile phones should be limited during a trial.6 If jury instructions are not enough to keep jurors from using their electronic devices improperly during a trial, jurors may be prohibited from having access to them at all.7 Of course, without expensive and intrusive sequestration, there is no way to effectively limit a juror’s access in the evenings and on weekends. Courts will still have to rely on jury instructions to impress upon jurors the importance of following the rules to ensure a fair trial free from outside influences. To make the point even stronger, judges can tell jurors that a violation of the prohibitions against improper use of electronic devices may result in a contempt citation.8 Judges can also ask jurors to report

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Jury instructions are one of the most important tools in the courts’ arsenal to ensure that trials are conducted fairly, by the rules, with jurors who follow the law. The AMI committees will need to continue to stay diligent in the on-going effort to keep up with the technology and resources available to jurors, and not let the tweeters get ahead. Nothing less than the preservation of the constitutional right to a fair trial by jury demands it.

Endnotes 1. 2011 Ark. 515.

2. Id., at 15.

3. Id., at 17.

4. Id., at 16. In telling jurors not to twitter, the Dimas-Martinez court referred to Arvest Bank v. Stoam Holdings, LLC, case no. CV 07-1271-6 in the Circuit Court of Washington County, Arkansas, where a multi-million dollar verdict was threatened by a juror tweeting during the trial. Id., at 15. The Stoam defendants’ motion for a new trial on this basis was denied, with the trial court finding, among other things, that the juror did not violate any orders of the court. The case was tried in 2009, prior to the 2010 amendment to AMI 101.

Arguably, the outcome might have been

different under the newer versions of AMI 101.

5. Id., at 17.

6. Id. 7. The Arkansas Supreme Court Committee on Civil Practice has appointed a subcommittee to study this issue and make recommendations.

8. See, e.g., United States v. Juror Number One, 2011 U.S. Dist. LEXIS 146768 (E.D. Pa. Dec. 21, 2011) (juror dismissed for unrelated reasons found guilty of criminal contempt and fined for disobeying court’s order and emailing other jurors about her view of the case, resulting in removal of another juror and replacement with an alternate). n Teresa Wineland is a partner at Williams & Anderson PLC in Little Rock.

She was the chair of the Arkansas Supreme Court Committee on Model Jury Instructions – Civil for the 2011 and 2012 editions.

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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Arkansas Supreme Court Historical Society

Chief Justice Joseph Morrison Hill

by J.W. Looney Chief Justice Joseph Morrison Hill was the first member of the Arkansas Supreme Court to win a seat by defeating an incumbent since popular election of judges was implemented in 1864. He ran against Chief Justice Henry G. Bunn in 1904 in a contest that featured debates over the handling of the workload of the court. Hill claimed that the delay in the court’s work had increased from 12-15 months to over 24 months under the Chief Justiceship of Bunn. He suggested a program to speed up the process including longer sessions, shorter opinions, summary disposal of some cases and no oral opinions. He won convincingly. Hill had held no prior elected office but was well known as digester of Arkansas statutes (Sandels and Hill’s Digest).

Justice Hill was born in Davidson, North Carolina, on September 2, 1864. His father was a Lieutenant General in the Confederate Army and a noted educator. The senior Hill came to Arkansas to serve as president of the University of Arkansas. (Hill Hall on campus is named in his honor.) Joseph Hill’s maternal grandfather had been the first president of Davidson College.

Hill attended the University of Arkansas then received the LL.B. degree from Cumberland University in Lebanon, Tennessee, in 1883.

He was admitted to the bar that same year.

At the time of his election to the court Justice Hill practiced in Fort Smith. He had previously practiced in Eureka Springs. While there he participated in an event that became a part of Carroll County lore. He organized, near Green Forest, a “sham battle” or reenactment of a Civil War battle for public entertainment. A large crowd turned out for the event which, unfortunately, turned into a farce. The “Calvary” decided to take Hill prisoner and a melee followed in which several horses were accidently bayoneted. Some of the soldiers feigned death during the commotion, the crowd found it too convincing and some fainted at the sight of blood and the “fallen” soldiers.

During Hill’s service on the court the controversial issues faced by the court were those surrounding voting rights and access to justice.

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For example, in Rice v. Palmer1 the validity of the poll tax as a prerequisite for voting was considered. The measure had been submitted to voters as a constitutional amendment in 1892 and received 75,847 votes in favor and 56,389 opposed. However, 156,186 votes were cast in the election and the question arose as to the validity of the adoption of the amendment. Justice Hill’s opinion ruled that it had not been constituState House, Little Rock tionally adopted following the logic Occupied by Court: 1836-1863; postwar-1911 of a federal court opinion of Judge Courtesy of the Arkansas History Commission Jacob Trieber. The amendment was & the Encyclopedia of Arkansas resubmitted and approved by voters in 1908. he continued until his death. Justice Hill was Justice Hill was also a member of the court active in public affairs and served for many years which decided two important cases2 related to as Chairman of the Arkansas Construction jury service. While both dealt with racial issues, Commission and on the Board of Trustees the court was reluctant to intervene in lower of the Arkansas Tuberculosis Sanatorium at court decisions on individual juror qualifications. Booneville. The University of Arkansas conHill did not complete the term on the court ferred on him an honorary Doctor of Laws to which he had been elected. He resigned degree in 1931.

February 2, 1909, to become chief attorney Justice Hill married Kate Reynolds in 1890. for the state in a fight regarding railroad rates Her father, D.H. Reynolds, was a lawyer and which eventually ended up in the United had been a Civil War General. The Hills had States Supreme Court. Arkansas had fixed the two daughters. Justice Hill died September 24, maximum passenger fare within the state and 1950. maximum intrastate freight rates. The railroads asserted that the rates were unreasonable, con- Endnotes: fiscatory and unconstitutional. In 1913 the 1. 78 Ark. 432 (1906).

United States Supreme Court upheld the state’s 2. Strong v. State, 85 Ark. 536 (1908), and decision.3 Franklin v. State, 85 Ark. 534 (1908).

Interestingly, during the tenure of Chief 3. Allen v. St. Louis, Iron Mountain & Southern Justice Hill the court had to deal with railroad Railway Company, 230 U.S. 553 (1913). cases on a regular basis. For example, in 1908 alone there were 79 railroad cases before the Judge J.W. Looney is a Circuit Judge, 18-W court. Forty-five of those involved the St. Judicial Circuit (Polk and Montgomery Louis, Iron Mountain and Southern Railway Counties) and Distinguished Professor, Company, one of the parties in the litigation Emeritus, University of Arkansas School of that went to the United States Supreme Court. Law. These cases ranged from issues involving regulation of rates, stops and depots, passenger This article is provided by the Arkansas and employee injuries, and livestock deaths or Supreme Court Historical Society, Inc. For injuries. more information on the Society contact Rod After Hill’s successful service in that capacity Miller, Arkansas Supreme Court Historical he returned to practice in Fort Smith with the Society, Justice Building, Email: rod.miller@ firm of Hill, Fitzhugh and Brizzolara which arkansas.gov; Phone: 501-682-6879.

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Report from the 2012 National Conference of Commissioners on Uniform State Laws

By Lynn Foster On July 23, the Uniform Law Commission concluded its 121st annual meeting. Arkansas was represented by commissioners Philip Carroll (a life member), Vince Henderson (an associate commissioner), John Stroud, Elisa White and the author.

Five new uniform laws were adopted. Following is a brief description of each: The Uniform Deployed Parents Custody and Visitation Act1 addresses issues of child custody and visitation that arise when custodial parents are deployed in military or other national service. Currently, the law of most states does not adequately deal with such issues. Ordinary procedures are often not adequate to resolve custody issues caused by sudden deployment. The Act attempts to ensure that parents who serve their country are not penalized for their service, while still giving adequate weight to the interests of the other parent, and most importantly, the best interest of the child. The Act contains custody provisions that apply generally to service members, as well as provisions that arise on notice of and during deployment.

The Uniform Premarital and Marital Agreements Act2 imposes clarity and consistency on a range of agreements between spouses and about-to-be-spouses. One focus is on agreements that purport to modify or waive rights that would otherwise arise at the time of divorce or death of one of the spouses. Waivers and unconscionability are also addressed in provisions relating to domestic violence. The Act attempts to address the varying standards for such agreements that have led to conflicting laws, judgments, and uncertainty about enforcement as couples move from state to state.

The Uniform Manufactured Housing Act3 permits an owner of a manufactured home to classify it as either real property or personal property. Although only a tiny percentage of manufactured homes are moved after being sited, 42 states issue a certificate of title for manufactured homes, as they do for cars, and treat them as personal property.

Though most of these states provide a statutory method by which a manufactured home can be reclassified as real property, the methods are cumbersome, often confusing and vary significantly. The act provides an efficient, effective and uniform method for having a manufactured home classified as real property at the time of the first retail sale, thereby obviating the need for a certificate of title then, or at any other time.

Retailers would be required to notify buyers of the classification option at the time of sale. This Act would increase the supply of affordable housing by making manufactured home financing more available and affordable, and provide owners of manufactured homes with many of the same legal protections as owners of site-built homes.

The Uniform Asset Freezing Orders Act4 creates a uniform process for the issuance of asset freezing orders, in personam orders freezing the assets of a defendant in order to prevent their dissipation prior to judgment. An asset freezing order is, by its very nature, an extraordinary remedy with potentially significant impact on both the debtor whose assets are frozen and on third parties holding those assets. Accordingly, the Act contains rigorous standards which must be met before such an order can be issued. The Act also sets out with specificity the obligations 34

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of non-parties affected by such orders. Lastly, the Act also contains a mechanism for recognition and enforcement of asset freezing orders issued by other states and by courts outside the United States.

The Uniform Choice of Court Agreements Convention Implementation Act5 was also approved at the ULC’s annual meeting.

Drafted at the request of the U.S. Dept. of State, this act will assist in the implementation and ratification of the Hague Convention on Choice of Court Agreements, and is meant to harmonize with federal implementing legislation. The Hague Convention is aimed at ensuring the effectiveness of choice of court agreements (also known as “forum selection clauses”) between parties to international commercial transactions.

Acts in progress that were debated at the Annual Meeting, but are still in the UCL “pipeline,” are the Prevention of and Remedies for Human Trafficking Act, the Powers of Appointment Act, and the Act to Implement the Hague Convention on the Protection of Children.

Finally, coming to the Arkansas legislature this spring will be a proposed amendment to UCC 4A-108, which will plug a hole in the UCC created by the Dodd-Frank Wall Street Reform and Consumer Protection Act6 amendment to the Electronic Funds Transfers Act.7 The change in federal law will take place in 2013, and if Arkansas does not amend the UCC, some aspects of “remittance transfers” will be removed from its coverage, and will be essentially unregulated. Under the act, remittance transfers are transfers by “consumers” to recipients in other countries. The amendment has been approved for adoption by all states.

Endnotes 1. At the time of this writing, the final acts with comments are not yet available, but the acts alone, as approved, are available at the websites listed here and in the following notes. http://www.uniformlaws.org/ shared/docs/deployed_parents/2012am_dpcva_approvedtext.pdf (visited Sept. 23, 2012).

2. Http://www.uniformlaws.org/shared/docs/premarital%20and%20 marital%20agreements/2012am_pmaa_approvedtext.pdf (visited Sept. 23, 2012).

3. Http://www.uniformlaws.org/shared/docs/manufactured_ housing/2012am_mha_approvedtext.pdf (visited Sept. 23, 2012).

4. Http://www.uniformlaws.org/shared/docs/Asset_Freezing_ Orders/2012am_afo_approvedtext.pdf (visited Sept. 23, 2012).

5. Http://www.uniformlaws.org/shared/docs/choice_of_ court/2012am_ccaia_approvedtext.pdf (visited Sept. 23, 2012).

6. Pub. L. 111-203, 124 Stat. 1376, § 1073 (2010).

7. Codified at 15 U.S.C. § 1693o-1.

Lynn Foster is the Arkansas Bar Foundation Professor of Law at the University of Arkansas at Little Rock Bowen School of Law, and has served as one of Arkansas’s uniform law commissioners since 2009.

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Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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Arkansas Bar Association’s Board of Governors Report

By Karen K. Hutchins The Board of Governors held its summer meeting August 17-18, 2012, in Bentonville, Arkansas. Board Chair David R. Matthews presided over the meeting and welcomed the Board to Northwest Arkansas. He recognized newly elected Governors Buck Gibson, Denise Hoggard, and Jay Shue. President Charles L. Harwell appointed Marie-Bernarde Miller as Parliamentarian and Shaneen Kelleybrew Sloan to both an at-large position on the Board and as Assistant Treasurer with plans to assume the Treasurer position upon the retirement of Treasurer Martin at the end of the bar year.

Executive Director Karen Hutchins reported on the creation of a “scorecard” process that will be used to monitor benchmarks and progress towards the goals identified in the Association’s Strategic Plan. Brian Rosenthal, former chair of the Long Range Planning Committee, commended the use of the scorecard. Past President Rick Ramsay provided the history of the Long Range Planning Committee and commented on how its implementation was structured.

The Board heard other reports including one from Governor Tessica Dooley, Co-Chair of the Membership Development Committee, who challenged Governors to reach out to non-member attorneys and encourage them to join. Tom Daily, President of the Arkansas Bar Foundation, reported on the Foundation’s efforts to encourage attorneys to become a Fellow of the Foundation. He requested, and the Board of Governors approved, the creation of a new joint award for outstanding jurists.

Lobbyist Jack McNulty reported to the Governors that the House of Delegates approved the legislative package at their June meeting. McNulty requested that the governors be prepared to participate in the Legislative Action Network. He encouraged members to review the e-bulletin, “The Bar,” weekly during the upcoming legislative session for updates from the Legislation Committee.

Governor Dennis Zolper reported on the actions of the Association’s Political Action Committee (PAC). Governor Zolper reported on the number of members who were running for the General Assembly and encouraged all Board members to join the PAC and to recruit other attorneys to join.

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The Co-Chair of the Arkansas Bar Commission on Diversity, Ron Harrison, shared the Commission’s historical information with the Board. He encouraged the Association to lead Arkansas’s legal community in promoting diversity.

Justice Brown and Retired Justice Annabelle Imber Tuck presented a report on the work of the Joint Task Force on Judicial Elections.

The Task Force recommended formation of a corporation to oversee the creation of a judicial voter guide website, a judicial candidate pledge, and development of a team to examine and comment on media communications during judicial elections. The Board of Governors commended the work of the Joint Task Force and recognized each member for their steadfast, dedicated and meaningful service. The Board voted that the corporation the Task Force recommended to be created must, in all respects, be completely independent of the Arkansas Bar Association. And furthermore, the Association shall have no control of or responsibility for any actions of such independent corporation. The Board further moved that the Joint Task Force and its members, by their work, are entitled to the utmost respect and deepest appreciation of the lawyers of Arkansas, our judiciary and the public at large.

Paul Keith, Chair of the Continuing Legal Education Committee, presented a motion recommending that the Association’s policy be amended to provide that registration fees at CLE events must be paid for each guest, speaker, and/or planner other than: (1) one in-state attorney speaker per CLE hour; (2) one program planner; and (3) one out-of-state speaker, and that Association Sections may provide such guest registration fees from Section funds, including reserve and annual budget funds.

His second motion recommended that the Association’s policy be clarified to provide that only those persons who have attained status as senior members as defined by the Association membership guidelines shall receive a 20% discount on admission fees to Association sponsored CLE events. Chair Paul Keith expressed thanks to the staff and volunteer planners who assisted the Association in producing the first CLE Desk Catalog which was mailed to all

Arkansas attorneys and is available at www. arkbar.com. The Board of Governors approved the extension of several member benefit services. President Harwell proposed that the Association finalize the agreements and move forward with the creation of our electronic legal forms program. The Board approved that proposal.

President Harwell thanked Zane Chrisman for chairing the successful 2012 Annual Meeting, which was attended by 1,356 attorneys. He reminded the Board that the MidYear meeting will take place January 23-26, 2013, at the Peabody Hotel in Memphis.

Harwell announced his appointment of Justin Hinton to fill the House of Delegates position previously held by John P. Perkins, who had to resign due to his move from District B. American Bar Delegate Rick Ramsay reported on the American Bar Association’s 2012 Annual Meeting.

Young Lawyers Chair Vicki Vassar updated the Board on the many activities the Young Lawyers Section has underway. Executive Director Karen Hutchins presented the Section Budget proposals, Section Reserve Expenditure requests, and the Environmental Law Section Bylaw Amendment to the Board. All requests were approved. President Harwell announced his appointment of Paul Keith as Chair of the Civil Litigation Section.

The Board of Governors will meet December 7-8, 2012, in Little Rock at the Arkansas Bar Center, 2224 Cottondale Lane. The House of Delegates will meet on January 23-26, 2013, at the Peabody Hotel in Memphis. n Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.

For a list of Association Board of Governors go to www.arkbar. com/pages/board_governors.aspx.

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Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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Credit Cart Transactions and IOLTA Accounts: What You Need to Know

By Amy Dunn Johnson When the Arkansas Supreme Court created the IOLTA program in 1984, client payments by credit card were not the norm.

That has changed. Attorneys who accept credit card payments—particularly attorneys who accept advances on future expenses associated with the representation or who accept up-front deposits on fees that will be earned in the future—must consider the ethical implications of linking credit-card deposits with an IOLTA account.1 Credit card payments do not pose special issues when used for services already rendered, as these can be deposited directly into the firm’s operating account. When an attorney accepts payments that are required to be deposited into a trust account, however, there are potential pitfalls posed by Arkansas Rule of Professional Conduct 1.15: (1) the

prohibition against commingling client funds with the attorney’s own funds,2 and (2) the requirement that a client’s funds be available to the client “upon request and without delay.”3 While an attorney is permitted to deposit up to $500 of the lawyer’s own money in an IOLTA account for the purpose of covering bank service fees or meeting minimum balance requirements,4 the attorney may not deposit client funds in the firm’s operating account, even if the attorney intends to immediately transfer those funds to an IOLTA account.5 If the firm’s operating account is subject to a lien or bank set-off, the client’s funds are at risk for being diverted to satisfy those obligations. Linking credit card payments of client funds to a firm’s operating account is therefore not an acceptable

solution.

Other issues arise if the credit card payments are linked to the IOLTA account, as these transactions are subject to merchant fees and “chargebacks.” Credit card companies charge a variety of merchant fees that are often deducted directly from the bank account set up to receive credit card payments. While an attorney is permitted to deposit up to $500 of the attorney’s own money to cover certain costs, Rule 1.15 limits those to charges levied by the bank. Third party fees are not contemplated.

Additionally, credit card customers often have a period of days after receiving a statement to dispute a charge. When the charge is disputed, the credit card company institutes a “chargeback” and reverses the charge pending resolution of the dispute. This places the

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attorney in the untenable position of having to either hold onto client funds paid by credit card until the time period for disputing a charge elapses or run the risk that the credit card company will institute a chargeback after the attorney has already spent the funds.

Some credit card processers—including LawPay, the Arkansas Bar Association’s recommended merchant service provider—offer programs that address these issues by crediting funds that belong in an IOLTA account to that account and debiting any fees or chargebacks to the firm’s operating account.

This option also allows the attorney to direct whether a payment should go to the operating account or to the IOLTA account.

There is one final issue of concern for attorneys who accept credit card payments: Effective January 2013, Section 6050 of the Tax Code will require credit card processors to report gross credit card transactions to the IRS on a 1099-K. The regulation does not distinguish between credits made to an operating account versus credits to an IOLTA account, meaning that advances are reported together with payments for services rendered.

Accordingly, amounts reported on the 1099K will not necessarily reflect gross income

actually received.

Section 6050W will also impose a 28% withholding penalty on all of a firm’s credit card transactions if the name of the attorney or firm on the credit card merchant services account does not exactly match the name associated with the tax ID number on file with the IRS. Major credit card processors have character limitations for the account name field, meaning many firms with longer names may have opened the account using an abbreviated name or acronym. If this is the case, the firm should contact its processor to make sure that the name on the merchant account is identical to the firm’s legal name, at least up to the number of available characters. The firm should also ensure that its own tax ID number (instead of the IOLTA Foundation’s tax ID number, which must be on the firm’s IOLTA bank account) is on its credit card merchant service account.

Credit cards offer a convenient way for clients to pay their attorneys. Attorneys who make this option available to their clients can certainly do so, but must exercise care to make sure that the merchant service account is structured to comply with the requirements of Rule 1.15 and that the credit card

processor has the firm’s correct business name and tax ID number.

Endnotes: 1. See Donald R. Lundberg, What’s In Your Trust Account? When Clients Pay by Credit Card, 52 Res Gestae 26 (2009).

2. Ark. R. Prof’l Conduct 1.15(a)(1) (2012).

3. Ark. R. Prof’l Conduct 1.15(b)(6)(i).

4. Ark. R. Prof’l Conduct 1.15(b)(3).

5. See Judicial Discipline & Disability Comm’n v. Thomson, 341 Ark. 243, 16 S.W.3d 212 (2000) (finding violation of rule where judge deposited settlement checks into operating account before disbursing them to clients). n Amy Dunn Johnson is the Executive Director of the Arkansas Access to Justice Commission, the Arkansas Access to Justice Foundation and the Arkansas IOLTA Foundation.

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Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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Judicial Disciplinary Actions & Attorney Disciplinary Actions The Judicial Discipline and Disability Commission issued the following Final Actions. Full text documents are available on-line at http://www.state.ar.us/jddc/ press_releases.html.

On September 7, 2012, the Arkansas Judicial Discipline and Disability Commission issued an agreed unpaid suspension of 30 days to 10th Judicial District Judge Sam Pope of Hamburg in Commission case #12-187.

The Arkansas Supreme Court accepted the Petitioner’s Report of Uncontested Sanction on October 4, 2012.

On September 20, 2012, the Arkansas Judicial Discipline and Disability Commission issued formal charges to Monticello District Court Judge Ken Harper in Commission case #12-233.

On September 26, 2012, the Arkansas Judicial Discipline and Disability Commission dismissed Commission Case #11-322 against Walnut Ridge District Judge Larry Hayes.

Final actions from July 1, 2012, through September 30, 2012, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). 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.]

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SURRENDER: JAMES SCOTT BROWN, Bar No. 70082, of Leawood, KS, in No. 11-1156 petitioned the Court to surrender his Arkansas law license, in lieu of probable disbarment proceedings, as a result of his guilty plea in September 2011 in federal court in St. Louis, MO, in No. 11cr-168, on a felony charge of conspiracy to commit wire and mail fraud. He was involved in an international “Ponzi” type investment scheme of approximately $50,000,000, where Brown admitted to benefitting personally in excess of $1,000,000. On August 7, 2012, Brown was sentenced to serve 36 months in federal prison and pay $34,627,714 restitution.

On August 14, 2012, his petition was accepted and Mr. Brown was barred from the practice of law in Arkansas.

GREGORY D. JONES, Bar No. 87095, formerly of Fayetteville and now of Eureka Springs, in No. 12-589, petitioned the Court to surrender his Arkansas law license, in lieu of disbarment proceedings, as a result his having abandoned his active law practice in July 2011 without notice to his many clients and former clients, resulting in the circuit court there having to appoint a receiver for his client files and the interim suspension of Jones, both in December 2011. In June 2012, after Jones failed to file a response, a Committee Panel voted to initiate disbarment proceedings against him on a complaint from Rob Merry-Ship of Fayetteville arising out of funds for future case expenses being missing from Jones’ client trust account and a failure by Jones to account for an $85,000 fee paid by Merry-Ship in October 2010 for future legal services in a pending civil

case. On August 14, 2012, the petition was accepted and Mr. Jones was barred from the practice of law in Arkansas.

SUSPENSION: DONALD WAYNE COLSON, Bar No. 2005166, of Bauxite, Arkansas, had his Arkansas law license suspended for a period of 36 months by Committee Findings & Order filed September 5, 2012, on a Complaint filed

by Shawn Skelton in Case No. CPC 2012-021, for violations of Arkansas Rules 1.3, 1.4(a), 1.16(d), 8.1(b), and 8.4(c). Mr. Colson was also ordered to pay $650 restitution. Mr. Skelton hired Mr. Colson in September 2010 and paid him $650 to represent him in a support / paternity / visitation matter so that Mr. Skelton could obtain a regular visitation schedule with his minor child. Thereafter, Mr. Colson took no action on behalf of Mr. Skelton. There was no communication and no court action was filed. Mr. Colson was contacted by the Office of Professional Conduct about this matter twice, before the filing of the formal disciplinary Complaint, but failed to respond to either inquiry. Mr. Colson also failed to respond to the formal disciplinary complaint and a separate sanction of a Reprimand was imposed by the Panel for that failure to respond.

JAMES M. DENDY, Bar No. 81045, of Maumelle, had his Arkansas law license suspended for a period of 24 months by Committee Findings & Order filed September 21, 2012, for violations of Arkansas Rules 1.1, 1.4(a)(3), 1.5(a), 1.16(d), 8.3(a), 8.4(c), and 8.4(d) in Case No. CPC 2012-033, on a referral on February 16, 2012, by United States

Attorney Disciplinary Actions District Judge Susan Wright that Mr. Dendy had apparently abandoned his federal criminal defendant client, Mark Quattlebaum, in midcase, after a guilty plea but before sentencing.

After a hearing, Judge Wright relieved Mr. Dendy and appointed attorney John Wesley Hall, Jr. to represent Mr. Quattlebaum. Mr. Hall filed a grievance with OPC on April 18, 2012, stating that his investigation revealed that Mr. Dendy had been assisted in the Quattlebaum case by former (license surrendered in 2003) attorney Kenneth G. Fuchs, that Quattlebaum had generally met with both Dendy and Fuchs on his case, and had actually made all of his cash fee payments for Dendy to Fuchs. In 2010-2011, Mr. Dendy was practicing law from an address in Mayflower, Arkansas, and became the retained attorney of record for Mark Quattlebaum of Conway by October 14, 2010, in USDC Case No. 10-CR-188. A billing statement from Dendy to Quattlebaum dated November 1, 2011, shows a $7,500 fee was charged to Quattlebaum by Dendy on August 2, 2010, and three cash payments on Quattlebaum’s account, totaling $6,600, were credited between August 7, 2010 - January 27, 2011. Mr. Dendy came in contact with former Arkansas-licensed attorney Kenneth G. Fuchs in 2010 through Quattlebaum. While in jail custody pursuant to a contempt order of the Supreme Court of Arkansas in June 2003, Mr. Fuchs surrendered his Arkansas law license rather than face disciplinary proceedings alleging serious misconduct. The Per Curiam Order entered June 12, 2003, in Case No. 03633, accepting his petition to surrender, also barred and enjoined Mr. Fuchs from engaging in the practice of law in this state. Section 22, “Restrictions on Former Lawyers,” of the

Supreme Court’s Procedures defines a “former attorney” as one who has surrendered his law license, applicable to Mr. Fuchs. Section 22.G provides a former attorney shall have no contact with clients of any attorney by any means.

Section 22.H provides a former attorney shall have no contact with client funds or property.

Section 22.L provides that no attorney shall aid a former attorney in the unauthorized practice of law or in violation of the restrictions in Section 22. Section 22.L also provides that an attorney shall have an obligation, as under Arkansas Rule 8.3, to report any violation of Section 22 by a former attorney. Section 22.N provides that the maximum punishment for violation of Section 22 by an attorney may be disbarment. A former attorney who violates Section 22 may be deemed to be in contempt of the Supreme Court and may be punished accordingly. Mr. Quattlebaum’s Affidavit of May 2012 clearly sets out the involvement of Fuchs in Dendy’s representation of Quattlebaum in the federal case. Quattlebaum

was informed by them or led to understand that Dendy and Fuchs would be jointly representing Quattlebaum. Quattlebaum actually made his three cash fee payments to Fuchs. When Quattlebaum had difficulty contacting Dendy, he would go through Fuchs to find Dendy. He stated Fuchs actually was in court with Dendy in October 2010 when Quattlebaum entered a not guilty plea. Problems with mail service between the clerk’s office and Dendy had arisen

by December 2011. Dendy failed to appear at a hearing on February 3, 2012, and Judge Wright had to appoint Quattlebaum a new attorney to finish his case. In setting his sanction, the Panel found his lack of a prior disciplinary history was a factor. Mr. Dendy failed to file a response, and was sanctioned for that with an additional reprimand.

MARGARET INGLE, Bar No. 2011287, of Austin, Texas, on September 21, 2012, had her Arkansas law license suspended for a period of 30 days as a result of a Reciprocal

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Attorney Disciplinary Actions Action by Committee Reciprocal Order in No. CPC 2012-043. Ms. Ingle self-reported to the Committee that she had been disciplined by an Agreed Judgment of Partially Probated Suspension in a disciplinary case in Texas, where she is licensed with Texas Bar Card No. 24050805. By letter dated July 19, 2012, the Office of the Chief Disciplinary Counsel for the State Bar of Texas provided a certified copy of the Agreed Judgment of Partially Probated Suspension in Case No. A0041113710, Commission for Lawyer Discipline vs. Margaret A.H. Ingle, before the District 9 Grievance Committee Evidentiary Panel 9-3, State Bar of Texas, filed April 23, 2012. By the Texas settlement order, Ms. Ingle agreed to a suspension of her Texas law license for four years, with one month to be active suspension and the remaining time probated suspension on conditions. Pursuant to Section 14 of the Arkansas Procedures Regulating Professional Conduct of Attorneys at Law, the Committee imposed a like sanction of the active 30-day suspension of Ms. Ingle’s Arkansas law license.

NEWTON DONALD JENKINS, JR., Bar No. 94231, of Van Buren, had his Arkansas law license suspended for a period of 24 months

by Committee Findings & Order filed August 17, 2012, on a complaint by Leslie Rose, for violations of Arkansas Rules 1.1, 1.2(a), 3.3(a), 4.1(a), and 8.4(c). In February 2004, Ms. Rose was purchasing a 35 acre farm in far eastern Oklahoma on a contract of sale, seller-financed at $500 per month, for six plus years. She married Joshua Greb (Greb). After fixing up the farm for occupancy, in mid-2007 they moved their legal residence to the farm and obtained Oklahoma driver’s licenses in July 2007. Both worked in Arkansas. In August 2008, mounting expenses plus medical bills caused them to consult Mr. Jenkins at the Jenkins Law Firm in Crawford County, Arkansas, related to a possible bankruptcy. Rose paid the JLF $1,500 in August 2008 for services for a Chapter 7 bankruptcy case.

After reviewing their financial information, Jenkins counseled that their tax returns for several previous years needed to be amended, specifically to add into the income and expense mix a “horse farm operation” to meet the “means testing” eligibility for a Chapter 7 filing.

In early 2009, the Jenkins Law Firm prepared amended federal returns for Rose and Greb for the years 2006 and 2007. The Jenkins Law Firm also prepared amended state returns for them for

the years 2006 and 2007. The amended 2006 state return was for Arkansas where they lived the entire year, at the Arkansas residence address of her parents. The amended 2007 state return was for Arkansas where they lived part of 2007, before relocating to their Oklahoma farm. Rose later learned no amended 2007 Oklahoma state return was filed. The original 2008 federal and Arkansas returns were prepared by Jenkins Law Firm on April 29, 2009, and again both listed the Arkansas address, although Rose had notified the firm by e-mails during April 28-May 4, 2009, that they definitely lived in Oklahoma and both had Oklahoma drivers licenses.

On June 16, 2009, Jenkins filed their Chapter 7 in Arkansas, as No. 09-bk-72969, using the Arkansas address of Rose’s parents for the debtors. Jenkins did not disclose in the bankruptcy filing that Rose was buying the 35 acre farm in Oklahoma or that either debtor had any interest in real property. Jenkins listed the $500 monthly farm contract payment by Rose as being “rent or mortgage” payments but did not link it to any disclosed ownership interest.

On July 24, 2009, Greb and Rose appeared with Jenkins in Fort Smith before the Chapter 7 Trustee for their “341(a)” examination. The

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Attorney Disciplinary Actions partial transcript shows them producing their income to meet the Chapter 7 “means test.” In 2007 Oklahoma driver’s licenses and then January 2011, Rose had to go to another tax Jenkins explaining that away by stating they preparer to prepare and file an amended 2009 really resided in Arkansas and that he had their U.S. tax return to remove all farm expense and tax returns to prove it. Greb and Rose basically “losses” Jenkins had claimed for them, stating followed Jenkins’ lead in responding to the there “was no farm in 2009,” and to correct Trustee’s questions. The Trustee was misled as their address to Oklahoma. to their actual state of residence, on the issue of ownership of any real property, and possibly on JEFFREY H. KEARNEY, Bar No. 91249, of their ability to claim Arkansas state exemptions, Pine Bluff, Arkansas, in Committee Case No. if they were not Arkansas residents.

CPC 2012-024, by Findings and Order filed In preparing and supposedly filing their 2009 July 10, 2012, in regards to his representation of Oklahoma tax return in April 2010, Jenkins Peter Daniels, Jr., on a civil appeal, and on his failed to have the return filed, causing Rose prior disciplinary record, was suspended for a to later have to pay penalty and interest. Rose period of two months. Mr. Kearney lodged the had to go to another tax preparer in December record with the Court of Appeals and his brief 2010 to prepare and file an amended 2009 was due by November 7, 2011. On November Oklahoma state return. In preparing and filing 1, 2011, Mr. Kearney telephoned the Supreme their 2009 Arkansas tax return in April 2010, Court Clerk and was granted a seven day Jenkins failed to have the required 2009 U.S. “clerk’s” extension of time, making his brief tax return filed with it, causing Rose to later be due on November 14. Mr. Kearney did not assessed and have to pay penalty and interest. file his brief when it was due. On November Rose had to go to another tax preparer in 17, Mr. Kearney filed Appellant’s Motion for January 2011 to prepare and file an amended Expansion of Time requesting an additional 14 2009 Arkansas state return. In preparing and days, or until November 30, in which to file filing their 2009 U.S. tax return, Jenkins used his brief. He then filed a Motion for Belated the horse farm as a going business for purpose Brief on November 29, repeating the request he 1210556 ADR Ar Lawyer Fall 2012 Ad:ADR Ad 10/15/12 2:12 PM Page 1 of deducting business expenses to lower their made in his November 17 Motion. In between

these two Motions, Mr. Kearney did not submit a brief. On December 8, 2011, Appellee’s attorney filed a Response to Kearney’s Motion for Belated Brief and a Motion to Dismiss.

The Court granted Mr. Kearney’s Motion for Belated Brief on December 14, giving Kearney until December 20 to file his brief. Mr. Kearney failed to file his brief on December 20, and instead filed a Motion for Further Belated Brief.

On December 29, Appellee’s attorney filed another Motion to Dismiss. On January 11, 2012, the Appeals Court denied Mr. Kearney’s Motion for Further Belated Brief and granted Appellee’s Motion to Dismiss the appeal.

REPRIMAND: MICHAEL DAVID COLLINS, Bar No. 97078, of Fort Smith, Arkansas, in No. CPC 2012-025, was Reprimanded by Panel B of the Committee on Professional Conduct on July 20, 2012, for violation of Arkansas Rules 1.1, 1.3, and 1.5(a) on a Complaint filed by the Virginia State Bar and Tammy Hamby of Van Buren, Arkansas. Mr. Collins represented Hamby & Hamby Wellness Clinic, PLLC and Jeffrey Hamby, MD, who were named defendants in a suit filed November 16, 2009, in state court

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Attorney Disciplinary Actions in Bland County, Virginia. Mr. Collins filed a “late” Answer to the Complaint even though he had not applied for pro hac vice status in Virginia. On March 8, 2010, a default judgment was entered against the Hamby defendants for $163,388.33, plus interest and attorney’s fees of $40,847.08. The Hamby defendants learned of the Virginia judgment when a local sheriff’s deputy appeared at the clinic and informed the Hambys that the clinic would be subject to an upcoming sale. To prevent the sale, the Hamby defendants filed for Chapter 11 Bankruptcy protection on November 15, 2010. The Hamby defendants were involved in a separate case in Crawford County Circuit Court concerning a materialman’s lien. Mr. Collins filed an answer for the Hambys and was served with Interrogatories, Requests for Production, and Requests for Admissions. A Motion to Compel was filed by opposing counsel. On April 12, 2010, the Court directed the Hamby defendants to respond to the Interrogatories and Production of Documents within 15 days of the Order. Mr. Collins filed a response on May 25, 2010. The Requests served on the Hambys were deemed as admitted against them when no timely response was filed. A Motion for Partial Summary Judgment was filed, but

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no response was filed by Mr. Collins within the time allowed. The trial court issued a letter opinion stating that the Hambys had admitted that there was an outstanding balance owed to the Plaintiff. After employing new counsel, a hearing was held and the trial court entered a judgment here against the Hambys for $30,947.25.

GARLAND WATLINGTON, Bar No. 95223, of Jonesboro, Arkansas, was Reprimanded by Committee Consent Findings and Order filed September 21, 2012, on a Complaint filed by Tracy Schmiett, in No. CPC 2009-142, for violations of Rules 1.15(a) and 1.15(b)(1). Mr. Watlington was ordered to pay a $1,000 fine and the order for monthly trust account audits imposed in a previous disciplinary matter was extended for six more months. After settlement of Schmiett’s personal injury claim, Mr. Watlington deposited the funds into his trust account but failed to maintain the funds of Ms. Schmiett or her medical providers in the trust account. He often had a negative balance in his trust account after the funds were received and deposited. After contact by the Office of Professional Conduct, Mr. Watlington interpled the funds into the registry of the

Baxter County Circuit Court on behalf of Ms. Schmiett or her medical providers, but used someone else’s funds to do so because her funds had long since left his trust account.

CAUTION: RICKEY H. HICKS, Bar No. 89235, of Little Rock, Arkansas, in No. CPC 2012-038 was Cautioned by Panel A of the Committee on Professional Conduct on September 18, 2012, for violation of Arkansas Rules 1.3 and 8.4(d), on a referral from the Arkansas Supreme Court. Mr. Hicks represented Steven J. Russell, who was convicted in Pulaski County Circuit Court of Capital Murder and sentenced to life without parole in the Arkansas Department of Correction on February 3, 2012. The record on appeal was not filed with the Arkansas Supreme Court Clerk within the time required by court rule. Mr. Hicks filed a motion for extension of time but no order granting the extension was filed prior to the expiration of the time allowed

by Rule. Mr. Hicks and co-counsel filed a Motion for Rule on the Clerk, with Hicks accepting responsibility for the late filing, and the Court granted the motion, allowing the appeal to be filed. n

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Evidence continued from page 15

untruthful act? Can the cross-examiner then introduce evidence to contradict the witness? The answer is no. Rule 608(b) specifically states that these acts may not be proved by extrinsic evidence, that is, any evidence that does not come from the mind and mouth of the witness. Consequently, the cross-examiner is stuck with the witness’s answer.

(3) Evidence of a witness’s criminal convictions. Rule 609.

Evidence of a witness’s conviction of a crime can have a devastating effect on the witness’s credibility and if the witness is a criminal defendant there is a strong possibility that the jury will consider the conviction not only as evidence of untruthfulness, but also as evidence that the defendant committed the act with which he has been charged. Because of the devastating effect knowledge of prior convictions can have on a jury, a criminal defendant’s decision whether to testify often depends upon whether these convictions will be admissible if she does so.

There has never been consensus on the issue of which criminal convictions are probative of credibility. Some have argued that only those that involve some element of untruthfulness should be admitted, while others have argued that any criminal conviction is relevant to credibility. Rule 609 is a compromise between these competing views and the federal version of Rule 609 differs from the Arkansas version.

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(i) Crimes Involving Dishonesty or False Statement. Rule 609(a)(2).

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Some crimes require proof of dishonesty or false statement as an essential element.

Conviction of these crimes is always admissible to impeach credibility. This is sometimes called the “automatic admit” rule.

ArkansasAppeals.com When conviction of a crime containing 124 West Capitol Avenue, Suite 1805, Little Rock, AR 72201 an essential element of dishonesty or false 501.246.8004 n 800.844.TAYLOR n TAYLORLAwfiRm.cOm statement is used to impeach, the court has no discretion to refuse its admission.

In other words, Rule 403 is not applicable.

Furthermore, this kind of conviction is (2) involved dishonesty or false statethat contain an element of dishonesty or false admissible to impeach regardless of whether ment, regardless of the punishment. statement—crimes that have traditionally been the crime is a felony or a misdemeanor. Rule denominated crimen falsi. Conviction of those 609(a)(2) states: Note that the Arkansas Rule uses the words crimes clearly satisfies the Rule. “involved dishonesty or false statement,” not But what if the offense is a crime that does (a) For the purpose of attacking the “required proof of an element of dishonesty or false not contain an element of dishonesty or false credibility of a witness, evidence that statement.” There has been little controversy statement, but the act itself was dishonest or he has been convicted of a crime shall over the automatic admissibility of offenses the witness being impeached made untruthful be admitted but only if the crime...

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer 47

statements while committing it? Is this type of conviction automatically admissible under Rule 609(a)(2)?

The Arkansas Supreme Court has consistently construed Rule 609(a)(2) broadly, holding that the crime need only involve an act of dishonesty or false statement even if the offense does not require proof of dishonesty or false statement as an essential element. Therefore, a conviction of a crime such as theft, burglary, or grand larceny is automatically admissible regardless of whether it constitutes a felony or a misdemeanor.15 There is no doubt that the intent of the drafters of the Federal Rule was to limit the “automatic admit” provision to crimes in the nature of crimen falsi. The examples given by Congress and in the Official Comments to the Federal Rules of Evidence are: perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense—all crimes that require proof of an element of dishonesty or false statement. In order to clarify the intent of the federal version of Rule 609(a) (2), it has now been amended to state: [F]or any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness admitting—a dishonest act or false statement.

(ii) Felonies that do not involve dishonesty or false statement. Rule 609(a)(1).

Felony convictions for crimes that do not involve dishonesty or false statement may also be admitted in the discretion of the trial judge.

Rule 609(a)(1) states: (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness.

The balancing test performed by the court here is different from the usual balancing test performed under Rule 403 in two ways. First, Rule 609(a)(1) shifts the burden. Under 403 the court admits evidence unless it finds that 48

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the prejudicial or other negative effect of the evidence substantially outweighs its probative value. Under Rule 609(a)(1) the court is to admit the conviction only if it finds that its “probative value . . . outweighs its prejudicial effect to a party or witness.” Second, Rule 609(a)(1) limits the negative factors which the judge may consider. Under Rule 609(a)(1) the judge may consider only “prejudicial effect to a party or witness,” whereas under Rule 403 the court may consider a wide range of negative effects of admitting evidence, including undue delay or waste of time.

The federal version of Rule 609(a)(1) is essentially the same as the Arkansas rule where the witness is a criminal defendant. However, for all other witnesses in both criminal and civil cases, the usual balancing test set out in Rule 403 is employed. (iii) Other provisions of Rule 609.

Rule 609(b) provides that no criminal conviction may be admitted for impeachment purposes if more than 10 years has elapsed since the date of conviction or the date the witness was released from confinement, whichever is later.

The rule is absolute. The court has no discretion to admit such a conviction. Federal Rule 609(b) differs in allowing the court to admit such a conviction after written notice of intent to use it and a finding that its probative value substantially outweighs its prejudicial effect.

Rule 609(c) absolutely prohibits introduction of a conviction if there has been a pardon or other equivalent procedure based on a finding of innocence. It also prohibits introduction of a conviction if there has been a pardon or other equivalent procedure based on a finding of rehabilitation, provided that the witness has not subsequently been convicted of a felony.

Under Rule 609(d) juvenile adjudications are not admissible in civil cases or if the witness is a criminal defendant. However, in a criminal case where the witness is not the defendant the court has discretion to admit the adjudication if the offense could have been used to impeach if the witness had been convicted of it as an adult.

Finally, the fact that a conviction is on appeal does not prevent its use for impeachment purposes. However, the fact that it is on appeal is also admissible.16

VII. Conclusion The ancient Greek philosopher Heraclitus said that “a man’s character is his fate.”

Certainly, the kind of person one is powerfully affects the way people treat him or her.

We base our assessments of other people’s likely behavior on what we know of their usual behavior all the time and a person’s character is quite often an accurate indicator of his or her actual conduct on a specific occasion.

Yet, despite character’s indisputable relevance as a predictor of specific behavior, we are quite cautious about allowing a jury to hear evidence of a person’s character. What if the person did not act as we would expect him or her to act? What if the chronic speeder was driving slowly at the time? What if the confirmed saint sinned on the occasion in question? There is an inordinate danger that a jury may decide guilt or innocence, liability or faultlessness, on the basis of a person’s character, rather than upon evidence of what he or she actually did. Because of this danger the law of evidence contains stringent restrictions upon the circumstances under which we may introduce evidence of a person’s character. I hope this walk through the rules surrounding character evidence proves useful.

Endnotes: 1. Ark. R. Evid. 401 and 402.

2. Ark. R. Evid. 403.

3. See Pace v. Davis, 2012 Ark. App. 193, 2012 WL 723228.

4. Ark. R. Evid. 405.

5. Ark. R. Evid. 105.

6. Fed. R. Evid. 404(b)(2).

7. Fed. R. Evid. 413, 414, and 415.

8. Ark. R. Evid. 404(a)(1).

9. Ark. R. Evid. 405(a).

10. Ark. R. Evid. 404(a)(1).

11. Ark. R. Evid. 404(a)(2), 405(a).

12. Fed. R. Evid. 404(a)(2)(B)(ii).

13. Ark. Code Ann. § 16-42-101.

14. Fed. R. Evid. 412.

15. Edwards v. Campbell, 2010 Ark. 398, 2010 WL 4232715; Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982); James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981).

16. Ark. R. Evid. 609(e). n

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employee relations as related to social media usage and policies derived therefrom. Proper planning and careful assessment will further insulate employers from this imminent wave of litigation.

Endnotes: 1. See http://www.sec.gov/Archives/edgar/ data/1326801/000119312512325997/ d371464d10q.htm (last visited August 15, 2012).

2. See http://blog.twitter.com/2012/03/ twitter-turns-six.html (last visited August 15, 2012).

3. Memorandum OM 12-31 Report on Soc. Media Cases from the Assoc. Gen. Counsel of the Nat’l Labor Relations Bd. (NLRB) to All Reg’l Officers-in-Charge and Resident Officers (Jan. 24, 2012) (on file with NLRB) [hereinafter Memo 1].

4. Id. 5. Id. 6. 29 U.S.C. §§ 151-169 (LexisNexis 2012).

7. See John Soma et al., Bit-Wise but Privacy Foolish: Smarter E-Messaging Technologies Call for a Return to Core Privacy Principles, 20 Alb. L.J. SCI. & Tech. 487, 507-510 (2010); Christopher Pearson Fazekas, 1984 Is Still Fiction: Electronic Monitoring in the Workplace and U.S. Privacy Law, 2004 Duke & Tech Rev. 15 (2004).

8. Fazekas, supra note 9, at 15.

9. Id. 10. Id. 11. Id.; see also Smyth v. Pillsbury Co., 914 F. Supp. 97, 100-101 (E.D. Pa. 1996).

12. See Soma et al., supra note 9 at 507-510.

13. Id. at 515-516.

14. 29 U.S.C. § 157 (2012).

15. Meyers Industries, Inc. v. NLRB, 268 NLRB 493, 497 (1984), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481 (1987).

16. 29 U.S.C. § 160 (2012).

17. 29 U.S.C. § 157 (2012); 29 U.S.C. § 158(a)(1).

18. Lafayette Park Hotel v. NLRB, 326 NLRB 824, 825 (1998).

19. See Memo 1, supra note 1; Memorandum OM 11-74 Report on Soc. Media Cases from the Assoc. Gen. Counsel of the Nat’l Labor Relations Bd. (NLRB) to All Reg’l Officers-inCharge and Resident Officers (Aug. 18, 2011) (on file with NLRB) [hereinafter Memo 2]; Memorandum OM 12-59 Report on Soc. Media Cases from the Assoc. Gen. Counsel of the Nat’l Labor Relations Bd. (NLRB) to All

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20. University Medical Center v. National Labor Relations Board, 335 N.L.R.B. 1318, 13201322 (2001), abrogated in part by Caesar’s Entm’t v. NLRB, No. 28-CA-60841, 2012 NLRB Lexis 134 (NLRB Mar. 20, 2012).

21. Tradesman International v. NLRB, 338 NLRB 460, 460-462 (2002).

22. Memo 2, supra note 19.

23. Id. 24. Id. 25. Id. 26. Id.

27. Memo 1, supra note 1.

28. Id. 29. Id. 30. Id. 31. Id. 32. Memo 1, supra note 1.

33. Id. 34. Memo 2, supra note 18.

35. Id. 36. Id. 37. Tradesman International v. NLRB, 338 NLRB 460, 462 (2002).

38. Id. 39. Ark Las Vegas Restaurant Corporation v.

AFL-CIO, 335 NLRB 1284, 1291(2001). n

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Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period August 1, 2012, through September 30, 2012: In Memory of Gerald Wayne Carlyle Sally and James A. McLarty In Memory of Virginia Tidwell Cloar Cathi Compton In Memory of C. Richard Crockett Marilyn and William Owen In Memory of Ann Patton Dawson Charlotte and Justice Robert L. Brown Kelvin Wyrick In Memory of W.H. Dillahunty Judge Robert “Bobby” Fussell In Memory of Julian B. Fogleman Judge James G. Mixon* Roscopf & Roscopf, P.A. Judge John F. Stroud, Jr. Kelvin Wyrick In Memory of James E. Harris Charlotte and Justice Robert L. Brown Judge Robert “Bobby” Fussell Hyden, Miron & Foster, PLLC B. Jeffery Pence Hayden and Gordon Rather Laura Hensley Smith Smith Hurst PLC Marietta and Judge John F. Stroud, Jr. Fred S. Ursery Womack, Landis, Phelps & McNeill

In Memory of A. Delbert Mickel, Jr. Cathi Compton and Judge Bill Wilson Judge James G. Mixon* B. Jeffery Pence Mike Wilson In Memory of MargRyn Kinard Schomburg Margaret V. Compton Cathi Compton and Judge Bill Wilson In Memory of Sammy Lou Taylor Patti and Charles Coleman Lax, Vaughan, Fortson, Jones & Rowe P.A. Laura Hensley Smith Fred S. Ursery Mike Wilson In Memory of William “Buddy” Waddell, Sr. Judge James G. Mixon* In Memory of Robert M. Wilson, Jr. B. Jeffery Pence Fred S. Ursery Mike Wilson * Designated to the Ernest G. Lawrence Scholarship Fund Scholarship Contributions Wright Lindsey & Jennings LLP Scholarship Wright, Lindsey & Jennings LLP

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 charitable work. Contributions may be sent directly to: Arkansas Bar Foundation 2224 Cottondale Lane Little Rock, Arkansas 72202 Please feel free to call the Arkansas Bar Foundation at 501.375.4606 for further information.

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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In Memoriam

Julian B. Fogleman Julian B. Fogleman of Marion died on September 17, 2012, at the age of 92. He earned a B.S.B.A. from the University of Arkansas in 1941. He then attended the University of Arkansas School of Law, graduating in 1943 with a Bachelor of Laws degree. Following graduation from law school, he volunteered for service to his country in the United States Army, according to his obituary. Despite being rejected for being blind in one eye and missing his right thumb, he persisted and was ultimately admitted to service in the United States Army Infantry, where he served in Europe attaining the rank of Master Sergeant.

After WWII, he returned to Marion where he began the practice of law, later joining his brother, John, in the Hale and Fogleman Law Firm. The firm later became Hale, Fogleman and Rogers. He was licensed to practice law in a long and distinguished legal career spanning over 60 years. He was very active in the Arkansas Bar Association, serving on its House of Delegates for over 40 years and the Executive Counsel for six years. Over the years he was a member of 17 different committees, serving as chair or vice chair on many of them. He was a Fellow of the Arkansas Bar Foundation for over 40 years and served on its Board of Directors. In 1996 Julian was honored by the Arkansas Bar Foundation by bestowing upon him its Outstanding Lawyer Citizen Award.

He was also committed to public service serving as a Deputy Prosecuting Attorney for Crittenden County for seven years, the City Recorder for the City of Marion, and the elected City Attorney for Marion for 31 years.

He is survived by his wife of 62 years, Margaret Henderson Fogleman; and their five children, Lisa Fogleman Heath, J. Barton Fogleman, Jr., Judge John N. Fogleman, Jennifer Fogleman Brown, and Frances Fogleman Irwin.

Robert M. Wilson, Jr. Robert M. Wilson, Jr., of Little Rock died on August 3, 2012, at the age of 60. He graduated from the University of Arkansas and the University of Arkansas School of Law. During his college years, Robby enlisted in the Arkansas Air National Guard, attended basic training at Lackland Air Force Base in San Antonio, Texas, and was honorably discharged in 1976, according to his obituary. During this period, Robby also worked on the staff of Arkansas Senator John McClellan in Washington, D.C., during the times of the Watergate Hearings.

Upon graduation from law school and passing the bar, in 1978 Robby began a legal career that spanned five decades. Originally, he practiced law in Little Rock, Arkansas, from 1978 until 1979 as a member of Hamilton, O’Hara and Hays, and subsequently Hamilton, Mackey, Wilson, Johnson and Wood. In 1985 Robby changed the name of his practice from Robert M. Wilson Jr., PA to Wilson & Associates, PLLC, which has concentrated on representation of the mortgage banking industry from

that time forward, growing into one of the largest law firms in Arkansas, with additional offices in Tennessee. He acted as general counsel to the Arkansas Mortgage Bankers Association and has been the recipient of many awards. Robby was a Special Commissioner of the Arkansas Workers’ Compensation Commission as well as a founding board member of the USFN, serving two terms as its original President and Chairman of the Board. Robby was a member of the Arkansas Bar Association and Arkansas Bar Foundation, Pulaski County Bar Association, Arkansas Trial Lawyers Association, and the Association of Trial Lawyers of America. He is survived by his children, Robert Wilson III and Jillian Wilson.

A. Delbert Mickel, Jr. A. Delbert Mickel, Jr. of Little Rock died on August 11, 2012, at the age of 64. He earned his doctorate in law from the University of Arkansas. He owned Mickel Law Firm, P.A., in Little Rock. He was a member of the Arkansas Bar Association.

Sammye Lou Taylor Sammye Lou Taylor of Little Rock died on August 12, 2012, at the age of 59. She earned a Bachelor’s Degree from the University of Arkansas and her Juris Doctor Degree from the University of Arkansas School of Law. She was a member of the Arkansas Bar Association and specialized in tort litigation, according to her obituary. She practiced law with Wright, Lindsey & Jennings law firm and worked for Arkansas Attorney General Mark Pryor. She is survived by her son Alexander Taylor Jones.

Vol. 47 No. 4/Fall 2012 The Arkansas Lawyer

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