Arkansas Lawyer Spring 2010

The Arkansas

Lawyer

A publication of the

Arkansas Bar Association

Vol. 45, No. 2, Spring 2010 online at www.arkbar.com

Inside: Cybersmears and Cybersteals Rehabilitate Your Corporate Client Relationships The Evolution of Litigation Support Arkansas Bar Association 112th Annual Meeting

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ARKANSAS BAR ASSOCIATION 112th Annual Meeting Joint Meeting with the Arkansas Judicial Council

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

LIAISON MEMBERS Zane A. Chrisman David B. Vandergriff Jack A. McNulty Karen K. Hutchins Judge Kim Bridgforth Carolyn B. Witherspoon Harry Truman Moore Judge Harry A. Foltz The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2010, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 45, No. 2

features

11 An Honorable and Noble Profession Ann Dixon Pyle

12 Cybersmears and Cybersteals: Protecting Your Clients Online Harold J. Evans & Andrew King

16 A 12-Step Program: Rehabilitate Your Relationship With Your Corporate Client Phillip A. Pesek

20 The Evolution of Litigation Support Jerry Thompson

Culling, Filtering, Deduping

24 Basil Baker’s Seven Years & Five Days Part I Michael B. Dougan

28 Cyber Risk Jenny B. Bradford

Contents Continued on Page 2

Lawyer The Arkansas Vol. 45, No. 2

in this issue Association News

6

CLE Calendar

25

112th Annual Meeting

26

Governing Bodies Report

30

2010 Mock Trial Competition

31

Thank you to the 2009-2010 Association Sustaining Members

32

Judicial Disciplinary Actions

34

Attorney Disciplinary Actions

34

In Memoriam

50

Arkansas Bar Foundation Memorials and Honoraria

51

Classified Advertising

52

columns President’s Report Donna C. Pettus

Young Lawyers Section Report Anthony W. Juneau

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

Arkansas Bar Association

2224 Cottondale Lane Little Rock, Arkansas 72202

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

2

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The Arkansas Lawyer

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President’s Report

by Donna C. Pettus

Cabin Fever — and Farewell

I got cabin fever, It’s burning in my brain I got cabin fever, It’s driving me insane We’ve got cabin fever We’re flipping our bandannas We’ve stuck at sea so long That we have simply gone bananas...

-Lyrics from the song “Cabin Fever” by The Muppets Being a grandmother four times over I often find life’s best lessons come from children’s songs. Sooner or later we all are bound to get cabin fever, whether it be because of bad weather or life’s circumstances. Merriam-Webster Online defines cabin fever as “extreme irritability and restlessness from living in isolation or a confined indoor area for a prolonged time.”

Cabin fever may be a way to describe some of the underlying symptoms leading to the globalization of the practice of law. Like it or not, it is coming to all of us, not just the mega firms, but you and me (if we don’t retire first).

American Bar Association (ABA) President Carolyn B. Lamm established the ABA Commission on Ethics 20/20 last year to address lawyer ethics rules and regulations across the country in the context of a global legal services marketplace. “Technologies such as e-mail, the internet and smart phones are transforming the way we practice law and our relationships with clients, just as they have compressed our world and expanded international business opportunities for our clients,” said Lamm in an ABA press release.

There are all kinds of possibilities for a globalized practice. First, small firms can participate. Second, it can be done in ways our professors 20 or 30 years ago never dreamed possible. The multidisciplinary firm concept is back. In 2007, an Australian law firm became the first in the world to be publicly traded on a stock exchange. Is it possible that U.S. firms may go public and multidisciplinary in order to stay competitive with their overseas rivals?

More and more legal work is being outsourced. While the outsourced lawyers cannot argue in U.S. courts, they can negotiate and draft contracts, review litigation documents, and more. These lawyers can provide services at 25 to 70 percent less than the costs of comparable legal work in the U.S. Third, the virtual law practice is here, and it knows no borders. During a presentation to the ABA Commission on Ethics 20/20 in February, Stephanie Kimbro, Co-Founder of Virtual Law Office Technology, LLC, defined a virtual law office as “a professional law practice that is located online through a secure portal and is accessible to both the client and the attorney anywhere the parties may access the Internet.”

A virtual law practice can be integrated into a traditional practice. There are all kinds of variations to a virtual law practice and its main virtue is flexibility and ability to provide more affordable and accessible legal services for lower and moderate income individuals. There are risks, such as the unauthorized practice of law in other jurisdictions. These and other issues are among those the 20/20 Commission will be addressing.

Globalization of the legal practice is too large a topic for this column. Nevertheless, if you don’t know much about it yet, you will, and if you are young in the law (and maybe even not so young) you will be expected to adapt and become a part of it. For example, if someone from another country wants to buy real estate in your town, you just might get associated as local counsel. If so, you are a part of globalization of the legal practice.

Farewell This is my last column as President of the Arkansas Bar Association. Every past president has told me the year would fly by.

Indeed it has. I recently told Past President Lamar Pettus that I am glad I have served and hopefully I served well. But I am ready to pass on the title to the tall and capable President-Elect Jim Julian. I still have some things I want to do, but I will have to do them in other capacities. My most important goal will be to see through to fruition the development of the Arkansas Bar Association Leadership Academy. By the time you read this, we should have a budget presented to the finance committee, we will have the outlines of our programs in the works, we will be putting together applications, and preparing to publicize the first class to begin in January 2011. Leadership in our bar, in our communities, in our state, and in our world is more important now than ever. I ask that you support your bar leaders now and in the future, and become one yourself. As Martha would say, “that my friends, is a good thing.” From my heart, I say thank you. n

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

5

Association News President-Elect Designee Tom D. Womack at ABA BLI

l to r: American Bar Association (ABA) President-Elect Steven N. Zack, ABA President Carolyn B. Lamm and Arkansas Bar Association President-Elect Designee Tom D. Womack at the ABA’s Bar Leadership Institute (BLI) held March 11-12 in Chicago. The BLI is held annually for incoming officials of local and state bars.

Crystal Newton is the new Association Marketing & Information Specialist Crystal Newton has been hired as the Association’s new Marketing and Information Specialist. Crystal is in charge of membership marketing, database/Web site oversight and is a staff liaison for committees. Crystal brings over 10 years experience in marketing and marketing-related software. She received a Bachelor of Business Administration in Marketing from Arkansas Tech University. Crystal and her husband Britt reside in Mayflower.

Available each week for members

www.arkbar.com

Weekly Case Summaries 6

The Arkansas Lawyer

www.arkbar.com

Karen K. Hutchins Marks 5th Anniversary with the Arkansas Bar Association

Karen K. Hutchins celebrated her fiveyear anniversary with the Association in March. Karen has served the Association well in several capacities during her tenure.

She began working as the CLE Director in 2005 and was promoted to Associate Executive Director in 2006. She took over the helm of the Association as its Executive Director in 2007.

“Dedicated, hardworking, devoted to the Association, forward thinking, tireless, and determined,” said Association President Donna C. Pettus. “These are some of the words that have characterized Karen Hutchins’ tenure thus far with the Association. Karen has helped push the Association forward in the use of technology, member benefits, growth, and much more to better serve our members and help make our voluntary bar the envy of bar associations around the country. A President of the Association needs a good Executive Director. Karen is excellent.

Congratulations Karen on your successful first five years.”

ADVERTISE in the next issue of The Arkansas Lawyer Go to www.arkbar.com or email ahubbard@arkbar.com

Association News

Oyez! Oyez!

Arkansas Bar Center

ACCOLADES University of Arkansas School of Law Dean Cynthia E. Nance was selected as one of Arkansas Business’s “20 Women of Influence.”

APPOINTMENTS AND ELECTIONS President Obama has nominated former U.S. Attorney P.K. Holmes of Fort Smith for a U.S. district judge position serving the Western District of Arkansas. Lyn Pruitt, of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., has been named a Fellow of the American College of Trial Lawyers. Anton Janik of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., in Little Rock was elected to the Arkansas Zoological Foundation Board of Directors. Nathan E. Tyler, an associate with Quattlebaum, Grooms, Tull & Burrow PLLC, was elected to the Board of Directors for the Downtown Little Rock Partnership. Andrew B. Faulkner has been appointed to the Central Council of the Arkansas Chapter of Associated Builders and Contractors. Gov. Mike Beebe appointed former Court of Appeals Judge Olly Neal Jr. as interim judge for the 1st Judicial District in eastern Arkansas. Jason A. Stuart has been appointed by Governor Mike Beebe as a Commissioner for the Arkansas State Athletic Commission.

WORD ABOUT TOWN Perkins & Trotter PLLC in Little Rock announced that Grant M. Cox, Kimberly D. Logue and Gregory S. Ivester joined the firm. Newland & Associates PLLC in Little Rock announced that Chasey Cox joined the firm as an associate. Robert Shults, Steven Shults & Debra Brown announced that John P. Perkins, III has become a partner in the firm and that the firm name has been changed to Shults, Brown & Perkins, LLP. Brian A. Vandiver has joined the Little Rock office of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. as counsel. Elaine Kneebone has been named general counsel at Henderson State University. Conner & Winters in Fayetteville announced that John M. Scott joined the firm. The Brad Hendricks Law Firm in Little Rock announced that Caroline Curry Lewis and Robin L. Sullivan joined the firm. Wright, Lindsey & Jennings LLP announced that Justin Allen rejoined the Little Rock office as Of Counsel after serving more than three years as Chief Deputy Attorney General for the State of Arkansas. Jason Horton and George M. Matteson have joined the Harrelson Law Firm, P.A., to form Harrelson, Horton & Matteson, P.A., 300 North State Line Avenue, P.O. Box 40, Texarkana, Tex./Ark. 75504/71854. Bass, Berry & Sims PLC in Memphis, TN announced that Kristin C. Wright has been elected to membership in the firm.

Wilson & Associates, PLLC in Little Rock announced that Kim Burnette, Joel Giddens, and J. Skipper Ray are now partners at the firm. The Chaney Law Firm in Arkadelphia announced that Nathan Chaney, Hilary Chaney, and Taylor Chaney joined the firm. Friday, Eldredge & Clark in Little Rock announced that Jamie Huffman Jones was named a partner. Jacob O. Malatesta has joined the Greenville, Mississippi, office of Wilkins Tipton, P.A. Effective January 1, 2010, Johnnie Copeland became a partner at the firm where she has been since 2005.

The firm is now named Ethredge & Copeland, P.A. We encourage you to submit information for publication in OYEZ! OYEZ! To do so, please send information to: ahubbard@arkbar.com.

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

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

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

7

News

Introducing NEW ArkBar member benefits Learn more about the new ArkBar Member Benefits at the Annual Meeting

New member benefit

www.arkbar.com New Web site Training Welcome to Your Member Portal June 10th & 11th 9:00 - 9:30 a.m. & 1:00 - 1:30 p.m.

Cypress Room, Arlington 2nd Floor Learn the new user-friendly intuitive

www.arkbar.com

New member benefit

The Next Generation of Online Legal Research fastcase Training June 10th & 11th 9:30 - 10:30 a.m. & 1:30 - 2:30 p.m.

Cypress Room, Arlington 2nd Floor One-hour of CLE

8

The Arkansas Lawyer

www.arkbar.com

Fastcase will be the Association’s new Online Legal Research Benefit replacing Arkansas VersusLaw beginning in July.

You will have access to comprehensive data and a variety of new tools that make legal research much easier and faster.

You can search any number of jurisdictions at the same time, sort the search results six different ways, and print or save it in dual-column format.

Young Lawyers Section Report

by Anthony W. Juneau

Community Service: Our Responsibility ife to

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It has been a great honor to serve as the Chair of the Young Lawyers Section (“YLS”) of the Arkansas Bar Association (“Association”) for the 2009-2010 term.

Over the last year, the YLS has been engaged in various projects that benefit both the legal community and the citizens of Arkansas.

Through the Wills for Heroes Project, the YLS has offered free wills and other estate planning documents to Arkansas police officers. The YLS has also studied several different possible distribution channels for the “18 & Life To Go: A Legal Handbook for Young Arkansans” publication (“Handbook”). The Handbook will provide high school seniors with a brief overview of Arkansas law on topics such as contracts, real estate, torts, family law, and criminal law. The YLS plans to make the Handbook available to all high school students by placing the Handbook in high school libraries and by putting the Handbook on-line in a downloadable format. YLS members Brandon Moffitt, Brian Lester, Matt House, and Grant Cox have done an excellent job in promoting the Wills For Heroes Project and the Handbook this year.

On April 15, 2010, the YLS, along with several other organizations, sponsored a Meet the Candidates Forum at Lulav, a restaurant in Little Rock. At this event, YLS members had the opportunity to meet several judicial and Congressional candidates. Due to the number of participants, the YLS will sponsor similar events in the future.

Every year, the YLS takes part in various Law Week activities. The purpose of Law Week is to introduce the next generation

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to the legal profession and government.

This year, the YLS, along with the Arkansas Paralegal Alliance, Inc. (“APA”) sponsored a poster contest for all 5th graders throughout Arkansas. The YLS encouraged the participants to design a poster illustrating this year’s theme: “Law in the 21st Century: Enduring Traditions, Emerging Challenges.” Twelve of the 125 posters submitted were selected to be displayed in the State Capitol Rotunda during Law Week, April 26-30. The YLS would like to thank the members of the APA for their dedication and hard work in making the poster contest a reality.

The Annual Meeting of the Association will be held at the Arlington Hotel in Hot Springs on June 9-12, 2010. This year, the YLS’s continuing legal education (“CLE”) will be presented by Calvin Biggers and Matthew White in the Fountain Room at 2:30 p.m. on Friday afternoon. Calvin and Matthew will present a program entitled Financial Planning for Young Lawyers.

Immediately after the CLE program, the YLS will conduct its annual meeting. As we will have elections at this meeting, I encourage you to attend if you are interested in running for a position on the YLS Executive Committee. On YLS Friday evening, the YLS will sponsor a social event at the Springs Hotel and Spa, which is within walking distance from the Arlington Hotel. The YLS

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will provide food and beverages, while music and a karaoke machine will be provided by a local deejay. This event is open to all attendees of the Annual Meeting.

Brandon Moffitt, an attorney from Little Rock, will take the helm of the YLS as its Chair after the Annual Meeting. Brian Clary, an attorney from Benton, has been elected as the Chair-Elect for 2010-2011.

Brandon and Brian, as well as the other members of the Executive Committee, have worked hard throughout the past year to serve the Association and the citizens of Arkansas. With Brandon and Brian leading the YLS over the next two years, I have no doubt that the YLS will be sponsoring new and exciting programs and projects in the near future.

The YLS consists of all members of the Association who are under the age of thirtysix and/or who have practiced for less than five years. The YLS is always in need of volunteers to assist with its many projects. If you are interested in volunteering your time and abilities to the YLS, please contact me at 479-464-5657 or by e-mail at tjuneau@ mwlaw.com. n

Party on the Terrace Friday, June 11, 2010 8:00 p.m.

On the Terrace of The Springs Hotel & Spa one block from the Arlington Sponsored by Dover Dixon Horne PLLC

Fun, Food, Refreshments & DJ!

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

9

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Arkansas Bar Foundation

An Honorable and Noble Profession

By Ann Dixon Pyle, Executive Director Arkansas Bar Foundation Since 1995, it has been my privilege to represent the Arkansas Bar Foundation and the Fellows of this wonderful organization as their Executive Director. I continue to be amazed by the commitment of the Foundation membership to the organized bar and the community as a whole. When I call on Fellows for assistance, they are more than willing to help, whether that means service on a committee, membership on a board, recruitment of new Fellows, participation in a capital campaign, or providing me with advice I seek.

The Arkansas Bar Foundation is the epitome of what is honorable and noble. The Foundation’s non-profit status affords attorneys the opportunity to donate to worthy causes that have been funded over the years. The Arkansas Bar Foundation supports the organized bar, the law schools and the community in a variety of ways: it has funded the Mock Trial Competition and other educational programs sponsored by the Arkansas Bar Association; it assists law students through Arkansas Bar Foundation Merit Scholarships and forty named scholarship endowments; an Arkansas Bar Foundation Professorship is established at each Arkansas law school; and, there is a history of funding law-related projects that educate the community in a variety of ways, just to name a few.

In addition, the Arkansas Bar Foundation owns the Arkansas Bar Center. Conveniently situated only five minutes west of downtown Little Rock, this state of the art facility is ideal for meetings, depositions, mediations, and receptions. It serves as the proud home of the Arkansas Bar Foundation and Arkansas Bar Association offices and home to all of the members of these two respective organizations.

In 2005, the Arkansas Bar Foundation embarked on the Arkansas Bar Center Campaign with a goal of purchasing and substantially renovating what is now the current bar center on Cottondale Lane in Little Rock. Many individuals said that the

money we needed to raise and the bar we set were too high. They did not realize the commitment and capability of the Foundation and Association leadership and its members. With active leaders, key volunteer fundraisers, a lot of planning, and the overwhelming financial support of individual attorneys and law firms throughout the state, we accomplished our goal.

During a Foundation Board meeting in January of 2010, I reported the following in regard to the Arkansas Bar Center Capital Campaign: “A total of $2,481,673 was pledged, primarily in 2005 and some in 2006. To date, a total of $2,399,316 has been paid with a balance remaining to be paid of $82,357 which represents 3.3% of the total pledged amount. A portion of these remaining balances will be paid at the end of 2010 for those individuals who made a five year pledge beginning in 2006….This is most likely an historic campaign, and professional fundraisers nationwide would marvel at these results. It speaks highly of the integrity and nobility of the legal profession in Arkansas.”

If you are not already one of the 629 Fellows of the Arkansas Bar Foundation, I invite you to join this special group. As a Fellow, you will enjoy membership in a charitable organization which has celebrated over 50 years of giving. Your photo will be displayed as part of the Hall of Fellows Screen located in the lobby of the Arkansas Bar Center, and you will be a part of the mid-year and annual dinners and meetings of the Foundation. Becoming a Fellow allows you an opportunity to give something back to your profession and your community. Please continue in your pursuit to uphold the honor and nobility of this profession which is alive and well today.

I dedicate this page in honor of all living Fellows and in memory of all Fellows who have gone before us.

Arkansas Bar Foundation Annual Meetings and Annual Fellows’ Dinner Wednesday, June 9, 2010 Membership Meeting 3:00 p.m.

Arlington Hotel, Hot Springs Spruce Room, 7th Floor

Board of Directors’ Meeting 3:30 p.m.

Arlington Hotel, Hot Springs Spruce Room, 7th Floor

Fellows’ Dinner 7:30 p.m.

Arlington Hotel, Hot Springs Crystal Ballroom

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

11

Cybersmears and Cybersteals: Protecting Your Clients Online

By Harold J. Evans & Andrew King

G

iven the growing use of Internet weblogs (blogs), social networking sites, and message boards, it is inevitable that Arkansas lawyers will be called upon to resolve disputes that arise from information placed online. Internet communications can give rise to a variety of causes of action, including copyright and trademark infringement, defamation, invasion of privacy or the right to publicity, breach of contract, and tortious interference. Many of these cases will be resolved by an application of familiar legal principles to the electronic medium.1 Other cases, such as those involving intellectual property and anonymous Internet users, will require some knowledge of principles unique to the online world.

For the most part, a well-developed body of law governs the protection of intellectual property online. Less developed is how to protect victims of “cybersmears”—tortious attacks by anonymous Internet users.2 Drawing from federal statutes and cases decided in other jurisdictions, this article will outline what Arkansas lawyers should know to protect their clients from anonymous online attacks (cybersmears) and intellectual property theft (cybersteals).

Dealing with Web Site Owners and Internet Service Providers Cybersmears are probably best handled by contacting the owner of the blog, message board, or Internet Web site on which the statement was made. Suing the Web site owner, though, is unlikely to be productive in most cases. While there is some precedent for this sort of action in the offline world,3 section 230 of the federal Communications Decency Act grants broad immunity to providers of “interactive computer services” (Web site owners) for tort claims based on statements made by third-party users.4 Section 230 also prevents the Web site owner from being held liable for removing or blocking access to material it considers harmful. In the face of section 230 immunity, a claim against a Web site owner will survive only if the plaintiff can show that the Web site owner was personally involved in creating or developing the allegedly illegal content.5 Despite their broad legal immunity, most Web site owners are concerned with the integrity of their online service and have comprehensive terms of service forbidding illegal and defamatory postings. Under section 230 of the Communications Decency Act, a Web site owner can block or screen offensive material without incurring liability to users.6 Many Web sites have administrator email addresses or other ways to report violations of the terms of service.7 Therefore, it is often possible to get a cybersmear removed just by asking the Web site owner to enforce its own terms of service.

Section 230 does not apply to intellectual property, but under the Digital Millenium Copyright Act an Internet service provider (ISP) is not responsible in most cases for a third-party user’s copyright 12

The Arkansas Lawyer

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infringement of which the ISP has no knowledge.8 If infringing material is discovered on the ISP’s network, the copyright owner can send a takedown notice to the ISP’s designated agent. Upon receipt of the takedown notice, the ISP can disable access to or remove the infringing material without liability to the user. The ISP will then send a notification to the user, who can provide a counter notification stating under penalty of perjury that the user has a good faith belief that the material is not infringing. If the ISP receives a counter notification, it should replace the removed material within 10 to 14 business days unless it receives notice that the copyright owner has filed a lawsuit.9 Different mechanisms exist for the protection of trademarks on the Internet. Trademark problems generally result from the use of domain names that are confusingly similar to well-known trademarks, such as the use of “porsche.net” by someone other than the famous automobile maker.10 In that situation, the trademark holder can institute a federal lawsuit under the Anticybersquatting Consumer Protection Act11 to obtain damages for trademark infringement and an order to cancel or transfer the domain name. The lawsuit can be brought against the person who registered the domain name, or against the domain name itself in the district in which the domain-name registrar is located.12 An alternative remedy is to seek a transfer of the domain name through the uniform domain name dispute procedures of the Internet Corporation for Assigned Names and Numbers (ICANN).13 Although it does not allow for damages, the ICANN procedure is an effective and relatively quick method of getting a domain name transferred.

“...

this article will outline what Arkansas lawyers should know to protect their clients from anonymous online attacks (cybersmears) and intellectual property theft (cybersteals).”

Unmasking Anonymous Internet Users Unmasking an anonymous user is a difficult task that will rarely be worth the effort. Although most Web site owners are not expressly prohibited from disclosing their users’ identifying information,14 most will decline to do so for fear of civil liability15 unless presented with a subpoena or court order. Sophisticated Web site owners have detailed policies for responding to subpoenas and usually give users at least two weeks’ notice before any identifying user information will be revealed.16 Considering the Web site owner’s immunity and the user’s anonymity, just getting into court is a challenge on its own. A copyright owner may be able serve a subpoena without filing a lawsuit,17 but most victims of cybersmears will need to file a “John Doe” lawsuit or a petition for pre-suit discovery. An Arkansas circuit court may allow both types of action,18 but a federal district court will not take jurisdiction for such an action unless there is a federal question.19 Upon filing the action, the plaintiff should attempt to obtain an order from the court authorizing the issuance of a subpoena directed at the Web site owner or ISP for the purpose of identifying the anonymous user.20 Because there is a First Amendment right to speak anonymously,21 the plaintiff will have to overcome a rigorous burden to unmask the user. The complaint or petition should: (1) identify the John Doe defendant as specifically as possible, (2) set forth all steps taken to locate the defendant, (3) establish that the proposed lawsuit could withstand a motion to dismiss, and (4) specify the information sought and the persons upon whom the subpoena will be directed.22 The anonymous defendant should have a reasonable opportunity to appear in court and object to the discovery before the information is disclosed.23 If the plaintiff can give notice to the defendant through the Web site where the cybersmear occurred, he should do so. The

Web site owner or ISP to whom the subpoena is directed should also be ordered to give the best notice practicable to the anonymous defendant.

The result of all these unmasking efforts could be that the plaintiff is accused of filing a “Strategic Lawsuit Against Public Participation,” also known as a “SLAPP.”24 Arkansas has an AntiSLAPP statute that requires verification before a lawsuit is filed that concerns the right of free speech on an issue of public interest.25 A court may impose attorneys’ fees against a person found to have filed the SLAPP lawsuit. Arkansas’s Anti-SLAPP statute is another factor that weighs against using the judicial process to unmask an anonymous Internet user.

Harold J. Evans is a partner at Williams & Anderson PLC where he practices in the areas of intellectual property, technology licensing, and Internet law.

Andrew King is an associate at Williams & Anderson PLC where he practices in the areas of media law, commercial litigation, and appellate advocacy.

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

13

Conclusion As is no doubt true in the offline world, it is much easier to resolve Internet-based disputes outside of the judicial system. If court action is ultimately needed, there are many well-established remedies for protection against intellectual property theft even if the primary infringer is cloaked in anonymity.

Obtaining relief for a cybersmear, on the other hand, presents a series of hurdles that may not be worth the effort.

Endnotes 1. See, e.g., Ryan A. Ray, Comment, You’ve Got Mail . . . But Do You Have a Contract: Does an E-Mail Satisfy the Arkansas Statute of Frauds?, 60 Ark. L. Rev. 707 (2007) (concluding that an e-mail contract can satisfy the statute of frauds).

2. Roger M. Rosen & Charles B. Rosenberg, Suing Anonymous Defendants for Internet Defamation, L.A. Law, Oct. 2001, at 19, available at http://www.lacba.org/Files/LAL/ Vol24No7/Oct2001PTrmr.pdf.

3. E.g., Pigg v. Ashley County Newspaper, Inc., 253 Ark. 756, 489 S.W.2d 17 (1973) (libel claim against newspaper based on an unsigned letter to the editor).

4. 47 U.S.C. § 230. Section 230 immunity has been applied to a variety of factual situations.

E.g., Doe v. Myspace Inc., 528 F.3d 413 (5th Cir. 2008) (young girl assaulted by man she met online); Chicago Lawyers’ Committee v.

Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) (online classified advertisements violated federal Fair Housing Act); Universal Comm. Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (allegedly defamatory message board postings); Green v. America Online, 318 F.3d 465 (3rd Cir. 2003) (signal sent by third party allegedly harmed AOL user’s computer). But see Fair Housing Council v. Roommates.com, LLC, 521

F.3d 1157 (9th Cir. 2008) (en banc) (no § 230 immunity for web site that induced third parties to express illegal discriminatory housing preferences).

5. Whitney Info. Network, Inc. v. Xcentric Venturs, LLC, 199 Fed. Appx. 738, 744 (11th Cir. 2006); see Roomates.com, 521 F.3d at 1165.

6. 47 U.S.C. § 230(c).

7. E.g., Facebook, Help Center, http://www. facebook.com/help.php?hq=report (last visited Feb. 11, 2009); Yahoo!, Yahoo! Terms of Service ¶ 28, http://info.yahoo/com/legal/us/yahoo/utos/ utos-173.html (last visited Feb. 9, 2009).

8. 17 U.S.C. § 512(c).

9. 17 U.S.C. § 512(g).

10. Porsche Cars N. Am., Inc. v. Porsche.net, 302 F.3d 248 (4th Cir. 2002).

11. 15 U.S.C. § 1125(d).

12. Because the largest domain services registrant is Virginia-based Network Solutions, Inc., a large number of anticybersquatting actions are brought in the United States District Court for the Eastern District of Virginia.

13. ICANN, Uniform Domain Name Dispute Resolution Policy, http://www.icann. org/en/udrp/udrp-policy-24oct99.htm (last visited Feb. 11, 2009).

14. See Rosen & Rosenberg, supra note 2, at 19. One exception is that an Internet service provider which is also a cable operator may not disclose personally identifiable information to a third party without a court order and notice to the subscriber. 47 U.S.C. § 551(c).

15. George B. Delta & Jeffrey H. Matsuura, Law of the Internet § 6.05 (2d ed. 2008) (describing lawsuit by Yahoo! user “aquacool-2000” against Yahoo! for disclosing the user’s identity to his employer without giving him prior notice).

16. Rosen & Rosenberg, supra note 2, at 19.

E.g., AOL, Civil Subpoena Policy, http://legal. web.aol.com/aol/aolpol/civilsubpoena.html (last visited Feb. 6, 2009).

17. The Digital Millenium Copyright Act authorizes the clerk of a United States District Court to subpoena an ISP for the purpose of identifying an alleged copyright infringer.

17 U.S.C. § 512(h). The Eighth Circuit has questioned whether this procedure is valid when the subpoena is not accompanied by an actual lawsuit. In re Charter Commc’ns, Inc., 393 F.3d 771, 777-78 (8th Cir. 2005).

18. Ark R. Civ. P. 27(a) (deposition before action); Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002) (suits against “John Doe” defendants).

19. Howell ex rel. Goerdt v. Tribune Entm’t Co., 106 F.3d 215, 218 (7th Cir. 1997) (holding that “John Doe” defendants are not permitted in federal diversity suits because the defendant’s state of citizenship is not known); Doe I v. Individuals, 561 F. Supp. 2d 249, 253 (D. Conn. 2008).

20. Rosen & Rosenberg, supra note 2, at 19.

21. Buckley v. Am. Const. Law Found., 525 U.S. 182, 200 (1999); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).

22. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (C.D. Cal. 1999).

23. John Doe No. 1 v. Cahill, 884 A.2d 451, 460-61 (Del. 2005).

24. See Joshua R. Furman, Comment, Cybersmear or Cyber-SLAPP: Analyzing Defamation Suits Against Online John Does as Strategic Lawsuits Against Public Participation, 25 Seattle Univ. L. Rev. 213 (2001).

25. Ark. Code Ann. §§ 16-63-501 – 508 (Repl. 2005); see P. Caleb Patterson, Comment, Have I Been SLAPPed? Arkansas’s Attempt to Curb Abusive Litigation: The Citizen Participation in Government Act, 60 Ark. L. Rev. (2007). n

Business Valuation Forensic Accounting Economic Loss Divorce Accounting, Tracing, Appraisal Commercial Damages, Agricultural Damages Certified Public Accountant Certified Fraud Examiner Accredited Senior Appraisers Court-Appointed Expert Testimony Fair Pricing Richard L. Schwartz CPA, MCBA, ASA, ABV, CFE Dick@SchwartzandAssociatesLLC.com

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Steven F. Schroeder JD, MCBA, ASA Steve@SchwartzandAssociatesLLC.com

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A 12-Step Program: Rehabilitate Your Relationship With Your Corporate Client

by Phillip A. Pesek

E

veryone has heard of the 12-step program. The program is a set of guiding principles outlining a course of action to recover from a number of behavioral problems that have plagued mankind throughout the years. The 12-step program, if followed correctly, has been used by many to recover from alcohol abuse, overeating, smoking, gambling, spending money, and yes, even the dreaded cluttering. But nowhere will you find a program for the rehabilitation of the attorney who has disgruntled companies as clients. The attorney who is willing to solve any legal problem for his or her corporate client, no matter the cost. The attorney who will move mountains for his corporate client and make the most eloquent of legal arguments even if it means mobilizing every attorney in the firm just to win the case. Now, I know what you are thinking – is there a problem? Don’t they know that we, as legal representatives of our corporate clients, have their best interests at heart and would do nothing to ever harm the relationship? However, you must first admit that you have a problem before you can fix it and I am here to help shepherd you through a program that I have developed to rehabilitate your relationship with your corporate clients. Just between us, we’ll call it Outside Counsel’s Anonymous.1 As with any 12-step program, the program is only effective if you follow all 12 steps. Of course, you may wander off the path to rehabilitation from time to time, but know that your in-house corporate counselor is always available to help steer you back in the right direction. So, let’s get started on your rehabilitation!

Step #1 – Recognize you are hopelessly addicted to the billable hour.

I would not be writing this article if I felt that the relationship between outside counsel and their in-house counterparts was not strained.

I am sure there are a lot of great relationships between these two types of lawyers, but you can’t tell me things don’t get a little tense when the legal bill comes in. That is because there is a philosophical difference between running a law firm and running a corporation. Law firms and corporate legal departments are organized differently and therefore, have different goals. The law firm consists of partners, associates and paralegals who bill at an hourly rate. The more hours that are billed and collected, the more money the firm makes. The more experience or expertise one has justifies a larger hourly rate, leading to more revenues. In most firms there are minimum hourly goals for each attorney each year. As a result, a young attorney who bills a lot of hours and collects on those hours has a great chance of making partner. As you can see, everything in the law firm revolves around the billable hour.

On the other hand, a corporate legal department is considered a “cost” department and not a “profit” department; therefore, it is the goal of the company to minimize the legal costs it has to pay. A legal department budget is developed each year based upon the legal departmental expenses which include the salary and benefits of each attorney, paralegal and support staff, as well as overhead expenses. However, the biggest budget item is outside counsel fees. Each budget year, the in-house attorney has to estimate how much will be spent on outside attorneys. This is partially based on existing cases and projected future cases as well as trends based upon the previous years’ legal spend.

Oftentimes, the in-house attorney is evaluated on how he/she performs with regard to the budget. Therefore, everything in a corporate legal department revolves around expense control.

The disconnect between outside and in-house attorneys occurs because their respective business models are not compatible. An outside attorney is more interested in serving his or her client, no matter the cost, while an in-house attorney wants to obtain the best counsel at the best cost. An outside attorney wants to provide the best possible legal advice, even if it takes 20 hours to do it, while the in-house attorney is more interested 16

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in efficiency. Therefore, if you want to be rehabilitated, you have to stop thinking about the time sheets and start thinking of ways to deliver a quality legal product in an efficient and cost effective manner. Read on, I think I can help you get there even if you can’t break the hourly rate habit.

Step #2 – Are you sure they are who you think they are?

It is not uncommon for an outside attorney to work faithfully for a corporate client and never really know a lot about the client other than information gleaned from various legal projects. However, to truly be an effective counsel, the outside counsel, at their own cost, needs to take the necessary steps to understand the business of their corporate client. If the client is a public company, this orientation starts with a review of the client’s annual reports, proxies and other various SEC governance and financial documents. Even if the client is a private company, the attorney can learn a lot by searching for information about the client on the Internet. The search may turn up newspaper or magazine articles as well as other information that gives counsel a glimpse into his client’s business world.

The next step is to meet with the corporate client, at no charge, to get a better understanding of the client’s business. A meeting with the General Counsel is OK, but more information can be obtained from the client’s chief executive officer or the vice president of operations. The subject matter of the meeting should not just be a discussion of current legal issues, but should also be a discussion of the general operations of the client. Not only will the meeting prepare the attorney for future legal issues, but such participation shows the client that the outside attorney is truly interested in his client’s business and the prevention of legal liabilities.

Step #3 – Come to believe that there is a power inside that holds the key to your rehabilitation.

The secret to your success with the corporate client lies in the hands of in-house counsel. Therefore, to rehabilitate your relationship with your corporate client, you should start by rehabilitating your relationship with in-house counsel. The in-house counsel is more interested in speed, cost

“ ... the secret ingredient

to your rehabilitation is to do whatever you can to make the in-house counsel look good.”

efficiency, and quality – in that order. Also, corporate counsel have become pessimistic over the years about outside counsel and their billing practices. It would be a breath of fresh air if outside counsel expressed a

willingness to build a relationship that was based on speed, cost efficiency, and quality.

This can be obtained through the building of a client team, the establishment of a ratemix structure, and a dedication to a budget-

Phillip (“Phil”) Pesek is Vice President, General Counsel and Secretary of Deltic Timber Corporation, a natural resources company in El Dorado, Arkansas. Phil has also served as international counsel for Wal-Mart Stores, Inc. and The Home Depot, Inc.

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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based system. I will cover each separately.

It is very important to build a team of partners, associates, and paralegals that will be used exclusively to work on a particular corporate client’s work. Of course, the size of the team will depend on the quantity of legal work and the composition of the team will depend on the substantive nature of the legal work. The creation of the exclusive team serves as an opportunity for in-house counsel to get to know each member of the team in more detail, and it saves time and money because the members of the team do not have to come up to speed on the client and may already be familiar with the legal issue due to previous experience with the client.

Moreover, it helps prevent the dreaded legal “piling on.”2 Building a team gives the relationship partner an opportunity to show the in-house counsel that he or she is dedicated to cost efficiency.

Establishing a rate-mix structure is more complicated. The structure contemplates establishing agreed upon rates for all members of the client team and a goal for billable hour distribution between partners and associates. The first part related to hourly rates enables the in-house attorney to understand the various billing rates for the client team.

The second part with regard to mix is guess work at first, but will evolve into useful data that will lead to better cost efficiencies in the future. Depending on the nature of the legal work, it is the basic goal of the in-house attorney to maximize the amount of paralegal and associate hours and minimize the amount of partner hours, which should lead to cost savings. On the other hand, there are certain legal issues that can be handled more efficiently by a partner, who can resolve the legal issue in far less time than an associate. Also, an inhouse attorney expects the partner to oversee the work of the associate and paralegal. Each year, the relationship partner and the in-house attorney should look at the firm’s billing data for the previous year to determine if the right mix has been obtained. If not, corrections can be made going forward.

Finally, outside attorneys should dedicate themselves to the idea of a legal budget. Over the years, I have heard many complaints from outside attorneys about legal budgets.

“It’s too hard to predict how things will go.” Or “I don’t like to predict legal costs because I could be wrong.” Another reason is they don’t like to track costs on a particular legal matter. Most attorneys would rather write down the time, bill the client, and get

Auction Professionals

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paid. However, the successfully rehabilitated attorney is cost conscious and is not afraid of providing a legal budget based upon experience with similar matters.

A request for a legal budget is not a ploy to limit the amount the client will pay for a matter, but a request for an estimate on anticipated legal expenses. How many times have you heard a client say, “If I had only known it was going to cost me $x.xx in legal fees, I would have settled the case a long time ago.” Not only will a good budget warn the client of the complexities on the anticipated legal action or issue, but may give them pause to go in a different direction. Besides, any reasonable in-house attorney will allow latitude in any budget for unanticipated issues.

(See step #7.) In addition, a realistic budget will give the in-house attorney an idea of the issues, procedural steps, and costs involved in the particular matter.

Step #4 – Don’t be afraid to take inventory of your shortcomings.

Even if the relationship between the inhouse attorney and outside counsel is a good one, the relationship can be strengthened 12-Step continued on page 43

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Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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The

ort pp

of Litigatio n o i t nS u l o u v E

Culling, Filtering, Deduping

Figure 1

by Jerry Thompson Technological innovations and the evolution of the litigation support service industry have combined over the last decade to provide many cost-saving tools for managing discovery – both paper and electronic. Tools once restricted by cost and accessibility to only the largest law firms handling the largest cases are now affordable and available to firms of all sizes, for use in even the smallest cases. This article will give you a glimpse of what is out there and show you that the benefits afforded by litigation support technologies are no longer out of reach for your firm or your case.

The past 12 years have seen tremendous technological advances and significant reduction in associated costs for both the computer equipment and the software needed to control the data ingestion process and get paper and electronic discovery into a format that is usable by a wide variety of litigation support applications. At the same time, the litigation support industry has worked very hard to develop a set of standards that support easy migration of data through all stages of the Electronic Discovery Reference Model.1 While the many available tools still retain their unique product identity, data managers can now move discovery information between products. Moreover, users are no longer tied to a specific application and its respective limitations simply because transferring the necessary data to a different platform is prohibitively expensive.

A wide variety of technologies and products are currently used in the processing, review, analysis, and production stages. The Discovery Production Life Cycle Diagram in Figure 12 illustrates the process flow for paper and electronic discovery.

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Extraction and Processing Options Paper The paper imaging process matured in the late 1990’s with lower costs for digital scanning equipment and the development of scanning software that provided the unique capabilities required by the legal industry.

For some time now, it has been cheaper to scan paper documents to digital image and transport them on a CD, DVD, or hard drive, than to copy and ship boxes of paper. Optical Character Recognition (OCR) – the use of software to convert the image of a document into a text file containing the actual letters and words – has made steady improvements in both accuracy and speed, and is now being joined by Optical Word Recognition (OWR) programs that result in better searching capabilities during the review. Additionally, synthetic coding programs are now widely available. These platforms use pattern recognition to identify the bibliographic information found on printed e-mail, letters, and forms and place that information into searchable fields in the review database. Synthetic coding and so-called “hybrid coding,” in which experienced coding staff verify and correct and expand on synthetically coded data, are both far cheaper than manual coding in which humans read the individual documents and type the information into database fields.

Electronic Discovery Without question, some of the most significant advancements in litigation support have come in the Electronic Discovery area. Ten years ago, dealing with electronically stored information (ESI) was a thorn in every litigator’s side; however, as technologies and methods have improved and become more standardized, the expense and complexity of processing has been reduced to manageable, practical proportions.

In 1999, I was handed 14 DVDs and one hard drive containing electronic files from multiple custodians, and asked to obtain bids from service providers for processing the files and preparing them for the legal team to review. The standard process at that time was to convert the native files to digital images, and load them along with their extracted text into a review application. All documents were processed – there was really no such thing as culling, filtering or de-duplicating - and we relied upon the

review team to sort through them all to identify the responsive items. The bids we received for these services ranged from just under $250,000.00 to over $500,000.00 – up-front costs that covered nothing more than the processing and loading. Today, a reputable litigation support firm can filter, cull, de-duplicate, process, load and host many times that volume of data, for a fraction of the cost, but in 1999 we had spent more than a quarter of a million dollars before the first attorney could even see the first document.

Native file vs. Digital Image Review As late as 2005, it was still faster and cheaper in most cases to convert the original native files to digital images and review them using an image-based review platform.

This allowed the review team to view both scanned paper collections and converted native electronic files in the same platform.

The few available native file review platforms were still expensive and did not include the ability to review the imaged paper documents – meaning the review team would have to use two different review platforms for most cases. Today, sophisticated native file review platforms are readily available, and some can handle both imaged paper and native files in the same environment. As a result, it is generally much faster and cheaper to review documents in their original native form.

Early Case Assessment One of the newest and most promising technologies, early case assessment offers data managers the ability to analyze native file collections without first processing them.

There are several different tools on the market that can be purchased by the law firm for internal use or accessed through a service provider. These tools provide up-front insight into the nature and content of data collections, including file types, sizes, folders and media, and much more – information Jerry Thompson serves as Operations Manager for Altep, Inc., a leading provider of e-discovery and document review services.

Electronic Discovery 101 1. Collection Data sources of interest in the case are identified. These can include individuals’ e-mail inboxes, files stored on computers and networks, and much more. Certified technicians collect the data in a manner that preserves important “metadata,” such as time, date and author information.

2. Early Case Assessment (ECA) The collected electronic data is evaluated using Early Case Assessment software to determine what types of files are present and the actual size of the document population. All files are indexed; then criteria such as file date or type are used to further cull the document population and reduce its size. Detailed reports are provided to help prepare for the meet-and-confer session and develop budget and labor forecasts for the document review.

3. Data Discovery Software is used to extract metadata information from the files. Metadata includes information such as the files’ Create Date, Sent Date, Subject, and Author. The files and metadata are then imported into a document review platform, searched and tagged for priority and/or topic to help determine review strategy.

5. Attorney Review Attorneys examine documents in the review platform, tagging them for responsiveness, privilege and other issues based on criteria set by the managing attorneys. A review team may consist of hundreds of attorneys, depending on the size of the document population and the timeline. When the review is complete, documents that were marked responsive are collected for production.

6. Production The responsive documents are burned on a DVD and provided to counsel, along with a privilege log, which identifies responsive documents that were withheld, and a production log, which lists the documents in the production set.

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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that can help the legal team develop their culling strategy and review plans days or weeks before the files are processed. This can significantly reduce the overall timeline, and support the development of more accurate queries and date ranges for culling and filtering. And while there is generally a cost associated with early case assessment, most service providers will offer a discount or waive the assessment fee altogether if the collection is subsequently processed.

De-duplication can be done either within a given custodian’s data set, or across the entire project or case. Prior to the advent of de-duplication technology, I processed a custodian that was very meticulous about archiving his e-mail every 30 days. Most of the e-mails that met the search criteria were found in at least six different email archive sets – each an exact duplicate of the last.

The review team had to look at thousands of documents that modern techniques would have eliminated altogether.

And of course, even leaving the reduction in volume aside, when duplicate documents are allowed to remain in the review population, you run the risk that reviewers may designate duplicated documents with different responsive and privilege calls.

Culling through Search and e-Duplication Widespread use of sophisticated searching and de-duplication technologies has become a common feature of litigation support, especially in the last five years. When combined with early case analysis, culling and filtering queries are very successful in reducing the amount of documents that get processed and must subsequently be reviewed.

Current search technologies can use combinations of complex parameters to identify relevant documents, no matter where they are located on custodians’ hard drives or shared network drives. System files, which often comprise the majority of files on a hard drive, are easily excluded – only the user-generated (and potentially relevant) files are selected for processing.

EDD Processing and Metadata Extraction The current generation of electronic data discovery (EDD) processing applications are very fast and powerful. Earlier versions did a great job of preparing the native files for linking in a review application and pulling basic information into fields for searching and organizing the review; however they were slow and required a substantial investment in servers. Today’s EDD software also

extracts hundreds of specific bits of information, known as metadata. This “data about data” can often hold the secrets to a case, and should be reviewed along with the native file itself. Additionally, the entire text of each document is extracted, and special information such as a spreadsheet’s hidden rows and hidden columns is also extracted and stored during processing. Finally, the EDD application creates a load file, which can be used to bring the processed files into any of the major review platforms so that they can be accessed by users.

EDD processing applications can be purchased by the firm, or you can send the native files to service providers for processing. Stand-alone systems and client-server applications are both available for in-house use. However, the initial investment for the hardware, application, licensing and recurring usage fees are out of reach of most law firms. At the same time, service providers’ processing fees continue to drop.

Review and Production Review as native files or convert to digital image?

Without a doubt, the potential for Evolution continued on page 46

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Arkansas Supreme Court Historical Society

Basil Baker’s Seven Years and Five Days Part I

by Michael B. Dougan The history of the Arkansas State Supreme Court includes some justices who served long but made little impact and others who made better use of their limited time. Basil Thorpe Baker served from 1934 up to the time of his death in 1941, and while his service was not long, his name appeared on 333 opinions, most of which reflected the sentiments of a unanimous court. On those occasions when he did dissent, his vote was usually cast for the little man as opposed to the large corporation. He was, his colleagues recalled, “neither a confirmed conservative nor liberal in his interpretations of Arkansas statutes.” Instead, as Horace Sloan observed, “he had a natural legal mind.”

Born in Columbia County in 1871, Baker studied first at a local academy before attending Ouachita Baptist College at Arkadelphia, eventually graduating in 1895. Settling in Craighead County where he taught school, he married Molly Kinsworthy, the niece of state Attorney General Edgar B. Kinsworthy, who served from 1895 to 1899. After her death in 1917, Baker married Audly M. States in 1918.

Baker was one of the last self-taught lawyers. As Judge N.F. Lamb of Jonesboro, who loaned him law books, recalled, Baker would come into town on Saturday with “copious notes” and “a list of questions which we discussed together.” Admitted to the bar in 1898, Baker served as Jonesboro’s city attorney in 1903-04 and then from 1918 to 1934 was the attorney for City Water & Light (CWL), a local improvement district. During that tumultuous period, CWL withstood successive takeover attempts by Arkansas Power & Light. Baker also unsuccessfully opposed a Ku Klux Klan-supported senatorial candidate.

Baker’s law partners were Thaddeus H. Caraway and J. P. Gautney. In 1920, Caraway unseated the incumbent U.S. Senator, William F. Kirby. Kirby, a former attorney general (1906-1908) and associate justice (1910-1916), had opposed U.S. entry into the Great War. Kirby did not digest this defeat easily. Although back on the court in 1927, he took advantage of Thaddeus Caraway’s death in 1934 to join the long list 24 24 The TheArkansas ArkansasLawyer Lawyer

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of candidates opposing Caraway’s widow, Hattie. In the famous campaign that followed, Louisiana’s Huey Long helped “pull a lot of potbellied politicians off a little woman’s neck.”

Baker helped Hattie by announcing as a candidate against Judge Kirby when he came up for re-election in 1934. However, Kirby died of a heart attack on July 26, 1934.

Interestingly, Baker had already served on the court. In Hixon v. School District of Marion, 187 Ark. 554, (1933), a high court consisting entirely of special justices found unconstitutional the legislature’s attempt to fund old-age pensions by taxing all state and county warrants. After Kirby’s death, Baker was appointed to fill out the remainder of that term and then had no opponents in November.

Baker carried his share of the judicial load until stricken by heart disease in October 1940. In July 1941 he returned to the court in a wheelchair for a picture-taking ceremony, but before he could resign pneumonia set in and he died on September 20, 1941.

Legally, his time would be well spent.

Baker arrived at a time when Arkansas was still in the grip of the Great Depression. Just prior to the collapse, Arkansas came close to defaulting on its debt. Baker’s pragmatic progressivism was evident in his first opinion. Fort Smith Gas Company v. Wiseman, 189 Ark. 675 (1934), simply reversed an earlier court ruling that had voided a feesupported Fact-Finding Tribunal in the Corporation Commission. The former majority complained that changes in personnel alone accounted for the reversal.

Hence, Arkansas paralleled similar changes in the U.S. Supreme Court, where “a switch in time saved nine.” Baker’s most important holding was Cherry v. Leonard, 189 Ark. 675 (1934), upholding legislation compromising the state’s highway debts, where Baker used “the law of reason” to reveal and uphold the legislature’s intent.

As the Depression waned and challenges to the new sales tax and the bond settlement were resolved, the court returned to more mundane matters. Still, constitutional questions did arise. Pope v. Oliver, 196 Ark. 394

Portrait painted by Adrian L. Brewer

(1938), arose out of the extraordinary session called only to remove tolls on state bridges so that the state could receive five million federal highway dollars. However, the tollrepealing law also contained an amendment repealing car inspection fees. As Baker coyly observed, “The amendment rode piggyback through both houses of the Legislature and, like the parasite it is, was clinging to the main bill when it received executive approval.” Nevertheless, it exceeded the legislature’s power. Baker also authored the opinion in State ex rel Dudley v. Lyon, 191 Ark. 1008 (1935), that determined who was the acting governor when both the governor and lieutenant governor were out of state. The briefs, Baker wrote, provided “a great deal of information and entertainment….” The case turned on the meaning of President of the Senate: “The descriptive ‘pro tempore’ is surplusage, no more necessary than some other adjective that might indicate some particular characteristic, in relation to the office.”

[The second installment will focus on highlights from the opinions by this lawyer’s lawyer.]

Michael B. Dougan is a Distinguished Professor Emeritus in History at Arkansas State University and is widely renowned as one of the foremost authorities on Arkansas history. His publications include numerous books and articles on Arkansas history.

This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@ arkansas.gov; Phone: 501-682-6879.

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Regions Insurance

Cyber Risk

by Jenny B. Bradford Keeping confidential information private is nothing new to attorneys. However, the liabilities that attach should a breach occur and the emerging threats to confidential information are escalating at an alarming rate.

Cyber Liability is a real threat to organizations across all industry classes. Attorneys are especially at risk due to the volume of confidential data they collect and retain.

Confidential data encompasses personal information, such as names, social security numbers, financial account numbers and medical records, but it also includes confidential business information which spans from financial data, to market research, to plans, formulas and trade secrets. Depending on the area of expertise, your firm’s databases are overflowing with confidential data.

You may or may not know where all this potentially explosive information is stored; laptops, smart phones, databases, servers, and even file boxes. Maintaining control over this data chaos is crucial because a data breach is not only a threat to your balance sheet it is a threat to your reputation.

Data security has gathered enough attention that its protection has become a priority of governmental oversight. At this time all but four states have laws pertaining to private data. Federal regulations which can provide for penalties or private right of actions are numerous. Of particular interest to attorneys are the Red Flag Rules which require certain institutions to implement an identity theft prevention program designed to detect, prevent and mitigate the risk of identity theft. Law firms were thought to be included as one of those required to comply. The American Bar Association received a judgment in its favor eliminating law firms from compliance. However, the FTC is appealing the judgment. Even if the ABA is successful in maintaining the judgment, it is foreseeable that applicable regulation is looming.

Earlier this year, it was reported by the Wall Street Journal that a law firm suing the Chinese government and several others was the target of a spear-phishing attack short28

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ly after the firm filed the $2.2 billion suit.

The firm represents CYBERsitter who claims that the Chinese government and others were distributing Web filtering software containing pirated parts of CYBERsitter’s software. The firm believes and evidence supports the attack originated from China. Prior to the filing of the suit, CYBERsitter was the victim of a similar attack also originating from China. The FBI asserts that law firms are becoming more frequent targets of cyber attacks and has issued an advisory warning.

In addition to hacking, attorneys like everyone else are subject to the negligent causes of data breach such as a lost laptop, improper disposal of files, and inadvertent disclosure. So what does this mean to attorneys and their firms? It means that if a firm is not prepared, it is not a question of if, but when a data breach will occur. For organizations whose business depends on client trust, a large data breach could be financially devastating. The Ponemon Institute conducts an annual study on the cost of a data breach.

The 2009 study concluded that the average cost of a breach is $6.75 million with an average per record cost of $204.

To protect themselves and their firm from the debilitating effects of a data breach, a proactive plan addressing data security is essential. In addition to a plan, a firm should consider insurance to address financial loss.

Policies that could potentially provide coverage are the firms’ commercial general liability (CGL) as well as the errors and omissions (E&O) policies. Data is not considered tangible property and courts have been rather hostile to claims seeking to recover for security breaches. In any event, the CGL is a liability policy and not intended to cover first party losses. Since attorneys have an ethical obligation to client confidentiality, the E&O policy presents some coverage for the liability associated with a breach, but it provides no first party coverage.

To ensure that there is coverage in the event of a breach a cyber liability policy is your best option. Cyber liability policies encompass two components: first party loss and third party liability. First party coverages address the direct costs associated with a data breach like notification, forensic investigation costs, legal expenses, credit monitoring expenses, and outsourced hotline support.

Other first party coverages are data restoration, cyber extortion, business interruption and extra expense, crisis response, and regulatory fines and penalties. Third party coverage includes liability for the transmission of viruses or other harmful script and the breach or transmission of confidential data. This is a cyber policy covering intangible electronic data, but a policy can cover paper records as well.

If you have or are considering a cyber liability policy, it is imperative that you review the policy closely with someone knowledgeable in this area. Carriers are apt to sub-limit any component of coverage in which it sees the greatest potential for loss. It is common to see notification costs and regulatory coverage limited under the policy terms. If policy terms and conditions are not constructed favorably to the insured, you may be left with higher out-of-pocket expenses than you anticipated. Regions Insurance possesses the expertise and resources to assist you in selecting the proper coverage.

Jenny B. Bradford, J.D. is the Vice President Financial Products and part of Executive Risk Services for Regions Insurance in Little Rock where she specializes in management and professional liability with an emphasis in cyber liability.

Bond Options for Members of the Arkansas Bar Association Probate Bonds • Underwritten by Merchants Bonding Company • ABA members are entitled to easy issue Probate Bonds under $200,000 (or $10,000 bonds for underage minors) • Bonding company requires continued attorney involvement until court releases bond.

Judicial/Litigant Court Bonds • Defendant’s Appeal or Plaintiff’s Appeal (Supersedeas) • Attachment or Release of Attachment • Release of Lien • Injunction or Dissolve Injunction • Replevin and Counter Replevin

Notary Bonds Arkansas Bar Association members can contact Cindi for an application and fax directly to Merchants Bonding Company. The Notary Bond is issued, usually the same day, and mailed to the applicant.

For more information on Bonding please contact: Cindi Thessing at (501) 660-7149 cindi.thessing@regionsinsurance.com

Medical Insurance Options

NEW! Cyber Liability Insurance For More Information please contact: Jenny Bardford at (501) 590-5615 or jenny.bradford@regionsinsurance.com

The Arkansas Bar Association has partnered with Regions Insurance to provide two Medical Insurance options for Members of the Arkansas Bar Association and their employees.

Employees of Bar Association Members may also submit applications For More Information please contact: Mike Crow at (501) 661-4879 or mike.crow@regionsinsurance.com

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Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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Governing Bodies Report House and Board Begin 2010 Planning

The Association’s House of Delegates met January 23, 2010, at the Mid-Year Meeting at the Peabody Hotel in Memphis.

The Board of Governors met April 9-10, 2010, at Mt. Magazine Lodge with Frank B. Sewall, Board of Governors Chair, presiding. The governing bodies addressed several issues facing the Association in 2010, including a new online research benefit, a new Association Web site and database, and a new member benefit from Regions.

Association President Donna C. Pettus announced a new online legal research benefit for the Association being provided

by Fastcase. The Online Legal Research Committee recommended Fastcase after their extensive research of top providers.

Fastcase will replace Arkansas VersusLaw on July 1, 2010. Executive Director Karen K. Hutchins reported on the progress of the Association’s new Web site and database that will be online soon and will feature the Fastcase benefit.

Past President Lamar Pettus, Chair of the Governance Committee, presented a series of recommendations to the House regarding the development of an Association policy manual. The committee has reviewed the historical decisions of the Association and made recommendations for a comprehensive manual covering the Association’s policies.

President Pettus reported to the House on behalf of Member Benefits Committee Chair John T. Vines. She introduced the addition of several benefits including a new Cyber Risk Insurance service from Regions Insurance. This new benefit will provide insurance coverage to protect attorneys’ cyber liability as the practice of law takes place more and more via computers and the internet. Regions is also offering a Judicial Bond service which many members are already incorporating into their practice.

President-Elect Jim L. Julian announced to the Board that Sean T. Keith would be the Board of Governors Chair and Cliff McKinney would be the Annual Meeting 30

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Committee Chair in the upcoming bar year.

President Pettus updated the Board on the outcome of the 2010 Mock Trial competition. The state champion team from Parkview Arts and Sciences Magnet High School is set to compete in the national competition in Philadelphia, Pennsylvania on May 5-9, 2010.

The following outgoing Governors were recognized for their service to the Board: Rosalind M. Mouser, Charles D. Roscopf, Anthony W. Juneau, Charles L. Harwell, Causley Edwards, Tom D. Womack, and David B. Vandergriff. President-Elect Designee Tom D. Womack briefed the Board on his attendance at the ABA Bar Leadership Institute in Chicago in March.

President Pettus announced plans to attend ABA Day in Washington which is designed to allow our leaders to meet with the Arkansas congressional delegation in Washington, D.C. President Pettus, President-Elect Jim Julian, and Immediate Past President Rosalind M. Mouser repre-

sented the Association. ABA Day is a unique opportunity that allows state Bar representatives to meet with their congressional representatives to educate Congress on issues of importance to lawyers.

President Pettus announced four meeting dates for the Leadership Academy.

The Leadership Academy Committee has recommended the basic structure of the Academy and will begin selecting speakers and planning agendas for each meeting. The Leadership Academy selection committee will select a diverse class of attorneys from applicants who have at least 7 years in practice. All members who meet the criteria will be encouraged to apply for admission into the Academy. President Pettus presented Board of Governors Chair Frank B. Sewall with a plaque for his service this past year.

The next meeting of the House of Delegates will be held during the Annual Meeting on June 12, 2010, at the Arlington Hotel in Hot Springs. The next meeting for the Board of Governors will be August 3-4, 2010, at Petit Jean Mountain Lodge. n

YLS Legal Handbook for Young Arkansans — 18 and Life to Go is now available for purchase online

18

and Life to Go:

A Legal Handbook for Young Arkansans

Go to www.arkbar.com for a link to Lulu to purchase a printed handbook for $5.00.

To download a free copy on the ArkBar Web site click on the handbook cover.

Prepared by

Young Lawyers Section

First Edition

Mock Trial

2010 Mock Trial Competition Parkview Arts and Sciences Magnet High School 2010 Back-to-Back Mock Trial Champions

The Arkansas Bar Association extends its appreciation to the following volunteers who helped make the 2010 Mock Trial Competition so successful.

Hon. Beth Deere, U.S. Magistrate Judge, Eastern District Donna C. Pettus, Arkansas Bar Association President Taura L. McDaniel, Mock Trial Committee Chair Matthew D. Wells, Mock Trial Vice-Chair Rando Hicks, Mock Trial Coordinator

front row l to r: Dennis James, Laura Yoder, Stephen Jones, Carman Wilson, Kailum Scharf, Olivia White, Seemaab Ali, Kassidy Boyle, Bukola Odeniyi, Dolapo Odeniyi; back row l to r: Cameron McCree, Judge Beth Deere, Rick Ramsay Students from Parkview Arts and Sciences Magnet High School prevailed as the winners of the Arkansas Mock Trial Competition held in Little Rock at the Pulaski County Courthouse on March 6, 2010. Eight high school teams composed of more than 50 students contended in the state finals. Parkview won the final match in a split decision over Central High School. The team from Parkview will compete in the national event in Philadelphia, Pennsylvania May 5-9, 2010.

The Parkview team consisted of teacher coach Pat Treadway; attorney coach Dennis James; students Seemab Ali, Cassady Boyle, James Hart, Stephen Jones, Bukola Odeniyi, Dolapo Odeniyi, Jose’ Romero, Kailum Scharf, David Terrell, Olivia White, Carman Wilson and Laura Yoder.

The students played the roles of attorneys and witnesses to present a reckless driving case to lawyers and judges. The Honorable Beth Deere was the presiding judge at the final match.

Many lawyers and teachers from across the state work with the students for several months to prepare them for the competition. The Arkansas Bar Association sponsors the competition and the Arkansas Bar Foundation along with annual sponsors assist with the funding.

To volunteer for the 2011 Mock Trial Competition please contact Rando Hicks at rhicks@arkbar.com or (501) 375-4606

Volunteers: Don Barnes Ali Brady Larry Brady Phillip Brick Paul Davidson Rob Francis Josh Gillespie Michele Glasgow Cameron McCree Sandy Moll Crystal Newton Stacey Pectol Past President Richard L. Ramsay Gwendolyn Rucker Chris McFarlin Jessica Middleton Will Shelton Jordan Tinsley Joe Volpe Sharon Wall Adam Wells Committee Members: J. Jason Boyeskie Toney Baker Brasuell J. David Crisp, Sr. Don N. Curdie

Kevin L. Hickey Johnathan D. Horton Jonathan B. Huber President-Elect Jim L. Julian Valerie L. Kelly Elaine M. Kneebone Brian R. Lester Lynn D. Lisk William C. Mann, III Quentin E. May Mary S. McGowan Matthew P. McKay Denise D. McMillan Anthony L. McMullen Christopher W. Morledge Immediate Past President Rosalind M. Mouser Wm. Howard Mowery Anne Orsi Nick Rogers Jennifer P. Sanders Melissa N. Sawyer Michael R. Unger Brian A. Vandiver Vicki S. Vasser Troy L. Whitlow Ralph E. Wilson, Jr. Danna J. Young

Participating Schools: Berryville High School Central High School (A) Central High School (B) Izard County High School Jonesboro High School Marshall High School McCrory High School Mena High School Monticello High School

Nettleton High School Newport High School Parkview High School Pine Bluff High School Rogers Heritage High School Russellville High School Springdale Har-ber High School Springdale High School Tuckerman High School Valley Springs High School

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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A Special Thank You to the Gene D. Adams, Jr. Charles P. Allen H. William Allen Mark H. Allison Allison R. Allred Philip S. Anderson Elizabeth Andreoli Richard L. Angel Ben F. Arnold Blair Arnold Jess L. Askew, III Russell C. Atchley Virginia Atkinson Joyce Bradley Babin Kenneth B. Baim Barry D. Barber R. Kevin Barham Harry F. Barnes Marcia Barnes Melody Peacock Barnett W. Christopher Barrier Ben T. Barry Anthony W. Bartels Sherry P. Bartley Woodson W. Bassett, III Fines F. Batchelor, Jr. David L. Beatty Paul B. Benham, III Stephen Bennett Joe Benson M. Stephen Bingham James B. Blair C. Tad Bohannon Will Bond Barbara P. Bonds Ted Boswell William H. Bowen Ronald L. Boyer Robert B. Branch Debbie D. Branson William C. Bridgforth Robert R. Briggs Fred E. Briner Bill W. Bristow Thomas E. Brown Lynne Bice Brown Mickey Buchanan John Richard Byrd, Sr. Paul Byrd 32

The Arkansas Lawyer

Robert D. Cabe John C. Calhoun, Jr. Jerry L. Canfield Thomas M. Carpenter Douglas M. Carson Daniel R. Carter Jerry W. Cavaneau Robert M. Cearley, Jr. Earl Buddy Chadick John S. Cherry, Jr. Emmett B. (Chip) Chiles, IV Larry E. Chisenhall, Jr. William M. Clark, Jr. H. Murray Claycomb Ralph M. Cloar, Jr. Roger U. Colbert Pat Jackson Compton Barry E. Coplin Chris P. Corbitt Nate Coulter James O. Cox Michael A. Crockett James E. Crouch Casey L. Cullipher Niki T. Cung F. Thomas Curry James D. Cypert C. Michael Daily Thomas A. Daily Carol C. Dalby Steven B. Davis John A. (Jack) Davis, III Charles E. Davis Lee Matthew Davis Robert T. Dawson J. C. Deacon Barry Deacon Beth M. Deere Jack W. Dickerson James F. Dowden Ted N. Drake Robert H. Dudley Warren E. Dupwe Davis Duty Charles B. Dyer, Jr. B. Michael Easley David L. Eddy G. Thomas Eisele Don R. Elliott, Jr. www.arkbar.com

Stephen Engstrom Audrey R. Evans John C. Everett Hugh A. Finkelstein Victor A. Fleming Kay West Forrest Lyle D. Foster Amy Freedman Price C. Gardner Allan Gates Charles Alan Gauldin David George Sam E. Gibson C. C. Gibson, III Buck C. Gibson Pamela B. Gibson Melinda R. Gilbert Martin G. Gilbert Stephen R. Giles Greg R. Giles Dent Gitchel Charles W. Goldner, Jr. Don Goodner Ray A. Goodwin Robert J. Govar Albert Graves, Jr. Michael R. Greene John C. Gregg Ronald L. Griggs Timothy W. Grooms David F. Guthrie Michael E. Hale Barbara A. Halsey James A. Hamilton Donis B. Hamilton Frank S. Hamlin Stuart W. Hankins A. Vaughan Hankins W. David Hardin David M. Hargis Melva Harmon David K. Harp James E. Harris Eugene S. Harris Charles L. Harwell Richard F. Hatfield William D. Haught L. Kyle Heffley Brad L. Hendricks

Rosanna Henry Joe Hickey Basil Hicks, Jr. Tina M. Hodne Denise R. Hoggard Don Hollingsworth Cyril Hollingsworth J. Hawley Holman Robert M. Honea Ron A. Hope Gregory M. Hopkins R. Howard Hopkins Robert E. Hornberger Karen K. Hutchins James W. Hyden Annabelle C. Imber Tuck Michael E. Irwin Randolph C. Jackson Paul J. James Bradley D. Jesson Christopher M. Jester Glenn W. Jones, Jr. Robert Shepherd Jones Robert L. Jones, III Jim L. Julian Philip E. Kaplan William H. Kennedy, III Judson C. Kidd Mike Kinard Stanley R. Langley Sam Laser John T. Lavey Charles R. Ledbetter Samuel E. Ledbetter John C. Lessel Robert O. Levi Alice F. Lightle Stark Ligon John G. Lile, III Coby W. Logan Chester C. Lowe, Jr. Edwin L. Lowther, Jr. James R. Marschewski William A. Martin David R. Matthews Gail Matthews Stephen A. Matthews Ronald A. May S. Hubert Mayes, Jr.

2009-10 Sustaining Members Mark T. McCarty Ed W. McCorkle Bobby McDaniel Jeffrey Ellis McKinley James A. McLarty, III James E. McMenis Toney D. McMillan D. Malcolm McNair, Jr. Jack A. McNulty Michael Millar Phillip J. Milligan Philip Miron Michael W. Mitchell Chalk S. Mitchell Margaret Woodward Molleston Thomas Ark Monroe, III James M. Moody Charles A. Morgan Christopher W. Morledge W. Frank Morledge Stephen E. Morley Kenneth R. Mourton Rosalind M. Mouser Wm. Kirby Mouser Timothy J. Myers E. Sheffield Nelson David Newbern Dana Daniels Nixon R. Gary Nutter Debby Thetford Nye Bobby Lee Odom Edward T. Oglesby James E. O’Hern, III Hugh R. Overholt Charles C. Owen Charles R. Padgham Chris L. Palmer Jerry D. Patterson Nicholas H. Patton Claibourne W. Patty, Jr. Richard L. Peel B. Jeffery Pence Neal R. Pendergraft Edward M. Penick Donna C. Pettus Ellis Lamar Pettus John V. Phelps Chris Piazza George N. Plastiras

Franklin A. Poff, Jr. David M. Powell Jerry D. Pruitt Donald C. Pullen John I. Purtle Joseph H. Purvis Steven W. Quattlebaum Richard L. Ramsay Brian H. Ratcliff Gordon S. Rather, Jr. David P. Rawls J. Thomas Ray Chris R. Reed R. Jeffrey Reynerson William S. Robinson Charles B. Roscopf Charles D. Roscopf John L. Rush Donald S. Ryan Don M. Schnipper John R. Scott Frank B. Sewall Deborah Sexton Dennis L. Shackleford Stephen M. Sharum J. L. (Jim) Shaver, Jr. Matthew J. Shepherd William F. Sherman Brock Showalter Steven T. Shults Ted C. Skokos J. Timothy Smith James W. Smith Robert D. Smith, III David Solomon James D. Sprott Thomas S. Stone John F. Stroud, Jr. William H. Sutton Marcella J. Taylor W. H. Taylor Richard D. Taylor Rex M. Terry William L. Terry Floyd M. Thomas, Jr. Robert F. Thompson Danny Thrailkill David Throesch

Christopher R. Thyer Cindy Thyer Win A. Trafford N. Walls Trimble C. Bass Trumbo Fred S. Ursery James R. Van Dover Marc W. Van Pelt David B. Vandergriff A. Glenn Vasser William A. Waddell, Jr. Wyman R. Wade, Jr. John C. Wade Eddie H. Walker, Jr. Danyelle J. Walker Bill H. Walmsley G. Christopher Walthall Stan L. Warrick Timothy F. Watson, Sr. Richard N. Watts Tony L. Wilcox W. Jackson Williams, Jr. David H. Williams Robert H. Williams Richard A. Williams William R. Wilson, Jr. Teresa M. Wineland George R. Wise, Jr. William R. Wisely Carolyn B. Witherspoon Rufus E. Wolff Tom Womack Marsha C. Woodruff Joe D. Woodward Eric Lane Worsham Susan Webber Wright Truman E. Yancey Damon Young Cary E. Young Dennis Zolper Your Sustaining Member dues finance a variety of projects and programs. This year, your support will sponsor several of the highlights at the Annual Meeting this June in Hot Springs.

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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Judicial & Attorney Disciplinary Actions

The following are excerpts from the Judicial Discipline and Disability Commission Final Actions. Full text documents are available online at http://www.state.ar.us/jddc/ press_releases.html

Order of Suspension Judge L.T. Simes Opinion Delivered November 5, 2009 Supreme Court Mandate to Remove Judge Willard Protcor Opinion Delivered January 10, 2010 Letter of Admonishment Judge L. T. Simes March 19, 2010 Letter of Admonishment Judge Mark Johnson March 19, 2010

Final actions from January 1, 2010, through March 31, 2010, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locator feature under the “Attorney” link on the home page.

[Note: “Model” Rules refers to the Rules of Professional Conduct as they existed in Arkansas prior to May 1, 2005. “Arkansas” Rules refers to the Rules as they exist in Arkansas from May 1, 2005.]

SUSPENSION: BRUCE J. BENNETT, Bar No. 92140, of Bentonville, had his Arkansas law license suspended on March 19, 2010, for nine (9) months in CPC 2009-065 on a complaint by Dennis and Valory Vinciguerra for admitted violations of Rules 1.3, 1.4(a)(1), 1.4(a)(3), and 8.4(d), by a consent proposal approved

by Committee Panel B and the Arkansas Supreme Court. Mr. Bennett was hired to represent the Vinciguerras in a lawsuit filed against them, within a week of their being served. He failed to file a timely Answer but the matter was not dismissed then. Mr. Bennett failed to file responses to any motions filed by the opposing counsel. Mr. Bennett did not communicate with the Vinciguerras about their legal matter or respond to

requests for information. He provided false information to the Vinciguerras about what actions he was taking on their behalf. He basically presented no defense and did not assert any claims on their behalf against codefendants or parties not made a party to the lawsuit, but who were ultimately responsible for the loss to the trust. As a result, a default judgment for $617,529 was entered against the Vinciguerras. Their personal property was executed on and sold at auction.

RICKEY H. HICKS, Bar No. 89235, of Little Rock, Arkansas, had his Arkansas law license suspended for one (1) month by Committee Findings & Order filed February 2, 2010, in CPC 2009-096 on a complaint by Ned Johnson for violations of Rules 1.2(a), 1.3,

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Attorney Disciplinary Actions 1.4(a)(3), 1.4(a)(4), 1.5(b), 1.5(c), 1.15(a) (1), 1.15(b)(2), and 1.16(d). Mr. Hicks was also fined $1,000 and ordered to pay $5,000 restitution to Mr. Johnson. Ned Johnson hired Mr. Hicks to represent him in a land development dispute matter, and paid a $6,000 retainer fee, which was not placed in an IOLTA trust account. The remaining portion of the fee was contingent in nature, and the contract Mr. Hicks prepared did not comply with all the requirements of the Rule dealing with contingent fees because it did not explain how the contingency fee was to be calculated. Mr. Hicks was not diligent in his representation of Mr. Johnson, he failed to take prompt action, and he failed to keep Mr. Johnson advised of the status of his legal matter and the efforts, if any, that Mr. Hicks had taken for him. Mr. Hicks did not respond to requests for information, he attempted to place the blame on Mr. Johnson for not calling him on his cell phone, while the Rules require Mr. Hicks to keep the client informed. After Mr. Hicks’ services were terminated, Mr. Johnson requested a refund of the advance payment of fees. At the time of the filing of the formal disciplinary complaint, Mr. Hicks had stated he would return the unused portion of the fees but had not done so.

NEWTON DONALD JENKINS, JR., Bar No. 94231, of Van Buren, had his Arkansas law license suspended for three (3) months on February 5, 2010, after the Supreme Court’s mandate issued in No. 09-710, cited

as 2010 Ark. 24, which affirmed on appeal the Committee Findings & Order filed March 31, 2009, in CPC 2008-049 on a referral by United States District Judge Jimm L. Hendren, for violations of Rules 1.3, 3.1, 3.2, 3.3(a)(1), 3.4(b), 8.4(c), and 8.4(d). For failing to file a response to the Complaint, Jenkins was also separately reprimanded and fined $500.

Mr. Jenkins represented Mr. Freeman in a federal civil case against Bekaert Corporation.

The Complaint had attached to it the Bekaert Disability Plan handbook which states “Weekly Income Benefits terminate at retirement.” It was later admitted that Freeman retired before his complaint was filed. Bekaert’s attorney wrote Jenkins stating Freeman had retired from Bekaert on November 13, 2005, he was ineligible for the Plan benefits, and asked Jenkins to dismiss the Freeman suit then. Bekaert’s Answer on November 7, 2007, put Jenkins on the same notice. Because the matter was an ERISA claim, Judge Hendren directed the parties to file a stipulated administrative record, followed by briefs.

Eventually both plaintiff and defendant filed separate stipulated records. Jenkins’ record asserted that the parties “hereby submit this joint stipulated record comprised of the attached exhibits,” and contained the electronic signatures of Jenkins and Bekaert’s attorney.

Bekaert’s’ record stated that Mr. Jenkins had not “responded to communications initiated

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Freeman’s record and Bekaert’s record did not contain all the same documents. Bekaert’s Motion To Strike Plaintiff’s Stipulated Record alleged: (1) that plaintiff submitted documents in his record which defendant had neither seen nor stipulated to; (2) that plaintiff omitted documents from his record

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Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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Attorney Disciplinary Actions which were included in Bekaert’s record; (3) Jenkins had signed defense counsel’s name to Jenkins’ record without permission to do so; and (4) that Jenkins had failed to serve a copy of his record on Bekaert’s counsel. Instead of responding to the Motion, Jenkins moved to dismiss the case without prejudice. Judge Hendren conducted a telephone conference with counsel on Bekaert’s allegations, which the Judge stated he considered so serious that it was quite surprising that Jenkins had not responded to them. Judge Hendren directed Jenkins to file a written response to the Motion To Strike. In his filed response, Jenkins stated, among other matters, that his “lack of attention to detail was caused solely by the belief that this matter was no longer viable once a copy of the Plan Document was available for counsel to review.” Judge Hendren stated he found this statement to be highly questionable. Jenkins attached a copy of the Plan Document to the Complaint, so he clearly had it available for review from the outset. While Jenkins might not have known when he filed the Complaint that Mr. Freeman had retired and was no longer eligible for disability benefits, he was so informed by letter from Bekaert’s counsel in October 2007. While Jenkins stated he had trouble getting in touch with his client, the Judge stated he had difficulty crediting Jenkins’ diligence in trying to do so, given that he did not meet with Freeman until January 25, 2008, three months later. At that time, Freeman acknowledged that he had voluntarily retired from Bekaert before the suit was filed. Rather than dismiss the case promptly, however, Jenkins left Freeman to ponder the matter, advising that if Freeman did not agree to dismiss, Jenkins would withdraw as counsel. The Motion To Dismiss was not filed until March 6, 2008, almost six weeks later. The issue on appeal of the Committee’s decision was the sufficiency of service of the Complaint on Mr. Jenkins.

The green card receipt for certified mail was signed for by an employee of his law office, and neither box for “addressee” or “agent” was marked. The Supreme Court held the OPC complied with Section 9 of the disciplinary Procedures by sending the mail in the correct manner, and OPC was not required to produce a green card signed personally by the Respondent to obtain good service.

STEPHEN L. LEWIS, Bar No. 2003112, 36

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formerly of Izard County and now of Little Rock, had his Arkansas law license suspended

by Committee Findings & Order filed on February 23, 2010, for six (6) months in CPC 2009-118, on a complaint by Jeremy Smith for violations of Rules 1.1, 1.2(a), 1.3, 1.4(a)(3), 1.4(b), 8.1(b), 8.4(c), and 8.4(d).

He was also ordered to pay $5,600 restitution to Smith. Smith had a verbal agreement with Dockins that if Dockins damaged Smith’s motorcycle during a test drive in June 2003, Dockins would be financially responsible for the damages. Dockins wrecked the motorcycle, causing a total loss estimated by the investigating trooper at about $7,500, the price Smith had just paid for the motorcycle.

Smith’s first attorney sent the file to Lewis. In November 2004, Smith gave Lewis a check for $100.00 for “fees,” which Smith understood to be for the case filing fee. The check was cashed on January 5, 2005. For about two years thereafter, whenever Smith was able to contact Lewis, he was informed Lewis was working on the matter. Lewis never initiated contact with Smith. Thereafter, Smith was unable to contact Lewis. In the Spring of 2007, Smith contacted Lewis and was told Lewis was trying to get Smith a court date.

Lewis told Smith to be at the Izard County

Courthouse on April 11, 2007. Smith met Lewis and told him there would be no court that day. About six months later, Smith found Lewis’s office telephone was disconnected and Lewis was not to be found. Lewis did not respond to Smith’s letters. Smith contacted the clerks for the Izard County District Court and Circuit Court and was informed no lawsuit had ever been filed for him against Dockins over the damaged motorcycle. The statute of limitations had expired for Smith to file any suit in either District Court or Circuit Court on his loss. Having no collision insurance on the motorcycle, Smith was required to pay off the $7,500 loan. He did eventually sell the motorcycle for salvage for $2,000.

Lewis’s Arkansas law license was suspended by the Committee on May 14, 2007, in No. CPC 2006-159. Lewis has not applied for reinstatement. Smith filed a grievance against Lewis on October 18, 2007. From then until August 2009, OPC tried to locate and contact Lewis by letter and e-mail. Contact was made with a third person, and Lewis came to OPC on August 25, 2009. Smith has since confirmed the return of the papers and pictures he gave Lewis, but Smith has not received the promised refund of the $100 he paid Lewis in November 2004.

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RICKEY HICKS, Bar No. 89235, of Little Rock, had his license to practice law in Arkansas reinstated in CPC Docket No. 90394 Lawyer Ad:Layout 1 12/28/09 2010-019 on March 16, 2010, following

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Berryville, was Reprimanded by Committee Findings & Order filed March 5, 2010, after a public hearing in CPC 2009-041 on a referral from Carroll County Circuit Judge Kent Crow for violations of Rules 3.3(a) (1), 8.4(b), and 8.4(d). Ms. Baker had an argument at the Eighth Circuit Court of Appeals in St. Louis on January 15, 2008.

She had cases scheduled in Berryville District Court on January 16, 2008. On January 15, 2008, Ms. Baker called Judge Kent Crow, then the Berryville District Court Judge, and asked for a continuance as she was delayed in St. Louis. Judge Crow granted the request. On the morning of January 16, 2008, Ms. Baker was issued a traffic citation outside of Huntsville, Arkansas. Some of Ms. Baker’s clients were not advised of the continuance in their case and appeared in Berryville District Court on January 16, 2008. Judge Crow contacted the Eighth Circuit Court of Appeals to confirm whether Ms. Baker was, in fact, in St. Louis the day before.

The Eighth Circuit Court of Appeals Clerk confirmed that Ms. Baker’s case was the first case called at 9:00 a.m. and Ms. Baker was finished with arguments before the court by 10:00 a.m. Judge Crow issued a Show Cause Order to Ms. Baker directing her to answer why she should not be held in contempt based on her statements to his Court. At a hearing on the contempt matter, Ms. Baker entered a guilty plea to a reduced charge of criminal contempt.

Ms. Baker offered that she was asked by an Eighth Circuit Court official to remain in St. Louis following her argument to that Court. It was later discovered that the court official had mistaken Ms. Baker for another person and, following the clarification, she was allowed to proceed back to her home in Arkansas. Ms. Baker stated that she had another matter scheduled in Washington County Circuit Court on January 16 and was en route to Fayetteville when she was stopped and issued the traffic citation.

RICKEY H. HICKS, Bar No. 89235, of Little Rock, was Reprimanded by Committee Findings & Order filed January 12, 2010, in CPC 2009-101 on a complaint

by Pernella Brandon for violations of Rules 1.3 and 8.4(d). Ms. Brandon and her siblings hired Mr. Hicks to review a matter

Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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Attorney Disciplinary Actions and file a lawsuit against medical providers whom they believed caused their mother’s death. Mr. Hicks filed a probate matter and then did not take diligent action to pursue the medical malpractice claim on behalf of the siblings. All action set out in the file and verified by Mr. Hicks’ file demonstrate delay and lack of diligence. Mr. Hicks did not request medical records for six months after he had the signed Authorization. He did not seek an expert opinion for months.

When he did receive the medical opinion, the statute of limitation was about to expire.

Mr. Hicks did not inform his clients he was not going to file a lawsuit until the day before the statute was to expire. Mr. Hicks took no action to try to settle the matter even though he advised Ms. Brandon and her siblings that he was doing so.

F. DAVID REES, Bar No. 79238, of Jonesboro, was Reprimanded by Committee Consent Findings & Order filed March 19, 2010, in CPC 2009-077, on a complaint

by Jerry and Donnie James for violations of Rules 1.2(a), 1.5(a), and 1.16(d), and also ordered to pay $35,000 restitution to Jerry James within ninety days. Donnie James of Jonesboro was sentenced to fifty (50) years in

state prison in August 1998 from Craighead Circuit Court on his pleas to multiple serious felonies (including two aggravated robberies). Donnie’s parole eligibility date is August 5, 2033. In late March 2004, his father, Jerry James, hired David Rees and paid him a $50,000 fee in full that date to represent Donnie in an application for executive clemency, a pardon from the Governor, or a time-cut in his sentence.

Jerry James received assertions from David Rees that led him to believe Rees’ reputation as an attorney and his personal connections with state officials could advance Donnie’s cause and lead to a successful outcome.

Rees turned the matter over to attorney Ryan, first licensed in April 2003 and a new associate at the Rees firm. At the time neither Rees or Ryan had ever handled an executive clemency matter for an inmate. Ryan did most of what work was done for Donnie until she left the firm in April 2005. Ms. Ryan learned early on that Donnie had to serve a minimum of seven (7) years time before he could apply for clemency. She calculated he would not be eligible to apply until about February 2005. Ryan visited Donnie twice at the Brickeys Unit near Marianna - in May and late December 2004, the only firm

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member who ever met with Donnie. In early 2005, on Donnie’s behalf, Ryan employed an investigator for assistance in an effort to get Donnie transferred to a unit closer to Jonesboro. The effort was not successful.

After Ryan left, Mr. Rees assumed responsibility for the file. Available documentation indicates he did little work on the matter, and usually then only in response to demands or complaints from Jerry or Donnie James that nothing was being done.

By mid-April 2006, Donnie and his father had obtained from friends and relatives all of the letters of support for Donnie that Rees would eventually include in the Executive Clemency Application. After Donnie wrote Rees a strong letter in mid-September 2006, Rees had firm member Jason Lewallen get the packet pulled together and put in final form for submission, and sent Donnie the final Application packet to sign. Lewallen charged Rees $400 for his work on the matter. The packet was filed by Rees on October 10, 2006. Without providing a hearing for Donnie and his attorney, in February 2007 the Post Prison Transfer Board voted 5-0 against favorably recommending Donnie’s case to the Governor. In January 2008, Governor Beebe wrote Donnie denying his application. Donnie did not hear from Rees regarding executive clemency after the Application was filed in October 2006.

In 2008, Jerry James, through new counsel, made demand on Rees for return of the unearned portion of the $50,000 fee he paid.

No accounting for the use of the $50,000.00 or any refund has been made. Affidavits of six Arkansas attorneys who all have had executive clemency experience representing Arkansas inmates stated that $50,000 was clearly an excessive and unreasonable legal fee for a matter like this under any similar fact scenario. As part of this fee, Rees claimed he did extra work on other matters for Jerry James.

THOMAS L. TRAVIS, Bar No. 95029, of Little Rock, was Reprimanded in CPC 2009-009, following public hearing, on a complaint by Martha and Jose Islas, for violations of Rules 1.5(a) and 1.16(d), and ordered to make $1,000 restitution to the Islases. Jose Islas was a beneficiary of an alien employment certification proceeding which Mr. Travis filed for Mr. Islas’ then employer.

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Attorney Disciplinary Actions Several years later, Mr. Islas filed for an adjustment in status. When he did so, he and his new counsel, Barry Frager of Memphis, were advised that the USCIS would need a copy of the originating form filed in order to determine the qualifying date for Mr. Islas. Mr. Travis had that document in the file maintained at the time of representation of Mr. Islas and his former employer. Mr. Travis did not return the telephone calls of Mr. Islas’ new counsel nor did he provide the document as requested, contrary to Mr. Travis’ previous testimony in another case about how he does so when asked for specific documents. Mr. Islas’ request for adjustment in status was initially denied. He was given a short period of time to request that denial be reviewed and to provide the documentation.

Mr. Travis was aware of the time sensitive nature of immigration proceedings, as this is his primary practice area. Instead of providing the document as requested and as the Rule of Professional Conduct contemplates, Mr. Travis charged Mr. Islas $1000 to provide the document. Mr. Travis blamed Mr. Frager for the situation in which Mr. Islas found himself. Mr. Travis also

40

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stated that it was because Mr. Islas and his wife asked for the original document and not a copy. He stated that the $1,000 charge was for all the time spent looking for the original document.

CAUTION: MILDRED H. HANSEN, Bar No. 87071, of Little Rock, Arkansas was cautioned, following a public hearing, by Committee Findings and Order filed January 28, 2010, in CPC 2009-070, on a complaint filed by Chad Fason, for violations of Rules 4.4(a) and 8.4(d). Ms. Hansen represented Mr. Fason’s ex-wife in a visitation and child support dispute. On May 19, 2008, Fason along with his attorney, Mildred Wineland, and Hansen along with her client, Fason’s exwife, were before Judge Alice Gray in Pulaski County Circuit Court for a full day hearing on the matter. Hansen and Wineland were on the record informing the Court which issues they had settled, when Hansen leaned over to speak with Wineland regarding Tuesday night visitations. At this point the parties requested to go off the record. When

informed by Wineland that the Tuesday night visitation would no longer be kept for summer visitation, Hansen then asked Fason directly whether he wanted to keep Tuesday night visitations. When Fason replied, “no,” Hansen then whispered to Fason, “I’ll see you go back to federal prison.” Ms. Wineland advised the Court that Hansen had just threatened her client. When asked about the exchange by the judge, Hansen basically admitted she had made the statement to Fason.

MAX M. HORNER, JR, Bar No. 2001067, of Jacksonville, Arkansas, was cautioned

by Committee Findings and Order filed February 23, 2010, in CPC 2009-085, on a complaint filed by Florida Attorneys Harold Patricoff and Sandra Upegui, for violations of Rules 3.4(c) and 8.4(d). Horner acted as counsel for KLM Petroleum, Inc. (KLM), which had its principal place of business in Arkansas. KLM purchased large quantities of aviation fuel from World Fuel, a Texas corporation with its principal office in Miami, Florida, and failed to pay for the fuel. World Fuel obtained a judgment in

Attorney Disciplinary Actions Federal Court against KLM in the amount of $348,247.63.

On August 23, 2007, Max Horner faxed a letter to Patricoff offering to settle World Fuel’s claim in exchange for World Fuel’s dismissal of the lawsuit. World Fuel accepted the offer. The first lawsuit was to be dismissed without prejudice when Horner provided to Patricoff confirmation that Horner had in his trust account $355,186.35 plus $2,000.00 in attorney’s fees and that the funds would be deposited in Patricoff’s firm trust account.

Not receiving the money as agreed, World Fuel filed a second lawsuit on September 7, 2007, in federal court in Miami, naming KLM, Tri-State Petroleum, Inc., and Max M. Horner, Jr., as defendants. Horner was served with the Complaint and received an extension of time to file his response. On November 13, 2007, the parties entered into a Settlement Stipulation, whereby proceedings against Horner would be stayed pending payment by KLM as set forth in the agreement. If KLM defaulted, the suit would be reinstated against all defendants.

KLM failed to make payments as agreed

and World Fuel had the suit be reinstated on January 24, 2008. On March 4, 2008, default judgments were granted against defendants KLM and Tri-State Petroleum.

World Fuel filed a Motion for Sanctions and Motion to Compel against Horner, who filed a Motion for Continuance. The Court had already granted the motions, and denied as moot Mr. Horner’s motion. The Court granted the Motion for Sanctions against Horner for failure to comply with its October 7, 2008, Order, stating that “Horner, an attorney, knew or should have known of his discovery obligations and the necessity of complying with court dates. Such disregard

by Horner clearly indicates to this Court that his conduct exemplifies one of willfully disregarding court orders and litigation obligations.” On November 25, 2008, the court entered a final judgment after default against Horner for $341,826.23.

CHARLES DWAIN OLIVER, Bar No. 2001009, of Hampton, Arkansas, was cautioned in CPC 2009-098 by Committee Findings & Order filed January 8, 2010, on a complaint by attorney Tracey Rothermel

for violations of Rules 1.7(a) and 8.4(d). Ms. Rothermel is a Deputy Prosecuting Attorney for the 13th Judicial District in Arkansas.

Mr. Oliver is the City Attorney for the City of Hampton in the same judicial district. Mr. Oliver prosecutes misdemeanor violations of State law for the State of Arkansas in his duties as City Attorney. During his time as City Attorney, Oliver has represented at least one criminal defendant in Circuit Court against the State of Arkansas in the 13th District. This is a conflict that appears to not be able to be waived. Motions were filed and a hearing conducted based on Mr. Oliver’s representation of the criminal defendant in circuit court while still acting as City Attorney, with the circuit judge denying the state’s motion to disqualify Mr. Oliver, holding the defendant had waived the conflict. Neither side appealed the circuit court. Here, Mr. Oliver did not request a public hearing and accepted the result of the Committee’s ballot vote.

JOHN I. PURTLE, Bar No. 50075, of Conway, Arkansas, was cautioned in CPC 2009-068 by Committee Findings & Order

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Attorney Disciplinary Actions filed January 8, 2010, on a referral from Circuit Judge Phillip Whiteaker of Lonoke County, for violations of Rules 3.1 and 8.2.

Mr. Purtle represented the plaintiff in a foreclosure matter, where the defendant filed an ex parte, pro se Petition for Temporary Restraining Order to stop the sale. The Circuit Court granted the request until a hearing could be scheduled. A hearing was held but no notice had been served upon Mr. Purtle or his client. The Court dismissed the case. Mr. Purtle filed a Motion for Reconsideration and a document entitled “Supplemental Update,” stating that the “court’s sua sponte initiated entwinement with Mr. Jackson (i.e., which fully explains the subsequent cover-up by this court of its inexcusable shocking illegal conduct in this case), is fully set forth in said “Request for Transcription of All Ex Parte Proceedings.” In the Request, Mr. Purtle again made statements alleging a cover-up between the opposing party and the Court. Mr. Purtle then requested that the Court provide him with the date and time of all ex parte communications the Court had with defendant Jackson, including times the Court, among other things, prayed, sang, initiated prayer, and initiated singing with Mr. Jackson and all ex parte communications the Court had about the lawsuit to specified individuals. Mr. Purtle filed a notice of appeal and stated in the notice that the transcript “revealed that this court sua sponte aided and abetted Mr. Jackson’s fraud as well as revealing the existence of more unreported ex parte communications by Mr. Jackson with this court.” According to Mr. Purtle, the transcript showed the court’s ex parte discussions. In a letter to the Court, Mr. Purtle made some allegations including: “At no time in my long career...have I seen such a collapse of the legal system as has happened in this case that was conducted entirely ex parte. ...[E]very safeguard, designed over hundreds of years to prevent what should never happened, was violated without any thought as to the consequences.”

F. MATTISON THOMAS, III, Bar No. 2002007, of El Dorado, was Cautioned by Committee Findings & Order filed February 22, 2010, in CPC 2009-124, on a complaint

by Martha Wilson for violation of Rules 1.1, 1.2(a) and 8.4(d). Mr. Thomas represented Mrs. Wilson in a lawsuit against a medical 42

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supply company. The lawsuit was originally filed for Mrs. Wilson and her husband. Mrs. Wilson’s husband died during the pendency of the lawsuit. A day before Mr. Thomas filed a Motion to Voluntarily Dismiss the lawsuit, Mrs. Wilson was named Personal Representative of the Estate of her late husband. Mr. Thomas did not designate the proper new plaintiff party after the Personal Representative was

appointed but before he dismissed the lawsuit.

When the lawsuit was re-filed, Mrs. Wilson was the plaintiff. The defendants moved to dismiss because of the incorrect party plaintiff.

The motion was granted, and the trial court was affirmed on appeal. Mr. Thomas’ error caused Mrs. Wilson to not be able to present her claims in court. n

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if each receives feedback from the other.

This can take the form of an annual meeting between the parties that is preceded by a written evaluation. An evaluation should be made of the firm as a whole and each member of the client’s team. The evaluation should cover topics such as quality of service, advocacy and negotiation skills, ease of working relationship, communication, partnering skills, processing abilities, billing practices, and expertise in a particular subject matter.

If the client doesn’t already have an evaluation form, the firm should develop one for its corporate clients. Once the evaluation is received, a meeting should be set up with the in-house attorney to go over the evaluation as well as discuss corrective actions, if necessary, legal strategies, and future business. Adjustments to the client’s team can be made, when needed. This is also a good time for outside counsel to provide feedback to the in-house attorney. This could be a perilous task for outside counsel to approach, but any in-house attorney worth his or her salt will be open to such feedback. Any meeting should be followed up with a written summary of any corrective actions, changes to the client’s team, and any billing or hourly rate agreements. Of course, the firm should not charge for its time to review the evaluation and meet with the client. If you have difficulty with this concept, go back to step #1.

Step #5 – Remember that excess is the root of all evil.

As in-house counsel, I simply hate reviewing outside counsel invoices. It’s not that I don’t like to pay my outside counsel for their services – it’s because I usually get incensed at incomplete information, innocuous entries, excessive inter-office conferences, or too many attorneys on the file. I believe half the problem lies with the billing partner’s failure to adequately review and sanitize the legal invoice. If the billing attorney would carefully review each invoice in light of the purpose for the retention and make the necessary changes to reflect a reasonable and efficient response to the retention, I believe he or she would be well on their way to rehabilitation. Let the rule of reason control in light of the goals of the original project. If I ask for your legal opinion on a matter, I do not need a $5,000 bill due to a legal treatise you and your associates developed in response to my question,

unless I asked for such a legal treatise.

To help you avoid the common pitfalls associated with legal invoices, I came up with a few helpful suggestions with regard to billing: 1. Each task performed should include a description of the task, the billing attorney, the corresponding billing rate, the time spent, and the subtotal.

2. Keep the number of attorneys on the

file to a minimum.

3. Scrutinize all inter-office conference entries. Even though it may sometimes be necessary for a partner to instruct the associate, the combined time should be discounted.

My favorite item to cut is the interoffice conference.

4. Put a lot of detail into the description of the task. It helps explain the scope of

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Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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the task. “Teleconference with client” is not enough. Also, break out all multiple tasks.

5. Provide a billing recap at the end of the bill which details how much time by each attorney and paralegal was expended for the billing period. This helps with Step #3.

6. Add all time spent on lengthy research and drafting projects to determine the total length of time spent. Each entry may look innocuous, but combined may be excessive in light of the scope of the project.

7. Bill monthly.

8. Ask yourself, “Does this invoice pass the smell test?”

Step #6 – Improve your conscious contact with your inside source.

The key to the relationship between the in-house attorney and the outside attorney is communication. An outside attorney who keeps his in-house attorney updated on all pending matters, without being prompted, will always be held in good favor because (i) in-house attorneys do not like surprises, and (ii) due to the large number of cases an in-house attorney may monitor, it is difficult for them to be up to date on each file without such an update.

Step #7 – Thou shalt not blow a budget.

As I stated in Step #3, budgets are the best way to establish a clear expectation on fees for a particular matter. Also, budgets force a firm to think about the management of a particular case or project. Once the budget has been established, it is incumbent upon outside counsel to monitor monthly billings against the budget and inform in-house counsel if there is any danger of the budget being exceeded. If this happens, in-house attorneys are usually agreeable to amending the budget so long as the circumstances point to changed circumstances or strategy versus an inadequate budget. In either case, outside counsel should broach the subject before the budget is exceeded so collectively both attorneys can determine how to deal with the problem. Believe me, most inhouse counsel hate to write down time. So, your key to rehabilitation is to act sooner, rather than later.

Step #8 – Always be mindful that the road to rehabilitation is ever changing.

I like getting updates from my outside counsel outlining recent changes in the law and I believe every firm should do this for their corporate clients. However, I don’t like getting blast e-mails that may or may not 44

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pertain to my business. Therefore, if outside counsel understands his or her client’s business, they should tailor their communications to fit their client’s business. This really adds a nice touch and lets the in-house attorney know that the outside counsel is thinking about his client’s business.

Step #9 – Be realistic about your shortcomings and confess them openly.

To be fully rehabilitated, outside counsel must learn to have full and frank discussions with their corporate clients about the merits of a particular case or project, even if the corporate client may not want to hear what outside counsel has to say. There is nothing worse than counsel saying, “I believe your argument has merit and there is a 50/50 chance that you will prevail.” I admire optimism, but I hate “fence straddling.” Do not be afraid of giving your client a realistic assessment of the case, whether it pertains to the merits of the case, the timing of your response, or the anticipated cost. You may get challenged on what you have to say, but you will get respect from the client for your honesty. After all, the only reason the client has come to you is because of your expertise in this particular area of the law and you can gain credibility by using your years of experience to predict the likely outcome. Nothing is certain in the law world, but clients would rather face probable reality than misguided optimism.

Step #10 – Always be willing to consider a change in your behavior.

If you are serious about your rehabilitation, you are willing to break away from the hourly rate syndrome, which was discussed in Step #1.

There has been much discussion about alternative fee arrangements and I could write another entire article about them. However, below are some of the more popular arrangements:

1. Flat Fees; 2. Hold-Backs (discounted fees, but a success fee on successful outcome); 3. Blended hourly rates; 4. A large firm coordinated with a small firm for commodity work; and 5. Outsourcing tasks such as discovery, including e-discovery work, to legal staffing firms.

Regardless of the methodology used, don’t be afraid to research these arrangements and surprise your corporate clients with a choice of fee arrangements. You will find that most in-house attorneys are willing to work with you to experiment with different methodologies, especially if you are working on a number of cases for them. At the end of the day, you may find that you prefer the nonhourly rate structure because it rewards you for your efficiency, your success and your management. In addition, because you have shown a willingness to help the in-house counsel manage his outside legal fee budget, you will be rewarded with more work.

Step #11 – Never bite the hand that feeds you.

I used to always ask my outside counsel, “What is your number one job?” Of course, they would almost always answer, “to provide our corporate clients with good legal representation.” However, the answer that I would have preferred was, “to make you (the in-house counsel) look good!” It may sound egotistical, but the secret ingredient to your rehabilitation is to do whatever you can to make the in-house counsel look good. You make them look good by following the steps outlined above. By doing this, you have taken the steps to understand your client’s business; you have put together a competent client team; you are constantly monitoring the business relationship by providing updates on law changes and pending cases;

you are poring over the legal invoices each month and minimizing overall legal costs; and most importantly, you are acting as an effective and efficient partner. If you do this, I promise you will be rehabilitated and will enjoy a lasting and rewarding relationship with each of your corporate clients.

Step #12 – Having had an awakening as the result of these steps; carry the message to all of the afflicted.

Like any other rehabilitation program, your eventual rehabilitation is not enough. Once you see the merits of what I have had to say, make sure you reform your ways with all of your clients. I also ask that you spread the word to the other attorneys in your firm. The end result is that your firm will be ahead of its time and may be at a competitive advantage when it comes to attracting corporate clients.

As a reward for your rehabilitation, I’ll let you in on a little secret. There is a revolution going on within the ranks of in-house counsel and we, as a collective whole, have declared war on excessively high hourly rates and inefficient law firms. However, don’t despair, you now know what to do!

Endnotes: 1. The purpose of this article is to poke a little fun at my outside counsel brethren.

It is not to make fun of legitimate 12-step programs that have helped millions beat their addictions.

2. “Piling on” is a term corporate counsel use to refer to too many attorneys on the case. I had a situation where seven different attorneys billed on a matter where I had requested a simple answer to a simple question. n

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Evolution continued from page 22

cost-savings that sophisticated native file review technologies can offer has made the approach an attractive one for projects of all sizes. Using these technologies, e-files can be reviewed in their native format. Paper is reviewed in digital image format, and the best systems provide an integrated interface that allows users to switch from paper to native and back, seamlessly. Most of the time, the native files are converted to digital image for production purposes, but that is considerably less expensive than converting everything up front. And in some cases, counsel elects to use a so-called “hybrid production” – one in which the majority of the native files are converted to TIFF or PDF, but some responsive native documents that exceed a specified (and agreed upon) page threshold, or are of a specified type (such as Excel® files) are produced in their native form.

In-house or Hosted Today there is little need to invest in an in-house review application. Reputable service providers now offer secure and easy access to native documents for review using

the Internet. Attorneys from multiple locations are able to review a common document population, and most platforms allow users to enter comments or notes in a database field which has been added for this purpose.

Reviewers can collaborate and share opinions about the documents without changing or “spoliation” of the originals in any way.

New Technology to Reduce Review Time Just a short time ago, reviewers were assigned groups of documents to examine, usually via lists of Bates numbers distributed in spreadsheets. They then navigated through the document collection in the order in which it was loaded, looking for the items in their assignments. Reviewers had limited ways to organize the files, such as sorting them by a date field or name field, or by searching for specific keywords and then navigating through the resulting search hit list. The process worked, but it was terribly inefficient – reviewers were burdened by a lot of extra administrative work, and the time required to complete the review was inevitably extended.

Many of today’s emerging technologies provide extensive feature sets designed to make the reviewer’s job faster, more efficient and ultimately less expensive.

Look for some of these features when shopping for a review application: •Quick recording of the reviewer’s decision: Early review applications required the reviewer to open the document record and type comments, summaries and issues directly into a field in the database. Today, casespecific issues, privilege designations, confidentiality, and responsiveness designations can be pre-configured for the review team, in either a drop-down list or as a tag that can be selected with a simple mouse click. The better applications will even provide usage rules that reduce reviewer errors by disallowing contradictory selections (for example, tagging a document as both responsive and not responsive).

•Near-duplicate detection: The identification and grouping of documents that are not exact duplicates, but are varying degrees of similar. Near-duplicates may include e-mails that were forwarded with added comments, different versions of documents, and documents that discuss similar topics or incorporate the same boiler-plate text. When similar documents are grouped together, reviewers can work faster and their responsive and privilege calls are more accurate.

•Email threading: Visually grouping of

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Vol. 45 No. 2/Spring 2010 The Arkansas Lawyer

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e-mails by threads or subject, regardless of the custodian. This technology displays a collection of related e-mails to the reviewer as a running conversation. The reviewer does not need to spend time trying to find related messages.

•Review Management Tools: Management tools should allow a review team manager to assign a document set to a reviewer or group of reviewers, and track and report on the review progress on an individual basis. The use of sophisticated management and reporting tools usually correlates to improved efficiency and accuracy.

•Conceptual Searching: Conceptual searching is still a bit pricy for the average case – although the price is dropping. For decades, the norm has been the keyword search. You had to know the word you wanted to search for, and the document’s author had to have used that particular word. Even if you used wild cards to pull in word variations (for example, fam, family and families) and fuzzy searches to catch misspelled words, you would still miss some of the documents if the author didn’t happen to use the word – if, for example, the author used “clan” instead of family. Concept searching uses a much more sophisticated, mathematical algorithm to identify documents that contain similar concepts, not just keywords.

Suppose that Jill sent an email to her friends in the office, suggesting a surprise birthday party for Bob. Everyone circulated emails discussing “Project Bob,” “Operation Cake” or some other disguised wording for the actual surprise party. The keyword search “Surprise Party” would find only Jill’s original email, but a concept search would be able to identify that the other emails were also related to Jill’s, and group them together for review.

Productions Paper Producing clean paper copies of original documents or paper blowbacks of digitally imaged originals is still the production method for the majority of cases that have minimal data. Newer copy machines use high-end digital imaging technology with higher quality results.

Digital Image Generally, scanned paper documents are produced as digital images – TIFF or PDF files. Protocols for digital image productions 48

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are well-established, and it has become common practice to provide load files and OCR text files along with the produced images.

This allows the recipient to load the production into their own review application.

Very often, e-files are also produced in TIFF or PDF format. The documents selected for production are converted through an imaging process, creating a digital image of the file.

Naturally, this technique is well-suited to collections in which there is a combination of paper and e-files. Parties may agree to provide certain metadata which was extracted from the e-files in a file format that can be loaded into a review tool and linked to the document images.

Native Documents The practice of producing copies of the original native files is becoming increasingly popular. However, many of the document identification and protection features that Bates numbered paper or digital images afford are just not available when the documents are produced in their native format.

Responding firms can use various techniques to address this shortcoming, such as using a document’s digital signature and metadata to verify that the produced files have not been changed.

Another emerging process is to load the production into a hosted review platform, usually the same platform used to review the documents prior to production. The service provider then provides the production recipient with full access to the native version of the file and agreed-upon metadata fields. Hosting services can completely segregate the review and production sets to

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protect each parties’ work product, as well as to protect the native files and metadata. In many cases, this approach can reduce both parties’ costs.

Endnotes: 1. For detailed information on the EDRM and each of its stages, please refer to the organization’s Web site at www.edrm.net.

2. Altep, Inc.’s Discovery Production Life Cycle Diagram. n

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In Memoriam Peter Thomas Dole Peter Thomas Dole of Paris died March 15, 2010, at the age of 65. He received his Bachelor’s Degree in history from Dartmouth College. Upon graduating, he enlisted in the U.S. Army, denying his college education in order to serve in infantry Special Forces, according to an obituary that appeared in the Arkansas Democrat-Gazette.

He served in Vietnam as a radio operator and paratrooper in the 101st Airborne Division “Screaming Eagles,” later earning two Bronze Stars for his service in the Green Berets. At the completion of his military service, he earned his Juris Doctor from Vanderbilt University in Nashville, Tenn.

After working two years for the Securities and Exchange Commission, he returned to Paris in 1975 and was elected to a term as Edgar County State’s Attorney. In 1980, he entered into partnership with his late father in Dole & Dole, Attorneys at Law. Mr. Dole also maintained a Fayetteville, Arkansas law office where he conducted an estate planning practice for several years.

He was the owner of Dole Law Offices of Paris, Illinois, and Fayetteville, Arkansas.

He was a member of the Arkansas Bar Association. Mr. Dole was a member of the Presbyterian Church of Paris where he served on the church board and as a deacon. He was the current City of Chrisman Attorney. He was a longtime member, board member, past president, and devoted supporter of the Paris YMCA. An Eagle Scout, he also remained active in scouting throughout his life. He is survived by his wife Becky McCarty; daughters, Dr. Polly Dole and Anna Dole; step daughter, Ashley Hudson; and three grandchildren.

Jacqueline Johnston Cravens Jacqueline Johnston Cravens of Roger died March 12, 2010, at the age of 44. She was a graduate of Southside High School, the University of Arkansas, and the University of Arkansas School of Law. She was a law clerk for Arkansas Supreme Court Justices Tom 50

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Glaze and Steele Hays and for U.S. District Court Judge Jimm Larry Hendrendon, according to an obituary that appeared in the Arkansas Democrat-Gazette. She continued her career with the Pryor Law Firm in Fort Smith and worked the past seven years as general counsel for Wal-Mart corporate offices in Bentonville. She was a member of the Arkansas Bar Association where she served as secretary/treasurer of the Young Lawyers Section. She served on numerous committees, including the Editorial Advisory Board, Find a Lawyer, Women in the Profession, Membership Development, Professional Ethics, Lawyer Advertising and Indigent Representation Committees.

She is survived by her husband, Sparks S. Cravens; children Caroline and Duncan Cravens; and her parents, Clyde and Sally Johnston.

James Douglas “Jim” Johnson James Douglas “Jim” Johnson of Conway died February 13, 2010, at the age of 85.

He graduated from Crossett High School and attended Cumberland University in Lebanon, TN. He enlisted in the U.S. Marine Corps where he attained the rank of corporal and served in the Pacific Theatre.

Following World War II, he completed his law degree at Cumberland University and returned to Crossett to practice law. At the age of 26, he was elected senator, becoming the youngest state senator in Arkansas history according to an obituary that appeared in the Arkansas Democrat-Gazette. He ran for governor in 1956 and 1966. In 1958 he was elected as an Associate Justice on the Arkansas Supreme Court where he served an eight-year term. He ran for the U.S. Senate in 1968. In 1984 he was the Republican nominee for Chief Justice of the Arkansas Supreme Court. He was a member of the Arkansas Bar Association.

He is survived by wife of 59 years, Virginia; sons, Mark, John David and Joseph Daniel Johnson; and eight grandchildren.

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Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period January 1, 2010 through March 31, 2010: In Memory of Hunter Bell Designated to the Ernest G. Lawrence, Jr. Scholarship Fund Judge James G. Mixon

In Memory of Nancy Shores McIlroy Designated to the Ernest G. Lawrence, Jr. Scholarship Fund Judge James G. Mixon

In Memory of Bill Blevens Byron A. Adams

In Memory of Toney D. McMillan James A. McLarty, III

In Memory of E. Charles Eichenbaum Designated to the E. Charles Eichenbaum Scholarship Fund Peggy E. and L. R. Jalenak, Jr.

In Memory of Gene Raff Philip S. Anderson In Memory of Isaac A. “Ike” Scott, Jr. James A. McLarty, III

In Memory of Judith Ryan Gray Designated to the Judith Ryan Gray Annual Meeting Endowment Richard F. Hatfield

In Memory of Judge Robert Hays Williams Justice and Mrs. Robert H. Dudley In Memory of Libby Polk Wolf Designated to the Ernest G. Lawrence, Jr. Scholarship Fund Judge James G. Mixon

In Memory of Paul W. “Pete” Hoover James F. Dowden, PA Justice and Mrs. Robert H. Dudley In Memory of Joseph K. “Jodie” Mahony II Designated to the Ernest G. Lawrence, Jr. Scholarship Fund Justice and Mrs. Robert H. Dudley Judge James G. Mixon

Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives.

Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s work in making scholarship funds available for law students, aiding in education of the public about legal matters, supporting projects that assist in improving and facilitating the administration of justice and funding other law-related charitable efforts.

Contributions may be sent directly to the Arkansas Bar Foundation. The staff appreciates having the name of the family member to whom acknowledgments should be sent. Please feel free to call the Arkansas Bar Foundation at 501.375.4606 or 800.609.5668 for further information.

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