A publication of the
Arkansas Bar Association
Vol. 48, No. 2,Spring 2013 online at www.arkbar.com
Meet us in Hot Springs June 12-15, 2013 for the 115th Annual Meeting
Inside: Freedom of Information Act Unauthorized Practice of Law
Don’t Miss ArkBar’s Largest Social Event of the Year!
115th Annual Meeting Wednesday The Presidents’ Reception
Hall of Justice
Opens Wednesday 7:00 a.m. to 4:30 p.m.
7:00 - 8:00 p.m. Grand Lobby Hot Springs Convention Center
Registration Desk, exhibitors, Breakfast, breaks, lunch
5K Legal Runaround
Thursday afternoon reception Join us for the traditional Friday Firm reception in the Arlington Hotel Lobby
4:30 - 6:00 p.m. Thursday
Thursday 8:00 p.m. Arlington Hotel Lobby
front of Arlington Hotel
TGIF friday afternoon reception
Friday 4:30 - 6:00 p.m. Arlington Hotel Lobby Tim Meitzen and Will Bush Join the Young lawyers section in the arlington hotel lobby Friday 8:00 p.m. - midnight
STEP RIGHT UP to the
GRAB A PROP
& SMILE FOR THE
Friday 8:00 - midnight
arlington hotel lobby
PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Mary Beth Matthews, Chair Judge Wiley A. Branton, Jr. Keith L. Chrestman Brandon J. Harrison Anton Leo Janik, Jr. Jim L. Julian Philip E. Kaplan Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Charles L. Harwell Board of Governors Chair David R. Matthews President-Elect Jim Simpson Immediate Past President Tom D. Womack Secretary F. Thomas Curry Treasurer William A. Martin Assistant Treasurer Shaneen K. Sloan Parliamentarian Marie-Bernarde Miller Young Lawyers Section Chair Vicki S. Vasser President-Elect Designee Brian H. Ratcliff BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chaddick, Jr. Richard C. Downing Frances S. Fendler Amy Freedman Buck C. Gibson Amy C. Grimes Denise R. Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Troy A. Price John C. Riedel Brian M. Rosenthal Brock Showalter Jay Shue, Jr. Shaneen K. Sloan Danyelle J. Walker Dennis Zolper
LIAISON MEMBERS Thomas A. Daily Harry Truman Moore Judge Robert Edwards Jack A. McNulty Karen K. Hutchins Judge Mark A. Pate Paul W. Keith Richard L. Ramsay The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, firstname.lastname@example.org. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2013, Arkansas Bar Association. All rights reserved.
Lawyer Vol. 48, No. 2
14 Recent Developments Under the Public Records Provisions of the Arkansas Freedom of Information Act Clayborne S. Stone and Alex T. Gray 20 Practice Tip: Administrative Law Tips and Tricks Michael B. Heister 22 State Employees Learn the Hard Way About FOIA Requests; Just Ask ex-Arkansas Razorback Coach Bobby Petrino Deric Yoakley and Collin Kennedy 26 Book Review: Reading Law: The Interpretation of Legal Texts Judge Brandon J. Harrison and Eric Moore 30 An Overview of the Unauthorized Practice of Law in Arkansas J. Chad Owens Contents Continued on Page 2
Your Name in Print The Arkansas
A publication of the
Arkansas Bar Association
Inside: ArkBar Judges & Lawyer Legislators Trial by Jury Generations of Attorneys
Vol. 48, No. 1,Winter 2013 online at www.arkbar.com
For information on submitting articles for publication, go to www.arkbar.com Publications/AR_Lawyer_magazine.aspx or email email@example.com
Lawyer The Arkansas
in this issue Association News
Lawyer Community Legacy Awards Member Spotlight–Chef Attorneys
Vol. 48, No. 2
Young Lawyers Section Report
House of Delegates and Board of Governors Report
2012-2013 Association Patron and Benefactor Members
Judicial Disciplinary Actions
Charles L. Harwell
Arkansas Bar Foundation Memorials and Honorarium
ArkBar Spring 2013 CLE Catalog January - June 2013 Continuing Legal Education Seminars & Webinars
Attorney Disciplinary Actions
Vicki S. Vasser
in the next issue of The Arkansas Lawyer & the Fall CLE Catalog
Arkansas Bar Association
2224 Cottondale Lane Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew Curry, Leon Jones, Kristin Pawlik, William J. Trentham Delegate District A-2: Chad L. Atwell, Stan B. Baker, Suzanne Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Matthew L. Fryar, Tina M. Hodne, Joshua D. McFadden, Curtis L. Nebben, W. Marshall Prettyman, Jr. Delegate District A-3: Aubrey Barr, C. Michael Daily, Shannon Foster, Lisa-Marie France Norris, Colby Roe Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Michael E. Kelly Delegate District B: John T. Adams, Amber Wilson Bagley, James Paul Beachboard, Eric Scott Bell, M. Stephen Bingham, Phillip M. Brick, Jr., Franki Coulter, Grant M. Cox, Jason Earley, Khayyam Eddings, Stephen R. Giles, Christian Harris, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Justin Hinton, Matthew House, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, Cliff McKinney II, Whitney F. Moore, Chad Pekron, Gwendolyn L. Rucker, Shaneen K. Sloan, Aaron L. Squyres, Adam Wells, Thomas G. Williams, Dan C. Young, Kimberly Young Delegate District C-1: Roger Colbert Delegate District C-2: Michelle Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, G. S. Brant Perkins Delegate District C-4: Jobi Teague Delegate District C-5: Albert J. Thomas III, A. Jan Thomas, Jr., William “Zac” White Delegate District C-6: Charles E. Clawson III, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Paul T. Bennett, Jackie B. Harris, Jessica Yarbrough Delegate District C-9: John R. Byrd, Jr., Timothy R. Leonard, Leslie Jo Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: J. Joshua Drake, Wade T. Naramore Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson Law Student Representatives: John Crabtree, University of Arkansas School of Law; Matt Pedicini, UALR William H. Bowen School of Law
The Arkansas Lawyer
45 HOURS OF CLE INCLUDING 10 HOURS OF ETHICS AND CNA
The Annual HOT SPRINGS CONVENTION CENTER
ARKBAR’S LARGEST LEGAL SOCIAL EVENT OF THE YEAR
The place to be!
The ArkBar’s Largest Annual Event 2013 Arkansas Bar Association Annual Meeting Registration Form
For law student and CNA registration, go to www.arkbar.com Step 1 — Registrant Information
Final Step — Payment
Supreme Court ID: ____________________Name: __________________________________ Address: ______________________________City: ___________State: ______Zip:__________
Total Amount Due (add totals from steps 2-3)
Phone: (______) ____________________ E-Mail: _____________________________________
VISA/MC AMEX CHECK Make check payable to Arkansas Bar Association
Badge Name (First Name Only) ______________________Ribbons will be available at registration.
Card No.: _____________________________
Step 2 —Meeting Registration
Exp. Date: ____________________________
Registrations received on or before June 4th Registrations not received by June 4th must register at the door for $385.
3 Easy Ways to Register
* Eligible non-Members may join and save up to $300 on registration. Renew your membership to qualify for discounted rates. Registrations not received by June 4th must register at the door.
The above registrations include all CLE Programs, Electronic Course Materials, Receptions, Hospitality Area, Exhibit Hall, Entertainment, Continental Breakfasts, Breaks, & Lunch. Lunch tickets provided for each registrant & will be collected at the door.
Step 2 Total ____________ Step 3 — Guest Registration & Additional Lunch Tickets Guest Registration Extra Lunch Ticket
attorneys cannot attend as guests and must register using the regular __________ @ $30 each meeting registration above.
$75 each Licensed
Step 3 Total ____________ Lunch tickets are provided for each registrant. There is no children’s program this year. If you would like your children to attend lunch, we recommend registering them as a guest. Each registrant receives one ticket per day (Wednesday - Friday) for lunch. Additional tickets can be purchased with registration or at the door.
Online: www.arkbar.com/pages/ AnnualMeeting.aspx Fax: 501-881-4251 Mail: Arkansas Bar Association 2224 Cottondale Lane, LR, AR 72202 Registrations cannot be accepted by e-mail
Cancellations: Full refunds, less a $50 administrative charge, will be given to registrants whose cancellation is received at least two weeks before the program begins. Refunds will not be issued for cancellations received after two weeks prior to program start. If you do not cancel and do not attend, you will receive the electronic course materials only upon request. Payment Information: Acceptable forms of payment include cash, money orders, checks and credit cards. Cash: Do not mail cash. Cash may be used only for in-person submittals. Checks: Please note that we will not accept checks that do not have an imprinted or preprinted name or address of the account holder on the check. For example, we will not accept temporary checks, such as those from a new account. Credit Cards: May be used for in-person, online or faxed transactions. We accept Discover, Visa, Mastercard, and American Express. Insufficient Funds: Any check that is returned to us due to Insufficient Funds will be charged a $40 processing Fee. We reserve the right to reject any check due to previous bad checks.
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
BUILDING ON 50 YEARS OF SERVICE TO THE LEGAL COMMUNITY.
The ABA RETIREMENT FUNDS PROGRAM is proud to celebrate its 50th year of providing comprehensive and affordable retirement plans exclusively to the legal community. Your membership has made the Program a success. Thank You. Find out what thousands of Program member firms already know about saving for retirement. Call an ABA Retirement Funds Program Regional Representative today! (866) 812-1510 I www.abaretirement.com I firstname.lastname@example.org
Please visit the ABA Retirement Funds Booth at the upcoming Arkansas Bar Association Annual Convention for a free cost comparison and plan evaluation. June 12-15, 2013 â€˘ Hot Springs, AR The Program is available through the Arkansas Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one anotherâ€™s products and services. 4 The Arkansas Lawyer www.arkbar.com CN0311-8581-0415
by Charles L. Harwell
Arkansas Dreamin’ I have been living my dream. Not sure when I first wanted to be a lawyer, but I was certain by the time I got to junior high. Moving to Arkansas in 1979 to attend law school in Fayetteville, at the invitation of my long time friend, David Matthews, was the first step in realizing that dream. The next step was landing a clerking job at the firm where I have practiced law ever since, again with the intervention of David, who told Jimmy Roy that he should hire me. That was 32 years ago. The practice of law has been rewarding to me. I look back and feel not only pride, but tremendous satisfaction in the work we have done. Yet, I also look forward to the opportunities that lie ahead. I recognize that there is a high degree of dissatisfaction among lawyers, but that has not been my experience. Yes, I am still living my dream. I am not sure when I decided that I wanted to be President of this great Association, but that too became my dream. What a great honor and fulfilling experience it has been to serve you this past year. I am inspired by the vast number of volunteers, each doing their part to make our profession and association better. All of you who answered my call, the call to serve, I am personally indebted to you. I cannot mention everybody individually, but allow me the personal privilege of thanking some who filled vital roles. First, I acknowledge my family, all of whom energize and sustain me and bring wholeness to my being. I could not have lived my dream with out the support of my wife, Linda, who has been the love of my life for over 40 years. Next, I have to express my gratitude to all the members of my firm for their encouragement and sacrifices in these past several years as I realized this dream. My personal thanks to all the officers, each of whom has served with distinction. I thoroughly enjoyed our Board of Governors. They are an extraordinary collection of talented and dedicated people. I chose my esteemed friend, David Matthews, to chair the Board and he did a masterful job. Let me commend each mem-
ber of the House of Delegates for your service. You represent the future of our Association. As we look back on this Bar year, we note many accomplishments. Our Editorial Board for Handbooks, ably chaired by Brian Rosenthal, has brought back to life three newly revised handbooks: Debtor-Creditor, Workers’ Compensation, and Elder Law. Also our Title Standards and Statute of Limitations publications have been updated. Thanks to all the volunteers for their many hours of work on these valuable tools for our members. One way you can express your appreciation is to buy your copy today. Look on line at www.arkbar.com to purchase those. It was another extremely successful year for Mock Trial. That hard-working committee, led this year by Johnathan Horton, puts on a tremendous competition every year for the high school students around our state. If you have never participated as a coach or volunteer, I encourage you to do so as you will find it richly rewarding to see the impressive performances by the high school teams. I, along with U.S. District Judge Kristine Baker and Pulaski County Circuit Judge Mary McGowan, had the pleasure of judging the finals held March 9, where the excellent team from Little Rock Central edged out a tremendous team from Parkview [Little Rock]. Providing continuing legal education is a key emphasis of your Association. My personal thanks to the many volunteers and our staff who helped us put on dozens of programs all across this great state. We rolled out a catalog to display all our CLE offerings in one publication each season. The idea was to give you a single resource rather than a barrage of mailings. Tell us if you like this system and what other programs you would like to see. The CLE Committee, well led by Paul Keith, also worked hard to meet the stiff competition of a seemingly endless number of providers of CLE cropping up from every nook and cranny. Great work was accomplished by the Lawyers Assisting Military Personnel (LAMP)
Committee led by Steve Zega, Having done two tours in Iraq in the Army, Steve is uniquely poised to direct our upcoming campaign to aid our military heroes. Stand by to get your next tour of duty in volunteerism as we roll out a new program this next year to lend our collective talents to our veterans and military personnel. This new effort will increase your pride in both your country and this Association. My thanks to Brian Clary who has planned an exciting and insightful Annual Meeting. Make your plans to be in Hot Springs June 1215 for education, fun and fellowship. These are several of the successes enjoyed this year. I wish space permitted me to trumpet all the efforts of each one who has selflessly aided the progress of our Association and its variety of programs. To mention a few appears to exclude some others, but that is not my intent. There are literally hundreds of volunteers working for the greater good of this Association and its members. Each of those volunteers is vital to our collective efforts to promote justice and the legal profession. I am grateful to all. I commend our dedicated staff, led by our talented Executive Director Karen Hutchins, who have worked diligently to enable all our efforts. Their number is small, but their work is impressive. My personal thanks to Michele, TraNita, Cindy, Crystal, Kristen, Anna, Paul, Jon, Lorrie and Karen. There is so much that goes on behind the scenes, but if you pull back the curtain, the wizardly work being done is nothing short of amazing. I told the Board of Governors at our last meeting that this has been a fun ride for me. Other than not getting out to my wood shop much, I leave office with few regrets. My reward is the satisfaction of meeting so many, sensing the genuine pride felt by lawyers of their profession and this Association, and realizing the strides we have made. And the work continues. So, you are needed to help where you can. Collectively, we do make a difference. Many thanks for helping me realize my dream. ■
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
2013 Mock Trial Competition For the second consecutive year, students from Little Rock Central High School prevailed as the winners of the Arkansas Mock Trial Competition held in Little Rock at the Pulaski County Courthouse on Saturday. Eight high school teams composed of more than 50 students contended in the state finals. Little Rock Central High won the final match over Parkview High School. The Central High School team competed in the National High School Mock Trial Competition in Indianapolis May 9-11, 2013. Over 220 students competed statewide in four regional tournaments on March 2, 2013. First time competitors included Arkansas School for the Blind & Visually Impaired, Jacksonville Lighthouse Academies, Little Rock Catholic High School, Mount St. Mary Academy, and Sheridan High School. Veteran teams returning to competition this year included Forrest City High School, Hope High School, Izard County Consolidated High School, Jonesboro High School, Little Rock Central High School, Marked Tree High School, Monticello High School, Nettleton High School, Parkview High School, Springdale Har-Ber High School,
â–˛ Front Row (l to r): David Xiang, Sarthak Garg, Joseph Hwang ;Second Row (l to r): Kathy Holladay (Teacher Coach), Ian Goza, President Charles L. Harwell, John Harpool, Drew Ricciardone, & Madison Perry; Back Row (l to r): Matthew D. Wells (Attorney Coach), Clarke Tucker (Attorney Coach), Astha Mittal, & Ryan Gauger.
Springdale High School, and Tuckerman High School. Many lawyers and teachers from across the state meet with the students for several months to prepare them for the competition. Funding for these events is provided by the Arkansas Bar Association, Arkansas Bar
Foundation, and Annual Sponsors. Additional resources for teachers were made available this year in part from funding from the Craighead County Community Foundation and the Pine Bluff Area Community Foundation, an affiliate office of the Arkansas Community Foundation, Inc.
Thank you Volunteers Amanda J. Andrews Deborah Cooksey Avillion Jonathan E. Baker Judge Kristine G. Baker Wade Bowen Amy Totten Brazil T. Scott Brisendine Thomas E. Brown Ernest W. Brown Waymond M. Brown Kara Lynn Byars Mary C. Caroom Ashley Ru Chan Adam John Chromy David Mayo Clark James O. Cox Brandon Crawford Cory S. Crawford Don N. Curdie C. Brent Davis Lana Larson Dean Judge Beth M. Deere Tracey Dennis Margaret Diane Depper Natalie J. Dickson
The Arkansas Lawyer
Laura Dyer Elkins David Rex Ferguson Hugh A. Finkelstein Judge John N. Fogleman Harry G. Foster II Donna L. Gay Lonnie L. Grimes Laura D. Grimes M. Scott Hall Charles L. Harwell Claude S. Hawkins, Jr. Floyd A. Healy Dallas W. Heltz David G. Henry Kevin L. Hickey Paul Hickey Samuel S. High Justin A. Hinton Malcolm Lewis Hogue Johnathan D. Horton Judge Marion A. Humphrey Michael D. Johnson Shawn J. Johnson Brian W. Johnston Keith M. Kannett www.arkbar.com
Geoffrey Davis Kearney John Lee Kearney Valerie L. Kelly Shelly Hogan Koehler Traci H. LaCerra David N. Laser Victoria Leigh Stephanie Ann Linam Tammy Lippert Lynn D. Lisk Barney Long Judge Mike Maggio William C. Mann III Krystal A. Mann Richard Bryant Marshall Judge D. Price Marshall, Jr. Mark Mayfield Judge Mary S. McGowan James W. McLeod Anthony L. McMullen Chris A. McNulty Jason Milne Sandy Bailey Moll Barrett S. Moore Rosalind M. Mouser
Barrett Ann Nixon Ali Brady Noland S. Ryan Norris Christopher L. Palmer Pamela Epperson Panasiuk Justin Parkey Meredith B. Rebsamen John William-Gates Repovsch Carol Nixon Ricketts Gwendolyn Rucker Charlotte A. Scott Jim D. Spears Samuel M. Terry Tasha Marie Terry Jordan Tinsley Brian A. Vandiver Karen V. Wallace Margo D. Warner Matthew D. Wells Ladarron D. Williams Jared S. Woodard Jessica S. Yarbrough Danna J. Young Dennis Zolper
ABA Day in D.C.
Accolades The Eighth Circuit Court of Appeals presented the first-ever Richard S. Arnold Award of Distinguished Service and Lifetime Achievement for the Eastern District to Little Rock attorney Robert L. “Skip” Henry of Barber, McCaskill, Jones & Hale, PA. The Chaney Law Firm, a family firm in Arkadelphia, received the Outstanding Trial Lawyers of the Year award April 26 from the Arkansas Trial Lawyers Association. Tom Womack, Rosalind Mouser, Rep. Tim Griffin, Charles Harwell
Appointments and Elections Charles “Cliff” Gibson III of Monticello has been appointed to the University of Arkansas Board of Trustees. Chad Causey of Little Rock has been named the first executive director of the Arkansas Aerospace Alliance. Michael S. Moore of Friday, Eldredge & Clark, Little Rock, has been appointed chair of the Arkansas Judges & Lawyers Assistance Program. Buddy Chadick of Fayetteville was appointed to the Board of Correction. Jerry Larkowski of Little Rock was appointed Chair of the Arkansas Public Defender Commission. The Jefferson County Bar Association announced the following officers for 2013: C. Mac Norton, Vice President; Judge Rob Wyatt, Secretary/Treasurer. Wyatt succeeded John L. Rush who retired after serving as Secretary/Treasurer for over 40 years.
Association leaders visit Capitol Hill during the American Bar Association’s ABA Day in Washington, D.C. April 1618, 2013.
YLS Service Day
Word About Town Friday, Eldredge & Clark, LLP announced that former Arkansas Supreme Court Justice Robert L. Brown has become associated with the firm Of Counsel. Quattlebaum, Grooms, Tull & Burrow PLLC announced that Michael B. Heister has become an associate to the law firm. Newland & Associates, PLLC in Little Rock announced that Elizabeth Abney Caldwell has been named a member in the firm. Michael T. Newman and Joshua T. Carson have become partners in the Fort Smith law firm of Jones, Jackson & Moll. R.T. “Rick” Beard III has been named managing director of Mitchell Williams Gates & Woodyard PLLC in Little Rock.
Leslie Ligon, Matt Fryar, Grant Cox, Brian Clary
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YLS Executive Council members help out by packaging groceris at the Salvation Army in El Dorado on April 26, 2013.
Supporting Legal Professionals
ADVANCING CAREERS Visit the ABA Career Center, where we’re connecting legal professionals with top employers in Arkansas. Find local legal jobs and recruit qualified candidates dedicated to the profession!
Visit the ABA Career Center today! www.arkbar.com/pages/Benefits.aspx
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
RENEWA L AHEAD
Itâ€™s Time to Renew Your Membership! The 2013-2014 bar year begins on July 1â€” to stay connected, be sure to renew your membership by June 30. To Renew: 1) Go to www.arkbar.com 2) Login to your member portal 3) Click the plus sign (+) next to Renew/Modify Membership 4) Click Membership Renewal 5) Complete the renewal form and submit with payment
Newest benefits just up the road Clio Wordrake social network for members
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Young Lawyers Section Report
by Vicki S. Vasser
Approaching the Finish Line of the Bar Year—Joy of Experiencing the Journey I begin my final YLS report just as I started the year—at the track. As the “finish line” of the bar year draws closer, it is appropriate to focus on the journey traveled this past year, not the destination of reaching the “finish line.” With the support of an outstanding YLS Council and Section, we celebrate the journey or each “leg” of the race of 2012-13 bar year. (1) First Leg of the Race—WELCOME The first leg was dedicated to “welcoming” others. YLS is one of the first points of contact for newly-admitted attorneys. At both swearing-in ceremonies, YLS greeted new attorneys with an Association “New Member Packet.” On May 3, 2013, YLS sponsored the new member packet including the first edition of our “New Admittee Survival Guide.” YLS wants to make all new admittees feel welcome as they commence a new career and most importantly, encourage them to find a home with YLS. Continuing the L-2-L Mentor program and launching the Mentor Minute videos, hopefully, new attorneys feel welcomed to the profession, the Association and YLS. Whether it was kicking off the school year with law students, listening to blues on Beale Street, or hosting a holiday party, YLS wanted to make everyone “welcome” to be a part of YLS. The finale for this year’s “welcome” leg will be held on Friday, June 14th during the Annual Meeting in Hot Springs when YLS hosts entertainment featuring one of YLS’S very own members, Tim Meitzen performing with Will Bush, along with a photo booth. Come enjoy the fun & fellowship! (2) Second Leg of the Race – EDUCATE The second leg of the YLS journey was devoted to educating the public. A priority this year was updating legal materials available to the public by updating the Consumer Law
and the Senior Citizens handbooks and by developing new tools – the “Domestic Violence” handbook. Another aspect of educating the public was focused upon celebrating Law Day. This year, YLS organized a half-day legal seminar open to the public, “Legal Access for Everyone,” whereby attorneys presented information concerning veteran rights, estate planning, criminal law, and the 2013 legislative session. A special “thank you” to Steve Zega, Brian Clary, and Erica Miller, who joined me in presenting. This year, YLS continued its journey of educating young people across the state of Arkansas by distributing numerous copies of the “18 & Life to Go” handbook. Copies were distributed to teenagers participating in Teen Court programs and in Chamber of Commerce teen leadership programs (Rogers, Fayetteville, Hot Springs, and Pine Bluff ). (3) Third Leg of the Race – ACCESS Another important leg of this bar year has been dedicated to promoting access to legal information and promoting law as a career option to EVERYONE. YLS conducted multiple activities to encourage minorities to become the next generation of lawyers and leaders in the profession. Cory Childs has done an outstanding job as Chair of the YLS Minority Outreach Committee, helping organize “College Road Tour” stops at UAPB and the first annual Diversity Networking Event. YLS has laid groundwork to expand visits to community colleges in the coming year at Northwest Arkansas Community College and East Arkansas Community College. In an effort to ensure YLS is making legal information available to ALL youth in Arkansas, YLS commenced translation of “18 & Life to Go” handbook to Spanish in the
spring of 2013 so that Hispanic youth will have access to this great resource. (4) Anchor Leg – SERVE The last leg of a relay race is often referred to as the “anchor” leg. This term “anchor” is most appropriate here, not because it is the last leg or the fastest, but rather because it is the foundation of YLS—the leg of “service.” This year, YLS has had an opportunity to impact several communities. Whether it was fighting food insecurity in Northwest Arkansas at Cobblestone’s The Farm, creating rice bags at the Arkansas Rice Depot, delivering non-perishable food to the Ronald McDonald House in Memphis, or gathering groceries at the Salvation Army in El Dorado, YLS has SERVED in different ways across the state. Through its partnership with Legal Aid of Arkansas and the Area Agency on Aging, YLS members have another opportunity to serve through the “Serving Our Seniors” pro bono estate planning program on Wednesday, May 29th, from 1-5 p.m. at the Fayetteville Senior Center. Finally, at Annual Meeting, YLS is asking EVERYONE to participate in the “Raising the Bar” initiative where we are collecting toiletries for Safe Haven Shelter for Women & Children in Hot Springs. As I conclude my final YLS report, I am reminded of my experience as anchor leg for my high school sprint relay teams as I focused on the finish line during the final 200 meters of the race . . . . Finish Hard and Finish Strong! Run Hard! You can Rest Tomorrow! But the closer I get to this bar year’s “finish line,” I realize that true joy is found not in finishing the race, but in having experienced the journey. I can truly say this past year has been a joy. Thank you for allowing me to serve YOU as your 2012-13 YLS Chair and for making this an unforgettable journey. ■
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
Lawyer Community Legacy Award Awards are presented bi-annually by the Association to attorneys and judges who have performed volunteer public services out of a sense of duty, professionalism, and a genuine desire to give back to the community. Nomination forms and guidelines for the award are available at www.arkbar.com or by contacting the Association at 501-375-4606. Matthew House received the Lawyer Community Legacy Award for his volunteer public service commitment to the Harmony Health Clinic in Little Rock. Matt is a co-founder, former President, and former Vice-President of the Board of Directors for Harmony Health Clinic. He is a partner with James, House & Downing, P.A. in Little Rock. Matthew House Matt has also served the Arkansas Bar Association in meaningful ways including leading the successful project: “18 and Life to Go: A Legal Handbook for Young Arkansans,” which is now being translated into Spanish. He is a member of the House of Delegates, has served on numerous committees and is a graduate of the Association’s Leadership Academy. He has been recognized with the Frank C. Elcan II Leadership Award, Judith Ryan Gray Outstanding Young Lawyer Service Award and a Presidential Award of Excellence. Matt earned his Bachelor of Arts degree in Politics at Hendrix College. In 1999, he earned his Juris Doctorate from the University of Arkansas at Little Rock William H. Bowen School of Law. He is a member of the Pulaski County Bar Association and Arkansas Trial Lawyers Association. Arkansas Business recently selected Matt as one of the 2013 “Forty under Forty” class members. He has been honored with the Arkansas Community Service Individual Award and Hendrix College’s “Outstanding Young Alumnus” Award. Matt is an active member of Pulaski Heights United Methodist Church in Little Rock where he serves on the Mission Board and the Long-Term Planning Committee. He also keeps busy with charitable activities, participating in such efforts as the Center for Arkansas Legal Services. Matt lives in Little Rock with his son and daughter.
Amy Dunn Johnson received the Lawyer Community Legacy Award for her volunteer public service commitment to the Harmony Health Clinic in Little Rock. Amy is a founding board member of Harmony Health Clinic. Amy is the Executive Director of the Arkansas Access to Justice Commission. Amy also provides executive Amy Dunn Johnson leadership for the Arkansas Access to Justice Foundation and the Arkansas IOLTA Foundation. She is a board member of Little Rock Community Mental Health Center, a member of the Arkansas United Methodist Conference Board of Trustees, a member of the Board of Trustees of First United Methodist Church Little Rock, and a consumer representative on the Comprehensive Primary Care Initiative Workgroup. Amy has previously served as Vice Chairperson and inaugural member of the Arkansas Commission for the Newborn Umbilical Cord Blood Initiative, as Chairperson of the Gertrude Remmel Butler Child Development Center Council, and as a board member of Reach Out and Read Arkansas. Amy has served on numerous Arkansas Bar Association committees and is a member of the Arkansas Bar Association’s 2013 Leadership Academy Class. Amy earned her Bachelor of Arts in Psychology at Hendrix College, where she graduated cum laude with distinction. In 2002, she earned her Juris Doctorate with high honors from the University of Arkansas at Little Rock William H. Bowen School of Law. Amy has been recognized as a Hendrix College Distinguished Young Alumna, a recipient of the KARK Community Service Award, and a Robert Wood Johnson Foundation Community Health Leader. Amy is married to State Senator David Johnson and they have three daughters.
About Harmony Health Clinic The Harmony Health Clinic provides health and wellness needs at no cost for the medically uninsured and underserved who live in Central Arkansas. This free medical clinic has one professional staff member and is otherwise equipped and staffed through volunteer and grant efforts. As of November 30, 2012, the clinic had seen more than 6,200 patients for medical and dental care. Providing dental care is a unique feature of such a clinic. For more information on the clinic go to: www.harmonyclinicar.org and http://youtube/mBJORsm0UBQ. “I believe Matt House and Amy Johnson received a vision from God to start Harmony Health Clinic. Two young attorneys with no nonprofit experience, especially in the medical field, and no physicians lined up. They stepped out in faith and began to recruit liked-minded people to assist to them bring their inspired vision into reality. Now Harmony Clinic has over 50 physicians, 30 dentists, 18 pharmacists, 40 nurses, and 100 medical students that have provided $5 million in free medical, dental and pharmacy services to the uninsured and lowwealth residents of Central Arkansas. Lives have been saved—all changed for the better. People have gone back to work improving not only their financial condition but that of our community and state. We are all indebted to these young people—we as a community and a nation need more like them.” -Eddie Pannell, Executive Director, Harmony Health Clinic 10
The Arkansas Lawyer
Your Dispute Resolution Resource
Hon. Henry L. Jones, Jr. (Ret.)
Retired Magistrate Judge, United States District Court, Eastern District of Arkansas
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Recent Developments Under the Public Records Provisions of the Arkansas Freedom of Information Act
By Clayborne S. Stone and Alex T. Gray For over 45 years, the Arkansas Freedom of Information Act (“FOIA” or the “Act”) has been used, as intended, by citizens of Arkansas, including the press, seeking access to public records. The Act contains a policy statement, which provides: It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.1 In order to carry out the policy behind the FOIA, the Arkansas Supreme Court liberally interprets the Act “to accomplish its broad and laudable purpose that public business be performed in an open and public manner.”2 And the court broadly construes the Act in favor of disclosure.3 With respect to access to public records, the FOIA is relatively straightforward. The Act provides that “[e]xcept as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of
The Arkansas Lawyer
Arkansas during the regular business hours of the custodian of the records.”4 “A citizen may make a request to [a covered entity’s] custodian [of records] to inspect, copy, or receive copies of public records.”5 Upon a proper request and payment of a statutorily prescribed fee, “the custodian shall furnish copies of public records if the custodian has the necessary duplicating equipment.”6 If the devil is in the details, under the FOIA, he resides in the definition of “public records.” The FOIA defines “public records” as: writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.7 A public record is subject to the FOIA and available to the public if it is “possessed by an entity covered by the act, fall[s] within the act’s definition of public record, and [is] not Clayborne S. Stone and Alex T. Gray are attorneys with Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. in Little Rock. Mr. Stone and Mr. Gray regularly advise clients regarding compliance with and the proper use of the Arkansas Freedom of Information Act.
. . . exempted by the act or other statutes.”8 Several recent Arkansas Supreme Court cases provide guidance to the public regarding whether an entity is subject to the Act, what records are subject to disclosure and the procedure for obtaining those records, and a custodian’s obligations to timely and fully respond to a request. When may a private entity be required to disclose public records? Nabholz Construction Corp. v. Contractors for Public Protection Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007) Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180 In 2006, an entity called the Contractors for Public Protection Association (“CFPPA”) requested documents from the University of Arkansas related to the expenditure of public funds for the erection of several buildings by the University. The University supplied many, but not all, of the documents requested by CFPPA. With respect to CFPPA’s specific request for “supporting documentation for the pricing of all contract and change orders,” the University informed CFPPA that those documents, if any, would be maintained by Nabholz Construction Corporation (“Nabholz”), the University’s general contractor, and not in the University’s files. CFPPA subsequently requested the documents from Nabholz directly, but Nabholz refused to release them. CFPPA then sued Nabholz under the FOIA, but CFPPA did not name the University as a defendant. The trial court ordered Nabholz to release the records at issue. As noted above, for a record to be subject to the FOIA and available to the public, it must (1) be possessed by an entity covered by the Act, (2) fall within the Act’s definition of a public record, and (3) not be exempted by the Act or other statutes. The Arkansas Supreme Court reversed the
trial court and held that Nabholz was not an entity covered by FOIA. In arriving at its determination that Nabholz was not an FOIA-covered entity, the court made the following observations. First, in previous cases, the FOIA request being reviewed was directed to a state agency or public entity covered by the Act and not to a private corporation. Second, the court noted that, were it to hold in this case that Nabholz had to comply with the FOIA request, Nabholz, as a non-covered entity, would then be in the position of making the “crucial decision” as to whether the requested records constituted public records subject to disclosure. In the opinion of the court, this result was certainly not the intent of the General Assembly. The Supreme Court carefully limited the scope of its decision, holding that a private entity cannot alone be sued for the production of documents under FOIA. The court acknowledged that, in prior cases where private entities had received public funds, it had upheld FOIA claims brought against the public agency or entity supplying the funds in order to compel disclosure of the documents.9 Additionally, the court noted that its decision should not be construed so as to condone the circumvention of FOIA by a public agency simply “handing off” documents to entities not covered by the Act. Harrill & Sutter, PLLC has a somewhat complex procedural history. Harrill & Sutter, PLLC (the “Requestor”) filed a medical malpractice suit against several defendants, including three doctors employed by the University of Arkansas for Medical Sciences (“UAMS”). The doctors were insured by First Professional Insurance Company (“FPIC”), which retained a local defense firm to defend the doctors (the “Defense Firm”). The doctors’ insurance premiums with FPIC were paid by UAMS, but the doctors were named under the policy as individual insureds. UAMS, which is an entity covered by the FOIA, did not have any administrative control over the litigation involving the doctors or the Defense Firm. The Requestor sent an FOIA request to the Defense Firm, the doctors, and others, including UAMS, seeking, among other documents, the litigation files of the Defense Firm. The Defense Firm refused to turn over its files, and the Requestor brought an action
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Missing and Unknown Heirs Located No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road Suite 121, Schaumburg, IL 60173 Telephone: 800-844-6778 Fax: 800-946-6990 www.landexresearch.com under the FOIA. The Defense Firm filed a counterclaim seeking a declaratory judgment that it was not subject to the FOIA, and that, if it was, the use of the FOIA in these circumstances would be an unconstitutional violation of the attorney-client privilege. The counterclaim also sought, alternatively, a stay of any disclosure of records until the conclusion of the litigation. The Arkansas Supreme Court affirmed the trial court’s determination that the FOIA did not apply to the Defense Firm and the doctors. The Requestor principally relied on City of Fayetteville v. Edmark10 and Swaney v. Tilford11 to support its position that the FOIA applied to the Defense Firm. In Edmark, a memorandum prepared in anticipation of litigation by a city’s outside counsel was a public record under the FOIA. There, the Arkansas Supreme Court noted that the third-party attorney was acting as the functional equivalent of a city attorney, and the city could not avoid FOIA simply by substituting a private attorney for a city attorney. In Swaney, the court held that working papers of third-party auditors were public records where a state agency had hired an outside auditing company to perform its required audits. In Edmark and Swaney, the court pointed out that the private entities were hired by and performing work tradi-
tionally provided by public entities subject to the FOIA, and that, as a result, the records sought were “public records” under the FOIA. The Arkansas Supreme Court distinguished Edmark and Swaney, noting that the doctors’ lawyers were private attorneys hired by, paid by, and reporting to a private medical-malpractice liability insurer, not to a public entity. Although the Requestor tried to make it appear that the doctors were sued in their public capacity, in reality the suit was brought as a result of their work as individuals in the medical care and treatment of a patient. Because neither FPIC itself nor the doctors (in their capacity giving rise to the medical malpractice claim) constituted a public entity, the documents created in anticipation of litigation were not “public records” within the meaning of the Act. When are emails sent by government employees on government computers public records? Pulaski County v. Arkansas DemocratGazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) Pulaski County v. Arkansas DemocratGazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007) In two cases from 2007, the Arkansas
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
Supreme Court addressed whether a series of private emails sent and received on publiclyowned systems by government employees on government time were subject to the FOIA. The cases arose when the former Pulaski County, Arkansas, Comptroller and Director of Administrative Services was arrested for allegedly embezzling approximately $42,000 from Pulaski County. A reporter for the Arkansas Democrat-Gazette sought information regarding the former comptroller and Government e-Management Solutions, Inc. (“GEMS”), a software contractor for Pulaski County. The Arkansas Democrat-Gazette made a written request to Pulaski County seeking disclosure of, among other documents, all email between the former comptroller and employees of GEMS. Pulaski County released some, but not all, of the email correspondence requested, contending that the emails it did not release were not “public records” within the meaning of the FOIA. At a pre-trial hearing, “Jane Doe,” an employee of GEMS, was allowed to intervene to assert her privacy interest in certain emails between her and the former comptroller, with whom she had an affair. The trial court ordered all of the emails released. On expedited appeal, the Arkansas
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Supreme Court requested the parties to brief among other issues whether personal emails sent and received on county property are exempt from FOIA and whether it is necessary for a court to do an in camera review of the emails to distinguish personal from business emails. 1. Personal emails as indicator of “lack of performance.” The court first began its discussion of this issue with an analysis of the text of the FOIA which defines public records, in pertinent part, as “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee . . . .”12 The court noted that the statutory language regarding “performance” likely invites a narrower interpretation of “public records,” that is records which do not reflect either (i) performance or (ii) lack of performance could not be deemed “public records,” and thus “not all emails on Pulaski County computers are public records.”13
2. The content of the emails, not their location, is determinative The court then considered the Arkansas Democrat Gazette’s argument that the location of the personal emails—specifically, the fact that they exist on a government computer—suggests that they must be “public records.” With respect to this argument, the court considered the case law of Florida, Colorado, and Arizona, all of which provide that the determination of whether documents are “public records” requires an examination of the content, not merely the location of the emails. Although it did not adopt it expressly, the court seemed willing to adopt the standard used by the other states, which requires that, in order for personal emails to be considered “public records,” they must contain some “substantial nexus” to the employment of the individual.14 The court acknowledged its holding in previous decisions requiring that a trial court conduct an in camera review of relevant documents to determine whether an FOIA exemption to disclosure applied.15 Here, however, the court extended the application of the use of in camera review, holding that an in camera review by the circuit court would be necessary, despite the fact that an
FOIA exemption was not at issue. In reaching its conclusion, the court considered the factual findings of the circuit court, specifically the following three: (1) “It is impossible to discern whether some emails at issue were purely business emails while other emails were purely personal in nature.”16 (2) “[A]ll aspects of the personal relationship between [the former comptroller] and Jane Doe are intertwined and enmeshed in the business relationship between Pulaski County and Government e-Management Solutions, Inc..”17 (3) “[T]he emails at issue are public records because they involve a business relationship of the County and are a record of the performance or lack of performance of official functions by [the former comptroller] during the times when he was an employee of Pulaski County.”18 With respect to each of these circuit court findings, the Supreme Court held that, without reviewing the emails, there was simply not enough evidence to support their disclo-
sure under the FOIA.19 The Supreme Court remanded for in camera review. On remand, the trial court found that all of the emails were public records under the Act. On appeal after remand, the Supreme Court addressed, among other issues, whether Jane Doe had standing to contest the disclosure of the emails between her and the former comptroller and whether disclosure of the emails would constitute a violation of her constitutional right of privacy as recognized in an individual’s interest in avoiding disclosure of personal matters by government. Regarding the first issue, the court held that Doe did in fact have standing, as a result of her personal stake in trying to block the disclosure of emails that she sent and received.20 In discussing the second issue, the court recognized the unique factual problem of this case—the romantic relationship between the former comptroller and Doe was “indistinguishably intertwined” with the business relationship between the County and GEMS—i.e., many individual emails contained both business matters and sexually explicit personal matters. Ultimately however, relying on one particular email where Doe admonished the former comptroller for sending such explicit matters in a work email, the
court concluded that Doe had knowledge of the risk that emails could become public, and therefore waived any expectation of privacy.21 What is a custodian’s obligation to timely respond to broad and burdensome FOIA requests? Daugherty v. Jacksonville Police Dept., 2012 Ark. 264 Partne Daugherty was stopped for speeding by a Jacksonville police officer on June 24, 2010. On August 13, 2010, Daugherty submitted the first of three requests to the Jacksonville Police Department. In it, she requested, among other things, copies of audio and video images or recordings of all patrol vehicle video and separate body recordings with all audio made by two officers from July 24, 2010, to August 13, 2010. In response, the Jacksonville city attorney sent Daugherty a letter three days later, stating that part of the information requested would be provided but that others were “too broad and burdensome.” Daugherty sent another request four days later, amending it to request the audio and video recordings from July 24, 2010, to August 20, 2010. The city attorney again responded that the request was “too broad and burdensome.”
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Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
Additionally, he stated that if Daugherty would like to go forward with the request, she would need to forward a deposit to the city for the estimated cost to complete the request, $2,475.90. Daugherty submitted a third request on September 2, 2010, requesting audio and video recordings made by two police officers on June 24 and 25, 2010. The city attorney responded that she had already been provided with those recordings and that all other recordings from that time frame had been purged from the Department’s system. Daugherty filed suit on September 9, 2010, alleging, among other things, (1) that the Department’s refusal to provide the requested records violated the FOIA and (2) that the Department’s requirement that she pay $2,475.90 for copying of the records is not permitted under the FOIA. The trial court found for the Department on all issues. Under the FOIA, a citizen making a request under the FOIA must provide a request that is “sufficiently specific to enable the custodian to locate the records with reasonable effort.”22 The Department did not argue that Daugherty’s request was not specific enough, but rather, refused to com-
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ply on the basis that it deemed it “too broad and too burdensome.” The Arkansas Supreme Court held that the Department’s flat refusal to provide the documents violated the FOIA. Additionally, the Department’s subsequent production of records which it “reasonably deemed relevant” to the request, rather than providing all of the requested records, was not in compliance with FOIA. The court held that “there is simply no relevancy requirement in the FOIA” and the FOIA does not give the custodian the power to “pick and choose which requests it may comply with.”23 At the trial court level, the Department argued, and the circuit court accepted, the contention that the applicable statutory provision in this circumstance was Ark. Code Ann. § 25-29-109, which provides, in relevant part, that a custodian may agree to “tailor electronic data in a particular manner or medium” and may provide the data “in an electronic format to which it is not readily convertible.” This section further states that, in addition to copying costs, the custodian may also charge “personnel time exceeding two hours associated with the tasks.”24 On appeal, the court found this section inapplica-
ble for a number of reasons. First, testimony revealed that the requested audio and video recordings were routinely converted before being saved to a disc. Second, although the conversion process takes roughly five minutes per video, that did not mean the data was not “readily convertible.” Third, the police captain’s lack of knowledge as to how to transfer the records via USB to an external hard drive did not equate to a finding that a charge was acceptable. Finally, and most significantly, § 25-19-109 governs instances when a custodian “discretionarily agrees to provide public records in a certain electronic format, either by summarizing, compiling, or tailoring data not readily convertible,” while in this instance, Daugherty merely asked for copies of the records.25 The Supreme Court found, instead, that the applicable provision was § 25-19-105(d). Under this section, which provides for the furnishing of copies of public records “if the custodian has the necessary duplicating equipment,” the Department could not charge fees that exceeded the cost of reproduction and could not include the hourly rate of the police captain in assessing costs to Daugherty.
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Conclusion In all of these cases, the Arkansas Supreme Court has clarified the standards for applying the FOIA to meet the policies underlying the Act. Some of the issues that were not decided in these cases, especially Harrill & Sutter, PLLC, involving the interplay between the FOIA and the Supreme Court’s rule-making authority, will certainly continue to percolate at the trial court level. Endnotes: 1. See Ark. Code Ann. § 25-19-102. 2. Fox v. Perroni, 358 Ark. 251, 256, 188 S.W.3d 881, 885 (2004). 3. Id. 4. See Ark. Code Ann. § 25–19–105(a)(1) (A). 5. See Ark. Code Ann. § 25–19–105(a) (2)(A). 6. See Ark. Code Ann. § 25–19–105(d)(2) (A). The FOIA provides that any person who negligently violates the Act “shall be guilty of a Class C misdemeanor.” Ark. Code Ann. § 25-19-104. 7. See Ark. Code Ann. § 25–19–103(5)(A). 8. Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987) (citing Watkins, Access to Public Records Under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741 (1984)). 9. Citing, among other cases, City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). 10. 304 Ark. 179, 801 S.W.2d 275 (1990). 11. 320 Ark. 652, 898 S.W.2d 462 (1995). 12. Pulaski County v. Arkansas DemocratGazette, 370 Ark. 435, 448, 260 S.W.3d
718, 727 (2007). 13. Id., at 446, 260 S.W.3d at 725. 14. Id., 260 S.W.3d at 725. 15. Id., 260 S.W.3d at 726. See, e.g., Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994). 16. Arkansas Democrat-Gazette, supra, 370 Ark. at 444, 260 S.W.3d at 724. 17. Id., at 445, 260 S.W.3d at 725. 18. Id., 260 S.W.3d at 725.
19. Id., at 446, 260 S.W.3d at 725. 20. Pulaski County v. Arkansas DemocratGazette, 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007). 21. Id., at 221, 264 S.W.3d at 468. 22. Ark. Code Ann. § 25-19-105(a)(2)(C). 23. Daugherty v. Jacksonville Police Dept., 2012 Ark. 264, *8. 24. Ark. Code Ann. § 25-19-109(b)(1). 25. Daugherty, supra, at *11. ■
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Administrative Law Tips and Tricks By Michael B. Heister Although Arkansas does not suffer from as much regulation as some other states, Arkansans are still subject to a host of local, state, and federal regulations. The trend towards more regulation is growing—be it in banking, insurance, securities, energy, the environment, health care, transportation, construction, or just about any other field. Looking forward, Arkansas’s attorneys are more likely to see an increase in “litigation” at the administrative level than a decrease. Practicing administrative law in front of state or federal agencies can be a welcome change of pace for many practitioners. The rules of evidence typically apply loosely, if they apply at all. Discovery obligations are usually minimal. However, just like in court, it is better to win early at an agency rather than being forced to appeal an adverse decision. Fortunately, there are quite a few things a lawyer can do to better the administrative odds. An easy-to-overlook first step is identifying exactly what sort of “administrative” proceeding your client is facing. Administrative proceedings fall into two general categories—(1) rulemakings and (2) adjudications. Each is likely to be subject to different rules. Furthermore, your entire approach may depend on the nature of the proceeding. For example, adjudications often present the opportunity for live testimony and crossexamination while rulemakings do not. In a rulemaking, a written statement will likely be the focus. If an administrative matter arises and you do not have a clear sense of the type of proceeding you are dealing with, stop and make sure. Regardless of which proceeding you are facing, print the applicable administrative rules of procedure and read them closely. State agencies are required to make them available on the Secretary of State’s website: http://www.sos.arkansas.gov/rulesRegs/ Pages/default.aspx. Although Arkansas has an administrative procedure act, many agencies are statutorily empowered to enact their own procedural and substantive rules. These rules are often similar enough to conventional rules of civil procedure and statutory requirements to give some comfort, but different enough to 20
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create plenty of pitfalls. If nothing else, make note of the time you have to file an appeal to the head of the agency. It is never too early to start bolstering the record to ensure it conveys the merits of your client’s position. If something is not in the record, then the agency normally does not have to consider it, and you are unlikely to get a chance to amend the record. Your experts need to be involved early to ensure they have adequate time to develop support for your client’s position while rebutting adverse positions, which can sometimes come from the agency or a member of the public. If you do not prevail at the administrative level, then you can at least establish there are specific record facts that were not addressed by the agency and that undermine the agency’s rationale for its final decision. Indeed, the more relevant facts there are in the record, the more difficult it is for the agency to address them all and insulate itself from attack on appeal. Although the informal nature of agency proceedings can be a welcome change of pace, do not let that informality affect the effort applied to establishing the record. Keep in mind that an administrative proceeding may involve more than just your client and the agency. Depending on the nature of the administrative proceeding, the record may contain evidence and arguments made by interested third parties. There might be a neighborhood group, an industry or trade association, or even an independent small business that shares your client’s interest (or actively opposes it). In the case of rulemakings, it is hard to have too much support in the record from other interests providing alternative justifications for the agency to adopt the approach you are advocating. Do not discount the ability of social media to raise awareness of an issue before the agency that results in more participation by interested third parties, although mass efforts such as “post card” campaigns and other generic submissions (e-mails are popular these days) are seldom worth the effort because each makes the same point. Third-party participation may not be limited to rulemakings; most administrative procedures do not clearly prohibit “amicus”-type
participation in adjudicatory proceedings. Finally, if the case proceeds to court, trust but verify the agency’s description of the administrative record. A court’s review of agency action should focus on whether the agency’s decision makes sense based only on what was in front of the agency, which is usually called the administrative record. The agency is responsible for compiling that record, but there is no practical way to verify the material included is the only material the agency considered. And, courts normally do not allow discovery on how the record was assembled. In Arkansas, the Freedom of Information Act (FOIA), Ark. Code Ann. § 25-19-101 et seq., is a powerful tool for making sure no material is accidentally omitted from the administrative record. Although an attorney’s first impulse might be to submit a very broad request, the results of such a request are likely to mirror the administrative record. An attorney should consider whether narrow requests would do a better job of identifying specific items omitted from the record. If the FOIA inquiry confirms the administrative record is incomplete, even to a slight degree, then an attorney has a reasonable basis for raising the issue with the agency and seeking leave from the court to conduct limited discovery. Although practicing before an agency and challenging agency decisions may not be runof-the-mill work for most attorneys, it is not that different from day-to-day litigation either. Administrative work can even be a welcome change of pace in some respects so long as an attorney recognizes from the outset that the rules are just different enough to demand some extra attention. ■
Michael B. Heister is an attorney with Quattlebaum, Grooms, Tull & Burrow PLLC in Little Rock.
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State Employees Learn the Hard Way About FOIA Requests; Just Ask ex-Arkansas Razorback Football Coach Bobby Petrino
By Deric Yoakley and Collin Kennedy The story has been beaten to death. You all know the details. The story’s ripple effects rocked the Razorback football season, changing the career paths for several coaches and altering the draft status for some of the highest profile Hogs. Frankly, most fans in the natural state are simply tired of hearing about it. But the lessons stemming from this tale are invaluable and always timely. It started as just another Sunday afternoon in the bucolic foothills of the Ozark Mountains for the revered Coach Bobby Petrino. Still basking in the after-glow of his team’s successful 11-win season which culminated in a Cotton Bowl victory, Coach Petrino headed to his on-campus office on his beloved Harley-Davidson. After a team meeting with players and coaches, he mounted his bike again and headed out for a nice ride, not unlike he would frequently take on those pleasant spring afternoons in northwest Arkansas. Sounds innocuous, right? It wasn’t. As the world now knows, at some point that afternoon, Coach Petrino lost control of his bike on a rural highway and suffered some relatively serious structural injuries (though it could have been much worse) to his back and some cosmetic injuries to his head and face. Given the stature of Coach Petrino in Arkansas, the wreck was briefly a front-page story on ESPN and other national news organizations. But, in essence, it was just another motorcycle
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accident. Big deal, right? Rightfully, it was page two news the next day and back page news the day after. Then, unfortunately for Coach Petrino, after being discharged from the hospital a few days later, the story regained some traction when he inexplicably stepped in front of a microphone at a press conference called at his behest and uttered the words that have forever changed his life —“well, when I came out of the ditch there was a lady there that had flagged down a car.” Umm, excuse me, Coach, did you say there was a lady there? A lady just happened to be strolling down a country highway and happened upon the aftermath of your crash? And with that, the hounds were unleashed. Indeed, in a very weak attempt to stay ahead of the storm that was brewing in the Ozarks, Coach Petrino dialed up Arkansas Athletic Director Jeff Long just 20 minutes before the Arkansas State Police was to publish the official police report in connection with his motorcycle accident. We don’t have a transcript of Petrino’s conversation with Long, but we do know that Petrino told Long that the report was going to reflect that the “lady” to whom he vaguely referred at his self-serving press conference was a passenger named Jessica Dorrell. Say what? Who? Jessica Dorrell, the brand new (she was personally hired by Coach Petrino just three days prior to the accident—a move that likely served as the most unavoidable reason
Deric Yoakley’s law firm is located in Fayetteville, Arkansas, where his practice is focused on personal injury and family law. Collin Kennedy is a partner at Hanshaw Kennedy Marquis, PLLC in Frisco, Texas, where his practice is focused on personal injury and business litigation.
for his termination) attractive “assistant” to Coach Petrino. On the surface, there would not appear to be a legitimate reason for Ms. Dorrell to be latched on to the back of Coach Petrino’s motorcycle for a joy-ride in Washington County, Arkansas. But the “hounds” were not content to rely on the obvious and nefarious inferences to be drawn from the tale spun by Coach Petrino. Instead, various individuals and news organizations initiated an FOIA (Freedom of Information Act) request. The FOIA was enacted by Congress in 1966 and adopted by most states, including Arkansas, in 1967.1 The Arkansas version can be located at Ark. Code Ann. § 25-19-105 (the “Act”). In pertinent part, the Act provides that the business of public officials must be performed in an open and public manner so that the constituents are properly advised of the performance of public officials and in the processes leading to public policy.2 Congress didn’t likely intend for the Act to create a mechanism for a fishing expedition for incriminating or embarrassing records, but, in any event, the general rule is that anyone can request to see the “public records (which is very broadly defined by the Act)” of public employees/officials.3 Accordingly, an FOIA request can compel a public institution like the University of Arkansas to release all manner of otherwise private information about a university employee. FOIA requests are often generated in connection with employment terminations, divorces, business disputes and criminal investigations. In Petrino’s case, the University was forced to parse and produce the phone records from Coach Petrino’s state-issued cellular telephone. In fact, in order to fully comply with the request, the university had employees gather his actual phone and take screen shots to be turned over to the requesters. After the provision of the records to the public domain, we now know that Coach Petrino authored some
4,000+ text messages to Jessica Dorrell dating back to September 1, 2011. On some days, he sent as many as 70 texts to Ms. Dorrell. There wasn’t a national news organization in America who didn’t report the result of the FOIA request. The irony is palpable given that Coach Petrino, a husband and involved father of four children, is known to be fiercely private. Coach Petrino eventually confessed his infidelity, even if not with the full candor expected by his former employer. And while it was the fateful decision to take Ms. Dorrell for a ride which sparked the ensuing firestorm, it is inarguable that the FOIA request was the proverbial nail in the coffin of the career of Bobby Petrino. Athletic Director Long was left with the Hobbesian choice, on the one hand, of keeping Coach Petrino and absorbing the deserved media criticism and damage to the University’s reputation, or, on the other hand, terminating Coach Petrino for cause and casting the state’s beloved Razorback football program into a state of disarray. Petrino’s reckless and ill-advised conduct has cost him dearly. A short receipt of the costs include a severely damaged career, the loss of tens of millions of dollars and perhaps worst of all, the lost respect of his family.
If Petrino, a noted game-film junkie, had simply paid attention to the scouting report on his predecessor, he may have been more careful with his private affairs. Indeed, the end of Coach Houston Nutt’s tenure was likely hastened by another infamous FOIA request, in early 2007, also involving a cell phone. Fueled by an Internet message board feeding frenzy, a fan sent an FOIA request to the University of Arkansas for Coach Nutt’s cell phone and email records. The request resulted in a delivery of 546 pages of phone records. After sifting through the records, the fan noticed a particular number that was the repeated recipient of texts from Coach Nutt.4 As he inspected four months of records, the fan noticed over 2,000 texts exchanged between Coach Nutt and one specific telephone number. It was determined that the phone number so prevalent in the records belonged to a local female news anchor. As a result of the fallout of the FOIA request, Coach Nutt was subjected to an investigation by the university that most certainly expedited the Ole Miss bolt. Unfortunately for Petrino, in his haste to eliminate all policies from the Nutt regime, he failed to preserve the one that he may have needed most: if you work
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
Refer to Law Offices of Gary Green, P.A. We Share the Work We Pay the Costs We Pay 1/3 Associate Counsel Fees In Compliance With Rule 1.5(e) of the Arkansas Model Rules of Professional Conduct
Personal Injury Product Liability Medical Negligence Nursing Home Cases 1001 La Harpe Blvd., Little Rock, AR 72201 501-224-7400 1-888-4GARY GREEN (442-7947) www.gGreen.com ggreen@gGreen.com for the state and you have personal matters that you cannot afford to allow for public consumption, you cannot use governmentowned equipment in connection with those personal matters. Think those in charge of the documents being sought in a request will “have your back”? Think again. The penalties for violating an FOIA request are potentially severe.5 They almost cost a city planner her job when, in February of last year, a criminal complaint was filed against Marilyn Heifner by the City of Fayetteville for violation of the state’s version of the Act.6 The price she paid for failure to comply was a $4,000 pay cut, the opportunity to deal with a class C misdemeanor and some prime local media coverage of her criminal and administrative case. Additionally, in any action to enforce the rights granted by the Act, a Court shall assess against the defendant reasonable attorney fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed in prosecuting a claim under the Act.7 Your employer may have a hard time finding an out when it comes to the FOIA. Consider Daugherty v. Jacksonville Police Dep’t.8 FOIA requests made by Appellant after she was stopped for speeding by a police officer were denied. The department 24
The Arkansas Lawyer
denied the requests initially, claiming they were too broad and burdensome. Further, when they agreed to comply, they set forth a requirement that she pay $2,475 for copying of the video and audio files sought. The Supreme Court held that there was an FOIA violation by the Department with regard to Appellant’s initial FOIA request and that the Department’s requirement of a fee in the amount of $2,475 was unreasonable and a violation of the FOIA. In one of the rare leanings toward withholding, the Court upheld a department policy that got rid of certain evidence every 45 days, so long as there was not an FOIA request for said items before the end of that 45 days. The Court went on to explain that the 45-day rule probably violated other rules and regulations, but that those issues had not been brought up in the lower court. Even a finding supporting withholding records was couched with a warning suggesting the withholding could be otherwise prohibited. Another 2012 Supreme Court finding did uphold the denial of a request.9 However, it appears to be a very specific fact scenario that would likely provide very little help to an employee trying to keep his private affairs private while using state property to aid in those affairs. Bobby Petrino was revered and feared in
the athletic department. Even that was not enough to protect him from compliance with the broad sweep of the FOIA request. In the aftermath of the Petrino debacle, the Razorback football program just suffered through one of its worst seasons in years. However, the full ramifications on the program may not be evident for a few more years. Nevertheless, the immediate takeaway for state employers and employees is clear: if you are employed by a state or federal government agency or institution, beware of the FOIA and be advised that the emails you send on your work computer or the text messages you send from your employer-provided phone might as well be addressed to Reuters or the Associated Press. Endnotes: 1. Ark. Code Ann. § 25-19-101. 2. Ark. Code Ann. § 15-19-102. 3. Ark. Code Ann. § 22-19-103(1). 4. http://sports.espn.go.com/espnmag/ story?id=3620040. 5. Ark. Code Ann. § 25-19-104. 6. http://www.fayettevilleflyer. com/2012/03/26/fayetteville-ap-directormarilyn-heifner-reinstated/. 7. Ark. Code Ann. § 25-19-107(d). 8. 2012 Ark. 264. 9. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180 (holding that the Freedom of Information Act is inapplicable to a Plaintiff’s attorney’s demands for records prepared by private attorneys of physicians at the University of Arkansas Medical Sciences; the records were sought in the context of a medical malpractice lawsuit). [Editor’s Note: For a more detailed discussion of Harrill & Sutter, PLLC v. Farrar and Daughtery v. Jacksonville Police Dept. see the article “Recent Developments under the Public Records Provisions of the Arkansas Freedom of Information Act” by Clayborne S. Stone and Alex T. Gray in this issue of The Arkansas Lawyer. ■
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Reading Law: The Interpretation of Legal Texts Antonin Scalia & Bryan A. Garner (Thomson/West 2012) Book Review By Judge Brandon J. Harrison and Eric Moore
Associate Justice of the Supreme Court of the United States Antonin Scalia and lexicographer Bryan A. Garner (the editorin-chief of Black’s Law Dictionary) have recently published a self-styled “treatise” entitled Reading Law: The Interpretation of Legal Texts.1 A treatise is, according to one dictionary, “a book or writing which treats of some particular subject[.]”2 Reading Law fits the definition because it is a well-written distillation of the “stupendously voluminous” literature on how lawyers and judges should read legal texts of whatever sort. We commend it to the Arkansas Bar and Judiciary.3 Relax. Reading Law, as we read it, is not demagoguery from a “conservative” sitting justice on the Supreme Court. Scalia and Garner were sensitive to this potential criticism. “If pure textualism [as opposed to purposivism and consequentialism] were actually a technique for achieving ideological ends, your authors would be counted
extraordinarily inept at it. One of them [is] a confessed law-and-order social conservative . . . . Your other author holds many opinions commonly seen as ‘liberal.’”4 Scalia and Garner then give some examples which they believe show that textualism sometimes leads to a judicial result opposite one’s personal leanings. The argument for the authors’ preferred interpretive approach of textualism—which, “in its purest form, begins and ends with what the text says and fairly implies”—is unabashedly set forth. But it is done so in a coherent, serious manner, meaning a variety of reasons are stated to support the main thesis and competing views are addressed here and there along the way.5 Scalia and Garner’s first collaborative book, Making Your Case, compiled practical points on good advocacy with a splash of wit.6 Their second book-length collaboration is a more abstract, weightier intellectual enterprise that lawyers, professors, and judges should read. Wherever you may fall on the continuum of agreement—whether you fancy the authors’ points in part, in whole, or none at all—the contention that more judges and lawyers should stay close to a legal instrument’s text is worthy of thoughtful consideration. Whatever your overlap of agreement, the treatise is a clearly-expressed product of a serious effort to compile and communicate, in one manageable volume,
Judge Brandon Harrison serves on the Arkansas Court of Appeals. Eric Moore is licensed to practice law in Arkansas and clerks for Judge Harrison on the Court of Appeals. Harrison 26
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interpretive methods that otherwise appear across an ocean-sized span of literature. That the authors have succinctly presented the essence of what has been, and continues to be, a long-and-winding conversation about how to read law is the book’s best attribute. An Intellectual Mooring Point Reading Law’s main aim is to press and support this multi-faceted point: Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts. In this treatise we seek to show that (1) the established methods of judicial interpretation, involving scrupulous concern with the language of the legal instruments and its meaning, are widely neglected; (2) this neglect has impaired the predictability of legal dispositions, has led to unequal treatment of similarly situated litigants, has weakened our democratic processes, and has distorted our system of governmental checks and balances; and (3) it is not too late to restore a strong sense of judicial fidelity to texts.7 The authors support their argument for the need to “restore sound interpretive conventions” by discussing 70 points related to the reading of legal texts. The points are organized by “Fundamental Principles,” “Semantic Canons,” “Syntactic Canons,” and “Contextual Canons.” Then come canons under the broader category called “Principles Applicable Specifically to Governmental Prescriptions.”8 Don’t let nomenclature scare you off. You don’t have to possess the mind of John Searle or Ludwig Wittgenstein to understand the interpretation-related points Scalia and Garner make or the examples provided. The treatise includes an example of the
(venerable) absurdity canon at work, one drawn from Arkansas legal lore.9 You’ll have to read the book to get the details, but the gist of the example is that, in a case the Arkansas Supreme Court heard decades ago, a party apparently relied on the following statutory text and argued that all statutory law in Arkansas had been repealed: “All laws and parts of laws, and particularly Act 311 of the Acts of 1941, are hereby repealed.”10 Scalia and Garner take the opportunity to remind us, “What is omitted from statutory text, no less than what is included, can cause it to be absurd.”11 Returning to Reading Law’s big-picture contents, 13 “falsities” are also “exposed.” Here are two of them to whet your appetite for the remaining 11: “The false notion that the spirit of a statute should prevail over its letter” and “[t]he false notion that remedial statutes should be liberally construed.”12 How many times have you read in an opinion by our state appellate courts that remedial statutes must be liberally construed? Scalia and Garner have concluded, for reasons you’ll have to read the book to learn, that the canon is “today incomprehensible or superfluous.”13 (The best current compilation of statutory canons recognized and used in Arkansas law is by Michael Mullane, who published a two-part article on the topic in Arkansas Law Notes.14) Useful to the Inexperienced and Experienced “Most of our fellow citizens, no doubt, would be astonished if they knew how little training the average law student receives in dealing with enacted law.”15 Enough said. Law students, and new graduates, should be led to Scalia and Garner’s work—if for no other reason than Reading Law provides an understandable, manageable treatment of the task of interpreting legal texts. Lawyers and judges of every experience level should, from time to time, think about the nittygritty of what it means to read the law well and how they may reach the goal more consistently. The treatise also provides some practical (if not showy) advice on the use (and misuse) of dictionaries. This is no surprise because Garner, who compiled a law dictionary while a law student, is a word-andstyle guru of national renown.16 And you never know, as Scalia and Garner hypothesize, when you as lawyer or judge may need
to decide the pressing question of whether “fighting cocks qualify as poultry.”17 The important point here is that when you feel the need to consult a dictionary, Reading Law’s Appendix A provides, among other useful tidbits, five “primary principles to remember” as you do so.18 All dictionaries, Reading Law tells us, are not created equal. By explaining why this is so in some detail, Scalia and Garner have provided useful tools to the lawyer and judge. Justice Antonin Scalia and Bryan Garner are experienced, active participants in America’s legal culture. They have discussed, in more than 500 pages (including the table of cases, glossary, and an extensive bibliography), how lawyers and judges should read the law. We should listen. Then we may react in favor of, or against, their views according to our own learning, judgment, and experience. Is Reading Law, as Circuit Judge Frank Easterbrook says in the foreword, “a great event in American legal culture?”19 Is “[t]he descent into social rancor over judicial decisions largely traceable to nontextual means of interpretation,” as Scalia and Garner put it?20 After reading this important book, you’ll have your own informed answers. You may agree with Scalia and Garner, or you may find yourself in the camp of their detractors, which includes Seventh Circuit Judge Richard A. Posner, who has sparked a spirited back-and-forth about the book’s merit.21 However you ultimately respond to Reading Law, we hope your interest for thinking more about how legal professionals should read legal texts has been sparked for the first time, or rekindled. Endnotes: 1. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012). 2. 18 Oxford English Dictionary 464 (2d ed. 1989). 3. Reading Law, supra, at 465. 4. Reading Law, supra, at 17. Appendix B is a “Glossary of Legal Interpretation” that defines the terms consequentialism, purposivism, and many others. 5. Id. at 16. 6. Anton Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (Thomson/West 2008). 7. Reading Law, supra, at xxvii.
8. Id. at xiv. 9. Arkansas Supreme Court Justice George Rose Smith later dealt, tongue-in-cheek, with the notion that even plain textual pronouncements won’t be given effect if they are obviously absurd. See Poisson v. d’Avril (reprinted in 22 Ark. L. Rev. 741 (1969)). This canon was discussed by Blackstone in his Commentaries. “[T]he rule is, where words bear . . . a very absurd signification, if literally understood, we must a little deviate from the received sense of them . . . [S]ince in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted.” Akhil Reed Amar, America’s Unwritten Constitution: The Precedents & Principles We Live By 8 (Basic Books 2012) (quoting Blackstone’s Commentaries, I:91, 60–61). 10. Reading Law, supra, at 236–37. 11. Id. at 236. 12. This canon, and others Scalia and Garner talk about, influence a number of doctrinal areas of the law. See, e.g., Brandon
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
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J. Harrison & Hans J. Hacker, Arkansas’s Retroactive-Legislation Doctrine, 64 Ark. L. Rev. 903 (2012). 13. Reading Law, supra, at 366. 14. Michael W. Mullane, Statutory Interpretation in Arkansas: How Courts
Interpret Statutes. A Rational Approach, 2005 Ark Law Notes. Mullane’s companion article is Statutory Interpretation in Arkansas: How Should a Statute Be Read? When is it Subject to Interpretation? What Our Courts Say and What They Do, 2004 Ark Law
Notes 85. These articles are available at http://lawnotes.law.uark.edu (last visited 9 May 2013). 15. Reading Law, supra, at 7 (internal quotation and footnote omitted). 16. Reading Law, supra, at 415. The Supreme Court of the United States (among other courts) expressly mentions dictionaries in their opinions now and then. Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become A Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227 (Winter 1999). 17. Reading Law, supra, at 416–17. 18. Reading Law, supra, at 418–19. 19. Id. at xxv. 20. Id. at xxviii. 21. E.g., Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (September 2012) (reviewing Reading Law). ■
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Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
An Overview of the Unauthorized Practice of Law in Arkansas
By J. Chad Owens The Arkansas Supreme Court has the exclusive,1 inherent2 authority to regulate the practice of law. But as the court has noted, the practice of law is difficult to define.3 The court came closest to offering a definition back in 1954,4 when it held that the practice of law includes appearing before court,5 invoking the processes of the court,6 drafting and interpreting legal documents,7 and giving legal advice in general.8 Along with its authority to regulate the practice of law, the court has the authority to regulate the unauthorized practice of law.9 Arkansas case law reveals three typical scenarios that give rise to the unauthorized practice of law: (1) the practice of law by a nonlawyer;10 (2) the practice of law by an attorney not licensed to practice in Arkansas and not admitted pro hac vice;11 and (3) the practice of law by a corporation.12 The Unauthorized Practice of Law 1. The Practice of Law by a Nonlawyer It is the unauthorized practice of law for a nonlawyer, on behalf of anyone other than himself, to appear before court or to prepare or file pleadings and motions.13 For example, in a case where two nonlawyer-
Chad Owens is a thirdyear law student with J.D. expected May 2013, from UALR William H. Bowen School of Law. He has accepted a position with Anderson Murphy Hopkins, L.L.P., in Little Rock.
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administrators of an estate filed a pro se complaint on behalf of the estate, the Arkansas Supreme Court held that the administrators had engaged in the unauthorized practice of law.14 The court held that the administrators were not acting on their own behalf but “on behalf of all the heirs at law.”15 The court stated, “a person who is not a licensed attorney and who is acting as an administrator, executor or guardian cannot practice law in matters relating to his trusteeship on the theory that he is practicing for himself.”16 The court added, “Where a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to jurisdiction of a court, those actions such as the filing of pleadings, are rendered a nullity.”17 It is also the unauthorized practice of law for a nonlawyer to draft or prepare legal documents on behalf of others or to give legal advice in general.18 As the Arkansas Supreme Court has stated, “It is obvious . . . that the practice of law is not confined to services by a licensed attorney in a court of justice, but also includes any services of a legal nature rendered outside of courts and unrelated to matters pending in the courts.”19 Some commentators suggest that courts confine the practice of law to licensed attorneys as a means of protecting lawyers from lay competition.20 The Arkansas Supreme Court has denied this purpose, however, and has suggested other reasons.21 First, limiting the practice of law to licensed attorneys protects the public by ensuring the professional competence of attorneys.22 A client “must have assurance of competence and integrity and must enjoy freedom of full disclosure, with complete confidence in the undivided allegiance of one’s counselor.”23 Second, limiting the practice of law to licensed attorneys ensures that those practicing law are continually “answerable to the courts as court officers for the manner in which they meet their professional obligations.”24
2. The Practice of Law by an Attorney Not Licensed in Arkansas and Not Admitted Pro Hac Vice It is the unauthorized practice of law for an attorney to practice law in Arkansas when that attorney is not licensed in Arkansas and is not admitted pro hac vice.25 For example, in Preston v. University of Arkansas for Medical Sciences,26 an attorney licensed in Oklahoma attempted to represent an Arkansas resident in a medical malpractice case before an Arkansas court.27 But the attorney was not licensed in Arkansas28 and did not file a timely motion for admission pro hac vice.29 The Arkansas Supreme Court held that the Oklahoma attorney had engaged in the unauthorized practice of law, which rendered the attorney’s complaint a nullity.30 Likewise, in Clarendon America Insurance Co. v. Hickok,31 an attorney licensed in Texas, but not in Arkansas, filed two notices of appeal from decisions of the Workers’ Compensation Commission.32 Unfortunately, the attorney failed to file a motion pro hac vice beforehand.33 As such, the Arkansas Supreme Court held that the attorney had engaged in the unauthorized practice of law: Regardless of whether the Workers’ Compensation Commission is considered to be a “court of record” or whether [the nonresident attorney] was authorized to appear before the Commission, [the attorney] engaged in the unauthorized practice of law when he filed the notices of appeal. By the act of filing the notices of appeal, [the attorney] sought judicial review of the Commission’s decision and thereby attempted to “invoke the use of the appellate court mechanism” in Arkansas.34 Here again, the attorney’s pleadings were rendered a nullity.35 The court has offered a variety of rea-
sons for prohibiting the practice of law by attorneys who are not licensed in Arkansas and not admitted pro hac vice. First, the rule protects the public by helping to ensure the professional competence of attorneys in Arkansas courts.36 Second, the rule protects both the public and the authority of the court by requiring nonresident attorneys to make themselves available for the service of papers and to submit themselves to the court’s disciplinary authority.37 Third, the rule is an act of comity and courtesy directed to other states with similar provisions.38 Finally, the rule “protect[s] the economic interests of the regularly licensed resident attorneys of the state.”39 3. The Practice of Law by a Corporation It is the unauthorized practice of law for a corporation to represent third parties.40 For example, in Brown v. Kelton,41 an insurance company attempted to use in-house counsel to represent a policyholder in a lawsuit.42 The trial court disqualified the attorney, and the Arkansas Supreme Court affirmed, holding that such action by the insurance company amounted to the unauthorized practice of law.43 The court relied in part on Ark. Code Ann. § 16-22-211,44 which prohibits corporations from practicing law.45 In another case, a corporation’s “managing agent” petitioned the Arkansas Supreme Court for a writ of mandamus.46 The court denied the petition because, among other reasons, the managing agent was not a lawyer.47 According to the court, “corporations must be represented by licensed attorneys.”48 Likewise, when a corporation’s nonlawyer-president filed an answer on behalf of the corporation and appeared at a hearing,49 the trial court struck the corporation’s answer, refused to let the nonlawyer-president act as counsel, and ruled against the corporation.50 On appeal, the Arkansas Supreme Court affirmed, stating that corporations must be represented by licensed attorneys.51 As with nonlawyers and nonresident attorneys, the rationale here concerns the public interest. Indeed, the Arkansas Supreme Court has offered the following explanation for prohibiting corporations from practicing law: The practice of law is open only to individuals proved to the satisfaction of the court to possess sufficient general knowledge and adequate special
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qualifications as to learning in the law and to be of good moral character. A dual trust is imposed on attorneys at law. They must act with fidelity both to the courts and to their clients. They are bound by canons of ethics which are enforced by the courts. The relation of an attorney to his client is pre-eminently confidential. It demands on the part
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Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
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or associations cannot meet these prerequisites and therefore cannot engage in the practice of law.52 There are additional reasons for prohibiting corporations from representing third parties. Perhaps a corporation “will exercise impermissible control over [an] attorneyemployee’s judgment and thus impermissibly interfere with the attorney-employee’s independence of judgment and loyalty to the client.”53 Or perhaps the in-house counsel’s judgment will be “clouded by allegiance or influence of the employer entity.”54 Such reasoning was adopted by the majority and concurring opinions in Brown v. Kelton.55 For example, Chief Justice Jim Hannah stated in his concurring opinion, “the attorney-client relationship cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for [the attorney] would be subject to the directions of the corporation and not to the directions of the client.”56 Exceptions to the Prohibition Against the Unauthorized Practice of Law The Arkansas Supreme Court has created two exceptions to the prohibition against the unauthorized practice of law, one for real estate brokers and another for car dealers. 32
The Arkansas Lawyer
1. Real Estate Brokers In 1963, the Arkansas Supreme Court held that real estate brokers may, within certain restrictions, fill in the blanks of legal documents without thereby engaging in the unauthorized practice of law.57 For this exception to apply, the following conditions, as set forth in Pope County Bar Association v. Suggs,58 must be satisfied: (1) The person for whom the broker is acting must decline to employ a lawyer to prepare the necessary instruments and must authorize the broker to do so; (2) The forms must be approved by a lawyer either before or after the blanks are filled in but prior to delivery to the person for whom the broker is acting; (3) The forms must not be used for other than simple real estate transactions which arise in the usual course of the broker’s business; (4) The forms must be used only in connection with real estate transactions actually handled by such brokers as a broker; (5) The broker must make no charge for filling in the blanks; and (6) The broker must not give advice or opinions as to the legal rights of the par-
ties, as to the legal effects of instruments to accomplish specific purposes, or as to the validity of title to real estate.59 Thus, as long as a real estate broker satisfies these six requirements, he or she may fill in the blanks of legal documents.60 The court defended this exception as in the public interest.61 First, there are places in Arkansas where there are few, if any, lawyers; thus, real estate brokers fill a need created by the unavailability of lawyers.62 Second, real estate brokers are required to meet professional standards comparable to those required of lawyers.63 Third, real estate brokers are able to prepare certain forms within a few minutes, while lawyers require a few days to prepare those same forms.64 Fourth, even if lawyers were required to prepare these documents, real estate brokers would continue to prepare the forms but then pay attorneys to retype the forms, thus creating unnecessary costs for brokers.65 Finally, mistakes increase, rather than decrease, when forms are passed back and forth between brokers and lawyers.66 2. Car Dealers While the court in 1963 began allowing real estate brokers to fill in the blanks of legal documents, it did not allow any other group to do so for almost 50 years. During that time, title and abstract companies sought the court’s permission to fill in the blanks of legal documents, but the court denied their request.67 Then, in 2011, the court created a second exception to the prohibition against the unauthorized practice of law. In Campbell v. Asbury Automotive, Inc.,68 the court held that car dealers, like real estate brokers, may under certain circumstances fill in the blanks of legal documents without thereby engaging in the unauthorized practice of law.69 Borrowing from Pope County Bar Association v. Suggs,70 the court set forth the following parameters for this exception to apply: (1) The person for whom the car dealer is acting must decline to employ a lawyer to prepare the necessary instruments and must authorize the car dealer to do so; (2) The forms must be approved by a lawyer either before or after the blanks are filled in, but prior to delivery to the person for whom the car dealer is acting; (3) The forms must not be used for
other than simple retail transactions, which arise in the usual course of the car dealer’s business; (4) The forms must be used only in connection with motor-vehicle-sale transactions actually handled by the car dealer as a motor-vehicle dealer; (5) The car dealer must not charge for filling in the blanks; and (6) The car dealer must not give advice or opinions as to the legal rights of the parties, as to the legal effects of instruments to accomplish specific purposes, or as to the validity of the contract.71 The court declined to offer a reason for extending this exception to car dealers, saying only, “While we are cognizant of the fact that the forms at issue in this case do not involve real-estate matters, it is clear to this court that the restrictions set forth in Suggs have equal application to the forms used in the motor-vehicle-sales business.”72 Conclusion Typically, the unauthorized practice of law arises in three scenarios: (1) the practice of law by a nonlawyer; (2) the practice of law by an attorney not licensed to practice in Arkansas and not admitted pro hac vice; and (3) the practice of law by a corporation. The Arkansas Supreme Court, however, has created two exceptions to the prohibition against the unauthorized practice of law. First, in 1963, the court began allowing real estate brokers, within certain restrictions, to fill in the blanks of legal documents without thereby engaging in the unauthorized practice of law. Then, in 2011, the court extended this exception to car dealers. Interestingly, when the court chose to allow car dealers to fill in the blanks of legal documents, it stated, “[T]his court . . . has remained steadfast . . . that the completion of forms legal in nature by nonlawyers, while ordinarily the practice of law, may be permitted, but only within very certain, specific parameters.”73 This language suggests that other businesses—not just real estate brokers and car dealers—may fill in the blanks of legal documents. Indeed, it is likely that other businesses—such as title and abstract companies, rent-to-own businesses, and car rental companies—may now fill in the blanks of standardized, preapproved legal documents, under restrictions similar to those set out in Suggs74 and Campbell,75
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without thereby engaging in the unauthorized practice of law. Endnotes 1. See Preston v. Stoops, 373 Ark. 591, 594, 285 S.W.3d 606, 609 (2008); McKenzie v. Burris, 255 Ark. 330, 341, 500 S.W.2d 357, 364 (1973); see also Ark. Const. amend.
XXVIII (LEXIS Repl. 2004) (“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”). 2. See Ligon v. Stilley, 2010 Ark. 418, at 3, 371 S.W.3d 615, 623; In re Petition of Anderson, 312 Ark. 447, 451–52, 851 S.W.2d 408, 410 (1993); McKenzie, 255
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Ark. at 341, 500 S.W.2d at 364; Hurst v. Bar Rules Comm., 202 Ark. 1101, 1108–09, 155 S.W.2d 697, 700–01 (1941); Beene v. State, 22 Ark. 149, 156–57, 1860 Ark. LEXIS 156, *14 (1860). 3. See, e.g., Pope Cnty. Bar Ass’n, Inc. v. Suggs, 274 Ark. 250, 254–55, 624 S.W.2d 828, 830 (1981); Undem v. State Bd. of Law Exam’rs, 266 Ark. 683, 692, 587 S.W.2d 563, 568 (1979); Ark. Bar Ass’n v. Block, 230 Ark. 430, 434–35, 323 S.W.2d 912, 914 (1959), overruled in part by Creekmore v. Izard, 236 Ark. 558, 367 S.W.2d 419 (1963). 4. Ark. Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954). 5. Id. at 53, 273 S.W.2d at 411. 6. Id., 273 S.W.2d at 411. 7. Id. at 54, 273 S.W.2d at 412. 8. Id., 273 S.W.2d at 412. 9. See, e.g., Brown v. Kelton, 2011 Ark. 93, at 7, 380 S.W.3d 361, 365; Clarendon Am. Ins. Co. v. Hickok, 370 Ark. 41, 46, 257 S.W.3d 43, 47 (2007); Davenport v. Lee, 348 Ark. 148, 161, 72 S.W.3d 85, 92 (2002); Union Nat’l Bank, 224 Ark. at 53, 273 S.W.2d at 411. 10. See, e.g., Davenport, 348 Ark. at 161, 72 S.W.3d at 92; Shoemate v. State, 339 Ark. 403, 406, 5 S.W.3d 446, 448 (1999) (per curiam); Abel v. Kowalski, 323 Ark. 201, 201, 913 S.W.2d 788, 788 (1996) (per curiam);
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All City Glass & Mirror, Inc. v. McGraw Hill Info. Sys. Co., 295 Ark. 520, 521, 750 S.W.2d 395, 395–96 (1988); see also Ark. Code Ann. § 16-22-206 (LEXIS Repl. 1999) (“No person shall be licensed or permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state.”). 11. See, e.g., Clarendon, 370 Ark. at 46, 257 S.W.3d at 47; Fisher v. State, 364 Ark. 216, 218–19, 217 S.W.3d 117, 120–21 (2005); Preston v. Univ. of Ark. for Med. Scis., 354 Ark. 666, 674–75, 128 S.W.3d 430, 434–35 (2003); see also Ark. Code Ann. § 16-22-206 (“No person shall be . . . permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state.”); Ark. R. Admis. XIV (setting forth mandatory and permissive requirements for admission pro hac vice). 12. See, e.g., Brown, 2011 Ark. 93, at 7, 380 S.W.3d at 365; McAdams v. Pulaski Cnty. Cir. Ct., 330 Ark. 848, 849, 956 S.W.2d 869, 870 (1997) (per curiam); see also Ark. Code Ann. § 16-22-211 (LEXIS Supp. 2011) (prohibiting corporations from practicing law). 13. See, e.g., Davenport, 348 Ark. at 161, 72 S.W.3d at 92; Shoemate, 339 Ark. at 406, 5 S.W.3d at 448; Abel, 323 Ark. at 201, 913
S.W.2d at 788; All City Glass, 295 Ark. at 521, 750 S.W.2d at 395–96; Union Nat’l Bank, 224 Ark. at 51, 273 S.W.2d at 410. Note that a nonlawyer is allowed to represent himself. See Preston v. Univ., 354 Ark. at 678, 128 S.W.3d at 437. 14. Davenport, 348 Ark. at 161, 72 S.W.3d at 92. 15. Id. at 158–59, 72 S.W.3d at 90–91. 16. Id. at 159, 72 S.W.3d at 90 (quoting Ark. Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 51–52, 273 S.W.2d 408, 410 (1954)). 17. Id. at 164, 72 S.W.3d at 94. 18. See, e.g., Pope Cnty. Bar Ass’n, Inc. v. Suggs, 274 Ark. 250, 256, 624 S.W.2d 828, 830–31 (1981); Undem v. State Bd. of Law Exam’rs, 266 Ark. 683, 695, 587 S.W.2d 563, 569 (1979); Creekmore v. Izard, 236 Ark. 558, 565, 367 S.W.2d 419, 423 (1963); Beach Abstract & Guar. Co. v. Bar Ass’n of Ark., 230 Ark. 494, 500, 326 S.W.2d 900, 903 (1959). 19. Ark. Bar Ass’n v. Block, 230 Ark. 430, 436, 323 S.W.2d 912, 915 (1959). 20. See, e.g., Grace M. Giesel, Corporations Practicing Law Through Lawyers: Why the Unauthorized Practice of Law Doctrine Should Not Apply, 65 Mo. L. Rev. 151, 161 & n.42 (2000). 21. See Beach Abstract, 230 Ark. at 501, 326 S.W.2d at 903.
22. See Undem, 266 Ark. at 695, 587 S.W.2d at 569; Beach Abstract, 230 Ark. at 501, 326 S.W.2d at 903. 23. Beach Abstract, 230 Ark. at 501, 326 S.W.2d at 903. 24. Id., 326 S.W.2d at 904; accord Undem, 266 Ark. at 695, 587 S.W.2d at 569. 25. See supra note 11. Note that only nonresident attorneys may be admitted pro hac vice; i.e., lawyers who live in Arkansas but who are not licensed in Arkansas will not be admitted pro hac vice. See Willett v. State, 334 Ark. 40, 42–43, 970 S.W.2d 804, 805 (1998) (per curiam); Ark. R. Admis. XIV (applying specifically to a “lawyer residing outside the State of Arkansas”). 26. 354 Ark. 666, 128 S.W.3d 430 (2003). 27. Id. at 669–70, 128 S.W.3d at 431. 28. Id. at 674, 128 S.W.3d at 434. 29. Id. at 676–77, 128 S.W.3d at 436. See Ark. R. Admis. XIV, which sets out both mandatory and permissive requirements for admission pro hac vice. 30. Preston, 354 Ark. at 678, 128 S.W.3d at 436–37. 31. 370 Ark. 41, 257 S.W.3d 43 (2007). 32. Id. at 42, 257 S.W.3d at 44. 33. Id. at 46–47, 257 S.W.3d at 47. 34. Id. at 46, 257 S.W.3d at 46 (quoting Ark. Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 53, 273 S.W.2d 408, 411 (1954)). 35. Id. at 47, 257 S.W.3d at 47. 36. See id. at 46, 257 S.W.3d at 46; McKenzie v. Burris, 255 Ark. 330, 344, 500 S.W.2d 357, 366 (1973). 37. See Clarendon, 370 Ark. at 46, 257 S.W.3d at 46–47; Fisher v. State, 364 Ark. 216, 219, 217 S.W.3d 117, 120–21 (2005); McKenzie, 255 Ark. at 344, 500 S.W.2d at 366. 38. See Fisher, 364 Ark. at 219, 217 S.W.3d at 120–21. 39. McKenzie, 255 Ark. at 344, 500 S.W.2d at 366.
40. See supra note 12. 41. 2011 Ark. 93, 380 S.W.3d 361. 42. Id. at 2, 380 S.W.3d at 363. 43. Id., 380 S.W.3d at 363. 44. Ark. Code Ann. § 16-22-211 (LEXIS Supp. 2011). 45. Brown, 2011 Ark. 93, at 3–7, 380 S.W.3d at 363–66. The Arkansas Supreme Court has had a few opportunities to declare Ark. Code Ann. § 16-22-211 unconstitutional, but it has declined to do so each time. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, at 25, 381 S.W.3d 21, 38; Ark. Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 50–51, 273 S.W.2d 408, 410 (1954) (upholding an earlier version of Ark. Code Ann. § 16-22-211 located at Ark. Stats. § 25-205). 46. McAdams v. Pulaski Cnty. Cir. Ct., 330 Ark. 848, 849, 956 S.W.2d 869, 869 (1997) (per curiam). 47. Id., 956 S.W.2d at 870. 48. Id., 956 S.W.2d at 870. 49. All City Glass & Mirror, Inc. v. McGraw Hill Info. Sys. Co., 295 Ark. 520, 520, 750 S.W.2d 395, 395 (1988). 50. Id., 750 S.W.2d at 395. 51. Id. at 521, 750 S.W.2d at 395. 52. Ark. Bar Ass’n v. Block, 230 Ark. 430, 435, 323 S.W.2d 912, 915 (1959) (quoting State Bar Ass’n of Conn. v. Conn. Bank & Trust Co., 140 A.2d 863, 870 (Conn. 1958)). 53. Grace M. Giesel, Corporations Practicing Law Through Lawyers: Why the Unauthorized Practice of Law Doctrine Should Not Apply, 65 Mo. L. Rev. 151, 158 (2000). 54. Id. at 159. 55. Brown v. Kelton, 2011 Ark. 93, 380 S.W.3d 361. 56. Id. at 10, 380 S.W.3d at 367 (Hannah, C.J., concurring) (quoting Rhode Island Bar Ass’n v. Auto Servs. Ass’n, 179 A. 139, 145 (R.I. 1935)). 57. See Creekmore v. Izard, 236 Ark. 558, 565,
367 S.W.2d 419, 423 (1963); see also Pope Cnty. Bar Ass’n, Inc. v. Suggs, 274 Ark. 250, 256, 624 S.W.2d 828, 831 (1981). 58. 274 Ark. 250, 624 S.W.2d 828 (1981). 59. Id. at 252–53, 624 S.W.2d at 829; see also Creekmore, 236 Ark. at 565, 367 S.W.2d at 423 (listing nearly identical versions of the first five requirements). 60. The second of these six restrictions requires a lawyer’s supervision over the form-documentation process—an important objective given the recent mortgage debt fraud crisis. See, e.g., Alan M. White, Losing the Paper—Mortgage Assignments, Note Transfers and Consumer Protection, 24 Loy. Consumer L. Rev. 468 (2012); Peter A. Holland, The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and Lack of Proof in Debt Buyer Cases, 6 J. Bus. & Tech. L. 259 (2011). 61. See Suggs, 274 Ark. at 256, 624 S.W.2d at 831; Creekmore, 236 Ark. at 563–64, 367 S.W.2d at 422–23. 62. Creekmore, 236 Ark. at 563, 367 S.W.2d at 422. 63. Id. at 563–64, 367 S.W.2d at 422–23. 64. Id. at 564, 367 S.W.2d at 423. 65. Id., 367 S.W.2d at 423. 66. Id., 367 S.W.2d at 423. 67. See Pope Cnty. Bar Ass’n, Inc. v. Suggs, 274 Ark. 250, 253, 624 S.W.2d 828, 829 (1981); cf. Beach Abstract & Guar. Co. v. Bar Ass’n of Ark., 230 Ark. 494, 326 S.W.2d 900 (1959). 68. 2011 Ark. 157, 381 S.W.3d 21. 69. Id. at 29, 381 S.W.3d at 41. 70. 274 Ark. 250, 624 S.W.2d 828. 71. Campbell, 2011 Ark. 157, at 29–30, 381 S.W.3d at 41. 72. Id. at 29, 381 S.W.3d at 40. 73. Id., 381 S.W.3d at 41. 74. Suggs, 274 Ark. at 252–53, 624 S.W.2d at 829. 75. Campbell, 2011 Ark. 157, at 29–30, 381 S.W.3d at 41. ■
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Arkansas Bar Association’s House of Delegates and Board of Governors Report By Karen K. Hutchins The Association’s House of Delegates met on January 26, 2013, at the Peabody Hotel in Memphis. President Charles Harwell presided. The Delegates heard reports from several committees including the Lawyers Assisting Military Personnel (LAMP) Committee. The LAMP Committee reported on its development of programs to assist both attorneys and veterans. First, three hours of CLE will be held at this year’s Annual Meeting that will allow attendees to qualify to be accredited to represent veterans with issues before the Veterans Administration. Second, this committee continues its efforts to create legal clinics to assist veterans throughout Arkansas. Association Lobbyist Jack McNulty reported on the activities of the ArkBar PAC in the absence of Chair Dennis Zolper. PAC-supported candidates were successful in 17 of the 23 General Assembly elections. Elisa White, Co-Chair of the Uniform Laws Committee, made a presentation asking for the addition of a bill amending Article 4A of the Uniform Commercial Code to the Association’s legislative package. The House approved that addition. Continuing Legal Education (CLE) Committee Chair Paul Keith made two recommendations to the House, one of which would clarify the fee structure for both speakers and attendees at Association CLE events. The second recommendation restated the discount for a member who attained Senior Member status “as defined by Association membership guidelines.” The recommendations were approved and then updated in the Association’s Governance Manual. Delegates were reminded of issues arising when attorneys accept credit card payments for professional services when such payments are required to be deposited into a trust account under Rule 1.15, Ark. Rule of Prof. Conduct. The Fall 2012 issue of The Arkansas Lawyer magazine featured an informative article outlining a process attorneys can implement to avoid issues with their IOLTA funds. David Fuqua presented a report from the Website/Technology Committee concerning 36
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Higher Logic which is a program that will allow the Association to develop a mobile app for the member directory and “micro communities” on the Association’s website which will enhance the current list servs and news rooms. The new member website portal has a target rollout date of June 6, 2013. The Website/Technology Committee also presented a comparison of electronic voting vendors and requested authorization to move forward with holding the Association’s first election offering online voting. The House approved electronic voting. As a result of this decision, voter participation has to date increased over 30% as compared to previous year’s returns. Chair David R. Matthews led the April Board of Governors meeting at Mt. Magazine. The Board heard reports from the Mid-Year Task Force, the Leadership Academy, and the Task Force on Proposed Model Time Standards for State Courts. Following a review of the results of an online membership survey addressing the Association’s mid-year meeting, Mid-Year Task-Force Chair Jeffrey McKinley reported that Little Rock will be the new location for the 2015 mid-year meeting. The 2014 MidYear meeting will remain in Memphis at the Peabody Hotel. Leadership Academy Chair Gwen Rucker reported on the achievements of the Leadership Academy for the past three years. The Board voted to continue this successful program for the next year. Dick Hatfield, Chair of the Model Times Standards for State Courts Task Force, asked that the Board publish the proposal to its full membership for comments prior to the Board voting on the proposal. Legislation Committee Chair Bob Estes reported on the legislation from the 2013 session of the General Assembly. The Legislation Committee, lobbyist, and staff members worked to monitor the status of many proposed bills and joint resolutions that “have a direct effect on the practice of law or a significant impact on the administration of Justice.” The Board of Governors voted to oppose efforts to alter the Arkansas Supreme Court’s current authority to determine the
rules of evidence and procedure. Lobbyist McNulty reported that each proposed bill in the Association’s legislation package was successfully passed. Links to these new acts can be found on the Association’s website under Legislative Resources. The Board approved as new member benefits two web-based practice management software programs, Clio and Rocket Matters. They are designed to assist in dayto-day office management and have received good reviews by current users. A program to assist in drafting legal documents, Word Rake, was also approved as a new benefit. It is editing software specifically designed for lawyers. It reviews a document and suggests edits to make statements more clear and powerful. The Association added FedEx as a member benefit earlier this year, and over 350 Association members have signed up for the program thus far. All firms are encouraged to register their FedEx accounts to receive discounts under the Association’s FedEx program. Call 1-800-MEMBERS if you need more information. Member use of Fastcase, the free legal research member benefit, continues to rise as well. Make sure to mark your calendar to attend the 2013 Annual Meeting in Hot Springs. All CLEs and related events, as well as the Bar Foundation Dinner and the Presidents’ Reception, will be held in the Hot Springs Convention Center. Afternoon receptions and evening entertainment will continue to be at the Arlington Hotel. n
Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association. For a list of Association Board of Governors go to www.arkbar. com/pages/board_governors.aspx.
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Thank you 2012-2013 Arkansas Bar Association Benefactor and Patron Members Your Benefactor and Patron Member dues finance a variety of projects and programs. Benefactors Jo Ellen Carson William M. Clark, Jr. Jon B. Comstock James E. Crouch Robert H. Dudley Matthew L. Fryar Robert F. Fussell David Michael Hargis Charles L. Harwell Alice F. Lightle William A. Martin J. Clifford McKinney II John V. Phelps Joseph H. Purvis Robert Jeffrey Reynerson James Marlon Simpson, Jr. David Solomon James D. Sprott Timothy Fagan Watson, Sr. Tony L. Wilcox Tom D. Womack Susan Webber Wright
Patrons Mark H. Allison Philip S. Anderson Ben F. Arnold Jess L. Askew III Chad L. Atwell Melody Peacock Barnett Woodson W. Bassett III Fines F. Batchelor, Jr. David L. Beatty Paul B. Benham III M. Stephen Bingham Samuel N. Bird Donald Eugene Bishop Ted Boswell Robert Bruce Branch, Sr. Robert R. Briggs Larry W. Burks Sandra Burns Robert D. Cabe John C. Calhoun, Jr. Jerry L. Canfield 38
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Phillip Carroll Douglas M. Carson Jerry W. Cavaneau Earl Buddy Chadick, Jr. Suzanne G. Clark Ralph M. Cloar, Jr. Roger U. Colbert Barry E. Coplin Danny R. Crabtree Staci L. Croom-Raley Junius Bracy Cross, Jr. F. Thomas Curry C. Michael Daily Thomas A. Daily John A. (Jack) Davis III Lee Matthew Davis Steven B. Davis Robert T. Dawson Beth M. Deere Phillip J. Duncan Jeff Davis Duty, Jr. Don R. Elliott, Jr. Stephen Engstrom Bob Estes Audrey R. Evans Frances S. Fendler William Lee Fergus Victor A. Fleming Amy Freedman Larry R. Froelich Price C. Gardner Buck C. Gibson Charles Clifford Gibson III Pamela B. Gibson Sam E. Gibson Dent Gitchel Donald Goodner Ronald L. Griggs David F. Guthrie Barbara A. Halsey Donis B. Hamilton Frank S. Hamlin Lance L. Hanshaw Betty J. Hardy Melva Harmon David K. Harp R. Victor Harper www.arkbar.com
Eugene S. “Kayo” Harris Rosanna Henry Paul F. Henson Joseph Hickey Cyril Hollingsworth Don Hollingsworth Robert Howard Hopkins Robert E. Hornberger Karen K. Hutchins Michael E. Irwin Donald T. Jack, Jr. Amy Dunn Johnson Leon Jones, Jr. Robert Jones Jim Julian Paul W. Keith Sean T. Keith Shelly Hogan Koehler John C. Lessel Robert O. Levi Stark Ligon James R. Marschewski David R. Matthews S. Hubert Mayes, Jr. Bobby McDaniel James A. McLarty III James E. McMenis Benjamin C. McMinn Jack A. McNulty William Russell Meeks III Marie-Bernarde Miller Harry Truman Moore Charles A. Morgan Stephen E. Morley Rosalind M. Mouser Wm. Kirby Mouser Timothy J. Myers R. Gary Nutter Edward T. Oglesby James E. O’Hern III William L. Owen Bobbi Dawn Patterson Claibourne W. Patty, Jr. Kristin Pawlik B. Jeffery Pence Donna C. Pettus Ellis Lamar Pettus
Dale E. Plaxco Charles E. Plunkett Jerry D. Pruitt Donald C. Pullen Brian H. Ratcliff Elton A. Rieves III William S. Robinson Charles D. Roscopf Brian M. Rosenthal Robert R. Ross John L. Rush James V. Scurlock II Frank B. Sewall Stephen M. Sharum William Farrar Sherman Lynn J. Skinner Howard L. Slinkard J. Timothy Smith Thomas S. Stone Jocelyn A. Stotts William R. Stringfellow John F. Stroud, Jr. F. Mattison Thomas III N. Walls Trimble Annabelle Imber Tuck Fred S. Ursery David B. Vandergriff A. Glenn Vasser William A. Waddell, Jr. John C. Wade Wyman R. Wade, Jr. Danyelle J. Walker Eddie H. Walker, Jr. Bill H. Walmsley Stan L. Warrick David Smilie Watkins John Dewey Watson David J. Whitaker William Zac White W. Jackson Williams, Jr. Michael Kenneth Wilson Philip M. Wilson Marsha C. Woodruff W. Kelvin Wyrick Cary E. Young Dennis Zolper
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Judicial Disciplinary Actions & Attorney Disciplinary Actions Judicial Disciplinary Actions The Judicial Discipline and Disability Commission issued the following Final Actions. Full text documents are available on-line at http://www.state.ar.us/jddc/ press_releases.html. On March 29, 2013, the Arkansas Judicial Discipline and Disability Commission issued Advisory Opinion No. 2013-03 to Judge Robert Bynum Gibson. On April 11, 2013, the Arkansas Judicial Discipline and Disability Commission issued Advisory Opinion No. 2013-01 to Judge Stephen Tabor.
Attorney Disciplinary Actions Final actions from January 1, 2013, through March 31, 2013, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts. arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking
under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] DISBARRED: ALICE WARD GREENE, Bar #95197, of Little Rock, Arkansas, was disbarred in Arkansas by the Arkansas Supreme Court on January 10, 2013, in a Per Curiam Order of Disbarment filed in No. 11-1114. After being served, Ms. Greene failed to respond to the Petition for Disbarment alleging violations of Rules 1.2(a), 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), 8.1(b), and 8.4(d), based on a complaint filed by Lee Vernon Jernigan of Hot Springs. The Special Judge found Greene committed serious misconduct and was in default for failing to respond after proper service and notice. Jernigan hired Greene to assist him with legal issues he had with his property owner’s association. Greene was paid fees by Jernigan, failed to file an action on Jernigan’s behalf, did not respond to Jernigan’s requests for information, failed to address his issues with him, and did not
advise him when she left the law office location where he had met her. Greene failed to respond to any of the requests for information to her from the Office of Professional Conduct. She was also found to have multiple violations of Rule 3.4(c) for failing to pay fines, restitution, and costs ordered in several prior committee cases. SURRENDER: MARK E. BARTON, Bar #96248, of El Dorado, Arkansas, had his petition for surrender of law license accepted by the Arkansas Supreme Court on January 10, 2013, in No. 12-1097. Barton represented Susan Bonner in civil litigation in circuit court. Barton advised Bonner that he had recovered a Judgment for her, which was not true. He then sent payments from his own funds to Bonner until he was no longer financially able to do so. Barton missed the statute of limitations on the claim of another client, so he paid her a “settlement” of $20,000, without advising her to seek independent counsel. Barton advised that he suffered from anxiety and depression and wished to surrender his law license.
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Attorney Disciplinary Actions STEVEN R. JACKSON, Bar #97142, of Lowell, Benton County, Arkansas, petitioned to surrender his law license based on his plea to a felony forgery offense in Washington County Circuit Court on November 16, 2012, a violation of Rules 8.4(b) (criminal conduct). In June 2012, Jackson forged a court order changing child custody to his client, and gave it to the client for use in getting the child back. Once the forgery was discovered, the father returned the child. Jackson was placed on three years probation and fined in his criminal case. The Court accepted the petition on January 10, 2013, and ordered Jackson disbarred. DISBARMENT PROCEEDING INITIATED:
account for a divorce client. The panel also voted to impose an interim suspension during the pendency of the disbarment action, but that suspension was stayed by the Supreme Court until it decides a writ of certiorari filed by Tapp challenging the interim suspension, also in No. 13-150, an issue still pending at publication closing time.
JOHN SKYLAR “SKY” TAPP, Bar #76123, of Hot Springs, had disbarment proceedings initiated against him on March 12, 2013, in Case No. 13-150, as a result of Committee panel actions in December 2012 in CPC 2012-047, a referral by United States Bankruptcy Judge Richard Taylor, SUSPENSION: and in CPC 2012-049, a complaint related 1310713 ADR AR Lawyer Spring 2013 Ad:ADR Ad 3/15/13 3:50 PM Page 1 to his handling of $6,611 in his client trust LISA D. DAVIS, Bar #2001072, of Piggott,
Clay County, Arkansas, in CPC 2012-067, on a complaint by Summer Wolfenbarger, on March 26, 2013, received a twenty-four (24) month license suspension for violations of Rules 1.1, 1.2(a), 1.4(b), 1.4(a)(3), 1.16(d), 8.4(c), and 8.4(d). In mid-2009 Ms. Wolfenbarger, a poultry grower for Tyson, was required to update her poultry houses. She obtained bank financing of about one million dollars. She contracted with Southern Poultry (“Southern”) of Arkansas for the job. Contracts were signed in December 2009,
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Attorney Disciplinary Actions and work began soon thereafter, with an explicit understanding that “time was of the essence” to complete the job, so as to not interrupt the Tyson poultry delivery cycle. Problems arose with Southern’s performance on the first contract, involving two houses. On advice of her lawyer Davis, Wolfenbarger made written demands on Southern to take corrective action. When such action did not occur, on advice of Davis Wolfenbarger had her bank withhold the final $21,000 on the first contract. Wolfenbarger later terminated Southern for breach of contract. She then contracted with Modern Poultry of Alabama to complete or redo work on the first two houses and to do all the work on the last two houses. Modern completed the work on the first contract for about $21,000, and completed all work on the last two houses. In October 2010, Southern sued Wolfenbarger and her husband in Cleburne County, home of Southern, for $146,562 plus attorney’s fees. Davis filed an Answer for the Wolfenbargers, but no counter-claim, although Wolfenbarger had specifically requested Davis file a counter-claim for at least the $21,000 she had to pay Modern to complete/fix what Southern did not do or
do correctly on the first contract. Problems caused by Southern’s performance caused delay and project cost overruns, which also would have been relief sought in a counterclaim. In early 2011, Southern had to file a motion to compel against Davis when she did not timely respond to discovery. The case was set for jury trial during March 22-30, 2012. On March 22, 2012, Davis’s law license was suspended for three months in another matter. Davis notified Wolfenbarger of the suspension but assured her either (a) she would have her license back by the time the case actually went to trial, if Wolfenbarger would seek a continuance, or (b) Davis would have an attorney friend step in to assist the Wolfenbargers. Davis then directed Wolfenbarger to make a $2,500 “fee” payment in cash to a former Davis office employee, which Wolfenbarger did. The trial was continued until June 12-15, 2012, and then to July 25, 2012. To obtain the last continuance without an objection by Southern, Wolfenbarger had to agree to waive a jury. Davis’s suspension was up by June 22, 2012. Her petition for reinstatement was filed on July 11, 2012. Due to a response filed by OPC, Davis was reinstated on August
20, 2012. With Davis’s law office closed, on July 16, 2012, Wolfenbarger attempted to contact Davis to find what to do about her upcoming trial. On July 24, Davis informed Wolfenbarger that Davis was not reinstated and Davis’s attorney friend was not available for court on July 25. Davis suggested that Wolfenbarger use a claim of illness to try to get another trial continuance. Wolfenbarger declined to do so, and then unsuccessfully tried to locate an attorney who could go to court with her the next day. Wolfenbarger obtained her case file from Davis that same evening, and she and her husband went to trial the next day without legal representation. At the bench trial Summer was not able to get her evidence into the record, generally because Davis had failed to file any counterclaim. Judgment for $159,062, including $12,500 in attorney’s fees, was granted against the Wolfenbargers. Wolfenbarger tried unsuccessfully to appeal. Wolfenbarger filed her grievance against Ms. Davis on August 10, 2012. OPC sent Ms. Davis a copy of the grievance on August 28, 2012, and e-mailed Ms. Davis four times thereafter asking her for her version of these events or for documents in the matter. Davis failed to respond.
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Attorney Disciplinary Actions JANIE M. EVINS, Bar #92068, of Hot Springs, in CPC 2012-014, on February 20, 2013, had her law license suspended for one month by “discipline by consent,” on a complaint by Darlene Carvin for violating Rule 1.8(a), which prohibits or restricts certain business dealings between attorney and client. In 1997, while representing Carvin on legal matters, Evins borrowed $142,000 from her client’s company to buy an office building in Hot Springs, from another Evins client. It was Carvin’s understanding that the property would also be renovated from the loan proceeds and then commercially financed by Evins so Carvin would get her money back. There was no indication Evins advised Carvin of her need to consult independent counsel before entering into such a financial deal with Evins. Problems arose, Carvin was not repaid, and in early 2002 a settlement agreement was executed between Evins and Carvin, now represented by new counsel. Carvin got title to the property and had the burden of reselling it. Evins failed to honor commitments she made in the settlement agreement. In June 2007 Carvin filed suit against Evins for breach of contract. That suit and a subsequent suit were each dismissed without prejudice. A third suit was filed in April 2011. After trial in late 2011, judgment was entered for Carvin and against Evins for about $166,000. The judgment was reversed and dismissed in 2013 for violation of the “two dismissals” rule. Evins’ law license was reinstated by the Committee on March 22, 2013. WILLIAM KURT MORITZ, Bar No. 99021, of Hope, Arkansas, in CPC 2012-
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for Michael’s brief. Moritz tendered a brief to the Clerk, who rejected the brief. Moritz corrected the error and submitted a new brief. Moritz was ordered to rebrief the case. The Court suggested that Moritz had simply duplicated the abstract and addendum of Myron’s brief. The Court of Appeals affirmed Michael’s conviction, stated that the entire argument failed to cite authority, and found the argument to be frivolous. REPRIMAND: LISA D. DAVIS, Bar #2001-072, of Piggott, Arkansas, by Findings & Order filed March 1, 2013, in CPC 2012-053, a complaint by Tiffany Branson, was reprimanded for violations of Rule 1.2(a). Branson went to Davis on December 1, 2010, to discuss a divorce. On January 3, 2011, Branson gave Davis $2,715 for the divorce, service fees, and filing fees. Branson filed a pro se Petition for Order of Protection, as Case No. DR-
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Attorney Disciplinary Actions 2011-3 and hearing was set for February 3, 2011. Davis filed an unverified Petition for Divorce for Branson as Case No. DR-20114, but never took steps to have Mr. Branson served. The Bransons reconciled about two weeks later, and Ms. Branson told Davis she wished to drop the divorce. On February 3, 2011, Mr. and Mrs. Branson appeared, told the judge they wished to drop the matter, and they and their attorneys signed the Order. Davis did not dismiss the pending divorce case, but the Court finally did so in early March 2012, for inaction. After February 3, 2011, Tiffany Branson contacted Davis several times asking for an itemized billing and a refund of unearned fees paid. Sometime after March 22, 2012, Ms. Branson learned that Ms. Davis’s law license had been suspended on that date. On June 3, 2012, Branson wrote Davis again requesting an accounting and refund of fee. Branson received no response or refund from Davis. LISA D. DAVIS, Bar #2001-072, of Piggott, Arkansas, by Findings & Order filed March 1, 2013, in CPC 2012-042, a complaint by Katy Knighten, was reprimanded for violations of Rules 1.4(a)(4), 1.5(a), and 8.4(c). Knighten, of Cherokee Village, Arkansas, was a young single mother of two small children involved in a Sharp County, Arkansas, custody case. In April 2011 she moved to Pascagoula, Mississippi. Knighten had a court date of December 13, 2010, in Arkansas, needed an attorney, and Davis of Piggott was recommended. She made the two-hour drive with her friend, and met with Davis on December 1, 2010, at 3:00 p.m. for two hours. Davis quoted a
fee $3,500, requiring payment of $1,750, one-half, up front. Knighten then called her mother in Mississippi. When Knighten was unable to come up with the $1,750, Davis told Knighten to go to court without a lawyer and then contact Davis and let her know what happened. Knighten called Davis after court on December 13, 2010, told her the children had been taken away from Knighten, she wanted to hire Davis, but had to come up with the $1,750. Knighten called Davis’s office in January 2011 to inform her of what was said in court that month. Responding to an inquiry from the Office of Professional Conduct (OPC) in 2012, Davis sent a copy of a “Statement” dated February 3, 2011, addressed to Knighten in Cherokee Village. Knighten stated she never saw the Statement before OPC showed it to her in 2012. Knighten did not call Davis again until Knighten had a court date on December 14, 2011. Unable to meet with Davis before court, Knighten and her mother went to court on December 14. Knighten did not get custody of her children or any visitation with them. Money for the fee was borrowed from a friend and an appointment was made with Davis for December 20. Upon arrival in Piggott for the appointment, Davis’s office informed them that Davis had been detained in Louisiana and could not make it due to bad weather. Davis was contacted by her staff by text messaging. Ms. Wood paid $1,750 in cash to retain Davis. Davis provided OPC a May 30, 2012, time billing to Knighten, which Knighten disputed as being inaccurate. From December 2011 to the end of April 2012, Knighten’s phone records show 16 short calls
she placed to Davis’s number in an attempt to contact Davis. On April 26, 2012, Knighten mailed Davis a letter asking if Davis was going to appear with Knighten in court at a May 9 hearing. On May 7, 2012, as Knighten and her mother were making the nine-hour drive from Mississippi to Arkansas, Davis called them on her cell phone, informed them that her law license had been suspended in March 2012, and Davis was unaware that Knighten had retained her. Davis claimed that she thought the $1,750 was to pay for the visit in December 2010, and later consultations. Unable to find another attorney on a day’s notice, Knighten went to court on May 9, 2012, and did not get her children returned to her. DAVIS H. LOFTIN, Bar ID # 79196, of West Memphis, Arkansas, was reprimanded by Committee Findings and Order filed January 16, 2013, on a complaint filed by Gennie White, in case number 2012-057, for violations of Rules 1.1, 1.3, and 8.4(d). In addition, Mr. Loftin was ordered to pay a fine in the amount of $5,000 and pay restitution for Mrs. White in the amount of $1,100. Mrs. White and her husband hired Davis Loftin to represent them in a bankruptcy proceeding. Mr. and Mrs. White wished to have reaffirmation agreements for their two vehicles and furniture. Mr. Loftin failed to be certain that the Reaffirmation Agreement for the Ford Explorer belonging to Mr. and Mrs. White was filed in the bankruptcy prior to discharge. As a result, the Explorer was repossessed. Additional actions had to be taken in the bankruptcy to reopen it and Mr. and Mrs. White were out more sums of money to recover their vehicle.
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Attorney Disciplinary Actions MONICA MASON, Bar #98104, of Sherwood, Arkansas, by Consent Findings & Order filed February 15, 2013, in CPC 2012028, agreed to a reprimand on a complaint by Circuit Judge Alice Gray for violations of Rules 1.7(a), 3.3(a), and 8.4(d). The complaint involved the attempted adoption of BBW, a newborn, by each of two couples, E and H, and multiple concurrent conflicts of interest of Mason. In August-September 2011, at the same time Mason represented as counsel the birth mother (BM), got herself court-appointed as guardian of the person of the newborn infant (BBW) on his date of birth, represented as counsel another potential adoptive couple who were seeking to adopt BBW and were paying BM’s expenses, and Mason has also advanced $744 of her own funds to the BM. Mason failed to disclose all of her relationships to the court when seeking the guardianship order. Mason failed to disclose to the court that there was another adoptive couple, Couple H, of whom Mason had knowledge on September 14, 2011, prior to Mason actually filing the signed guardianship order. The birth mother earlier placed another male baby for adoption through an agency (ABBA). Couple H adopted this baby. On March 7, 2011, BM signed a document with ABBA to place her unborn baby (BBW) for adoption. ABBA arranged for Couple H to adopt BBW, BM agreed with this placement, and Couple H began paying BM’s expenses. The putative father signed a similar document in favor of ABBA, for BBW’s adoption by Couple H through ABBA. By August 2011, Monica Mason had become the attorney for Couple E who were seeking to adopt an infant,
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situation and various consents; Judge Gray held a conference call with Mason on the petition to appoint Mason as guardian; Mason claimed to have drafted documents for BM and father to revoke their previous adoption consents in favor of ABBA and Couple H; Mason filed the Order of Guardianship; father revoked his consent for ABBA to the BBW adoption; BM signed a Release of BBW to ABBA and she left hospital “against medical advice.” BM then signed revoking any previous consent to ABBA for adoption of BBW. Mason physically placed BBW with Couple E. ABBA filed a petition to intervene in Mason’s BBW “guardianship” case, and Couple H filed a petition to adopt BBW. Couple E then filed a petition to adopt BBW. In a conference call, Mason admitted that at the time she placed the baby with Couple E, she was aware of the other adoptive couple, Couple H. Judge Gray conducted a conference call and learned Mason had personally paid expenses for her client, BM, and that Mason
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
had previously secured the adoptive Couple E prior to their filing of an adoption petition on September 20, 2011. On October 6, 2011, Judge Gray entered her Order removing Mason as guardian for BBW, due to Mason’s failure to disclose potential conflicts of interest. DHS was allowed to proceed with its dependency-neglect petition. In 2012, Couple H finalized their adoption of BBW. JIMMIE L. WILSON, Bar #73128, of West Helena, Arkansas, by Consent Findings & Order filed February 1, 2013, in CPC 2012022, on a complaint by Moses Watts, Sr. of Pine Bluff, was reprimanded and ordered to pay $2,500 restitution for violations of Rules 1.3, 1.4(a)(4), 1.4(b), and 1.16(d). In August 2010, Mr. Watts met with Mr. Wilson in West Helena, employed Wilson to handle an employment matter against International Paper Company, and made an initial $500 payment on a fee shown as $2,500 on the receipt he received. Watts states there is no written employment contract or fee agreement between them, to his knowledge. On September 3, 2010, Mr. Watts paid an additional $750 on the fee, leaving a $1,250 balance. According to Mr. Watts, their agreement was that Watts would have to pay the $2,500 in full before Mr. Wilson would start his claim. Watts paid the balance of the full fee by October 29, 2010. They met in Wilson’s West Helena office in December 2010, and Wilson told Watts the documents would be sent to Watts soon for his review. Watts never received any documents from Wilson thereafter. Mr. Watts has no evidence that Mr. Wilson did any work in Watts’ matter. Mr. Watts wrote Mr. Wilson on March 30, June 3, and October 26, 2011,
inquiring about the status of his matter and finally requesting a refund of his fee so Watts could employ another attorney in the matter. Mr. Watts received nothing in response. He now believes the time within which any claim for him could have been filed has expired. CAUTION: RONALD L. GRIGGS, Bar #72046, of El Dorado, Arkansas, was cautioned by Committee Findings and Order filed March 7, 2013, in CPC 2012-055, on a complaint filed by Jason Arrington, for violations of Rules 3.4(c), 3.5(b), 4.4, and 8.4(c). Arrington was involved in a contentious divorce action in Columbia County, Arkansas, where Griggs represented the former Ms. Arrington. During post-Decree matters, Griggs issued a subpoena duces tecum to Mr. Arrington’s former employer for certain employment records, with no notice being given to Mr. Arrington that he had done so. Mr. Griggs did not comply with the provisions of the rules of civil procedure with regard to issuance, service and notice of the subpoena. KENNETH A. OLSEN, Bar #83139, of Bryant, Arkansas, was cautioned by Committee Consent Findings and Order filed February 15, 2013, in CPC 2012-076, for violations of Rules 1.1, 1.2(a), 1.3, 1.4(a) (1), 1.4(a)(3), and 8.4(d). Mr. Olsen filed a Notice of Appeal on behalf of his client James C. Robertson in a Workers’ Compensation Commission matter. After the record was filed on appeal, Mr. Olsen requested a seven-day extension of time to file the brief on appeal. Mr. Olsen did not check out the record on appeal until 10 days after his
deadline for filing the brief. Mr. Olsen did not file a brief nor seek an extension to do so. Mr. Olsen did not volunteer the information to his client, Mr. Robertson. Mr. Robertson did not learn about the missed deadline until he called Mr. Olsen. When he learned of the missed deadline, Mr. Robertson directed that Mr. Olsen seek to file a belated brief but Mr. Olsen did not do so. Mr. Olsen’s failure to file a brief resulted in Mr. Robertson not having an opportunity to have the Workers’ Compensation Commission decision adverse to him reviewed by the appellate courts. JERRY D. ROBERTS, Bar No. 98208, of Wynne, Arkansas, in CPC 2011-053, by Consent Findings & Order filed January 18, 2013, agreed to a caution for violation of Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), and 8.4(d) in connection with his representation of Ms. Barrie Cobb in a personal injury matter. Roberts filed suit on Ms. Cobb’s behalf on August 29, 2005, and the case was set for trial in November 2007. Ms. Cobb began experiencing difficulties contacting Mr. Roberts. The lawsuit was rescheduled on two occasions when Ms. Cobb wrote Mr. Roberts and asked him to settle the matter if at all possible. Roberts filed a Motion for Nonsuit, which was granted on October 23, 2008. Ms. Cobb inquired of Roberts about the status of her case and he advised that he would send her a letter, which Ms. Cobb never received. In March 2010 Ms. Cobb discovered that her case had not been refiled within one year of the non-suit. Ms. Cobb filed a claim with Mr. Roberts’ malpractice carrier, and upon settlement of that matter Roberts entered into the discipline by consent. ■
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Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period January 1, 2013, through April 30, 2013: In Memory of Rosemary Abramson Judge Bill Wilson and Cathi Compton In Memory of D. Fenton Adams Arthur G. Murphey, Jr. In Memory of James A. Buttry W. Christopher Barrier Silas H. Brewer Justice Robert and Charlotte Brown John C. Calhoun, Jr. Coplin, Hardy & Stotts, PLLC Judge and Mrs. Robert H. Dudley Sally and James McLarty A. Wyck Nisbet, Jr. Liz and David Powell Hayden and Gordon Rather J. Shepherd Russell III Fred S. Ursery Mike Wilson In Memory of Phillip Carroll Barbara Amsler (designated to the Rose Law Firm Scholarship) Chris Barrier and Nan Selz Silas H. Brewer Justice Robert and Charlotte Brown John C. Calhoun, Jr. Roger U. Colbert Patti and Charles Coleman Deacon Law Firm Judge and Mrs. Robert H. Dudley Judge John and Nancy Fogleman Grant E. Fortson Marjem and John Gill Donis B. Hamilton Justice Bradley D. Jesson Philip E. Kaplan John T. Lavey Sally and James McLarty Judge James G. Mixon (designated to the Ernest G. Lawrence Scholarship) Edward T. Oglesby Hayden and Gordon Rather Roscopf & Roscopf, P.A. Susie and Brian Rosenthal James V. Scurlock II Jane and Dennis Shackleford James D. Sprott, P.A.
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In Memory of Phillip Carroll Rex M. Terry UALR William H. Bowen School of Law (designated to the Rose Law Firm Scholarship) Fred S. Ursery Mike Wilson Carolyn and John Witherspoon Womack, Phelps & McNeill In Memory of Winslow Drummond Sally and James McLarty In Memory of Julian B. Fogleman Sally and James McLarty In Memory of Mack Castleman Fuqua Hopkins Law Firm
In Memory of Judge E. Dail Stiles Barbara and Jeff Pence Judge Bill Wilson and Cathi Compton Mike Wilson In Memory of R. Christopher Thomas Judge and Mrs. Robert H. Dudley W. Frank Morledge Judge Graham Partlow Laura E. Partlow In Memory of Bill Walters Justice Bradley D. Jesson Rex M. Terry In Memory of Roxanne Tomhave Wilson Sally and James McLarty
In Memory of Judge Melinda R. Gilbert George Steel, Jr. In Memory of Russell A. Gunter Coplin, Hardy & Stotts, PLLC In Memory of James E. Harris Coplin, Hardy & Stotts, PLLC Liz and David Powell In Memory of Christopher C. Mercer Judge Graham Partlow Laura E. Partlow In Memory of Judge Rudy Moore, Jr. Justice Robert and Charlotte Brown Judge John and Nancy Fogleman Judge Robert Fussell Judge James G. Mixon (designated to the Ernest G. Lawrence Scholarship) Barbara and Jeff Pence Mike Wilson In Memory of Ben E. Rice Mike Wilson In Memory of Walter E. â€œSonnyâ€? Simpson Hayden and Gordon Rather
Honorariums and Scholarship Contributions In Honor of David Solomon Designated to the David Solomon Scholarship Fund Helena Bridge Terminal, Inc. Helena Marine Service, Inc. William A. Waddell, Jr. Arkansas Association of Women Lawyers Scholarship Fund Arkansas Association of Women Lawyers Rose Law Firm Scholarship Fund Rose Law Firm Charitable Trust U. M. Rose Scholarship Fund Rose Law Firm Charitable Trust Sebastian County Bar Association Scholarship Fund Sebastian County Bar Association
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Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
John Phillip Carroll John Phillip Carroll of Little Rock died March 9, 2013, at the age of 87. He graduated from Fort Smith High School in 1943, and a few months after receiving his diploma, Phil received his request to join the Army. The years as a soldier never left Phil. He arrived at the front lines in Europe as a 19-year-old Squad Leader, Staff Sergeant and spent his first Christmas Mass in Strasbourg bearing his service rifle. On a bitter snowy day in January 1945, Phil along with his unit was captured by the German Army Panzer Division in the battle of Hatten, which occurred just after the Battle of the Bulge. He was captured and became a German prisoner of war in Stalag IV B until the war’s end. After returning from the war, Phil attended the University of Arkansas where he completed his degree and gained a law degree on the GI Bill. Only three months after gaining a job with the Rose Law Firm, Phil was called back to duty for the Korean War. Fate and friendship shined upon him. His best friend Jack Deacon who was serving in the Pentagon asked Phil to join him in Washington, D.C. Aside from his family, Phil’s most prized role was as a member of the Rose Law Firm in Little Rock, Arkansas. Phil joined the Rose Law firm in 1950, which was then known as Rose, Meek, House, Barron and Nash. Over the course of 63 years in practice Phil remained with one firm, the oldest law firm on this side of the Mississippi River. He believed that he practiced under and with some of the finest lawyers to ever practice in the state of Arkansas. He was a lifelong member of the Pulaski County Bar Association, serving as its President in 1967, and received the Lawyer Award in 1980. He was also very active in the Arkansas Bar Association, serving as its 50
The Arkansas Lawyer
President in 1980-81, Foundation President in 1969 and Chairman of the Executive Committee. He obtained numerous awards throughout his career, including the C.E. Ransick Award of Excellence, the Ike Scott Fellow Award, the Outstanding Lawyer of Arkansas Award, and the University of Arkansas Outstanding Alumnus Award. He was a Fellow of the Arkansas and American Bar Foundations, Fellow of the American College of Trial Lawyers, Fellow of the International Academy of Trial Lawyers, and a Member of the House of Delegates of the American Bar Association representing The Uniform Law Commission. For most of his long career, Phil served as a Uniform Law Commissioner on behalf of Arkansas, serving as President of the entire national Conference of Commissioners from 1985-87. He became a Life Member in 1989 and received the organization’s Lifetime Achievement Award. Phil was a charter member and Secretary of the Arkansas Supreme Court Jury Instruction Committee that developed the pattern instructions used by juries throughout the state today. He served as a Special Chief Justice of the Arkansas Supreme Court in 1979, taught Evidence and Trial Practice at the Arkansas Law School and Communications Law at UALR. He was a Charter Barrister in the William R. Overton Chapter of Inns of Court. His devotion to practice and the Rose Firm ended only with his life as he maintained a daily schedule at the firm until his death. He is survived by his wife of almost 60 years, Diane, and three children.
Russell Allen Gunter Russell Allen Gunter of Little Rock died February 9, 2013, at the age of 62. While a student at Southern State College in Magnolia, Arkansas, Russell was a crosscountry runner. Having grown up on the
flat terrain of west Texas he loved running the hills of Arkansas in its prettiest seasons of spring and fall and it was then he knew he wanted to spend the rest of his life in Arkansas. After graduation, he returned to Texas just long enough to earn a Juris Doctorate at Texas Tech University and then immediately moved to Arkansas and adopted it as his home state. In 1975 Russell was admitted to practice law in Arkansas and Texas. A founding member of Cross, Gunter, Witherspoon & Galchus, he practiced labor and employment law and served as its managing director for 16 years. Blessed with everything but a long life he was a loyal friend, patient mentor and trusted advisor whose integrity earned him the respect not only of his clients but also of opposing counsel. Despite his diagnosis of esophageal cancer in 2008, he continued to work on behalf of his clients. His quiet demeanor, analytical skill, positive attitude and strong work ethic served him and his clients well. Although a self-acknowledged introvert Russell took an active role in many organizations. He served on committees of the Arkansas and American Bar Associations, and chaired the Arkansas Bar Association’s Labor Section. The Arkansas Society for Human Resources Management named him Outstanding Human Resources Professional in 2001 and awarded him its Legislative Advocacy Award in 2005 and 2006. He received the Central Arkansas Human Resources Association Outstanding Member Award three times. He was included in Best Lawyers of America for more than 25 years, named in Corporate Counsel magazine as one of the Best Lawyers in Labor & Employment Law, listed in Chambers USA America’s Leading Lawyers for Business and in Who’s Who in American Law. For the last six years he was listed in the Mid-South Super Lawyers in Labor and Employment Law. He is survived by four children. Brian Charles Donahue Brian Charles Donahue of Hot Springs died on February 6, 2013, at the age of 51. He received his Bachelor of Social Sciences from Louisiana Tech University in 1985. He received his Juris Doctorate from the University of Arkansas School of Law in 1991. Brian was a member of the Arkansas
Bar Association where he served on the Alternative Dispute Resolution Committee, Public Sector Law Committee and Construction Law Committee. He is survived by his wife, Kathleen Shea Donahue, and two children. Judge Stanley Wade Ludwig Judge Stanley Wade Ludwig of Springdale died April 30, 2013, at the age of 67. Stanley attended the University of Arkansas at Fayetteville, earning a degree in business administration in 1968. He was commissioned in the United States Army where he served and later completed his military career as a first lieutenant at Fort Knox, Kentucky. After serving his country, Stanley returned to Arkansas where he graduated with honors with a juris doctorate from the University of Arkansas School of Law in 1973. After passing the Arkansas State Bar Exam in 1973, Stanley first joined the law firm of James E. Evans Sr., and later joined the law firm of Cypert, Crouch, Clark and Harwell. Following the sudden death of Evans Sr., Stanley was unanimously recommended by his legal peers to be appointed by the Governor of Arkansas to complete Evans’ term as Springdale Municipal Court Judge. Stanley went on to be elected Springdale Municipal Court Judge (later re-named District Court Judge), and served as a distinguished jurist there until his retirement from the practice of law on Dec. 31, 2010. He is survived by his wife of over 44 years, Barbara, and two children.
Bruce Allan MacPhee Bruce Allan MacPhee of Hot Springs died on January 24, 2013, at the age of 59. He was born in Vancouver, British Columbia, and grew up in Hot Springs. Bruce was a 1971 graduate of Lakeside High School and received his undergraduate and law
degrees from the University of Arkansas at Fayetteville, where he was a member of the Arkansas Law Review. Bruce became a naturalized citizen of the United States of America in 1976. Licensed to practice law in 1978, he was a founder of Cox & MacPhee (later known as Henry, Cox & MacPhee) in Hot Springs, and also served as Deputy Prosecuting Attorney for Garland County before joining Weyerhaeuser Company in 1993 as Corporate Counsel. At the time of his death, Bruce was Senior Legal Counsel– South for Weyerhaeuser. He is survived by his wife, the former Leah May of Hot Springs, and two children. Judge Rudy Moore Judge Rudy Moore of Fayetteville died April 11, 2013, at the age of 69. He received his Bachelors of Arts in Economics at Southern Methodist University and Juris Doctorate in 1969 from the University of Arkansas School of Law. At the age of 27, he was elected to represent Washington County in the Arkansas House of Representatives where he served from 1971-1975. In 1978, he served as the campaign manager for Bill Clinton’s successful gubernatorial campaign, and served as Governor Clinton’s Chief of Staff and Senior Executive Assistant from 1979 to 1981. From 1976 through 1992, he served as a lecturer at the University of Arkansas. He served as Fayetteville district judge for 22 years. He is survived by his wife, Rhonda, and three children.
Ben E. Rice Ben E. Rice of Jacksonville died Tuesday, March 12, 2013, at the age of 75. Ben was the Valedictorian of the 1955 graduating class of Jacksonville High School, received an associate degree in Journalism from the University of Arkansas, and a JD from the George Washington University in 1964.
During law school, Ben served as a legislative aide for Congressman Dale Alford. Ben and Judge Robert Batton were the founding attorneys of the law firm now known as Rice & Adams where he practiced law from 1964 until his retirement in 2007. He received the Outstanding Lawyer Citizen award from the Arkansas Bar Association & Arkansas Bar Foundation. He served as Jacksonville City Attorney from 1967 until 1977. He was a member of the Arkansas and American Bar Associations. He was a Fellow of the Arkansas Bar Foundation. William Dale Varner William Dale Varner of Springdale died January 15, 2013, at the age of 86. He practiced law in Brea, California, and Springdale, Arkansas. He was also a deputy prosecutor for the Washington County Prosecutor’s Office in Fayetteville for seven years and enjoyed teaching law at the University of Arkansas. He was a WWII veteran and served as a Naval Gunnery Officer on a destroyer in the Atlantic. He also served as a naval officer in the Korean War. He is survived by his wife of 66 years, Dolores, and three children. Bill Walters Bill Walters of Greenwood died on March 5, 2013, at the age of 71. He graduated from the University of Arkansas with a Juris Doctorate degree and came to Greenwood as a Deputy Prosecuting Attorney in 1971. He began practicing law in Greenwood in 1972 as Walters Law Firm, now Walters, Gaston and Allison. He and his wife, Shirley, started SCATCO Abstract and Title Co. in 1980 and successfully ran it for 22 years. Bill was elected to the Arkansas State Senate in 1983, and he served for 18 years. He was dedicated to the constituents he served and to the state. As a lawyer, Bill loved the law and using it in ways that helped his clients. He was named one of the top 10 Arkansas legislators in 1995. He was a member of the Arkansas Bar Association where he served on the Technology, Paralegal, and Continuing Legal Education Committees and the Committee for a Modern Judiciary.
The information used in “In Memoriam” is provided by the members’ obituaries.
Vol. 48 No. 2/Spring 2013 The Arkansas Lawyer
Index to Advertisers
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