A publication of the
Arkansas Bar Association
Vol. 47, No. 1, Winter 2012 online at www.arkbar.com
Inside State District Courts Uniform Power of Attorney Act Affordable Care Act Task Force on Judicial Elections
We’ll focus on your technology. In these changing times, your technology investment needs to help you respond to your client’s requests, protect you and your clients from the risks associated with technology and save you money. Some of our clients found that just the opposite was occurring because their technology team was using yesterday’s technology. Mainstream can improve that situation by providing the right solutions for your problems. Our team of experts understands how to: • Leverage technology to support, simplify and protect your practice; • Manage your technology infrastructure from backing up your information to hosting your critical technology assets; • Free you to focus on your practice without worry for your technology investment.
325 West Capitol Avenue, 2nd Floor, Little Rock, AR 72201 (501) 217-9490 • (501) 217-9715 Fax • Mainstream-Tech.com
YOUR CLOUD STARTS HERE
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 Gordon S. Rather, Jr., Chair Judge Wiley A. Branton, Jr. O. Milton Fine II Judge Victor A. Fleming Brandon J. Harrison William D. Haught Philip E. Kaplan Mary Beth Matthews Drake Mann David H. Williams Teresa M. Wineland
Lawyer Vol. 47, No. 1
OFFICERS President Tom D. Womack Board of Governors Chair Harry A. Light President-Elect Charles L. Harwell Immediate Past President Jim L. Julian Secretary F. Thomas Curry Treasurer William A. Martin Parliamentarian Sean T. Keith Young Lawyers Section Chair Brian M. Clary
10 State District Courts: Amendment 80’s Final Frontier Keith Caviness
BOARD OF GOVERNORS Seth T. Bickett Thomas M. Carpenter Earl Buddy Chaddick, Jr. Tessica C. Dooley Richard C. Downing Frances S. Fendler Amy Freedman David M. Fuqua Amy C. Grimes Anthony A. Hilliard Don Hollingsworth Paul W. Keith Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Brian H. Ratcliff John C. Riedel Brian M. Rosenthal Brock Showalter Danyelle J. Walker Dennis Zolper
24 Professor Llewelleyn’s ABC’s of Appellate Argument Keith L. Chrestman
LIAISON MEMBERS Zane A. Chrisman F. Thomas Curry Jack A. McNulty Harry Truman Moore Judge Alice Lightle Carolyn B. Witherspoon Karen K. Hutchins Judge Vann Smith
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 2011, Arkansas Bar Association. All rights reserved.
16 The Affordable Care Act: The Boiled-Down Version David Boling 20 The New Uniform Power of Attorney Act: What You Need to Know Lynn Foster and Dan Young
28 Task Force on Judicial Elections Justice Robert L. Brown 30 Governor and Supreme Court Justice Simon P. Hughes L. Scott Stafford
Cover Photo of Whitaker Point in the Ozarks courtesy of Arkansas Parks and Tourism
Scan the QR code to go to www.arkbar.com on your smartphone Contents Continued on Page 2
Lawyer The Arkansas Vol. 47, No. 1
in this issue Association News
Arkansas Bar Foundation Call to Fellowship
Schedule of Elections
2011-2012 Board of Governors
2011 CLE Speakers & Planners
Judicial Disciplinary Actions
Attorney Disciplinary Actions
Arkansas Bar Foundation Memorials and Honoraria
columns President’s Report
Young Lawyers Section Report
Brian M. Clary
Your Name in Print The Arkansas
A publication of the
Arkansas Bar Association
Vol. 46, No. 4, Fall 2011 online at www.arkbar.com
Inside The Arkansas Civil Justice Reform Act
Tom D. Womack
For information on submitting articles for publication, go to www.arkbar.com Publications/ The Arkansas Lawyer or email email@example.com
Arkansas Bar Association
2224 Cottondale Lane Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Anthony W. Noblin, Kristin Pawlik, William J. Trentham, Hollie Greenway and Jon B. Comstock Delegate District A-2: Brock Showalter, Suzanne Clark, Paul D. Reynolds, W. Marshall Prettyman, Jr., Stan B. Baker, Matthew L. Fryar, Tina M. Hodne, Chad L. Atwell, Boyce R. Davis, Amy M. Driver and Curtis L. Nebben Delegate District A-3: Joel D. Johnson, Stephanie Harper Easterling, Farrah L. Fielder, C. Michael Daily, Lisa-Marie France Norris Delegate District A-4: Erik P. Danielson Delegate District A-5: Brent Capehart Delegate District A-6: Emily Sprott McIllwain Delegate District A-7: Michael E. Kelly Delegate District B: Patrick L. Spivey, Shaneen K. Sloan, Jason Earley, Jerald “Cliff” McKinney II, John P. Perkins III, Victor D. “Trey” Wright, Mark W. Hodge, Cathy Underwood, Jodie Lynn Hill, Grant M. Cox, James Paul Beachboard, M. Stephen Bingham, Phillip M. Brick, Jr., Khayyam Eddings, Whitney Foster, Stephen R. Giles, Christian Harris, Aaron L. Squyres, J. Adam Wells, Dan C. Young, John T. Adams, Amber Wilson Bagley, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, Gwendolyn L. Rucker, Thomas G. Williams Delegate District C-1: Jay Scurlock Delegate District C-2: Jerrie Grady Delegate District C-3: Keith L. Chrestman, G. S. Brant Perkins, J. Roger McNeil Delegate District C-4: Curtis J. Walker Delegate District C-5: Albert J. Thomas III, A. Jan Thomas, Jr. and William “Zac” White Delegate District C-6: Charles E. Clawson III, Shane A. Henry Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Charles D. Roscopf, Paul T. Bennett, Jackie B. Harris Delegate District C-9: Leslie Jo Ligon, Timothy R. Leonard, John R. Byrd, Jr. Delegate District C-10: Shivali Sharma and George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: Wade T. Naramore and J. Joshua Drake Delegate District C-13: Sam E. Gibson and Cecilia Ashcraft Law Student Representatives: Angela Artherton, University of Arkansas School of Law; S. Kate Fletcher, UALR William H. Bowen School of Law
The Arkansas Lawyer
At the end of the day...
Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you?
• Does your firm’s 401(k) include professional investment fiduciary services? • Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? • Does your firm’s 401(k) feature no out-of-pocket fees?
If you answered no to any of these questions, contact the ABA Retirement Funds Program to learn how to keep a close watch over your 401(k). Phone: (800) 826-8901 email: firstname.lastname@example.org Web: www.abaretirement.com
Who’s Watching Your Firm’s 401(k)? The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (800) 826-8901, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C11-0318-012 (3/11)
A r k a n s a s
B a r
A s s o c i a t i o n
114th Annual Meeting
Strengthening Our Profession
June 6-9, 2012, Hot Springs Hot Springs Convention Center & The Arlington Hotel
Joint Meeting with the Arkansas Judicial Council 4
The Arkansas Lawyer
by Tom D. Womack
A Plan for the Future Arkansas Bar Association Strategic Plan Following years of development, the Association’s Strategic Plan was approved by the House of Delegates at last year’s mid-year meeting, having previously been approved by the Board of Governors in December of 2010. This is a product of long-enduring efforts of the Long-Range Planning Committee under the able leadership of past president Jim Julian and its current chairman, Brian Rosenthal. The plan adopts a five-year time span to further pursue goals of the Association and to work from the centerpoint of our mission: To serve lawyers, the judiciary, and the public; to promote justice and improve public access to and understanding of the judicial system; and to promote civility in the profession. Brian, along with his vice chairs, Zane Chrisman and Vicki Vassar, have formed subcommittees of the Long-Range Planning Committee to constitute sub-groups to identify and bring focus to particular actions for the current bar year. The actions identified for this year are within the five goals of the Strategic Plan, each of which is a guidepost for the endeavors of the organization. Through the Association’s existing substantive committee and section structure, we will be able to monitor, implement and assess the actions and periodically develop reports of the performance to keep the organization moving toward accomplishment of the goals. While all Association committees are impacted, the following have specific, identified plan roles: Continuing Legal Education, Editorial Board for Handbooks, Jurisprudence in Law Reform, Law-Related Education, Legal Services, Legislation, Mock Trial, Public Information, Technology, Lawyers for Literacy, and Women in the Profession. Additional involvement is sought from the Association’s Leadership Academy, its Young Lawyers Section, and local bar associations. Also, we are relying on involvement from the Association’s staff, our lobbyists, the Arkansas Bar Foundation, and the Commission on Diversity to lend support and guidance to this implementation effort. It is contemplated the committee will identify particular goals for each bar year, which are submitted to leadership for approval. These are selected from the 44 action items included as part of the plan, which are to be periodically evaluated through some 29 performance measurements. Periodic oversight by the Board of Governors and Association leadership will ensure the monitoring of all progress and ensure that further contribution to particular objectives of the plan are available as necessary. The Committee is currently comprised of 28 people who are representative of current and past Association leadership, members of the House of Delegates and Board of Governors, and other members with geographic and practice diversity. Our gratitude goes to all of the many volunteers who have participated in the development of the plan and who are currently engaged in efforts to fulfill its promise. n
Five Goals of the Strategic Plan Member benefits (a) The use of focus groups in research of member needs, including expanded use of electronic member surveys; (b) Adapting to advanced technology to save on costs of communication processes, including Facebook, Twitter, and website improvement, to further increase communication among members; (c) Emphasize more diligence in informing members of current benefits via billing statements and e-mail blasts, as well as communicating leadership and networking opportunities within the Association; (d) Hosting additional regional legal education and networking opportunities statewide for all members as appropriate. Promotion of professionalism and civility (a) Identify factors which may lead to greater participation in CLE; (b) Promotion of community activities within the profession (ex. Lawyer Community Legacy Awards & Wills for Heroes); (c) Mentoring program initiation to focus on small law firms and solo practitioners. Promotion of system of justice (a) Continued encouragement to lawyers running for legislature; (b) Outreach efforts to the executive and legislative branches of government and the public; (c) Plan to obtain approval to place FindaLawyer cards in all circuit clerks’ offices and available to all circuit court judges statewide. Improvement of the public’s understanding of the legal system (a) Meet with private and public school administrators and/or counselors to implement legal programs and/or distribution of (i) 18 and Life to Go book; (ii) The award-winning DVD, “A Level Playing Field: Why the American Legal System Matters to You,” with emphasis on promotion for Constitution Day; (iii) Online civics games and information through the Our Courts project — also facilitate use of the American Board of Trial Advocates “Justice by the People” program; and (iv) The Mock Trial program for high school students. (b) Continued publication and distribution of the 18 and Life to Go book through county bars and state agencies for assistance with dissemination. Promotion of access to justice (a) Promotion of pro bono work and voluntary financial support for organizations that provide legal services in cooperation with the Access to Justice Commission; (b) Reevaluation of the Association’s overall message regarding pro bono participation to increase the visibility and priority of pro bono access to justice among the bar; (c) Encouragement of members to support pro bono organizations and legal service agencies in Arkansas, e.g., VOCALS and Equal Access to Justice Panel; (d) Periodic review of Access to Justice activities in other states and bar associations.
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
omination entry forms are available for this year’s Arkansas Bar Foundation & Arkansas Bar Association Awards.
A • • • • • •
Outstanding Lawyer Outstanding Lawyer-Citizen C.E. Ransick Award of Excellence James H. McKenzie Professionalism Award Equal Justice Distinguished Service Award Outstanding Local Bar Association
Deadline for submission of nomination forms: Friday, April 13, 2012 These awards will be presented at the Annual Meeting in Hot Springs in June. Nomination forms my be submitted by any Association member. Forms are available at www.arkbar.com/WhatsNew or by calling Ann Pyle at the Arkansas Bar Foundation at 501-375-4606
2 L Arkansas Bar Association Mentor Program
Introducing the new Lawyer-2-Lawyer Mentor Program The Arkansas Bar Association’s new Lawyer-2-Lawyer Mentor Program is designed to provide a variety of mentor relationships to young lawyers who have been licensed in Arkansas for five or fewer years. Contact the Arkansas Bar Association at 501-375-4606 for more information.
Weekly Case Summaries Weekly case summaries of significant Arkansas Supreme Court and Court of Appeals cases are provided exclusively to members of the Arkansas Bar Association each week in the weekly e-bulletin. New member benefit online links to each decision now provided 6
The Arkansas Lawyer
Arkansas Bar Association New Staff Paul Prater has been hired as the new Continuing Legal Education Director for the Arkansas Bar Association. Paul was in private practice Paul Prater where he was CLE Director the managing partner of a firm before coming to the Association. He is a graduate of the Arkansas Bar Association Leadership Academy and was named as one of 40 Under 40 by Arkansas Business in 2011. He completed his undergraduate degree at Hendrix College and his law degree at UALR School of Law. Paul and his wife Jamie have a six-year old daughter, Ruby. TraNita ScottKelley has been hired as the Association’s receptionist. TraNita is a member of the Army National Guard where TraNita Scott-Kelley she serves as Receptionist a Human Resources specialist. TraNita brings a wealth of experience to the Association including work as an office manager and in customer service. TraNita lives in Little Rock with her husband Tony and stepson Tyler.
Arkansas Access to Justice Launches iPhone App for Pro Bono Attorneys The first interactive pro bono mobile app is now available to Arkansas pro bono attorneys free of charge through iTunes. Learn more at www. arlegalservices.org.
Jim Simpson of Little Rock is the new Association President-Elect Designee
ACCOLADES Shane Bridgforth of Ramsay, Bridgforth, Robinson & Raley in Pine Bluff was awarded the 2011 Jefferson County VOCALS Pro Bono Attorney of the Year. APPOINTMENTS AND ELECTIONS Hon. Ralph Wilson, Jr., Circuit Judge in the Second Judicial District, was sworn in as President of the Judicial Council. Howard Slinkard of Rogers was reappointed to the Board of Trustees of Arkansas State University. Ed Koon of Sheridan was appointed circuit judge for the Second Division of the Seventh Judicial District. Searcy W. Harrell, Jr., was appointed circuit judge for the Fourth Division of the 13th Judicial District. John S. Kitterman was named to the advisory board of BancorpSouth in Little Rock. Don Hollingsworth has been re-elected to the Health Policy Board of the Arkansas Center for Health Improvement. WORD ABOUT TOWN Friday, Eldredge & Clark announced that J. Shepherd “Shep” Russell III will succeed Byron Eiseman as Chairman of the Management Committee. Quattlebaum, Grooms, Tull & Burrow PLLC, recently announced that Michael N. Shannon has become a Managing Member. Bilenda Harris-Ritter and George P. Ritter announced the opening of Ritter Law, a partnership, at 406B Edgewood Drive, Maumelle. Jeffery Weber and Thomas Burns announced the opening of their firm, Weber & Burns PLLC, located at 23251 Interstate 30 South, Bryant. Kimberly Morse Canova of the Sexton & Canova Law Firm in Fayetteville has opened a satellite office in Van Buren at 2711 Oak Lane #B. Rebecca Adelman announced the opening of the Resolution Resource Center of the Mid-South (RRC) located at the Memphis Central Station on South Main Street in downtown Memphis. Williams & Hutchinson LLP a law firm comprised of attorneys, Ronald A. Williams, Timothy C. Hutchinson and Bryan Vernetti have moved their offices to 4201 West New Hope Road, Suite 202, Rogers. Send Oyez information to: email@example.com.
2012 Leadership Academy Congratulations to the 20 attorneys who have been selected to participate in the 2012 Arkansas Bar Association Leadership Academy. The 2011-2012 class brings together a diverse group of attorneys from across the state who have been identified as emerging leaders. Participants attended the Opening Retreat in January and will attend three additional sessions that focus on different areas of leadership. John T. Adams S. Renee Brida Cory D. Childs Joel M. DiPippa Sonya J. Dodson Tessica C. Dooley Joseph W. Ghormley Lauren White Hamilton William M. Jones Kathryn Reynolds Kelley
Shelly Hogan Koehler Jessica Middleton-Kurylo Angelia Esparza Muldoon Kevin O’Dwyer Erin S. O’Leary Andrew M. Parker Melissa N. Sawyer Patrick L. Spivey Shannon Holloway Vaughan Jessica S. Yarbrough
Jim Simpson was recently elected the new Arkansas Bar Association president-elect designee. Simpson is a partner at Friday, Eldredge & Clark in Little Rock where he heads the firm’s General Litigation Practice Group. Simpson graduated from the University of Arkansas at Little Rock cum laude in 1974 and from the University of Arkansas School of Law in Fayetteville in 1977. He has been an active member of the Arkansas Bar Association since being admitted to the bar, including serving as chair of the Young Lawyers Section. He served 11 years in the House of Delegates (tenured), six years on the Board of Governors, two years as Parliamentarian, and finally as Chair of the Annual Meeting in Hot Springs. He has also served as chair and a member of several committees and task forces. Most recently he has been a part of the faculty of the Arkansas Professional Practicum attended by all our newest lawyers. Simpson will become president of the Association in June 2013 during the Association’s Annual Meeting. As president-elect designee, he begins the Association’s four-year leadership track. He will become president-elect at the 2012 meeting, president in 2013, and immediate past president in 2014.
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Association News Committees at Work YLS Minority Outreach Committee
The YLS Minority Outreach Committee presented a panel discussion to students at Philander Smith College on November 16, 2011. Nine panelists spoke to a group of students over lunch about “What I Wish I Knew Before Law School.”
18 & Life To Go Workshops
Tasha Taylor and Tessica Dooley presented one of the workshops
Reading Day a Success
Harry Light read to an elementary class at Rockefeller Elementary School ▲ Association attorneys and judges volunteered to read to students at Rockefeller Elementary in Little Rock on November 15, 2011, to help promote literacy. The Arkansas Bar Association Law Related Education Committee recruited volunteers to read at Rockefeller in conjunction with the Volunteers in Public Schools (ViPS) Jane Mendall Reading Day.
▲ Members of the Young Lawyers Section and Pulaski Technical College’s Amicus Curiae Paralegal Club sponsored two free workshops to Pulaski Tech students and cadets from the Arkansas National Guard Youth Challenge on October 19 & 28, 2011. The workshops focused on topics from YLS’s handbook “18 & Life to Go: A Legal Handbook for Young Arkansans” and all participants were given a CD of the handbook. The Law Related Education Committee continued the tradition of selecting the Student and Tutor of the Year for the Arkansas Literacy Council. Committee member Stephanie Harris presented the awards in conjunction with the Arkansas Literacy Council’s annual conference in Little Rock on October 28, 2011. This year’s recipients were Student of the Year Sonata Whitehead and Tutor of the Year Paul Johnson. For more photos find Arkansas Bar Association on facebook 8
The Arkansas Lawyer
Young Lawyers Section Report
by Brian M. Clary
Serving our Community & Bar The past few months have seen a number of Association and YLS service events. We need your help to ensure that YLS is able to provide great programming and support to both the at-large and legal communities in the months ahead. Here are just a few of our service opportunities. Shortly after the fall release of the second edition of 18 & Life to Go: A Legal Handbook for Young Arkansans, YLS presented two seminars to Pulaski Technical College students. YLS members discussed common problems that young adults face as they enter the “real” world and how the handbook could be a helpful reference for them. We fielded a number of hypothetical (and amusing) fact patterns and problems from the students. The events were well attended and received. During the spring, YLS members would like to make similar presentations across the state. If you have a special connection to your local high school, church youth group, juvenile court, or any young adult group, please consider giving your time. YLS will help in any way that we can. Consider making a presentation on Law Day, May 1, in your community. This year, YLS is participating in the American Bar Association’s Next Steps Challenge. The Next Steps Challenge aims to increase diversity in the pipeline to the legal profession. As part of the Next Steps Challenge, YLS is competing for a $3,000.00 grant to host more events across the state. Our goal is to partner with university student organizations to support the aspirations of diverse students to become lawyers. In October, the Minority Outreach Committee hosted an event at Philander Smith College for students interested in attending law school. YLS members
discussed their road to law school and answered questions from the audience. The panel focused its discussion on how to gain admission, succeed, and graduate from law school. YLS plans to visit the University of Arkansas at Pine Bluff and other colleges and universities this spring. The Association and YLS has matched its first set of mentors/mentees. We had approximately 30 pairings. All sections of the state were represented. Following the February 2012 bar examination, the Association will send a request for additional mentors. The feedback we have received has been very positive. Please consider giving your time to a new attorney. This is an excellent way to foster goodwill and reminisce about your own experience as a new attorney. Elections for 2012-2013 YLS Executive Council: During the 2012 Annual Meeting, YLS will hold elections for six positions on the YLS Executive Council. This year, the Chair-Elect will be chosen from Bar District B. The Chair-Elect will serve as Chair of the YLS Executive Council in 2013-2014. Three district representatives will be chosen from each of the state’s three bar districts to serve three year terms. There will also be an additional district representative position from Bar District A that will serve for one year. A Secretary/Treasurer will be elected to serve a one year term. There are a few qualifications for each position. Only YLS members are eligible to run. YLS consists of all Association members under the age of 36 or who have been licensed to practice law within the last five years (regardless of age). The Chair-Elect position is only open to those members residing in Bar District B who have previously served on the Executive Council. A member seeking a District Representative position
must reside in that representative’s assigned Bar District. A member “resides” in the county where he or she maintains his or her primary practice. The Secretary/Treasurer position has no residency requirement. For nominating procedures and petitions, review the Bylaws of the Young Lawyers Section of the Arkansas Bar Association. This information may be found on the Association’s website and will be included in the next YLS In Brief. Be mindful that nominations and petitions must be submitted to the Association by April 2nd. I encourage all members to consider running for an Executive Council position. Please do not hesitate to contact me or another Executive Council member for questions regarding service opportunities or the upcoming election. n Young Lawyers Section Chair: Brian M. Clary Chair-Elect: Vicki S. Vasser Sec-Treas: Anne Hughes White Imm. Past Chair: Brandon K. Moffitt Executive Council: District A: Ryan Pettigrew, Brian R. Lester & Vicki S. Vasser District B: Cory D. Childs, Grant M. Cox, & Tasha C. Taylor District C: Timothy R. Leonard, Susan Weaver & Ryan M. Wilson At Large Representatives: Tessica Dooley & Cliff McKinney Law Student Representatives: University of Arkansas at Fayetteville School of Law: Angela Artherton UALR William H. Bowen School of Law: S. Kate Fletcher
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
State District Courts Amendment 80’s Final Frontier by Keith Caviness
ach regular session of the Arkansas General Assembly is a unique event in which particular legislative goal may or may not be achieved. Each session presents varying opportunities and obstacles to the participants. The most recent regular session was that of the 88th General Assembly which convened on Monday, January 10th, 2011 and adjourned on Wednesday, April 27th, 2011. One
item during this session which proved to be of particular interest to the state bar, judiciary, local government, law enforcement, and of course legislators, was a proposal to create state district courts. HB 1869, “An Act to Create State District Courts,” was filed on March 3, 2011, and after considerable discussion in the halls of the capitol, in committee meetings, debate on the floor of the house and senate, five amendments and though a Governor veto loomed as a possibility, finally became Act 1219 of 2011 after its approval on April 6. A bit of explanation is in order of how Act 1219 of 2011 came to be within the confines of Amendment 80 to the Arkansas Constitution, our state judicial article. Impact of Amendment 80 In Arkansas prior to the passage of Amendment 80 in November 2000, there were five different kinds of limited jurisdiction courts in the state with overlapping jurisdiction. Limited jurisdiction courts are courts in which issues specifically authorized by statute or constitution are the only issues that may be considered. Since the passage of Amendment 80, the following changes have been made to the system of limited jurisdiction courts: (1) Justice of the Peace Courts were abolished;1 (2) Courts of Common Pleas were abolished;2 (3) The name of each of the state’s municipal courts was changed from “municipal” to “district” courts;3 (4) City Courts continued in existence after the effective date of Amendment 80 unless abolished by the governing body of the city or action of the General Assembly;4 and (5) The timing of election of district judges was changed, and all judicial elections were declared nonpartisan.5 The limited jurisdiction court landscape was narrowed to district courts and city courts. In 2002, the Arkansas Supreme Court issued a statement on limited jurisdiction courts.6 The statement was the court’s vision for the future of the state’s district and city courts. The specific statement of the court appears in the endnotes. In the aftermath of the court’s statement, the authority for the appointment of full-time district judges for temporary assignments in district courts was established.7 New and specific geographical boundaries were set for every district court in the state, and a new structure of “departments” was established within each court when the court sits in multiple locations or when the court has multiple judges.8 A state-
The Arkansas Lawyer
administered district judge retirement system was created, and the funding and administration was transferred from local retirement boards to the state.9 Police courts were abolished, the criminal jurisdiction of district and city courts was established, further statutory references were removed to other limited jurisdiction courts, and statutory provisions were repealed that, pursuant to Amendment 80, are to be governed by Supreme Court rule.10 Amendment 80 Committee Recommendations In 2004 the Amendment 80 Implementation Committee,11 after working for most of the year entirely on district court issues, made a recommendation to the Supreme Court. In response, the court acted and four subject matter divisions were established in each district court, the civil jurisdiction was set for district courts, and rules were adopted for the operation of the small claims division.12 On December 14, 2004, the Amendment 80 Committee concluded its work and again made recommendations to the Supreme Court on specific issues affecting district courts.13 The court noted that unlike the adoption of Administrative Order 18 and the District Court Rules, these recommendations could not be adopted by the court but would require legislative action. The opinion from the court discussed each recommendation as it was presented and repeated what was said in the Statement on Limited
Keith Caviness is staff attorney at the Administrative Office of the Courts with a focus on district courts.
Arkansas District Courts 2011-2017 Jurisdiction Courts as being equally true today: “[T]he responsibility for implementation ... is shared between the Supreme Court and the General Assembly. ... These policy statements ... are offered as a guide to insure consistency in the measures adopted by the judicial and legislative branches....”14 Though the Amendment 80 Committee had concluded its work, the Supreme Court had not and in early 2005 responding to the requests of certain judges in the state, Ark. R. Crim. P. 1.8 was adopted.15 This rule, which authorized the appointment of a district judge as a criminal magistrate to carry out certain preliminary matters in criminal cases in circuit court, did not change the powers of district judges as judicial officers and it did not require their designation as magistrate in any area of the state. The General Assembly, in the 2005 regular session, addressed the issue of additional compensation to be paid to district
judges who are appointed to serve as criminal magistrates in circuit court.16
is that the Act is “revenue neutral.” It allows cities and counties to keep 100% of all revenue and fines currently generated by the court. A Pilot District Court Judges new court fee on statutory foreclosures19 and Based on a report from the interim an increased fee on small claims cases20 were Legislative Task Force on District Courts enacted to provide the funding necessary to in 2006,17 major changes were made to the assume the additional costs of judicial salaries District Court system in Arkansas in the 2007 and benefits. Cities and counties which have a legislative session. The changes were aimed pilot state district court judgeship will transfer at providing a true “three-tiered court” court to the state an amount equal to their proporsystem in the state. SB235 was introduced and tionate share of one-half of the base judicial was signed into law on March 29 as Act 663.18 salary established by law for that county and Over time, the Act would consolidate the town or city’s pilot state district court judge. 219 district and city courts then existing into The legislation began as a pilot program on a smaller number of district courts. The Act January 1, 2008, in twelve counties in the state ensured that court proceedings will continue and involving 17 district courts.21 These courts to be held in the same locations that presently in total are served by 19 full-time judges, each hold court. Judicial salaries would be equal of whom is a state employee. The recommendations of the task force and paid by the state. An attempt was made to included suggesting that the Arkansas Supreme equalize the caseload for each district. One important feature of Act 663 of 2007 Court adopt an administrative rule to expand Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer 11
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 subject-matter jurisdiction for the pilot district courts. Acting under the task-force proposal and after publishing for comment an alternative proposal22 the Supreme Court issued a per curiam opinion September 27, 2007.23 The opinion amended Supreme Court Administrative Order 18 concerning district courts. Under the amended order, the pilot district courts’ civil jurisdictional limit increased to $25,000 and certain matters pending in the circuit court which arose within the territorial jurisdiction of the pilot district court may be referred to a pilot district court judge. District Court Resource Assessment Board Act 663 of 2007 also created the District Court Resource Assessment Board.24 The Board consists of two members of the House of Representatives, two Senators, a mayor, a county judge, a circuit judge, two district judges, the Chief Justice of the Supreme Court and a member of the Arkansas Bar Association who is engaged in the full-time practice of law. The legislation directs the Board to recommend to the General Assembly at each regular session criteria for the creation and placement of full-time, state funded district court judgeships and revisions of current district court judgeships or the redistricting of the district court districts of the state. The Board met numerous times throughout 12
The Arkansas Lawyer
2008 and accepted applications to become pilot state district courts. Fifteen applications were received but only six met the criteria established by the Board.25 The Board’s recommendation was filed in the 2009 regular session of the General Assembly as House Bill 1398 and was signed into law as Act 345 of 2009.26 The act created six additional pilot state district court judgeships27 and also increased the civil filing fee in district court28 to help fund the judicial salaries. Supreme Court Administrative Orders The Supreme Court continued to support the concept of a state-wide system of fulltime state district courts while recognizing the duties of the District Court Resource Assessment Board and that the court’s actions must coincide with legislative enactments. In May 2010 the court amended Administrative Order Number 16 to update it to allow state district court judges to be assigned to circuit court.29 In February 2011, the court issued a per curiam opinion amending the civil jurisdiction of state district court judges pertaining to certain matters in circuit court that may be heard and permitting some of the changes by allowing the use of electronic recording equipment to make the record.30 These changes were to be effective July 1, 2011. The court noted that the
changes came in conjunction with the Board’s recommendation to the General Assembly for the creation and placement of state district courts and that the recommendations were the product of numerous meetings, including a meeting of the state district court judges and the administrative judges of the circuit courts. Act 1219 of 2011 The District Court Resource Assessment Board’s recommendation to the 2011 regular session of the General Assembly was to enact legislation to implement the Board’s goal for a three-tiered unified court system. The proposal would establish state district courts for the entire state and state district judges for those courts. This plan deviated from the past practice of taking applications for state district court judgeships. The realization was that if that practice continued the end result would be excluded areas of the state which could not ever justify a full-time judgeship in that area. Act 1219 of 201131 creates “State District Courts” and designates geographic districts for these courts. Also, dates are set for the election of judges in the various districts, territorial jurisdiction is established, geographic areas from which the judge is elected are prescribed and the departments of the courts are stated. The current ‘pilot district courts’ consisting of 25 judgeships in 15 counties are redefined as ‘state district courts’ comprising 15 numerical districts effective July 27, 2011. Effective January 1, 2013, an additional nine districts with 13 state district court judgeships in 13 counties are created. Effective January 1, 2017, an additional six districts with 10 state district court judgeships in nine counties are created. The act creates one final judgeship in 2021. The remainders of the state’s district courts are designated as “local district courts.” A map which outlines these changes may be found at the end of this article. A companion to the creation of state district courts was Act 1137.32 Arkansas Code Title 16 is amended to add a new section providing that if authorized by the administrative plan for a judicial circuit, a state district court judge may preside over 1) a drug court program; 2) a probation supervision program; and 3) a parole supervision program. Act 1137 also amends 16-98-303 to provide that if a county is in a judicial district that does not have a circuit judge who is able to administer the drug court program on a consistent basis the administrative plan for the circuit may desigCourts continued on page 44
Fellowship: ecognizing Excellence all to
s President of the Arkansas Bar Foundation Board of Directors and the Chair of A Call to Fellowship Campaign, we encourage you to consider joining us as a Fellow of the Arkansas Bar Foundation if you are not a Fellow on our rolls currently. Since 1958, the Arkansas Bar Foundation has supported efforts at improving the administration of justice for all Arkansans by promoting educational, literary, scientific and charitable purposes. The goal of A Call to Fellowship is to increase our endowment so that Foundation income can fund scholarships, law related projects throughout the state and other charitable purposes at levels we were once able to meet in the past and desire to do so again in the future. The Foundation cannot accomplish this valuable goal without your help. Your participation as a Fellow is vital to the growth of this important organization. Fellowship in the Arkansas Bar Foundation provides an opportunity to support a worthwhile organization while giving something back to the legal profession as a whole. We want to thank the approximate 670 current Fellows of the Foundation who support our mission. The contribution to become a Fellow for a lifetime is a pledge of $2,000.00. We have established a payment plan which makes it affordable and easy to become a Fellow. This pledge is payable over a five-year period, paid in semi-annual installments of just $200.00 each, and is fully tax deductible for federal income tax purposes. Your name will be included in the Annual Report of the Foundation which is disseminated to all Arkansas Bar Association members. Upon completion of the payment of your pledge, your photo will be included in the Hall of Fellows in the lobby of the Arkansas Bar Center and appropriate recognition will be given at our annual Fellowsâ€™ dinner. Please feel free to call Ann Dixon Pyle, Executive Director of the Foundation, at 501.375.4606 to request a pledge card or with any questions you may have. We look forward to welcoming you as a Fellow.
Best regards, Frank B. Sewall Fellowship Committee Chair Arkansas Bar Foundation
F. Thomas Curry President Arkansas Bar Foundation
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
A Call to Leadership in the Arkansas Bar Association N o m i n a t i n g
P e t i t i o n s
D u e
A p r i l
2 0 1 2
Sample petitions are available from the Association’s office or website. The petitions, current members of both bodies, and district maps are listed on the Association’s website at www.arkbar.com under the “About Arkbar” tab.
Board of Governors
House of Delgates
District County(ies) 1 Governor to be elected 2-BG Cleburne, Independence, Jackson, Jefferson, Lonoke, White, Woodruff 4-BG Bradley, Calhoun, Columbia, Drew, Hempstead, Lafayette, Little River, Miller, Nevada, Ouachita 9-BG Baxter, Boone, Carroll, Faulkner, Fulton, Izard, Lawrence, Madison, Marion, Newton, Randolph, Searcy, Sharp, Stone, Van Buren 11-BG Clark, Conway, Crawford, Franklin, Howard, Johnson, Logan, Montgomery, Perry, Pike, Polk, Pope, Scott, Sevier, Yell 13-BG Pulaski 14-BG Pulaski
District County(ies) No. of Delegates to be elected A-1 Benton 2 Delegates A-2 Washington 3 Delegates A-3 Crawford, Franklin, 2 Delegates Johnson, Sebastian A-6 Pope 1 Delegate B Pulaski 10 Delegates C-1 Clay, Greene, Lawrence, Randolph 1 Delegate C-2 Independence, Jackson, Sharp 1 Delegate C-3 Craighead 1 Delegate C-4 Mississippi, Poinsett 1 Delegate C-5 Cleburne, Crittenden, Cross, 1 Delegate St. Francis, White, Woodruff C-6 Faulkner, Van Buren 1 Delegate C-8 Grant, Jefferson, Arkansas, Lincoln, 1 Delegate Phillips, Lee C-9 Ashley, Bradley, Calhoun, Chicot, 1 Delegate Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union C-10 Miller 1 Delegate C-11 Clark, Hempstead, Howard, 1 Delegate Lafayette, Little River, Montgomery, Nevada, Pike, Sevier
All Are Three-Year Terms Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June. Election Process for Governors and Delegates For both governors & delegates, a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than April 2, 2012.
Qualifications for House of Delegates The attorney must be an Association member residing within the Delegate District as defined by Article XVI Section 2 of the Association’s Constitution.
Young Lawyers Section
Secretary and Treasurer
YLS Chair-Elect, Secretary/Treasurer & District Representatives
Article III, Section 7 of the Association’s Constitution provides for an annual election of the positions of a Secretary and a Treasurer. Any member interested in serving in either of these capacities should contact Karen Hutchins at 501-375-4606.
Nominating petitions due by April 2, 2012 The YLS Officers shall be elected by the majority of those present and voting at the Annual Meeting of the Young Lawyers Section, which will occur during the Association’s June Annual Meeting. Chair-Elect elected from District B (one-year term) Secretary/Treasurer elected from any District (one-year term) Representative District A (three-year term) Representative District A (one-year term) Representative District B (three-year term) Representative District C (three-year term) 14
All are Three-Year Terms Except C2 which is a One-Year Term
The Arkansas Lawyer
American Bar Association Delegate One of the two ABA Delegate positions is open for election for a two-year term. The Delegate from this Association to the House of Delegates of the American Bar Association shall be nominated by petition signed by at least 75 Association members with at least 25 voting members from each of the three state bar districts. The nominating petitions must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than April 2, 2012.
A r k a n s a s B a r A s s o c i a t i o n 2 0 1 1 - 2 0 1 2 B o a r d o f G o v e r n o r s
Front Row (l to r): Charles L. Harwell, Tom D. Womack, Jim L. Julian, Brian M. Clary; Second Row: F. Thomas Curry, Sean T. Keith, Harry A. Light, Amy Freedman, Karen K. Hutchins; Third Row: William A. Martin, John C. Riedel, Richard C. Downing, Earl Buddy Chaddick, Jr., Dennis Zolper, Seth T. Bickett, Thomas M. Carpenter; Fourth Row: Jerry D. Patterson, Brian M. Rosenthal, Brian H. Ratcliff, Wade T. Naramore, Jerry D. Patterson, Paul W. Keith, Brock Showalter; Fifth Row: Harry Truman Moore, Laura E. Partlow, Danyelle J. Walker, David M. Fuqua, Zane A. Chrisman, Don Hollingsworth, Jack A. McNulty, Tessica C. Dooley This photo was taken at the Capital Hotel in Little Rock by Ocken Photography during the December 2011 Board of Governors meeting.
OFFICERS President Tom D. Womack Board of Governors Chair Harry A. Light President-Elect Charles L. Harwell Immediate Past President Jim L. Julian Secretary F. Thomas Curry Treasurer William A. Martin Parliamentarian Sean T. Keith Young Lawyers Section Chair Brian M. Clary
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
The Affordable Care Act: The Boiled-Down Version by David Boling
he art of practicing law often requires lawyers to boil down difficult concepts or laws to their simplest form. And as many lawyers know from experience, the task of making something complicated into something simple is itself a
complicated task. While working for many months with the Patient Protection and Affordable Care Act—both when it was still a bill and as a relatively new law—I have struggled with how to boil down this law to its essence. Below I share with Arkansas lawyers, my boiled-down version of this complicated law. Law’s Main Purpose The first question a lawyer must ask when trying to understand any law is “what is its purpose?” The main purpose of the Affordable Care Act1 is to expand healthinsurance coverage to Americans. The law achieves this purpose by doing four things: (1) dramatically expanding Medicaid; (2) setting up new insurance marketplaces; (3) requiring individuals to have health insurance and businesses with over 50 employees to provide health insurance; and (4) changing insurance company business practices. Dramatic Medicaid Expansion Medicaid is a publicly financed system that provides health services to low-income children and others. It is a federal-state partnership; that is, the federal government and the respective state government share in the cost of it, but it is administered by the state government. In Arkansas, about 75-80% of the total state Medicaid budget is covered by the federal government. All states receive federal matching funds and the matching rates vary from state to state. Arkansas’s recent federal
The Arkansas Lawyer
match rate of about 80% was higher than all but four states.2 Currently in Arkansas, Medicaid is mainly limited to individuals with very low incomes, including children, women who are pregnant, adults with severe disabilities and seniors age 65 and older. For a lowincome, healthy Arkansas adult between the ages of 19-64, however, to qualify for Medicaid is extremely hard. The reason is because to qualify under Arkansas rules the adult must have been disabled for six months, have an annual income of less than $6,000 and less than $2,000 in assets.3 As a result, because of these very strict requirements in Arkansas—which are some of the strictest in the U.S.—low-income, healthy adults are not eligible for Medicaid. The new health-care law will dramatically change Medicaid in 2014 and the big change for Arkansas is that many more adults will be eligible. Medicaid will remain a federal-state partnership but the tight restrictions against healthy adults will be significantly reduced. All states, not just Arkansas, will be required to expand eligibility to adults between 19-64 years old with incomes at or below 133% of the federal
poverty level. Translated into 2010 dollars, this fact means that an adult making up to about $14,000 or a family-of-four making about $29,000 would become eligible for Medicaid. The other big change, in addition to this broad expansion of eligibility, is that the federal government will pick up a much larger share of the cost. From 2014-2016, the federal government will cover 100% of the cost for newly eligible recipients,4 although Arkansas will continue to administer the program. After that, the federal government’s match will drop in increments, ending at a 90% match in 2020, with Arkansas picking up the remaining 10%. This 90%-10% match will continue after 2020. For Arkansans, the change to Medicaid is probably the most significant aspect of the new health-care law. It’s estimated that about 500,000 Arkansans lack health-care insurance. The expansion of Medicaid to cover low-income adults in Arkansas means that about 250,000 Arkansans will become newly eligible for health insurance financed in whole or in part by Medicaid.5 Because many low-income and uninsured Arkansans live in rural areas, the Medicaid expansion offers the real promise of a way to get health care for this medically-underserved population.6 But Arkansas will likely have to make a very strong communications push to encourage newly eligible adults to sign up for Medicaid, and how many will indeed sign up for this benefit is an open question.
David Boling is formerly a Senior Policy & Legal Analyst at the Arkansas Center for Health Improvement.
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Union Station 1400 W. Markham, Suite 206 Little Rock, AR 72201 501-372-1116 • 888-220-2723 • www.arcf.org Kim Evans, JD, Vice President of Vol. firstname.lastname@example.org No. 1/Winter 2012 The Arkansas Lawyer Development and Client Services
OTHER RESOURCES One of the easier-to-read summaries of the new healthcare law is by the Kaiser Family Foundation at: http:// www.kff.org/healthreform/ upload/8061.pdf. Also, the Arkansas Center for Health Improvement staff has written a number of helpful Issue Briefs that discuss different aspects of the law and the likely impact of the law on Arkansas. These Briefs are available at: http:// www.achi.net/HCR.asp.
On top of that, even if many sign up, another open question is whether there will be enough medical providers in rural areas to meet this increased demand. Parts of the new health-care law encourage medical professionals, especially family practice health-care providers, to locate in rural areas
The Arkansas Lawyer
to meet this new demand, but it remains to be seen how this will play out.
buy health insurance at lower premium rates with lower administrative costs.
New Health Insurance Marketplace The new health-care law makes another big change: it creates state-based health insurance marketplaces—often called “exchanges.” In 2014, Arkansas in partnership with the federal government may have a web-based marketplace where certain individuals and small businesses can shop for health insurance by comparing costs, benefits and other features of different health insurance plans. Individuals who are unemployed, selfemployed or who don’t receive health insurance through their workplace will be able to buy health insurance at the marketplace. Individuals who are eligible for Medicaid will not be able to buy health insurance in the marketplace, because they’ll already have a way to pay for health care. The federal government will offer financial assistance to help pay for the cost of health insurance for Arkansans whose income is up to 400% of the poverty level— in 2010 dollars that is about $43,000 for an individual and for a family of four it is about $88,000. Because Arkansas, compared to other states, has a higher proportion of citizens with low to mid-range incomes, a large number of Arkansans may qualify for assistance. Also, small businesses, those with less than 100 employees, may use the marketplace to buy health insurance for their employees.7 The idea is that small businesses, by pooling together at the marketplace, will be able to
Individual and Business Mandates The new law requires in 2014 that everyone,8 either through a public or private source, have health insurance. Often referred to as the “individual mandate,” this provision has been widely covered by the media and, at this writing, remains the focus of a constitutional challenge in the U.S. Supreme Court.9 Persons who are not otherwise exempt will have to pay a penalty for not having health insurance. Businesses with over 50 full-time employees also have to provide basic health insurance to their employees or face penalties if they don’t do so. In Arkansas, over 70% of employers have less than 50 employees—so for the vast majority of Arkansas businesses the new health-care law imposes no new obligation to provide health-insurance to employees.10 The new law, however, creates tax credit incentives for small businesses of less than 25 employees that wish to provide health insurance. Those credits are available now and are highest for the smallest businesses.11 The penalties for businesses that do not provide health insurance to employees are about $2,000 per employee with the first 30 workers excluded from the calculation.12 So if a firm employed 60 employees and failed to provide health-insurance, it would pay a fine of about $60,000. An open question is whether businesses will simply pay the fine and drop coverage for their employees because the cost
of providing health care may be much greater than the fine amount. Several wellregarded research firms have examined this issue and produced differing results; for example, McKinsey found that 30% of employers plan to drop coverage whereas RAND forecasts an actual 8.9% increase by 2016 in the number of employers that will provide health insurance. The only realworld example that exists is Massachusetts and the number of employers who provide health insurance has not dramatically dropped since it enacted health reforms similar to those in the Affordable Care Act—still over 75% of non-elderly citizens of Massachusetts get their health insurance from their employer.13 Changes to Private Insurance The insurance industry agreed in the law to a number of provisions that dramatically change their business practices. The individual and business mandates help make these changes in business practices possible because thousands of new people will enter the insurance market, thereby creating a larger pool to cover risk. Here are some of the main changes. Now insurance companies are prohibited—this provision took effect September 2010—from denying coverage to children because of preexisting conditions. This same provision will take effect for adults in 2014. For new plans after September 2010, insurance companies cannot impose lifetime limits on the dollar value of coverage. Likewise, over the next few years the annual limit that plans may place on the dollar
value of coverage will be phased out, and after 2014 plans cannot enforce annual limits. Also for new plans after September 2010, young adults may now stay on their parents’ health insurance policy until they are 26 years old.14 Insurance plans are also going to be required to spend a high percentage of their premium dollars on caring for insured, as opposed to administrative expenses like salaries. For larger plans they’ll have to spend at least 85% of their premium revenue on patient-care, and smaller plans will have to spend at least 80% on patient-care. Conclusion So there you have it: a boiled-down version of the new law. By looking at the law through this framework, I have found that it is much easier to understand other parts of the law because they relate back to the boiled-down parts. I hope Arkansas lawyers may find this version likewise helpful as they work to understand key aspects of the law. Endnotes 1. Patient Protection & Affordable Care Act (P.L. 111-148). 2. Arkansas Center for Health Improvement, Arkansas Medicaid Primer at 1 (March 2011). The recent federal match rate was higher than in previous years because of a temporary increase in funding provided through the American Recovery and Reinvestment Act of 2009 (P.L. 111-5). That funding ended June 30, 2011, and the federal match rate dropped to about 75%. 3. Id. at 4.
4. For currently eligible Arkansans, the federal match rate will remain at about 75%. 5. Arkansas Center for Health Improvement, Overview of Health Reform for Arkansans at 7 (July 2010). 6. Arkansas Center for Health Improvement Issue Brief, Patient Protection and Affordable Care Act: Benefits for Arkansas’s Rural Communities at 1-2 (March 2011). 7. Arkansas Center for Health Improvement Issue Brief, The American Health Benefits Exchange in Arkansas at 1 (Sept. 2010). 8. That is, U.S. citizens and legal residents. 9. Kaiser Health News maintains a website titled “Scoreboard: Tracking Health Law Court Challenges.” It is at: http://www.kaiserhealthnews.org/Stories/2011/March/02/ health-reform-law-court-case-status.aspx. 10. Arkansas Center for Health Improvement Issue Brief, Effects of Health Reform on Arkansas Business at 1 (July 2010). 11. Id. at 1-2. 12. See, supra, note 7 at 4. 13. Arkansas Center for Health Improvement Issue Brief, Will Employers Drop, Keep or Add Health Insurance in 2014? (August 2011). 14. Arkansas Center for Health Improvement Issue Brief, Health Insurance Coverage for Young Adults (August 2010). n
Arkansas Bar Association 114th Annual Meeting June 6-9, 2012 • Hot Springs
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Schwartz & Associates LLC 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 501-221-9900 / 501-221-9292 fax
Dick Schwartz CPA, ASA, MCBA, Our Founder
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
The New Uniform Power of Attorney Act: What You Need to Know
By Lynn Foster and Dan Young
n March 30, 2011, the Uniform Power of Attorney Act (“UPOAA”) was approved as Act 805, to be effective on January 1, 2012.1 The new act contains much new law for Arkansas, and three significant changes to current law. A new statutory power of attorney form2 and new default rules will have an impact on drafters, agents,3 and institutions that are requested
to honor powers of attorney. What are the provisions in the UPOAA, and how will they affect the current practice of law? How will current powers of attorney be affected, if at all? Some General Comments The Uniform Law Commission (“ULC”) became convinced of the need for a new power of attorney act after surveying practitioners and existing state laws. The ULC discovered there were significant issues that the then-existing uniform power of attorney act, the Uniform Durable Power of Attorney Act4 (“UDPOA”), failed to address, and that state laws were beginning to diverge as individual states addressed these issues piecemeal. Thus the UPOAA replaces, expands on and updates the UDPOA.5 The UPOAA attempts to strike a new balance, by encouraging acceptance of powers of attorney by third parties, providing sanctions for thirdparty refusal to honor a power of attorney, and providing safeguards against and sanctions for abuse by agents. In addition, whereas the UDPOA covered only durable powers of attorney, the UPOAA covers both durable and nondurable powers of attorney. The UPOAA does not apply to health powers of attorney; another Arkansas statute covers them.6 However, the UPOAA gives a person authorized by the principal in a power of attorney the authority to determine that the principal is incapacitated to act as the principal’s personal representative under HIPAA.7 The UPOAA does not apply to powers coupled with an interest or to proxy voting rights in an entity.8 Indicative of the UPOAA’s real focus, powers of attorney comprising part of an estate plan, the UPOAA only applies to pow-
The Arkansas Lawyer
ers of attorney executed by a principal who is an individual, and not an entity.9 Thus, for example, a limited power of attorney executed by JP Morgan Chase to an Arkansas attorney authorizing her to conduct a nonjudicial foreclosure sale would not fall under the UPOAA. On the other hand, the UPOAA could apply in a non-estate planning context, such as a limited power of attorney executed by the purchaser of a new car, authorizing the dealer to sell the trade-in.10 The Most Important Three Changes Durable by Default. Based on the results of the survey, the drafters changed common (and Arkansas) law to make powers of attorney within the scope of the UPOAA durable by default.11 At common law, powers of attorney automatically terminated on the death or disability12 of the principal. However, in modern times, durable powers of attorney have become more popular as a way to delegate the handling of business affairs to another when the principal becomes incapacitated without the expense and inconvenience of a guardianship. The UPOAA takes this trend one step further, and makes all powers of attorney created under the UPOAA durable unless they expressly state otherwise. This provision does not apply to powers of attorney created prior to January 1, 2012 (or powers of attorney created by entities irrespective of date). However, in most respects the UPOAA is retroactive.13
It is recommended, however, that attorneys continue to include an express provision of durability.14 Guardianship Does Not Terminate Power of Attorney. Under the UPOAA, if a guardian of the estate is appointed, an alreadyexisting power of attorney does not terminate unless the agent’s authority is limited, suspended or terminated by the court.15 The power of attorney continues as before, only now the agent is liable to the fiduciary as well as the principal.16 This is a change from the UDPOA, which gave a guardian of the estate the same power a principal would have to revoke or amend a power of attorney.17 This change follows the legislative trend since the adoption of the UDPOA that defers to the principal’s independent wishes, and also discourages guardianship petitions “filed for the sole purpose of thwarting the agent’s authority to gain control over a vulnerable principal.”18 Acceptance by a Third Party. A third party that accepts an acknowledged power of attorney in good faith, without actual knowledge that the power of attorney is void or terminated or otherwise defective, is granted a “safe harbor” and may rely on the power of attorney as though it were genuine.19 If the third party is presented with a power of attorney that seems questionable, the UPOAA allows the third party to request a certification from the agent or an opinion of counsel.20 If an
acknowledged power of attorney “substantially in the form” as that prescribed by the UPOAA or 10 U.S.C. § 1044b (a military power of attorney) is refused recognition by a third party, sanctions may apply.21 If a court decides that refusal to recognize a power of attorney is unjustified, the third party will be ordered to do so, and will also be liable for attorney’s fees and costs.22 A third party is not required to accept an acknowledged statutory form power of attorney under numerous circumstances, including if the request for certification or an opinion of counsel is refused; if the third party in good faith believes the power is not valid; or if the third party has actual knowledge that another person has made a good-faith report to the Department of Health and Human Services that the principal may be subject to physical or financial abuse by the agent.23 Factors Involved in Recognition by Third Parties When a third party is presented with a power of attorney, its concerns will include the following: 1) whether the signature is that of the principal; 2) whether the power of attorney is immediately effective or springing; 3) if there are multiple agents, whether they must act individually, together or by majority; 4) whether the agent has the authority to exercise the specific power in question; and 5) what kind of protection from liability will be available if the third party relies on the power of attorney. The following factors are taken into consideration by third parties when making the determination of whether to recognize a power of attorney. First, is the signature genuine? Oftentimes a power of attorney is executed by a principal who is feeble, does not have a legible signature, or can only make a few marks. The UPOAA provides “[a] signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.”24 Therefore, it is recommended that the principal’s signature be acknowledged. Including an acknowledgment will also invoke the above-mentioned sanctions of the UPOAA against a third party that refuses to honor a power of attorney.25 Second, the default rule under the UPOAA is that a power of attorney is effective when it is signed.26 If, on the other hand, it is “springing,” or becomes effective on the occurrence
u p o a a
3 most important changes: durable by default
liability for nonacceptance by a third party
other changes: •formalities
guardianship does not terminate power of attorney
•agent s •cogents •standing to sue •liability
of a triggering event (typically the incapacity of the principal), the principal “may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.”27 If a power of attorney is to be effective upon incapacity and the principal does not appoint a person to make the incapacity determination, the power of attorney becomes effective upon a determination in writing or other record by a physician or licensed psychologist28 that the principal is unable to manage property or business affairs, because the individual has impaired abilities to receive and evaluate information or make and communicate decisions.29 Alternatively, the UPOAA authorizes an attorney, judge or government official30 to make a determination of incapacity of the principal because the individual is missing, detained, including incarcerated in a penal system, or outside the United States and unable to return.31 If a principal wants to increase the likelihood that the power of attorney will be quickly accepted, the power of attorney should be effective when signed. In many situations, the principal is reluctant to grant an
Lynn Foster is the Arkansas Bar Foundation Professor of Law at the UALR Bowen School of Law. She has served as one of Arkansas’s uniform law commissioners since 2009 and is a coauthor of Arkansas Probate and Estate Administration.
agent authority to act immediately because the principal is concerned the agent will act inappropriately. If the principal has this concern, the principal should probably appoint someone else as agent. If the principal does not believe that the agent will act properly when the principal has capacity, why does the principal think the agent will act properly when the principal is incapacitated? On the other hand, the ULC’s survey revealed that “a significant number of principals” prefer springing powers.32 It is recommended that every springing power of attorney clearly explain the conditions under which the power of attorney will become effective, and the identity of the person authorized to decide whether the condition has occurred. Other Changes to Existing Law Following are highlights of additional changes to existing law. Formalities. A power of attorney covered by the UPOAA must be signed by the principal or by another who is directed by the prin-
Dan Young is a member of Rose Law Firm, a Professional Association in Little Rock, Ark. He focuses on estate and business planning matters and estate and trust administration. He was included in “Best Lawyers in Arkansas 2012” by Best Lawyers in America.
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Our Arkansas Chapter is online at www.NADN.org/arkansas
Litigators - Need an experienced mediator or arbitrator? Over 650 preeminent attorneys & former judges in 40 states. View profiles and calendars online at www.NADN.org/directory cipal to sign while in the principal’s conscious presence.33 No witnesses are required, although if there is a chance the power of attorney will be used in a state that has not enacted the UPOAA, it is recommended to have the execution witnessed.34 Under the UPOAA, a photocopied or electronic power of attorney has the same effect as the original.35 Agents. The UPOAA erects a comprehensive framework of law surrounding agents, including mandatory and default duties, exoneration, protection from liability, resignation, termination of agency, powers, and restrictions on powers. One of the goals of the UPOAA is to prevent financial abuse. For example, one of the new default duties is to “attempt to preserve the principal’s estate plan,” to the extent it is known to the agent, if doing so is in the best interest of the principal.36 Another innovative provision states that the agency of a principal’s spouse terminates on the filing of an action for the separation or divorce of the spouses.37 New with the UPOAA is a default exclusion of certain acts from a general power. In other words, the following acts must be expressly permitted or they are outside of an agent’s authority: amending, revoking or terminating an inter vivos trust; making a gift; creating or changing rights of survivorship or beneficiary designations; delegating authority granted under the power of attorney; waiving the principal’s rights under an annuity or retirement plan; and exercising fiduciary powers that the principal has authority to delegate.38 Further, even if an agent has the express power to do any of the foregoing acts, an agent who is not a “natural object of the principal’s bounty”39 may not self-deal or act in favor of the agent’s 22
The Arkansas Lawyer
child or spouse.40 With respect to gifts, the UPOAA also sets out the default rule that gifts may not exceed the IRS annual gift tax exclusion amount.41 As a default rule, this prohibition may be expressly overridden by the power of attorney. General powers and all that they include are set out in Arkansas Code Annotated §§ 28-68-204 through 217. It is possible to simply include all actions covered by general powers by a one-sentence power of attorney stating “I grant my agent authority to do all acts that I can do.”42 Coagents. Many times a principal will appoint multiple agents, primarily because the principal does not want to favor one child over another or wants a system of checks and balances. Under the UPOAA, “[u]nless the power of attorney otherwise provides, each coagent may exercise its authority independently.”43 This contrasts with the general rule for two co-executors or co-trustees, that they must act together.44 Standing to Sue. To help prevent elder abuse, the UPOAA gives standing to the principal; the agent; a guardian; a person authorized to make health-care decisions; the principal’s spouse, parent or descendant; a presumptive heir of the principal; a designated beneficiary of the principal; a government agency protecting the welfare of the principal; the principal’s caregiver; or a person asked to accept the power of attorney. These persons may petition a court to construe a power of attorney, or review the agent’s conduct and grant appropriate relief.45 Liability. An agent violating the act is liable for any diminution of the value of the principal’s property, as well as attorney’s fees and costs.46
New Statutory Form. The new statutory form contains more explanatory text than did its predecessor. Departures from default rules should be expressly set out in the “Special Instructions” section. Thus, a nondurable power of attorney or information about the condition of a springing power of attorney should be so indicated in the Special Instructions. The comment to this section provides a handy list of the default rules.47 Conclusion. The new UPOAA expands, updates and improves the law of powers of attorney executed by individuals. Both attorneys and entities that will be expected to honor powers of attorney should read it carefully, make note of the mandatory and default features, and take advantage of the possibilities it offers. Endnotes: 1. Ark. Code Ann. §§ 28-68-101 through 405 (Supp. 2011). Arkansas made only one amendment to the uniform act, and thus for more information on the UPOAA the official comments are extremely helpful and may be found online at http://www.law.upenn. edu/bll/archives/ulc/dpoaa/2008_final.htm. Several articles have been written about the UPOAA. See, generally, Andrew H. Hook & Lisa V. Johnson, The Uniform Power of Attorney Act, 45 Real Prop. & Trust L.J. 283 (2010); Linda S. Whitton, The Uniform Power of Attorney Act: Striking a Balance Between Autonomy and Protection, 1 Phoenix L. Rev. 343 (2008). 2. Ark. Code Ann. § 28-68-301 (Supp. 2011). The statutory form in the UPOAA replaces the Statutory Form of Power of Attorney formerly found at Ark. Code Ann. § 28-68-401 (2004). 3. The UPOAA replaces the term “attorneyin-fact” with the term “agent” to avoid confusion by the lay public between “attorney-in-fact” and “attorneys-at-law.” Unif. Power of Att’y Act § 102 cmt., 8B U.L.A. 64 (Supp. 2011). 4. Former Ark. Code Ann. §§ 28-68-101 through 203 (2004). 5. The UPOAA also replaces the Power of Attorney for Small Property Interests Act, formerly found at Ark. Code Ann. §§ 28-68-301 through 313 (2004). 6. Ark. Code Ann. § 28-68-103 (Supp. 2011). UPOAA continued on page 48
Uniform continued on page 23
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Practice Tip Professor Llewelleyn’s ABC’s of Appellate Argument by Keith L. Chrestman
appeal. Take your time. Frame the question or issue so that it’s up front, succinct, and compels the answer you want.14 The question you ask can determine the case’s outcome. If the court accepts your question, it’s more likely that you’ll get the answer you want.15 And then present the facts. First, remember three C’s: chronology, candor, and clarity.16 Chronological storytelling is natural and arguably the most effective. Candor, which requires telling the good and bad, shows the court respect and confidence. And clarity, in the form of simple fact patargument and suggestterns, minimizes confued how appellate advosion.17 Second, strive to 3 Too many attorneys think that victory turns on cacy can be improved. produce an interesting His first seven suggesread.18 A bored judge is finding the case to cite. Not so. True, it’s essential to less likely to be swayed. tions, the “ABC’s of Appellate Argument,” cite a good case. But judges hunger for more than And third, leverage the facts to show how are worth discussing.4 simple legal recitation. They want to know why the result you seek is They provide every appellate lawyer valujust.19 Never forget that your particular view of the law makes the most able practice tips and your fact presentation reminders.5 gives the court the only sense. Too many attorneys opportunity to see that think that victory turns your view of the law is on finding the case to just. And, if you’re succite. Not so. True, it’s essential to cite a good case. But judges hunger cessful, the court will know that, by giving you the result you seek, it’s for more than simple legal recitation. They want to know why your fulfilled its duty to the law and justice. particular view of the law makes the most sense.6 So you must do And third, concentrate your fire. Many attorneys fear that they’ll more than just cite cases and statutes. You instead must show the miss a winning issue. So they end up raising too many issues. This appellate court why it needs to accept your view of the law.7 “let’s see what sticks” approach however is ineffective.20 It frustrates So first, find the best case law. Test what you find for weaknesses. judges.21 And it divides their attention. You must minimize the issues And your test’s primary focus will be the opinion’s facts. But to detect presented. This concentration of effort focuses the judges’ attention this weakness, you must appreciate how facts are used to create law. 8 on one or a couple of issues. Weaker arguments are weeded out. And The facts detail the parties’ dispute. And from this dispute springs the stronger arguments are amassed into a powerful line of attack.22 law.9 But human action produces these facts. Each human is unique. One theme permeates Llewellyn’s suggestions: in appellate advoSo each case’s facts will be unique. And since the facts will be differ- cacy, facts are critical. Since a reviewing attorney argues before an appellate court, this might seem odd. But you can’t select the best case ent, the law might be different too. The best case won’t be perfect.10 It instead will allow judges to law unless you parse each opinion’s facts. And a pale presentation of fulfill their duty. This duty requires that their current decision and your case’s facts won’t reveal how your view of the law is just. So focus past decisions harmonize.11 The best case will show the judges that, by on the facts. It’ll lead you to the best case law. It’ll help you produce a accepting your view of the law, they’ll fulfill this duty.12 more interesting brief. And it’ll increase the likelihood that the appelSecond, make your argument whole. This requires that you bring late judges will view your case the way you want them to. together two elements. First, the best case law. And secondly, a fact presentation which shows that the acceptance of your view of the law Endnotes is the most just. You’ve already found the best case law. So now make 1. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals the best fact presentation. (Little, Brown and Company 1960). You begin with an advantage: judges want to know the facts.13 2. “The lawyer asks . . . : How does this appellate tribunal arrive at So your fact presentation is the first and best opportunity to capture the particular and concrete answer which it reaches in the particular and their attention. Use it to frame the issue and show how your view of concrete case? . . . [T]his would be a dream-inquiry. It would be fantasthe law is just. tic.” Llewellyn, supra at 16. Ask—straightforwardly—the legal question raised in your client’s 3. Llewellyn, supra at 29-30, 236. hy do appellate judges decide cases the way they do? Many appellate lawyers ask this question. Fifty-two years ago, Karl Llewellyn, a famous legal scholar, released The Common Law Tradition: Deciding Appeals.1 In this book Llewellyn tried to answer this question.2 And in the process, he discussed the importance of an attorney’s
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4. Llewellyn, supra at 237-39. For purposes of this article, all seven suggestions have been distilled into three. This hopefully will reduce redundancy and add clarity. 5. “[Deciding Appeals] is one of the great books of all time, on the appellate judicial process.” Robert A. Leflar, Appellate Judicial Opinions at 8 (West Publishing Co. 1974). 6. “Increasingly, courts don’t want to know simply that there are cases on your side. They want to know that the legal rules announced in those cases make good sense—that the rules you’re asking them to apply are sound public policy.” Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts at 446-447 (Oxford University Press 2nd ed. 2004). 7. “Unless the judgment you are appealing from is incompetent, there is an equally perfect technical case to be made on the other side, and if your opponent is any good, he will make it. . . . The struggle will then be for acceptance by the tribunal of the one technically perfect view of the law as against the other. Acceptance will turn on something beyond ‘legal correctness.’ It ought to.” Llewellyn, supra at 237. 8. “It is an old saying that ‘out of the facts the law arises’; and no argument possesses pertinence that has not some fact in the record to warrant its utterance.” George Rossman, Classic Essays on Legal Advocacy at 788 (The Lawbook Exchange, Ltd. 2010) (quoting Paxton Blair, Appellate Briefs and Advocacy). 9. “[T]he theory is that the dispute-deciding part is the court’s main job, and that the law-making part is a consequence of the decision of the dispute because that is the way we think law should develop. At least this is the traditional way in which our common law has developed.” Leflar, supra at 82 (quoting Robert A. Leflar, Some Observations Concerning Judicial Opinions, 61 Colum. L. Rev. 810-13, 819-20 (1961)). 10. “[D]on’t over-rely on precedent; few cases are completely controlled by it.” Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. Appellate Prac. & Process 7, 12 (1999). 11. “The functions of the law itself, or at least of the formulations and publication of law, are functions of the opinion writing process. The achievement of predictability in law, so that expectations based on knowledge of the law may be justified and justified expectations be realized, is a function that opinions should serve.” Leflar, supra at 81-82 (West Publishing Co. 1974) (quoting Robert A. Leflar, Some Observations Concerning Judicial
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Visit the Arkansas Bar Association Career Center today! www.arkbar.com/pages/AdditionalMemberBenefits.aspx Opinions, 61 Colum. L. Rev. 810-13, 81920 (1961)). 12. “The logic and common sense of your position should be stressed; its appropriateness in terms of precedent or statutory parsing comes later, i.e., the state of the law allows this result, rather than requires it.” Wald, supra at 12. 13. Llewellyn, supra at 238. 14. Ralph Adam Fine, The How-to-Win Appeal Manual: Winning Appellate Advocacy in a Nutshell at 28 (JurisNet, LLC 2nd ed. 2008); Bryan A. Garner, The Winning Brief : 100 Tips for Persuasive Briefing in Trial and Appellate Courts at 55 (Oxford University Press 2nd ed. 2004). 15. Fine, supra at 28; Bryan A. Garner, Garner on Language & Writing: Selected Essays & Speeches of Bryan A. Garner at 127 (American Bar Association 2009) (citing Karl N. Llewellyn, A Lecture on Appellate Advocacy, 29 U. Chi. L. Rev. 627, 630 (1962)). 16. “Chronology, because that is the natural way of telling any story . . . ; candor, . . . since any lack of candor, real or apparent, will wholly destroy the most careful argument; and clarity, because that is the supreme virtue in any effort to communicate thought from man to man.” Rossman, supra at 217 (quoting John W. Davis, The Argument of an Appeal). 17. “[T]he pattern of the facts . . . must be a simple pattern, with its lines of simplicity never lost under detail; else attention wanders, or . . . the effect is drowned in the court’s effort to follow the presentation or to organize the material for itself.” Llewellyn, supra at 238. 18. “When I was younger and more scholarly, I wrote masterly appellate briefs and lost my cases. I exhausted the law and the
judges. The briefs were lengthy, literate and cold. Then, suddenly, one day I made a great discovery which altered my entire appropach to appellate practice. I discovered that judges were human beings.” Rossman, supra at 448 (quoting John Alan Appleman, Tactics in Appellate Briefs). 19. “Those reading your appellate brief, be it the judge or a law clerk or staff attorney must be made to see that your client deserves to win. This is essentially a fact-specific and fact-driven analysis.” Fine, supra at 12. 20. “Confident counsel should almost always go for broke and rely on their one or two best arguments, abandoning the other 9-10 wishlist entries.” Wald, supra at 11. 21. “The more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes.” Wald, supra at 9. 22. Llewellyn, supra at 239. n Keith L. Chrestman is a former law clerk for the Arkansas Court of Appeals and the Illinois Appellate Court in Chicago. He now practices law in Jonesboro with his firm Chrestman Group, PLLC. His practice includes appellate advocacy.
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Member Spotlight — Attorney Athletes
“I think it’s important for busy attorneys to have some sort of physical outlet. Running certainly helps me relax and clear my normally racing mind.” Carmen Sanders
Beyond the Bar
“Due to the stressful nature of our jobs, it is important that we take time to stay fit and healthy.” Sheila McDonald
1. J.J. Childers (shown on the summit of Mt. Rainier, WA) is a marathon runner and triathlete. 2. Professor Howard Brill and his wife Katherine (shown on the summit of Humphrey Peaks, AZ) are highpointers–successfully reaching the highest point in 40 states (goal 50). 3. Brenda Stallings recently ran 3 half marathons in 3 states in 9 days qualifying her for Half Fanatics MARS status (#1823). She has run 20 of the 50 states so far. She is the ambassador for the Little Rock chapter of Black Girls RUN!. 4. Sheila McDonald is an avid cyclist and member of the Rock City Riders of the Major Taylor Cycling Club in Little Rock. 5. Chad Cumming Jr. is a Crossfit enthusiast and particpates in fund-raising competitions. 6. Garland Binns is the 46th person in the world to be certified by the 50 States Marathon Club as having run a marathon in each of the 50 states. 7. Tim Dockery (shown with wife Andrea) recently completed an Ironman and is a triathlete, marathon runner and avid cyclist. 8. Craig Lair recently completed an Ironman nd is a triathlete, marathon runner and avid cyclist. 9. Anne Milligan has participated in or is signed up for seven half marathons, one full marathon and a 10K in 6 states in 7 months. 10. Melissa Bandy is training for her 7th full marathon in March and plays in a soccer league. 11. Carmen Sanders is an avid runner and triathlete and is signed up for the Warrior Dash in May. 12. Amy Clemmons Brown recently received certification to be a Jazzercise instructor and franchisee. 13. Phil Pesek (shown with wife Denise) is a marathon and half marathon speed walker. 14. Curtis Hitt (left, shown with his father Carl) is a marathon runner and triathlete. He and his friends recently launched the Crowley’s Ridge Athletic Club (www.CRathleticclub.com). 15. Howard Mowery (shown with his son Ryan) is a baseball coach for Texarkana, TX Dixie Baseball and has run 17 marathons since turning 40, including six in one year. For more photos & to add your photos find Arkansas Bar Association on facebook
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“You don’t have to be an elite athlete to compete in these distance races. Everyone can walk and with proper training, you will be surprised how far you can go.” Phil Pesek
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Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Task Force on Judicial Elections by Justice Robert L. Brown
n December 3, 2010, Chief Justice Jim Hannah and I paid a visit to the Board of Governors of the Arkansas Bar Association. Our mission was simple. We were concerned about what was happening in our sister states in judicial campaigns, and our fears were not groundless. Millions of dollars were being spent in races for state supreme court positions, and the television advertisements being run were pernicious, poisonous, and outright falsehoods. Though this malady had not yet affected Arkansas, we believed that it was only a matter of time before the torrent of money and toxic ads inundated our state. The Board of Governors agreed that a Task Force on Judicial Elections was desirable and authorized then Bar President Jim Julian to appoint one to explore reforms to combat what we foresaw as inevitable in our state. That happened in January 2011 with the appointment of a Task Force that now has 18 members. After those appointments were made, the Board of the Arkansas Judicial Council, which is made up of all circuit and appellate judges in the state, voted to co-sponsor the Task Force. The Task Force has now met nine times in Little Rock at the Bar Center. Past Bar President Jim Julian is a member of the Task Force, and current Bar President Tom Womack is an ex-officio member. Additional Task Force members have been appointed by President Womack. Over the course of this past year, multiple reforms have been considered by the group, including: • distribution of a voter guide with biographies, photographs, and comments by the judicial candidates to all registered voters as well as placement on a judicial-election website; • a Pledge by judicial candidates to abide by the letter and spirit of the Code of Judicial Conduct and to disavow false advertisements and other information sent out by third parties;
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• establishment of an Instant Response Team or Monitoring Committee to respond immediately to false advertisements; • a return of the runoff date for judicial elections to July; currently the runoff is on the date of the general election in November; • public financing of judicial campaigns by income tax check offs and bar license fee revenues; • limits on campaign contributions; and • recusal of judges receiving significant contributions from parties or their lawyers. Individual members of the Task Force have worked on select issues, and reports have been made to the full Task Force. At its meeting on August 5, 2011, the Task Force received public comment from Michael Boyd, president of the Arkansas Trial Lawyers Association, and Brian Brooks, also for ATLA; Walter Murray, president of the Arkansas Association of Defense Counsel; Circuit Judge Wendell Griffen; and Circuit Judge Jon Comstock. The idea of an Instant Response Team for false ads received the most positive comment from those individuals appearing before the Task Force. Voter guides were generally thought to be a positive step as well. The Pledge idea also received a good response, although Judge Griffen objected to a pledge to abide by the Judicial Code, because he viewed part of the Code as violating free speech. At a later meeting, Judge Rhonda Wood also raised questions about the constitutionality of some of the Code provisions, and David Stewart, Executive Director of the Arkansas Judicial Discipline and Disability Commission, confirmed that some of the provisions are in litigation. The Task Force received comments by telephone conference at its meeting on September 9, 2011, from experts in the area of voter guides and instant response teams. Those experts included David Rottman of the National Center for State Courts; Mark White, former Alabama Bar President and practicing attorney in Birmingham,
Alabama; Damon Circosta, director of the North Carolina Center for Election Reform; and Bill Fortune, a professor with the University of Kentucky School of Law. Independent research showed that in about 25 states, there was some process for disseminating voter guides. About 16 states had an Instant Response or Monitoring Committee in place. Throughout 2011, much discussion was had on public financing of elections by means of state income tax checkoffs and an increase in the license fees paid by lawyers. In conjunction with this, considerable thought was given to more transparency in campaign contributions to judicial candidates, either by way of direct contributions to candidate committees or through thirdparty groups and Super Pacs. This has led to a frank discussion within the Task Force relating to mandatory recusals of judges subsequently elected, if those campaign contributions from parties or attorneys reached a certain level. Our research showed that other states were examining reforms in these areas as well. The current thinking of the Task Force, however, is that with the United States Supreme Court’s decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, handed down in July 2011, major elements of public financing for judicial candidates are now under a constitutional cloud because of a perceived burden on the political free speech of candidates not receiving public funds. Beyond that, enhanced
Justice Robert L. Brown has served on the Arkansas Supreme Court since 1991.
procedures for determining donors and their contributions, in addition to what is currently in place as part of Arkansas’s law relating to campaign contributions, proved to be daunting. As matters exist today, campaign contributions must be reported to the Secretary of State, and donations to judicial candidates are limited to $2000 per individual or corporation. Recusal decisions in Arkansas are a matter for individual judges to make, subject to review by the Arkansas Supreme Court. After a delegation of the Task Force met with Governor Mike Beebe to assess his position on moving the runoff date for judicial elections back to July, which would involve legislation, the Task Force decided that its focus should be on other reforms because of the Governor’s lukewarm response to this change. Accordingly, the Task Force has now concentrated on the voter guide, the Instant Response or Monitoring Committee, and the Pledge by judicial candidates.
been made to the Task Force for a committee made up of lawyers, lay people, retired judges, and members of the media. At this writing, a subcommittee of the Task Force is involved in finalizing a recommendation for a 501(c)(3) corporation to establish a response team and organize its procedures.
Voter Guide Nate Coulter of the Task Force has taken the lead on this reform. The twin benefits to be derived from a voter guide are an increase in voting in down-ballot judicial races and a humanizing of the candidates who may be wrongly depicted in false advertisements. One suggestion that was proposed was to perform a test run for the voter guide in the May 2012 judicial elections for the Arkansas Court of Appeals and Supreme Court. The initial estimate of the cost for printing and mailing the guide to all registered voters was approximately $80,000. The Supreme Court’s bar account had been suggested as a source for this effort. Nate Coulter and I presented the idea of a test run for the voter guide at the December 2011 Board of Governors meeting. The Board voted not to approve a test run, apparently based on the cost associated with it. The idea of putting the voter guide on a judicial website would avoid the high cost of a mail out and will be explored by the Task Force.
Judicial Election Summit A summit on judicial election reform will be held on March 14, 2012, at the Clinton School and Clinton Library. It is sponsored by the Arkansas Bar Association
Instant Response or Monitoring Committee Harry Truman Moore and Jim Julian have been at the forefront of this issue. Using the bylaws from the State of Ohio as a template, a preliminary proposal has
Candidate Pledge A Pledge to be signed at the time of the candidate’s filing has been prepared by Judge Ralph Wilson and Judge Joyce Warren. The Pledge highlights key provisions from the Arkansas Code of Judicial Conduct but also calls on the candidates to disavow advertisements paid for by third parties that are in their favor and are false. Judge Wilson presented a draft of the Pledge to the Judicial Council at its meeting held on October 20, 2011. However, in light of the fact that some of the provisions of the Code are in litigation, it was determined that the Pledge needed to be redrafted to recognize that fact.
and the Administrative Office of the Courts. Tom Phillips, former Chief Justice of the Texas Supreme Court, will make the noon address at the Clinton School. Additional talks will be made in the morning and afternoon at the Clinton Library on various reform issues by law professors Roy Schotland (Georgetown) and Bill Fortune (Kentucky) as well as David Rottman of the National Center for State Courts and Kevin Burke, President of the American Judges Association. A grant has been approved by the National Center for State Courts to defray the cost of the program related to the instant response team. Following the summit, the Task Force will decide how to proceed on recommendations to the Board of Governors of the Bar Association and the Board of the Arkansas Judicial Council. Task Force members: Justice Robert L. Brown, Chair, Elizabeth Andreoli, Chuck Banks, Nate Coulter, Judge David F. Guthrie, Martha Hill, Henry Hodges, Jim Julian, Judge Alice Lightle, Judge Mary Ann McGowan, Harry Truman Moore, Mark W. Nichols, Former Judge John F. Stroud, Jr., Former Justice Annabelle Imber Tuck, Chief Judge Larry Vaught, Judge Joyce Williams Warren, Judge Ralph E. Wilson, Jr. n
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Arkansas Supreme Court Historical Society
Governor and Supreme Court Justice Simon P. Hughes By L. Scott Stafford
Photo courtesy of the Arkansas History Commission
Two justices of the Arkansas Supreme Court—Henry M. Rector and Elisha Baxter— were later elected to the office of governor, but only one person—Simon Pollard Hughes— served first as governor and then as a justice of the Supreme Court. Hughes was born in Tennessee in 1830 and joined relatives in Pulaski County, Arkansas, at age 14 following the death of both parents. He returned to Tennessee in 1846 to attend Sylvan Academy (Sumner County) and Clinton College (Smith County) before financial circumstances ended his formal education. After teaching school for two years, he returned to Monroe County, Arkansas, in 1849 and began farming. He was elected sheriff of the county in 1854 and, while serving in that office, he read sufficient law to be admitted to practice in 1857. During the political crisis that followed the election of Abraham Lincoln, Hughes opposed secession. After the Civil War began, he nevertheless joined the Confederate Army and eventually became a lieutenant colonel. When his regiment was eliminated in an army reorganization, he joined a Texas cavalry unit as a private and served until the end of the war. Hughes returned to Monroe County, whose voters sent him to the 1866 Arkansas General Assembly. Under Reconstruction, which began in Arkansas with the 1868 adoption of a new constitution, Hughes was denied the right to vote due to his pre-war service as a public official coupled with his wartime service in the Confederate Army. For the next six years he farmed and practiced law. In 1874 Hughes was selected as a Monroe County delegate to the Constitutional Convention convened by opponents of Reconstruction in the aftermath of the BrooksBaxter War. While serving as delegate to the convention he was selected by the Democratic Party as its nominee for attorney general. At the October 1874 election that ratified the Constitution of 1874, Hughes was elected as the first attorney general under the constitution. His most noteworthy achievement as attorney general was his assertion and successful defense before the Arkansas Supreme Court of a law subjecting railroads to tax on lands granted them by the federal and state govern30
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ments. St. Louis, Iron Mountain, and Southern Railway v. Loftin, 30 Ark. 693 (1875), affirmed 98 U.S. 559 (1878). After a single term as attorney general Hughes was an unsuccessful candidate for the 1876 Democratic gubernatorial nomination. For the next eight years he practiced law in Little Rock. Hughes tried again for the office of chief executive in 1884. He and Little Rock cotton broker John G. Fletcher, father of the noted poet, campaigned throughout the state seeking delegates to the 1884 Democratic state convention. At the state convention it took Hughes 33 ballots to get the Democratic nomination, but he easily defeated the Republican nominee at the 1884 general election. Hughes ran for reelection in 1886. He secured the Democratic nomination with little opposition and in the general election defeated Republican Lafayette Gregg, who had served on the Supreme Court during Reconstruction. During his two terms as governor Hughes worked to address the large amount of debt incurred by the state during Reconstruction. Although much of that debt had been repudiated by court decision and constitutional amendment, the undisputed debt was still sufficient to jeopardize the state’s credit rating. The debt problem would continue after Hughes left office, but his efforts did reduce the debt and put the state on a sounder financial basis. In 1888 Hughes broke with tradition and sought a third term as governor. His main opponents in the state Democratic convention were his 1884 opponent, John G. Fletcher, and a Lonoke plantation owner, James P. Eagle. After over 100 ballots, Fletcher’s delegates began moving to Eagle, who defeated Hughes on the 126th ballot. Subsequently, with Hughes’ support, Eagle was elected governor. After leaving the governor’s office in early 1889, Hughes returned to the practice of law, but in the spring of that year the legislature increased the number of Supreme Court justices from three to five, and Hughes was elected in a special election to fill one of the newly created positions. Hughes spend the next 16 years on the high court, longer than the ten years he had spent as governor and attorney general. His opinions while on the court tended
to be short and succinct, as would be expected of a person more accustomed to making decisions than explaining them. The reasoning in many of his opinions was only one paragraph long. See, e.g., Scott v. State, 63 Ark. 310, 38 S.W. 339 (1896). The explanation in least at one opinion consisted of a single sentence. Mann v. German Nat’l Bank, 15 S.W. 154 (1891). Hughes died in 1906, less than two years after leaving the high court. He is buried in historic Mount Holly Cemetery on South Broadway in Little Rock. Additional reading: Donovan, Gatewood, and Whayne, eds., The Governors of Arkansas : Essays in Political Biography. 2d ed., Fayetteville: University of Arkansas Press, 1995. Simon Pollard Hughes (1830-1906), The Encyclopedia of Arkansas History and Culture, www.encyclopediaofarkansas.net (December 30, 2011). This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod. firstname.lastname@example.org; Phone: 501-682-6879. Historian Michael B. Dougan (left) presented the living Sterling R. Cockrill with copies from the Summer and Fall issues of The Arkansas Lawyer that contain the biography of his great grandfather, Supreme Court Chief Justice Sterling R. Cockrill, the youngest chief justice in the state’s history.
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ADR Conference, Little Rock
Immigration 411: Overview and Hot Topics, Little Rock
Advanced Consumer Bankruptcy Practice Institute, Little Rock
Debtor-Creditor Law Institute, Little Rock
Criminal Law Seminar, Little Rock
Trials: Avoid the Tribulations, Fort Smith
Employment Law Conference Little Rock
Environmental Law Conference Eureka Springs
Law Day Ethics, Little Rock
114th Annual Meeting Hot Springs
Solo & Small Firm Conference Lake DeGray State Park Lodge
Hon. William “Bill” Houston Brown, U.S. Bankruptcy Judge (retired) Hon. Dennis Dow, U.S. Bankruptcy Judge Hon. Roger Efremsky, U.S. Bankruptcy Judge Hon. Barbara Houser, U.S. Bankruptcy Judge Henry “Hank” Hildebrand, Standing Chapter 13 Trustee
Advanced Consumer Bankruptcy Practice Institute April 3-5, 2012 • Capital Hotel, Little Rock
Criminal Law Seminar April 12, 2012
UALR Bowen School of law 6.0 CLE Hours, including 1 Ethics Hour
Go to www.arkbar.com for more information and to register Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
2011 Volunteer CLE Speakers and Program Planners
It is only through their generous contributions of time, energy, talent and experience that Association seminars can be a success. We deeply appreciate their work.
Allison C. Albritton Michael L. Alexander Mark H. Allison Patricia O’Connell Alvarez Owen Anderson Elizabeth Andreoli Joyce Bradley Babin Paul Bacho Amber Wilson Bagley David A. Bailey Kristine G. Baker Melody Peacock Barnett W. Christopher Barrier Ben T. Barry J. Henry (Hank) Bates III Steve Bauman John Erik Baureis Governor Mike Beebe Julie Benafield George “Jay” Bequette, Jr. Garland Binns Anthony W. Black Brian A. Blackman John Blevins Margaret Long Blissard Seth Blomeley Nathan Randal Bogart Jeff Bohm Stanley V. Bond Lara Elizabeth Bowles Andrew Branham Ellen B. Brantley 32
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Jay Brenner Howard W. Brill Christopher DeWitt Brockett Kimberly Greathouse Brown Waymond M. Brown Jason T. Browning Bettina E. Brownstein Beth Storey Bryan Joshua S. Bryant Patrick A. Burrow Joe D. Calhoun III Ellen Carpenter Erin Cassinelli James Dennis Chambers Carlyle Chapman, Jr. Vera M. Chenault Emmett B. (Chip) Chiles IV Zane A. Chrisman Jennie Allison Clark Matthew Coe Walt Coleman Cathleen Compton Jon B. Comstock Barry E. Coplin Allison J. Cornwell Grant M. Cox Junius Bracy Cross, Jr. Gregory L. Crow Gerald Kent Crow Kenneth V. Crow Julie L. Cullen F. Thomas Curry www.arkbar.com
Thomas A. Daily C. Michael Daily Paul Danielson Anthony G. Davis Neil Deininger George M. DeLoache Sandra Del Tiempo Alison Dennington Lyndsey D. Dilks John M.A. DiPippa Jennifer H. Doan Dawn P. Doray Jennifer Woodruff Douglas Vernon L. Dutton Jack East III William A. Eckert III Bruce Engstrom Edie Ervin Audrey R. Evans John C. Everett Jamie Leigh Ewing Frances S. Fendler Janet Flaccus Jennifer Williams Flinn Lynn Foster G. Spence Fricke David M. Fuqua David Allan Gates Priscilla Gibbs Stephen R. Giles Jack L. Goldsmith David Allen Grace
Lacey Nix Gramling Joseph W. Gregory Amy Click Grimes Timothy W. Grooms Russell A. Gunter Dawn R. Guthrie Lauren White Hamilton Frank S. Hamlin Jeff Hankins James R. Hannah Betty J. Hardy Melva Harmon Morril H. Harriman, Jr. Maurice Harris Ben J. Harrison Richard F. Hatfield Dallas W. Heltz Vincent C. Henderson II J. Blake Hendrix Robert L. Henry III Judy Simmons Henry Mauricio A. Herrera Charles R. Hicks Anthony A. Hilliard Hadley Marie Hindmarsh Norman Hodges Susie L. Hoeller Denise R. Hoggard Cyril Hollingsworth Timothy N. Holthoff Robert M. Honea Lee Rashad Honorable Parker Sanders Huckabee D’lorah Hughes Jeremy Y. Hutchinson David L. Ivers Jill R. Jacoway William O. James, Jr. Larry Jegley David E. Johnson Robert Jones Phyllis M. Jones Henry L. Jones, Jr. Donald Judges Jim L. Julian Michelle Kaemmerling Mark Kalchik Irwin Karp R. David Kaufman Kevin P. Keech Cal Kellogg Hal Joseph Kemp
Susan K. Kendall Summer Studdard Kersey Charles M. Kester Shane E. Khoury John H. Kim Chris H. Kinslow Joseph F. Kolb Theodore Lamb Dana M. Landrum Mike Leach Samuel E. Ledbetter Stark Ligon Kimberly Dale Logue Bryan G. Looney James H. Longino David E. Mackey Eva C. Madison Michael A. Maggio Teresa Marks D. Price Marshall, Jr. Mark A. Mayfield Sidney H. McCollum Linda C. McCormack Robert Kenny McCulloch Dustin B. McDaniel Mary S. McGowan J. Clifford McKinney II Paul D. McNeill Jack A. McNulty Randy McNulty Kelly M. McQueen G. Michael Millar Matthew N. Miller April Renee Minor James G. Mixon Brandon K. Moffitt Regan Gruber Moffitt Leonardo A. Monterrey Michael S. Moore Jeffrey H. Moore Rodney Paul Moore Richard N. Moore, Jr. Harry Truman Moore Charles A. Morgan Rosalind M. Mouser Melissa Myhand Cynthia E. Nance Charles R. Nestrud Jeff Richard Newland, Jr. Michael Noland Rashauna Norment Frank A. O’Mara
Kevin Jay Orr Larry D. Ottaway Charles C. Owen William Lance Owens Denise P. Oxley Michael Pakko Laura E. Partlow Annabelle L. Patterson Bernard Jay Patterson Kristin Pawlik John Richard Peel John F. Peiserich G. S. Brant Perkins Marjorie McColl Petty Donna C. Pettus Robert Patt Pine Jimmy W. Plumlee Joshua J. Poje David M. Powell Joseph Wayne Price II Philip R. Principe Mary J. Pruniski Jeff Puryear Steven W. Quattlebaum Lynne T. Ravellette Warren Readnour Meredith B. Rebsamen Joseph D. Reece Matthew Reel W. Michael Reif Melissa Richardson J. Mark Robinette, Jr. Gary B. Rogers Jeff Rosenzweig Mark L. Ross Frances Mitchell Ross Charles L. Schlumberger Mary M.White Schneider Steven F. Schroeder John R. Scott James V. Scurlock II Kathryn W. Searcy Jonathan Patrick Sellers Scotty M. Shively Gayle Sipes Brock Showalter Cheryl F. Shuffield Kim M. Smith James E. Smith, Jr. Vann Smith Jim D. Spears Aaron L. Squyres
Jocelyn A. Stotts Scott Michael Strauss Thomas S. Streetman Tim Tarvin Richard D. Taylor Stuart Taylor, Jr. Lee Thalheimer Robert F. Thompson III Cindy Thyer Geoffrey B. Treece Annabelle Imber Tuck Everett Clarke Tucker IV John E. Tull III Christopher Craig Turnage Lonnie C. Turner David D. Tyler Nathan E. Tyler Michael W. Ulmer Cathy Underwood Vicki S. Vasser John T. Vines Paul D. Waddell Elisabeth A. Walker Danyelle J. Walker Joyce Williams Warren John Dewey Watson John D. Webster K. Coleman Westbrook, Jr. Frederick S. Wetzel III Anne Hughes White Amy Wilbourn Shane M. Wilkinson Ann Claire Williams Darrin L. Williams David H. Williams Carolyn B. Witherspoon Tom D. Womack Chad L. Wood Rhonda K. Wood Andrea G. Woods Denton E. Woods Robert W. Wright Walter G. Wright, Jr. Herb T. Wright, Jr. Tod D. Yeslow Danna J. Young Elizabeth L. Young Dan C. Young Dennis Zolper
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Judicial Disciplinary Actions & Attorney Disciplinary Actions The Judicial Discipline and Disability Commission issued the following Final Actions. Full text documents are available on-line at http://www.state.ar.us/jddc/ press_releases.html. Letter of Reprimand, Case #11-207 and Letter of Censure, Case #11-204 to Judge Ken Harper, Drew County District Court. Public Dismissal Letter, Cases #10-326, #10-329 and #11-231, Judge Mary Ann Gunn of Fayetteville. Final actions from October 1, 2011, through December 31, 2011, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online at http:// courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]
DISBARMENT PROCEEDINGS DIRECTED TO BE INITIATED: BRUCE J. BENNETT, Bar No. 92140, of Bentonville, Arkansas is the Respondent/ Defendant in a petition for disbarment filed December 15, 2011, as an original action in the Supreme Court of Arkansas, in Case No. 11-1259. A Committee Panel voted to initiate disbarment proceedings as a result of grievances filed by Attorney Harry McDermott and the Honorable Judge Robert H. Wyatt, Jr., as a result of a case filed against Bennett by Bennett’s former client, Darrell Cavanagh, in Committee Case No. CPC 2011-062, involving unreasonable fees, misappropriation of fees, misuse of client funds, false statements to a tribunal, conduct involving fraud, deceit, dishonesty, or misrepresentation, and other matters. In reaching this result, the Committee Panel found Bennett’s prior disciplinary record was a factor in consideration of its sanction in the matter. Bennett, who was already on license suspension from other Committee matters, was placed on interim suspension during the disbarment proceeding. NEWTON DONALD JENKINS, JR., Bar No. 94231, of Van Buren, Arkansas, is the Respondent/Defendant in a petition
for disbarment filed December 15, 2011, as an original action in the Supreme Court of Arkansas, in Case No. 11-1260. A Committee panel voted to initiate disbarment proceedings as a result of a grievance filed by Kenneth Hixson, Esq., for his client Mike Cormack, in Committee Case No. CPC 2011-043, involving unreasonable fees, making a false statement to a tribunal, falsifying evidence, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and other matters. In reaching this result, the panel found Jenkins’ prior disciplinary record was a factor. On September 8, 2011, in Case No. CPC 2010054, Jenkins had been placed on license suspension for 24 months. SURRENDER: ROBERT L. RICKARD, Bar No. 2001065, of Rogers, Arkansas, petitioned to surrender his Arkansas law license, which was accepted and ordered by the Supreme Court on November 17, 2011, at 2011 Ark. 495, in lieu of facing disciplinary proceedings arising out of several grievances and a Complaint against him before the Committee on Professional Conduct having to do with funds he received in a client’s settlement that were subject to a claim for subrogation.
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Attorney Disciplinary Actions RICHARD L. SLAGLE, Bar No. 69072, of Hot Springs, Arkansas, petitioned to surrender his Arkansas law license, which was accepted and ordered by the Supreme Court on November 3, 2011, at 2011 Ark. 466, in lieu of probable disbarment proceedings arising out of issues with funds he handled as trustee of a deceased Garland County client’s trust, his activities as the executor of the client’s estate, and other matters. SUSPENSION: ROBERT BRENT CREWS, Bar No. 91237, of Jonesboro, Arkansas, had his law license suspended for 12 months and was fined $2,500.00 by Committee Findings & Order filed October 24, 2011, on a referral from United States District Court Judge James M. Moody in Committee Case No. 2011-047, for violations of Arkansas Rules 1.1, 1.3, 3.4(c), 5.5(a), 8.1(b), and 8.4(d). In March 2011, Judge Moody provided information and court documents showing that on December 7, 2009, Mr. Crews was appointed to represent Robert DoffeeMaxwell in his civil rights claim in federal court, filed as Case No. 08-CV-15, against the Arkansas Department of Correction. Judge Moody outlined Crews’s pattern of not responding to communications from the court on the case, culminating in the need to cancel a trial, relieve Crews as counsel, and appoint new counsel for the client. Mr. Crews was contacted by e-mails from the Office of Professional Conduct on March 28, April 8, and May 13, 2011, about this case and he did not respond. Many attempts were made after April 2011 to contact Mr. Crews by telephone at his Jonesboro and Walnut Ridge offices, his home number, and his cell number about this case and he did not respond. Mr. Crews did not pay his 2011 Arkansas Supreme Court mandated law license renewal fee, due by March 1, 2011, until May 13, 2011, and he was thus practicing law while his license was suspended from March 2 - May 12, 2011. MICHAEL EUGENE KARNEY, Bar No. 95241, now of College Station, Texas, on a Complaint filed by Shira P. Minton, Esq. of the U. S. Securities & Exchange Commission (SEC), and by Elizabeth A. Majors, had his license suspended for 36 months and was fined $5,000, by Committee Findings
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and Order filed December 12, 2011, in Committee Case No. CPC 2011-066, for violation of Rules 3.4(c), 5.5(a), and 8.4(c). Mr. Karney was also Reprimanded and fined an additional $1,000 for his failure to respond to the Formal Complaint. Karney was licensed in Arkansas and Oklahoma.
Karney was employed with the SEC from December 2004 to October 2007, as a Legal Branch Chief and from October 14, 2007, and forward as an Attorney Advisor. Both positions with the SEC required Karney to maintain a license to practice law in at least one state. Karney’s Oklahoma license was
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Attorney Disciplinary Actions
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suspended in June 2005, and he was removed from the Oklahoma membership rolls in September 2006. Karney failed to pay his annual Arkansas license fees for the years 2005-2011, resulting in suspension of his license in Arkansas from March 2, 2005. Karney was the subject of an SEC investigation by the Office of Inspector General (OIG) into allegations that he was not a member in good standing of any state bar and other related matters. In May 2010, Karney was deposed by the OIG. He testified that he was a member of the Arkansas Bar, that he received notice of his dues every year, that he paid those dues, and that he attended CLE courses and provided that information to the Arkansas Bar. Mr. Karney stated that he last paid his annual bar license fees in 2009 and that the fee was $210. Karney was presented with information from the Arkansas Supreme Court Clerk and the Arkansas Office of Professional Programs which showed that he had not paid license fees since 2005 and his license was suspended by the Arkansas Continuing Legal Education Board in May 2005. Karney stated that the documents he was presented must be incorrect, as he had paid his license fees and was in compliance with CLE requirements. 36
The Arkansas Lawyer
Karney was served with a formal complaint and a response was due on or before September 19, 2011. Karney requested and was granted two extensions of time, and still failed to file a timely response. After the Panel’s Findings and Order were sent to Karney, he filed a Motion for Reconsideration, which was denied by the Panel. ROBERT D. TEAGUE, Bar No. 93126, of Rogers, Arkansas, had his law license suspended for 12 months by Committee Findings & Order filed December 20, 2011, on a self-referral and a complaint by Johnnie E. Rhoads, Esq. in Committee Case No. 2010104, for violation of Arkansas Rule 8.4(c). In March 2009, Rhoads and Teague, who had practiced together for many years with other attorneys in a predecessor law firm, formed Rhoads & Teague, PA, as equal partners or shareholders, and moved to new leased office space in Rogers. According to Teague, in June-October 2009, he suffered from periods of anger, depression, and excessive alcohol use, while dealing with financial stress. Starting in July and through September 2009, on at least seven occasions, and totaling about $23,490, Teague personally received from firm clients fee payments due to Rhoads & Teague and
converted these funds to his own use. In midNovember 2009, Rhoads discovered Teague’s actions regarding conversion of firm fees and started an investigation. The partners split up on November 17, 2009. By early December 2009, Teague had made partial payments to the former firm of about $6,350 to restore missing funds. An accounting was conducted and the parties settled on $23,490 as the total in diverted fee funds. Teague then paid the former firm $17,140 in February 2010 to resolve the issue. INTERIM SUSPENSION: BRUCE J. BENNETT, Bar No. 92140, of Bentonville, Arkansas, was placed on Interim Suspension by Committee Order filed December 1, 2011, in Committee Case No. 2011-062, as a result of initiation of disbarment proceedings against Bennett in his representation of his former client, Darrell Cavanagh, and misappropriation of client funds, conduct involving dishonesty, fraud, deceit, or misrepresentation, and other matters. GREGORY D. JONES, Bar No. 87095, of Fayetteville, Arkansas, was placed on Interim Suspension by Committee Order filed December 12, 2011, in Committee Case No. 2011-092. Jones abandoned his law practice several months earlier, has failed to protect the interests of many clients or provide them their files, has disappeared from the area, and on December 21, 2011, a receiver (OPC) was appointed by the Circuit Court to take possession of his files, attempt to locate clients, and get their files to them, as well as to check his client trust account. REINSTATEMENT: KATHLEEN L. CALDWELL, Bar No. 82187, of Memphis, Tennessee, was reinstated from suspension by Committee Order filed October 20, 2011, in Case No. 2010-003. REPRIMAND: GERALD CARLYLE, Bar No. 72019, of Newport, Arkansas, was reprimanded and fined $500.00 by Committee Findings & Consent Order filed October 21, 2011, in Case No. 2011-011, on Complaint filed by
Attorney Disciplinary Actions Janice A. Johnson, for violations of Arkansas Rules 1.16(d) and 8.4(d). Mr. Carlyle was hired and paid to represent Elmer G. Robinson in a divorce proceeding in August 2006. When Mr. Robinson was served with the Complaint for Divorce that his estranged wife had filed in Pulaski County Circuit, he delivered the Complaint to Carlyle, who failed to file a timely Answer. A Motion to Strike was filed, Carlyle failed to file a response, the Motion was granted, and at a hearing the trial court would not allow Mr. Carlyle or Mr. Robinson to participate in any fashion after she granted the Motion to Strike. The property division was completed without any testimony or information from Mr. Robinson. Carlyle hired other counsel to assist in an appeal. In September 2008, the Court of Appeals reversed and remanded so Mr. Robinson could participate in the evidentiary hearing on property division. Carlyle failed to advise Mr. Robinson or his attorney-infact Janice Johnson of the appellate decision. When they learned of it, they tried to contact Carlyle to have a hearing set, but Carlyle did not communicate with them. When they were finally able to speak with him in 2010, Carlyle advised that he was too ill to represent Mr. Robinson and that he would return the file to Mr. Robinson. As of the date of the filing of the formal complaint, Carlyle had not returned the file. Carlyle failed to give Mr. Robinson or Ms. Johnson timely notice that he was no longer going to represent Mr. Robinson after the remand. Carlyle’s failure to take action following the remand caused an extremely lengthy delay in taking action to have Mr. Robinson’s arguments heard and to have his interests in the property determined. Mr. Robinson died in August 2010 without ever having his property interest determined. S. GRAHAM CATLETT, Bar No. 77029, of Little Rock, Arkansas, was reprimanded and fined $1,500.00 by Committee Findings & Order filed October 19, 2011, on a Complaint filed by Charles Vestal, who later became Sarah Anne Vestal, in Committee Case No. 2011-051, for violation of Arkansas Rule 8.4(c). Mr. Vestal started a wholesale organic tomato production business in Arkansas in 2002, and secured a USDANOP organic producer certificate for his tomato greenhouse site, Arkansas. In July 2004, Mr. Vestal and his long-time attorney,
Attorney KAylA m. BArnett to the teAm Kayla is a 2011 graduate of the UALR william H. Bowen School of Law. An overachiever (she finished college in only three years), Kayla has a passion for the law that began when she was nine years old. we’re thrilled to have Kayla join us and look forward to working with her as we grow and expand our practice areas, including appellate practice, business and civil litigation, and personal injury litigation. – Attorneys Andy Taylor & Tasha Taylor.
124 West Capitol Avenue, Suite 1805, Little Rock, AR 72201 501.246.8004 n 800.844.TAYLOR n TAYLORLAwfiRm.cOm Mr. Catlett, and others, incorporated Vestal Gourmet Foods, Inc. (“VGFI”) to operate and expand the wholesale organic tomato production business. VGFI basically took over Vestal’s former business. Mr. Vestal, also a CPA, was the experienced farmer. Mr. Catlett was the lawyer, business adviser, and developer of sources of project financing. In April 2005, a loan closed whereby VGFI borrowed $770,000 in SBA guaranteed funds for a greenhouse expansion, which was then implemented when a $486,393 contract for construction of a new greenhouse for VGFI was signed. On or about June 4, 2005, the VGFI greenhouse organic tomato crop failed. The field organic tomato crop being raised was not ready for market at the time, leaving VGFI without a source of organic tomatoes to supply to its many retail customers in central Arkansas. By July 5, 2005, the field tomato crop had also failed. In June 2005, Vestal, Catlett, and others involved in VGFI discussed the emergency situation. A plan was devised by which VGFI would purchase nonorganic tomatoes at Arkansas markets, mainly in Warren, label these tomatoes as “organic” using the company’s USDA (United States
Department of Agriculture) organic labels, and continue to sell them as “organic” products, which commanded a higher price from retail customers, until a source of organic tomatoes could be developed or a new crop could be raised at the VGFI facility. Between June 5 - July 11, 2005, VGFI agents delivered 103 shipments of mis-labeled “organic” tomatoes to retail customers in the Little Rock area, as detailed in the USDA Report of Investigation. In December 2005, Mr. Vestal reported the mislabeled tomato sales matter to both the USDA and the FBI. The USDA conducted an investigation. In January 2007, a Report of Investigation was issued by USDA. In June 2009, an adverse Decision was issued by the Administrator of the Agricultural Marketing Service and served on Catlett and Vestal, basically revoking the VGFI organic certification but not imposing any financial penalties. The Decision found that the mislabeling scheme in which Catlett participated involved 103 willful violations of the OFPA and NOP regulations. In late June 2009, Catlett waived any appeal rights from the Decision, ending any resistance by the Catlett parties to the Decision. In early January 2010, Ms. Vestal waived any
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Attorney Disciplinary Actions
appeal rights from the Decision, ending any resistance by her to the Decision. In a separate and personal settlement agreement, the USDA agreed with Vestal that she had been the “whistleblower” in the VGFI case and had been in compliance with NOP (National Organic Program) regulations at all relevant times. Ms. Vestal self-reported the USDA investigation result to the IRS as part of her employment process. In January 2010, the IRS closed the file without action and she continued in her IRS employment. STEVEN R. JACKSON, Bar No. 97142, of Bentonville, Arkansas, was Reprimanded and fined $5,000 by Committee Findings & Order filed October 21, 2011, in Committee Case No. 2010-096, on a Complaint filed by Norman & Barbara Booth for violation of Rules 1.3, 1.4(a)(3), 8.4(d). Jackson represented the
Booths in the sale of property in which closing was set for March 24, 2006, but failed to occur. Jackson filed suit in Carroll County Circuit Court against Eagle Creek. Interrogatories and Requests for Production of Documents were propounded to the Booths, through Jackson. The Booths provided Jackson with their answers. Eagle Creek filed a Motion to Compel when no responses were received. The court directed the Booths to respond on or before April 18, 2008, but they did not. Eagle Creek filed a Motion to Dismiss and Jackson filed a Notice of Voluntary Non-Suit dismissing the Booths’ lawsuit. Jackson failed to notify the Booths of the filing of the voluntary dismissal, failed to respond to his clients’ requests for information about the lawsuit, failed to advise the Booths about the effect of the voluntary non-suit, and failed to re-file their suit within one year of the dismissal.
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BOBBY K. KEETER, Bar No. 77076, of Mena, Arkansas, was reprimanded and fined $1,000.00 by Committee Findings & Order filed November 14, 2011, in Committee Case No. 2011-057, on a Complaint filed by Randy Rainwater, Esq., for violations of Rules 3.4(c), 4.1, 4.4 and 8.4(c) of the Arkansas Rules of Professional Conduct. Rainwater reported Keeter for conduct with regard to issuance of a subpoena duces tecum on November 2, 2010, in the matter of Chase v. Chase in Scott County Circuit Court. Mr. Keeter issued the subpoena in a case where there was no hearing scheduled, but asserted that there was a hearing scheduled. Mr. Keeter failed to provide notice to Mr. Chase that a Petition for extending an Order of Protection had been filed in DR2009-137; he failed to provide notice, as required by Rule 45 of the Rules of Civil Procedure, that a subpoena had been issued for Mr. Chase’s bank records; he failed to serve Mr. Chase’s counsel with notice of the subpoena three (3) days before service as required by Rule 45 of the Rules of Civil Procedure, since no hearing was scheduled in the matter in which the subpoena was issued; and he failed to serve Mr. Chase’s counsel with the subpoena in accordance with Rule 5(b) of the Rules of Civil Procedure as required by Rule 45 of the Rules of Civil Procedure. Keeter obtained documentation and information from Mr. Chase’s bank account in violations of the law in Arkansas which sets out the specific method for the use of subpoenas for production of documents. While representing Ms. Chase, Keeter falsely set out in a subpoena he issued that a hearing was scheduled in DR2008-112 when no such hearing was scheduled. By an act of omission, Keeter deceitfully hid from Mr. Rainwater that a subpoena had been issued for Mr. Chase’s personal and business bank account records, in that no notice was given to Mr. Rainwater, as counsel for Mr. Chase, prior to service and compliance with the subpoena. In a conversation with Mr. Rainwater during the week of November 1, 2010, Mr. Keeter advised that he would inform Mr. Rainwater of the date of the hearing Keeter scheduled in the Order of Protection matter in Scott County, but he did not do so. THOMAS LEWIS TRAVIS, Bar No. 95029, of Little Rock, Arkansas, was reprimanded by Committee Consent
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Findings & Order filed October 21, 2011, in Committee Case No. 2011-065, on a selfreport, for violations of Rules 1.3 and 8.4(d). Mr. Travis represented Jose Alvarez-Fierros in removal proceedings in Immigration Court in Memphis and was directed by the presiding Judge to file a Motion to Suppress before March 5, 2010. Although Mr. Travis did file the Motion, he did not file it with the Court before the deadline. When Mr. Travis appeared for hearing on the Motion, he learned that the Motion had not been filed with the Court as required. The Motion to Pretermit filed by the Department of Homeland Security was granted and Mr. Travis’ client did not obtain the relief he was seeking. Mr. Travis appealed to the Board of Immigration Appeals, but the appeal was dismissed. Mr. Travis accepted responsibility for the prejudice which occurred to his client for Mr. Travis’ failure to file the Motion with the Court by March 5, 2010. CAUTION: DUSTIN D. DYER, Bar No. 2003082, of Benton, Arkansas, was Cautioned, fined
$1,000 and ordered to pay restitution in RON L. GOODMAN, Bar No. 86070, the amount of $750.00 by Panel Findings of Conway, Arkansas, was cautioned and & Order filed November 28, 2011, in ordered to pay $2,500.00 restitution by Committee Case No. 2011-037, on a Committee Findings & Consent Order filed complaint filed by Richard L. Spickard, November 21, 2011, in Case No. 2010for violation or Rules 1.3, 1.4(a)(3), 1.4(a) 080, on a complaint filed by Ellen Lewis, for (4), 1.16(d), and 8.1(b). Spickard employed violations of Rules 1.4(a)(3), 1.15(b)(2), and Dyer in August 2009 to represent him in a 1.16(d). In August 2007, Ms. Lewis hired criminal pardon application. Spickard made Mr. Goodman to represent her in postrepeated requests for information about his Decree issues following completion of her matter by telephone and by visiting Dyer’s divorce. The fee agreement Mr. Goodman office. In February 2010, Spickard called provided Ms. Lewis required $2500 for and requested the return of his file and all services in the matter and an additional documents provided to Dyer. Spickard did $2500 if there was a trial. In November not receive either and turned to the Office of 2007, Mr. Goodman requested Ms. Lewis Professional Conduct (OPC) for assistance. deposit another $2500, because a court Dyer was contacted by OPC but did not appearance was going to be necessary, and respond to the request. A Complaint was she did as requested. Mr. Goodman did not then filed and in his response, Dyer stated place those funds in an IOLTA trust account Spickard knew that he was not entitled to until earned and until a trial was held. Mr. a refund and there were no documents Goodman did not stay in communication which belonged to him; that nobody simply with Ms. Lewis. There were many weeks requested a copy of his client’s file; and, that of no communication when Ms. Lewis was the letter from the Office of Professional attempting to determine the status of her Conduct demanded a full refund for Spickard legal matter. Mr. Goodman failed to return and his paperwork, and not the surrender of the unearned portion of the fee, the second papers which belonged to Spickard. $2500, which was paid for a trial as reflected Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer 39
Attorney Disciplinary Actions
in his fee agreement prepared by him and presented to Ms. Lewis when she employed him. JACK R. KEARNEY, Bar No. 77194, of Little Rock, Arkansas, was cautioned and fined $500.00 by Committee Consent Findings & 40
The Arkansas Lawyer
Order filed October 21, 2011, in Committee Case No. 2010-093, on a complaint filed by Leon Harden III. Kearney was retained in 2005 by Harden for representation on a drug possession charge. Harden’s two codefendants each took plea deals, and Harden’s case proceeded to trial. In April 2006, Harden
was convicted of possession of cocaine with intent to deliver, and sentenced to eighty (80) years in the Arkansas Department of Corrections. His co-defendant’s plea deals resulted in a 20-year sentence for one and probation for the other. The prosecutor made a plea offer to Kearney for Harden for a 20-year prison sentence. Kearney responded to the offer in a letter, dated February 3, 2006. Kearney turned down any offers that required his client to plead and go to prison, without discussing the plea offer with his client. After Harden’s conviction, Kearney then filed a Notice of Appeal and Motion for Modification of Sentence in May 2006, and Motion for New Trial in June 2006. In the Motion for New Trial, Kearney improperly argued to the court that the 80-year sentence imposed was illegal and that his client had never been offered a plea deal. The judge did not agree with Kearney, and told Kearney that according to Kearney’s own February 6 letter that the State verbally offered Harden a 20-year deal and Kearney told them he wouldn’t take any prison time. Kearney requested that the court sentence Harden to the 20 years previously offered by the State, which Kearney had previously turned down. The circuit judge rejected Kearney’s arguments and denied his Motion for New Trial. The decision was made by Harden and his new attorney to dismiss his appeal and proceed with a Rule 37 Petition in circuit court. The appeal was dismissed and the Rule 37 Petition was filed in August 2007. After hearing in October 2007, the Court granted the Rule 37 Petition. The circuit judge entered his Findings and Conclusions from the Rule 37 hearing on November 27, 2007, finding that Harden’s conviction remained unaffected by his decision and that he was not vacating Harden’s sentence. The circuit judge did, however, rule that because of some crucial errors by Kearney, Harden was entitled to a new trial on the issue of punishment alone. The circuit judge found Kearney provided ineffective assistance of counsel to Harden, including failing to disclose and discuss the plea offer of 20 years with Harden. The court also found that those errors also violated the Arkansas Rules of Professional Conduct. A new jury trial was held on Harden’s punishment in June 2008. Harden was sentenced to 55 years in the Arkansas Department of Corrections and did not appeal.
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Attorney Disciplinary Actions
Tom M. Ferstl, MAI, SRA, J.D. J.T. Ferstl, MAI, J.D. 621 E. Capitol Ave. Little Rock, AR 72201 Phone: 501-375-1439 or 501-376-1439 Fax: 501-375-8317
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PowerPractice Arkansas Bar Association Practice Handbooks
Expert Witness Testimony Real Estate Related Matters •Tax Appeals •Court Testimony •Condemnation •Divorce 40 Years Experience See Web Site for References www.arkansasappraisers.com email: firstname.lastname@example.org MICHAEL J. KNOLLMEYER, Bar No. 86105, of Jacksonville, Arkansas, was Cautioned, fined $250.00 and ordered to pay transportation costs in the amount of $300 by Committee Findings & Order filed November 14, 2011, in Committee Case No. 2010-063, on a complaint filed by Ms. Jimmie Ellis, for violation of Rule 1.9(a). Ellis employed Knollmeyer Law Office in July 2008 to represent her in a divorce action, which was filed and Mr. Ellis served. On November 24, 2008, Ms. Ellis was granted a divorce and the decree provided that her ex-husband was to provide her with title to twenty acres in Independence County. The next day, Mr. Ellis filed a Chapter 13 bankruptcy proceeding, using Laura Grimes, an attorney associated with Knollmeyer’s law office. In December 2008, Ms. Ellis learned that her ex-husband had filed bankruptcy and that an attorney in her attorney’s law office was representing her ex-husband. Knollmeyer Law Office withdrew from the representation of Mr. Ellis in the bankruptcy matter. In September 2010, Ms. Ellis received a deed for the twenty acres of property. Immediately 42
The Arkansas Lawyer
before the public hearing in his disciplinary case, Mr. Knollmeyer admitted to a violation of Rule 1.9(a) and proposed a Caution, $250 fine, costs, and $300 restitution to Ms. Ellis for her travel expenses. The Panel accepted the proposal. RALPH THEODOR STRICKER, Bar No. 80139, of Jonesboro, Arkansas, was cautioned by Committee Findings & Order filed October 21, 2011, in Committee Case No. 2011-055, on a complaint filed by Adam B. Fogleman, Esq., for violation of Rules 1.5(e) and 7.2(c). This matter concerns advertising done by Mr. Stricker in Arkansas on behalf of Merritt and Associates, P.C., an Oklahoma law firm. The advertisement solicits other attorneys to refer their product liability cases to the Merritt Firm. In return for the referrals, the Merritt Firm would pay the referring attorney a referral fee. According to the advertisement, the fee is not based on any work to be performed by the referring attorney, or any joint representation, but simply on the referral itself, with the Merritt Firm doing all the work and advancing all costs. n
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Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Courts continued from page 12
nate a district court judge to administer the program. Why Such a Struggle, Issues, Suggestions As mentioned in the beginning of this article, Act 1219 of 2011 though a major piece of legislation elicited much opposition during the legislative session. The original proposal would have created 64 full-time state district court judgeships in 40 district court districts in all 75 counties in the state. After considerable legislative wrangling, the result was those proposed districts voicing the loudest opposition being removed from House Bill 1869. Fortunately, the bill was drafted in a manner which allowed these deletions while saving the intent and structure of the bill as whole. Certain other amendments were made in a few proposed districts to gain the support of those in favor of the state district court model. The act, by 2017, will have created 53 full-time state district court judgeships in 43 counties. 32 counties were left out of the act but, this large geographical area was projected to be served by only 10 full-time state district court judges. Looking back, this legislation did not have a large organized opposition. There were
The Arkansas Lawyer
legislators expressing dissatisfaction as presented to them by constituents. Those constituents in this matter might be the mayor, the county judge, the district court judge, and local law enforcement. The mayor and the county judge might have funding issues, and there are funding issues which must be addressed at some point, or fears of losing the court in their area. Some district court judges appeared in committee hearings to state their opposition such as the importance of having a local judge residing in the community. The law enforcement opposition came primarily from worries over obtaining search warrants and arrest warrants if the local district court judge now resided one county away under the state plan. Perhaps a change in our criminal procedure rules to clarify that this segment of court business may be conducted by phone, fax, or other internet related audio-visual communications would alleviate this concern. It has been expressed in discussions after the legislative session that perhaps a lack of understanding of the specifics of the proposal or a misunderstanding of its effects was a contributor to the less than total inclusion. If that is true, more effective education on the issues for those impacted is a great place to start.
Maybe an article in a glossy legal publication …? Endnotes 1. Ark. Const. amend. 80 § 22(A). 2. Act of March 19, 2001, No. 915 Section 1, 2001 Ark. Acts 915. 3. Act of April 17, 2001, No. 1693, 2001 Ark. Acts 1693. 4. Ark. Const. amend. 80§ 19(B)(2). 5. Act of April 19, 2001, No. 1789, 2001 Ark. Acts 1789. 6. In Re: Amended Supreme Court Statement on Limited Jurisdiction Courts Under Amendment 80, 351 Ark. App’x. 708 (2002). The court said: (1) One district court should be created in each county. In counties which have two county seats and in which the General Assembly has created two judicial districts, one district court should be created in each district. No district judge should have the authority to act outside of the area from which he or she is elected; (2) To the extent that the number of cases within a county or district is sufficient to support a full caseload, district judges should serve on a full-time basis and should be prohibited from practicing law. To the extent that there is not a sufficient number of cases within a district or county to support a full caseload,
two or more districts and/or counties should be combined for the purposes of creating an electoral district for the election of a full-time judge to serve the courts so designated; (3) The state should assume the responsibility for the payment of the salary and retirement of full-time district court judges. The salary paid to full-time district court judges should be commensurate with their role and status as members of the state judiciary and relative to the state salaries paid to general jurisdiction and appellate court judges. The source of funding for full-time district court judges should be the same as that for general jurisdiction and appellate court judges. Local government should continue to fund the salary and retirement of part-time district court judges and the other costs of operating the district court; (4) The Supreme Court Committee on the Implementation of Amendment 80 should study and review the possible enhancement of the subject matter jurisdiction of district courts and make recommendations to the court for action and for further recommendation to the General Assembly; (5) The district court should be established as the unified limited jurisdiction court in Arkansas. Statutory authorization for the continuation of Municipal Courts, City Courts, Police Courts and Justice of
the Peace Courts should be repealed, effective January 1, 2005. The current statutory provisions authorizing magistrates in district courts should be repealed; and (6) There should be created the following subject matter divisions for district court: criminal, traffic, civil and small claims. 7. In Re Administrative Order Number 16– Procedures Regarding the Assignment of Judges, 351 Ark. Appx. 719 (2003). 8. Act of April 22, 2003, No. 1727, 2003 Ark. Acts 1727. 9. Act of April 15, 2003, No. 1374, 2003 Ark. Acts 1374. 10. Act of April 9, 2003, No. 1185, 2003 Ark. Acts 1185. 11. In Re Appointment of Special Supreme Court Committee to be known as “Amendment 80 Committee”, 343 Ark. App’x. 877 (2000). 12. In Re: Adoption of Administrative Order Number 18 and Amendment of Court Rules (Formerly Known As Inferior Court Rules), 360 Ark. Appx. 601 (2004). 13. In Re: Supreme Court Amendment 80 Committee’s Recommendations for Limited Jurisdiction Courts, 360 Ark. Appx. 620 (2005). The specific recommendations and the court’s responses were as follows. “(a) Issue 1: Committee recommended unanimously the consolidation of city and district
courts with district judges to hear cases at the location of the former city courts and with no changes to the distribution of revenues among the cities and/or counties. We accept the committee’s recommendation and adopt the recommendation as our own. (b) Issue 2: Committee recommended unanimously the creation of full-time district judge positions to be paid by the state from general revenue. Issue 3: Committee recommended (13 members in favor and 1 against) the establishment of a timetable and process for the incremental transfer of part-time district court positions paid by local government to full-time positions paid by the state. (A minimum of 20 positions by the 2005 General Assembly with additional positions by each General Assembly through the 2013 General Assembly). We accept the committee’s recommendations with respect to Issues 2 and 3 and adopt the recommendations as our own. In our Statement on Limited Jurisdiction Courts, we said: While Amendment 80 does not require that district court judges serve in a full-time capacity it certainly contemplates that as the standard. ... If the district court is to become a true third tier of the state court system it must be a full-time court served by full-time judges. (c) The committee also reviewed proposals regarding the salaries of
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1100 South Waldron Rd., Fort Smith, AR 72903 district judges and the funding of salaries. The committee took the following actions with respect to salary issues: Issue 4 (a): There was not a majority vote in favor of specific, uniform salary recommendations for district judges as set out in draft legislation. (For: 6 members; Against: 3 members; Abstain: 5 members). Issue 4 (b): Unanimously endorsed the revision of the current schedule of district judge salaries paid by cities and/or counties to a uniform and equitable system which is based primarily on the caseload of the court. Where such changes have the effect of lowering the salaries of any individual judges, the salaries of such judges shall remain unaffected and the new salary adopted upon the election/ appointment of a successor judge. Issue 5: There was not a majority vote to increase the civil filing fees in district courts by $15.00 to raise revenues for salaries. (For: 5 members; Against: 4 members; Abstain: 5 members). With respect to Issues 4 and 5, we take no position regarding the specific salary amounts for district judges or the raising
of filing fees in the district court, because we believe these are matters not within the purview of the Supreme Court.” 14. Id. 15. In Re: Adoption of Rules of Criminal Procedure, Rule 1.8, 361 Ark. Appx. 447 (2005). 16. Ark. Code Ann. § 16-17-135 (Lexis Repl. 2010). 17. Report of the Legislative Task Force on District Courts (Act 1849 of 2005 created the Legislative Task Force on District Courts, and it was charged with conducting a comprehensive study of the transition of district court judges to state employee status and the funding and role of district courts). Recommendations From the Report of The Legislative Task Force on District Courts: (1) A voluntary pilot program should be created by selecting up to twenty full-time district judges from counties that are capable of sustaining at least one fulltime district judge to begin January 1, 2008; (2) The salary for full-time district judges participating in the pilot program should be set at one hundred fifteen thousand dollars ($115,000), plus benefits; (3) The
duties for all city judgeships in the pilot program counties shall be assumed by the pilot program district judges as of January 1, 2008, and all city courts now in existence in a county of a pilot program may continue as departments of the appropriate district court unless the city determines it is in its best interest to discontinue the court. In that event, the district judge with jurisdiction and the city or county, or both, shall determine where those cases are heard. However, any city court that currently has court held in a specific location shall continue to have court held in that location by the district judge of the pilot program; (4) The state’s portion of the cost for the pilot program should be paid through general revenues as recommended by the Supreme Court; (5) The General Assembly should add a filing fee to non-judicial foreclosure equal to the current circuit court filing fee and it should increase the small claims filing fee by twenty-five dollars ($25.00); (6) All city judgeships in the pilot program counties should be eliminated effective January 1, 2008, and all city judgeships should be eliminated statewide January 1, 2009; (7) A cost-sharing formula should be used in which the state and the local governments within the county share equally the salary of the district judge with the state paying all benefits, including retirement, FICA, and insurance. It is the intent of the task force that at such time as the program should become statewide, the goal would be full state funding of the district judges; (8) For purposes of the pilot program, cities and counties should keep one-hundred percent (100%) of all their current revenue from fines and costs with the exception of the adjustment from the cost-sharing formula; and (9) The Supreme Court should adopt
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The Arkansas Lawyer
an administrative rule dealing with the subject matter jurisdiction of district courts, specifically limiting the new order to the judges participating in the pilot program and making reference to district judges rather than magistrates. 18. Act of March 3, 2007, No. 663, 2007 Ark. Acts 663. 19. Ark. Code Ann. § 21-6-402 (Lexis Supp. 2011). 20. Ark. Code Ann. § 16-17-705 (Lexis Repl. 2010). 21. Boone County, Baxter County, Pope County, Greene County, Mississippi County/Chickasawaba District, Poinsett County, Saline County/Benton department, Saline County/Bryant department, Bentonville, Sebastian County/Fort Smith department, Sebastian County/Greenwood department, Independence County, Miller County, Union County, Rogers, Siloam Springs and Benton County West District. 22. In Re: Report of Legislative Task Force on District Courts–Alternative Proposal Being Published for Comment, 368 Ark. App’x. 707 (2007). 23. In Re: Administrative Order Number 18–Adoption of New Section 6 – Jurisdiction of Pilot State District Court Judgeships, 371 Ark. App’x. 673 (2007). 24. Ark. Code Ann. § 16-17-1001-1003 (Lexis Repl. 2010). 25. The criteria initially established by the Board included: • Interest of the local district judge; • Demonstrated need for a full-time, statefunded district judge; • Caseload statistics from the jurisdiction; • Local government support, including but not limited to state senators, state representatives, county judge, mayor, local bar associations, etc; • Support of circuit judges in the pilot court’s circuit, including an explanation by the administrative circuit judge of the proposed duties of the pilot court district judge(s); • Geographical composition of the judicial district and its affect on the need for a pilot judgeship; and • Travel time and distance between courts in the district, if that is a reason for the necessity of the judgeship. 26. Act of March 10, 2009, No. 345, 2009 Ark. Acts 345. 27. The pilot judgeships were located in St. Francis County, Cleburne County, Independence County, and in Pulaski County in the Jacksonville District Court,
the North Little Rock District Court – Departments 1 and 2, and in the Pulaski County District Court. 28. Ark. Code Ann. § 16-17-705 (Lexis Repl. 2010). 29. In Re Amendments to Administrative Orders Nos. 1, 14, & 16, 2010 Ark. 269. 30. In Re Amendments to Administrative Orders Nos. 4 and 18 and Regulations of the Arkansas Board of Certified Court Reporter Examiners § 1, 2011 Ark. 57. 31. Ark. Code Ann. §§ 16-17-1101-1112
(Lexis Supp. 2011). 32. Ark. Code Ann. § 16-17-137 (Lexis Supp. 2011). n
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Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
UPOAA continued from page 22
7. The Health Insurance Portability and Accountability Act, Pub. L. 104-191 (Aug. 21, 1996), specifically 42 U.S.C. § 1320d. Ark. Code Ann. § 28-68-109(d) (Supp. 2011). 8. Ark. Code Ann. § 28-68-103 (Supp. 2011). 9. “Principal” means an individual who grants authority to an agent in a power of attorney. Id. at § 28-68-102(9) (Supp. 2011). “Individual” is distinguished from corporation, business trust, estate, trust, partnership and other entities. Id. at § 28-68-102(6). This distinction, unfortunately, is not emphasized in the comments to the UPOAA. 10. For more on this important distinction, see Andrew H. Hook & Thomas D. Begley, Jr., Uniform Power of Attorney Act: The Principal Distinction, Est. Plan., Oct. 2011, at 41. 11. Ark. Code Ann. § 28-68-104 (Supp. 2011). 12. The new act substitutes “incapacity” for “disability.” A “disability” does not necessarily render an individual incapable of managing property and business affairs. Unif. Power of Att’y Act § 102 cmt., 8B U.L.A. 65 (Supp. 2011). 13. Ark. Code Ann. § 28-68-403 (Supp. 2011). Unless otherwise provided, the act applies to powers of attorney “created” before Jan. 1, 2012, although not to acts done during that time period. 14. Similar to the way drafters should expressly state that a trust is revocable, even though the Arkansas Trust Code now renders them revocable by default. Id. at § 28-73-602. 15. Id. at § 28-68-108(b) (Supp. 2011). 16. Id. 17. Former Ark. Code Ann. § 28-68-203 (2004).
18. Unif. Power of Att’y Act § 108 cmt., 8B U.L.A. 71 (Supp. 2011). 19. Ark. Code Ann. § 28-68-119(c) (Supp. 2011). 20. Id. A statutory form for certification is available at Ark. Code Ann. § 28-68-302 (Supp. 2011). 21. Id. at § 28-68-120 (Supp. 2011). 22. Id. at § 28-68-120(d) (Supp. 2011). 23. Id. at § 28-68-120(c) (Supp. 2011). 24. Id. at § 28-68-105 (Supp. 2011). 25. Id. at § 28-68-120 (Supp. 2011). 26. Id. at § 28-68-109(a) (Supp. 2011). 27. Id. at § 28-68-109(b) (Supp. 2011). 28. Id. at § 28-68-109(c) (Supp. 2011). 29. Id. at § 28-68-102(5)(A) (Supp. 2011). 30. Id. at § 28-68-109(c) (Supp. 2011). 31. Id. at § 28-68-102(5)(B) (Supp. 2011). 32. Unif. Power of Att’y Act § 109 cmt., 8B U.L.A. 73 (Supp. 2011). 33. Ark. Code Ann. § 28-68-105 (Supp. 2011). 34. At the time of this writing, the UPOAA has been enacted in Alabama, Colorado, Idaho, Maine, Montana, New Mexico, Virginia, Wisconsin and the Virgin Islands, and has been introduced in 2011 in Ohio and Texas. 35. Ark. Code Ann. § 28-68-106(d) (Supp. 2011). 36. Id. at § 28-68-114(b)(6) (Supp. 2011). 37. Id. at § 28-68-110(b)(3) (Supp. 2011). 38. Id. at § 28-68-201(a) (Supp. 2011). 39. An ancestor, spouse, or descendant of the principal. Id. at § 28-68-201(b) (Supp. 2011). 40. The agent may not create an interest in the principal’s property by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise, in the agent or anyone to whom the agent owes a legal obligation of support. Id. 41. Id. at § 28-68-217(b) (Supp. 2011). 42. Id. at § 28-68-201(c) (Supp. 2011). 43. Id. at § 28-68-111(a) (Supp. 2011).
ARKANSASFINDALAWYER® www.arkansasfindalawyer.com 48
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44. See, e.g., id. at §§ 28-48-104(a) and 28-73-703(a) (2004 and Supp. 2011). 45. Id. at § 28-68-116(a) (Supp. 2011). 46. Id. at § 28-68-117 (Supp. 2011). 47. Id. at § 28-68-301 (Supp. 2011). n
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Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
In Memoriam ing attorney in El Dorado for many years, according to an obituary in the Arkansas Democrat Gazette. She served as law clerk to U.S. Magistrate Judge Bobby E. Shepherd before retiring. She was a member of the Arkansas Bar Association where she served on numerous committees including the Lawyers Helping Lawyers, Women in the Profession, and Social Security Law Committees and the Professionalism Task Force. Roy Lee Baker, Jr. Roy Lee Baker, Jr. of Harrison died December 26, 2011, at the age of 92. He earned his Juris Doctorate from the University of Arkansas School of Law and graduated from the LSU Graduate School of Banking and Harvard Graduate School of Business. He was a member of the Arkansas Bar Association. He was a Fellow of the Arkansas Bar Foundation. He is a past president of the Boone County Bar Association and Arkansas Bankers Association. Charles Phillip Allen Charles Phillip Allen of Lexa died January 5, 2012, at the age of 64. He earned his Juris Doctorate degree from the University of Arkansas School of Law. He was a member of the Arkansas Bar Association. J. Ted Blagg J. Ted Blagg of Little Rock died December 8, 2011, at the age of 71. He graduated from Hendrix College and earned his Juris Doctorate from Vanderbilt Law School. He practiced law in Arkansas for 45 years, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association. Richard L. Castleman Richard L. Castleman of Pocahontas died December 1, 2011, at the age of 62. He served as a deputy prosecutor in Pocahontas for many years, according to an obituary in the Pocahontas Star Herald. He was a member of the Arkansas Bar Association. Patricia “Pat” Jackson Compton Patricia “Pat” Jackson Compton of El Dorado died December 7, 2011, at the age of 58. She graduated from Christian Brothers University and earned her Juris Doctorate from the University of Arkansas School of Law. She served as the deputy prosecut50
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Roy Travis Douglas Roy Travis Douglas of Ville Platte, Louisiana, died January 8, 2012, at the age of 72. He was a member of the Arkansas Bar Association and the Louisiana and Texas Bar Associations. Bruce Harlan Bruce Harlan of Blytheville died October 27, 2011, at the age of 58. He graduated from Arkansas State University in 1975 and earned his Juris Doctorate from the University of Arkansas School of Law in 1978. He was deputy prosecutor for 2nd Judicial District and a former attorney for the Office of Child Support Enforcement, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association. He was recognized as Pro Bono Attorney of the Year by Legal Aid of Arkansas. Stanley R. Langley Stanley R. Langley of Jonesboro died December 10, 2011, at the age of 71. He graduated from Arkansas State Teachers College (present University of Central Arkansas) and earned his Juris Doctorate from the University of Arkansas School of Law in 1972. He was a partner with the Snellgrove Law Firm in Jonesboro. He was a member of the Arkansas Bar Association where he served on the House of Delegates, the Lawyers Helping Lawyers Committee and Editorial Board for Handbooks. He was a Fellow of the Arkansas Bar Foundation. He is a past president of the Craighead County Bar Association. He was a U.S. Air Force Veteran serving from 1963-1967 where he attained the rank of captain, according to an obituary in the Arkansas Democrat Gazette. Curtis L. Ridgway Curtis L. Ridgway of Hot Springs died November 17, 2001, at the age of 78. He was a member of the Arkansas Bar Association. He served as city attorney for Hot Springs
for 20 years, according to an obituary in the Arkansas Democrat Gazette. Stephen Paul Sawyer Stephen Paul Sawyer of Bentonville died November 29, 2011, at the age of 69. He graduated from the University of Arkansas in 1964 with a degree in physics. He earned his Juris Doctorate from the University of Arkansas School of Law in 1971. He served as a law clerk for the Arkansas Supreme Court, according to an obituary in the Arkansas Democrat Gazette. He joined a law firm in Bentonville that later became Coffelt, Burrow and Sawyer. He also served several terms as municipal judge in Bentonville from 19751986. He was a member of the Arkansas Bar Association. He was a past president of the Benton County Bar Association and was awarded the 2005 Benton County Volunteer Attorney of the Year.
Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s work in making scholarship funds available for law students, projects that assist in improving and facilitating the administration of justice and other lawrelated charitable efforts. Contributions may be sent directly to: Arkansas Bar Foundation, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Please feel free to call the Arkansas Bar Foundation at 501.375.4606 for further information.
Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period October 1, 2011 through December 31, 2011: In Memory of Charles Phillip Allen East Arkansas Title Company LLC Judge John M. Pittman Roscopf & Roscopf, P.A. In Memory of Missy Wright Anderson Hayden and Gordon Rather Diane and Michael Shaw In Memory of Judge Richard B. Adkisson Diane and Michael Shaw In Memory of George Bentley Hayden and Gordon Rather In Memory of W. C. “Buddy” Coleman Jeffrey and Lester McKinley Judge James G. Mixon* Hayden and Gordon Rather In Memory of Pat Jackson Compton Jane and Dennis Shackleford In Memory of Robert C. Compton Judge James M. Moody In Memory of Judge George K. Cracraft, Jr. Justice Robert H. and Mary Lynn Dudley In Memory of John C. “Jack” Deacon, Designated to the Joe C. Barrett Scholarship Fund William G. Brandon Nancy and Judge John Fogleman Michael R. Gott, P.A. Betsy and Cyril Hollingsworth
In Memory of Winslow Drummond Katherine Pace Drummond Judge James M. Moody
In Memory of Judge Melinda R. Gilbert Mr. and Mrs. John C. Calhoun, Jr.
In Memory of Ralph E. Wilson, Sr. Dennis Zolper In Memory of Roxanne Tomhave Wilson, Designated to the Roxanne Tomhave Wilson Scholarship Fund Judge James M. Moody
In Memory of Judith Gray, Designated to the Judith Gray Endowment Fund Charles B. Roscopf In Memory of Edward “Tully” Hornor III Judge James G. Mixon*
In Memory of Judge Henry Woods Designated to the Judge Henry Woods Scholarship Fund Judge James M. Moody
In Memory of Stanley R. Langley B. Jeffery Pence Womack, Landis, Phelps & McNeill
In Memory of Judge Richard H. Wootton J. Michael Shaw
In Memory of James H. McKenzie, Designated to the Horace H. and James H. McKenzie Scholarship Fund Judge James M. Moody In Memory of Judge William R. Overton, Designated to the Judge William R. Overton Scholarship Fund Judge James M. Moody In Memory of Tom Pearson, Jr. Diane and Michael Shaw In Memory of Stephen Paul Sawyer Judge James G. Mixon* In Memory of Peggy Schell Cathi Compton and Judge Bill Wilson In Memory of Vassor Douglas Simmons Judge James G. Mixon* In Memory of Judge Robert C. Vittitow Roscopf & Roscopf, P.A. Jane and Dennis Shackleford
*Designated to the Ernest G. Lawrence, Jr. Scholarship Fund
Honorariums and Scholarship Contributions In Honor of David Solomon, Designated to the David Solomon Scholarship Fund Helena Bridge Terminal, Inc. Helena Marine Service, Inc. McKinley Family Scholarship Fund Jeffrey and Lester McKinley Wright, Lindsey & Jennings LLP Scholarship Fund Wright, Lindsey & Jennings LLP
Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer
Classified Advertising MEDICAL MALPRACTICE. Fast, easy, flat-rate referrals to thousands of doctorexperts, all board certified, all in active practice. Your satisfaction GUARANTEED or your money back! Also, case reviews and opinion letters by veteran MD specialists for a low flat fee. Med-mal EXPERTS, Inc. www.medmalExperts.com, 888-521-3601. WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201. MEDIATION/ARBITRATION OF EMINENT DOMAIN DISPUTES Stanley A. Leasure, Managing Member—Eminent Domain ADR, LLC www.edom-adr.com firstname.lastname@example.org The Arkansas Supreme Court Committee on Model Jury Instructions - Civil announced that an electronic version of the state’s model civil jury instructions is available to the public at no cost. This free access is being provided as part of a project between the Committee and Thomson/West Publishing. The text of all the instructions, Notes on Use, and Comments are included on the website, which is operated by Thomson/West. Users will be able to locate instructions via the Table of Contents. There is no search function at this time. The Model Jury Instructions are available here: http://government.westlaw.com/linkedslice/default.asp?SP=armji-1000.
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