A publication of the
Arkansas Bar Association
2011-2012 Arkansas Bar Association President Tom D. Womack
Vol. 46, No. 3, Summer 2011 online at www.arkbar.com
by Ne th w a Se e Pr s t le A of m odu he cted La eri ct 20 w can of 11 Li A th br s e ar so Ye ie cia ar s. t io n
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Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com editor Anna K. Hubbard executive director Karen K. Hutchins Editorial Board 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 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 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
LIAISON MEMBERS Zane A. Chrisman F. Thomas Curry Jack A. McNulty Harry Truman Moore Judge Alice Lightle Carolyn B. Witherspoon Judge Ralph E. Wilson, Jr. Karen K. Hutchins
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.
Lawyer Vol. 46, No. 3
10 Tom D. Womack 2011-2012 Arkansas Bar Association President Anna Hubbard
Cover photo by Bishopâ€™s Photography
14 Legislative Update: 88th General Assembly Jack A. McNulty 18 Briefing in an Electronic Age Judge Josephine Linker Hart and Guilford M. Dudley 26 New HITECH Requirements and How They Impact Your Practice Bryan Looney and Amy Wilbourn 29 Leadership: Is it Your Time? Donna C. Pettus 30 Sterling Robertson Cockrill: The Youngest Chief Justice, Part 1 Michael B. Dougan 32 Book Review: Drafting Limited Liability Company Operating Agreements Frances S. Fendler Scan the QR code to go to www.arkbar.com
Contents Continued on Page 2
Lawyer The Arkansas Vol. 46, No. 3
in this issue Association News
Arkansas Bar Foundation New President
columns President’s Report
2011-2012 Association Officers
Tom D. Womack
Young Lawyers Section Report
Arkansas Bar Association Annual Meeting
Brian M. Clary
Arkansas Bar Foundation/Association Awards
2011 Annual Meeting Sponsors
Judicial Disciplinary Actions
Attorney Disciplinary Actions
Arkansas Bar Foundation Memorials and Honoraria
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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)
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by Tom D. Womack
Volunteerism — The Heart of the Matter “There is much more in a profession than a traditionally dignified calling. The term refers to [those] pursuing a learned art as a common calling in the spirit of public service — no less a public service because it may incidentally be a means of livelihood.” –Roscoe Pound, The Lawyer from Antiquity to Modern Times: With Particular Reference to the Development of Bar Associations in the United States (1953). The call to professionalism resounds with each of us in a time of remarkable societal change, much of which requires the legal profession to adapt to increasing client needs and the continuing aspiration for public service. In the 114th year of our Association, it is my privilege to serve as the President and carry on the Association’s heritage of tradition, integrity, and trust as it adapts to the challenges facing the organized bar. Special recognition and thanks go to my predecessor, Jim Julian, for not only the leadership he has provided to us, but his friendship, which has been particularly meaningful. The accomplishments during Jim’s service during the past year are formidable and include the transition to our hugely successful new legal research tool, Fastcase; the creation and implementation of a new website with a myriad of associated technology challenges; and, importantly, a renewed emphasis on the role of lawyers in providing access to justice. Jim’s achievements have been many. Our Association is about volunteerism, and the chief initiatives for the year, mentoring of young lawyers and expansion of law-related education efforts, exemplify our principles of member involvement and professional development. From the rudimentary beginnings of mentoring arrangements promoted through the Supreme Court’s Professional Practicum program, and with major participation by
our Young Lawyers Section, we expect to inaugurate a voluntary mentoring plan for the assistance of new admittees and other young lawyers needful of guidance from experienced practitioners who are willing to devote their time and knowledge to helping others with particular practice challenges, from the handling of difficult client matters to law office economics. In law-related education, we want to continue the promotion of civics in our public school classrooms, both through publications and other media our Law-Related Education Committee has developed and through voluntary efforts by lawyers to participate in educational programs in their local schools. We must work diligently to educate our youth about the law. By continuing our successful programs such as the mock trial competition and initiating new ones to encourage broad-based civics education, we can make a difference. We want Arkansas at the forefront of a renewed national effort to teach young citizens about the history and function of government. Other challenges for the Association are to further enhance our website services to members, complete an assessment of our dues structure to ensure that we continue to have resources adequate to accomplish the mission of the Association, and to continue streamlining the committee structure so as to gain efficiency in the way we do our business. For the coming year, our volunteer efforts will be led by Harry Light, who has agreed to serve as Chair of the Board of Governors, and Zane Chrisman, who has accepted my request to serve as the 2012 Annual Meeting Chair. These leaders, along with our dozens of section and committee chairs, hundreds of committee members, and very dedicated staff, will provide the vitality that an energetic and responsive organization needs to succeed. Our participation in the learned profession of law is a privilege granted to us and carries
with it the responsibility to meet professional standards and expectations. Undertaking the initiatives identified, as well as others important to the Association, should always draw us back to the purposes of our organization as stated in the Constitution: To advance the administration of justice according to law; to aid the courts in carrying on the administration of justice; to foster and maintain, on the part of those engaged in the practice of law, high ideals of integrity, learning competence and public service and high standards of conduct; to encourage cordial relations among lawyers; to provide a forum for the discussion of subjects pertaining to the practice of law and related subjects; to carry on a program of continuing legal education among lawyers; to carry on a continuing program of legal research in technical fields of law practice and procedure and to make reports and recommendations thereon; to improve the judicial and legal process and the science of jurisprudence and to advance law and order; to encourage the formation and activities of autonomous local, county and district bar associations; to encourage practices that would advance and improve the honor and dignity of the legal profession; and to encourage the legal profession and its individual members to perform and to discharge more effectively and efficiently their responsibilities in the public interest. It is an exciting time, and certainly a challenging one. As lawyers, we must work to maintain our leadership role in society through continued emphasis on ethical and civil conduct worthy of our profession. Let us strive to accomplish much and serve the public through all of our efforts. n
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Association News New or Re-elected Members of Association Governing Bodies
Flip of a Coin Breaks Tie for House of Delegates Position
Board of Governors: Laura Partlow, Wade T. Naramore, Seth Bickett, Early Buddy Chadick, Frances S. Fendler, Brian Rosenthal, Tessica C. Dooley House of Delegates: Jon Comstock, Chad Atwell, Boyce R. Davis, Amy M. Driver, Curtis L. Nebben, Michael Daily, LisaMarie Norris, Erik Danielson, Brent Capehart, John T. Adams, Amber Wilson Bagley, Jeffrey W. Hatfield, Stephanie Harris, James Hathaway III, Paula Juels Jones, William C. Mann III, Patrick McAlpine, Gwendolyn L. Rucker, Thomas G. Williams, Roger McNeil, William “Zac” White, Jimmy Taylor, Jackie B. Harris, John R. Byrd, Jr., Rodney Moore, J. Joshua Drake, Cecilia Ashcraft
Association Secretary F. Thomas Curry (pictured center) flips a coin to break the tie for the District C-5 House of Delegates position between Brett D. Watson (pictured left), Attorney at Law, PLCC in Searcy and William “Zac” White (pictured right), Mays & White, PLLC in Heber Springs. The Association By-Laws dictate that a coin toss determines the outcome when equal numbers of ballots are received in an election. Zac White won the toss and began serving on the House of Delegates at the first meeting on June 11th during the Annual Meeting in Hot Springs.
University of Arkansas School of Law Announces New Dean
Association CLE Director Lynne Brown Celebrates Anniversary Continuing Legal Education Director Lynne Brown celebrated her five-year anniversary with the Association. “The Association truly values Lynne’s continued dedication to its mission to offer the best CLE to the attorneys of Arkansas,” said Executive Director Karen Hutchins. “She has advanced the Association’s CLE offerings by implementing webinars and more three-hour seminars. Her efforts have assisted the Association in meeting its financial goals which depend on a solid CLE program. As the liaison to 29 Association’s sections, Lynne encourages networking and education in specific substantive areas of law to help our section members meet their immediate practice needs.” 6
The Arkansas Lawyer
Stacy L. Leeds, interim associate dean for academic affairs, professor of law and director of the Tribal Law and Government Center at the University of Kansas School of Law, has been named dean of the University of Arkansas School of Law. She will assume her duties effective July 1. Leeds, a citizen of the Cherokee Nation, becomes the first American Indian woman to serve as dean of a law school. Leeds will replace Cynthia Nance, who has served as dean since her five-year appointment in 2006. Nance will return to the faculty as professor of law after spending a year on a research appointment.
Celebrating 50 Years Congratulations to members of the Arkansas Bar Association celebrating their 50th year of practice. The members were honored with a luncheon at the Association’s Annual Meeting on June 9, 2011. F. Leon Burrow, Jr. Byron M. Eiseman, Jr. Lewis E. Epley, Jr. Dorsey D. Glover James N. Haltom William E. Henslee Frank Huckaba Paul K. Lewis, Jr. Richard Mays Dan McCraw Charles M. Mooney, Sr. Pat Moran William David Newbern Claibourne W. Patty George N. Plastiras Burl C. Rotenbery Thomas S. Streetman Lynn F. Wade
Filing Petitions Due October 31 For 2013 President of the Association
ACCOLADES Karen K. Hutchins, Executive Director of the Arkansas Bar Association, has earned the Certified Association Executive credential. The CAE is the highest professional credential in the association industry. Less than five percent of all association professionals have earned the CAE. Valerie Kelly, Assistant Attorney General, was recently honored with the Alumni Council Award for Service to Princeton University for 2011. Charles “Skip” Mooney, Jr., of the Mooney Law Firm in Jonesboro recieved the 2011 Shuffield Award from the Arkansas Medical Society. The following members have been selected for inclusion in the 2011 “Forty Under 40” class by Arkansas Business: Justin Allen, Wright Lindsey & Jennings LLP; Missy McJunkins Duke, Cross Gunter Witherspoon & Galchus PC; Khayyam M. Eddings, Friday Eldredge & Clark LLP; Daniel Goodwin, Gill Elrod Ragon Owen & Sherman PA; Courtney Little, Ace Glass Construction Corp; Hunter Carpenter, The Stephens Group LLC; Jennifer Pierce, Mitchell Williams Selig Gates & Woodyard PLLC; Paul Prater, Hosto Buchan & Prater; John Vines, Wood Smith Schnipper Clay & Vines; and Perry Wilson, Barber Law Firm. APPOINTMENTS AND ELECTIONS The Supreme Court appointed to the Arkansas Judicial Discipline and Disability Commission Honorable Joyce Warren of Little Rock, 6th Judicial Circuit, for a six-year term. Rex Terry of Hardin, Jesson & Terry, PLLC in Fort Smith was appointed to serve a six-year term as an alternate member on the Judicial Discipline and Disability Commission. Wm. R. (Bill) Stringfellow was recently appointed by Gov. Beebe to the Southern Arkansas Universty Board of Trustees for a five-year term. C. Wesley Lasseigne, V.P. and General Counsel for Lenders Title Company, was installed as President of the Arkansas Land Title Association. Joseph F. Kolb of the Barber Law Firm in Little Rock was selected to serve on the Corporate Law Practice Group Steering Committee of The Harmonie Group, a national network of law firms. Gov. Beebe appointed Beth Branscum Burgess of Perryville to the 11th Division Circuit Court of the Sixth Judicial District to replace Judge Melinda Gilbert; Jon Comstock of Rogers was appointed to the Second Division Circuit Court of the 19th Judicial District West. Comstock replaces Judge David Clinger, who retired effective June 30. Mark Fryauf of Rogers was appointed to the Third Division Circuit Court of the 19th Judicial District West. Fryauf replaces Judge Jay Finch, whose retirement was effective July 8. G. Chadd Mason of Fayetteville was appointed to the Fourth Division Circuit Court of the Fourth Judicial District. Mason replaces Judge Mary Ann Gunn, whose resignation was effective June 11. All four appointments run through 2012. Michelle Ator of Friday, Eldredge & Clark in Little Rock has been elected to serve as President of the Pulaski County Bar Association. Jennifer Merritt and Jamie Dempsey of Quattlebaum, Grooms, Tull & Burrow PLLC in Little Rock were appointed to the Board of Directors of the Arkansas Association of Women Lawyers for the 2011-2012 year. Harry Truman Moore of Goodwin Moore PLLC in Paragould was appointed to the State Claims Commission and to the Govenor’s Mansion Association Board. Jackson Farrow joined the Arkansas Community Foundation’s Board of Directors. WORD ABOUT TOWN Trail Rogers has been promoted from Trust Compliance Officer to Vice President and Trust Compliance Officer of Arvest Asset Management. Daniel C. Brock has joined the firm of McMullan Halstead as an associate. Christopher T. Kidd has joined Curtis Hitt at Hitt Law Firm, Attorneys at Law, PLLC in Paragould. Hayes, Alford and Johnson, PLLC in Fort Smith announced that Joel Johnson has joined the firm as a partner. Frost, PLLC elected Cheryl Shuffield as managing member of the firm. Womack, Landis, Phelps & McNeill, P.A. has recently announced the additions of Wade Bowen and Allison Waldrip as associate attorneys in the Jonesboro office. Hyden, Miron & Foster, PLLC in Little Rock announced that Carrie E. Bumgardner has joined the firm. The Law Offices of Peter Miller hired Jessica Virden as an attorney. Kinard, Crane, Butler & Phillips, P.A. in Magnolia announced that M. Michael Kinard has rejoined the firm following his appointment to the Court of Appeals and Ryan P. Philips has become a member of the firm.
Next President-Elect will come from Bar District B
The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position is rotated each year among the three state Bar Districts. The next President-Elect will come from Bar District B. Nomination petitions must be filed with the Secretary at the Association’s office no later than October 31, 2011. The petitions must be signed by at least 75 Association members, with at least 25 signatures residing in each of the three state Bar districts of the Association. The member elected this fall will assume the office of President-Elect at the June 2012 Annual Meeting in Hot Springs and will become the Association President in June of 2013.
On March 16, 2011, one of the newest members of the Arkansas Bar, Thomas Scott Randall (pictured right), was sworn in on motion by Colonel Dawn Eflein, Chief Regional Judge, U.S. Air Force Europe (pictured left). The swearing in took place on Ramstein Air Force Base, Germany. Mr. Randall is a Dardanelle native and Captain in the U.S. Army Jag Corps currently stationed in Kaiserslautern, Germany.
send Oyez to: email@example.com.
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Association News 2011-2012 Committee Chairs & Co-Chairs
2011-2012 Section Chairs
Annual Meeting Committee
Zane A. Chrisman
Annual Meeting Task Force
Harry A. Light & Jeffrey E. McKinley
Alternative Dispute Resolution Section
Agricultural Law Section
Arkansas Bar Commission on Diversity
Danyelle J. Walker
Business Law Section
Nathan E. Tyler
Arkansas Bar PAC
Arkansas Law Review
Patrick D. Wilson
Attorney/Client Privilege Committee
Anthony A. Hilliard
Committee for a Modern Judiciary
Mary S. McGowan & R. Gary Nutter
Committee for Responding to Unfair Criticism of Judges and the Courts
Harry Truman Moore
Continuing Legal Education Committee
Civil Litigation Section
Brandon K. Moffitt
Construction Law Section
Allen C. Dobson
Corporate & In-House Counsel Section
Criminal Law Section
Timothy R. Leonard
Debtor/Creditor Law Section
Robert Patt Pine
Disability Law Section
Terry P. Diggs
Zane A. Chrisman
Elder Law Section
Shaneen K. Sloan
Editorial Advisory Board - The Arkansas Lawyer
Gordon S. Rather, Jr.
Environmental Law Section
Editorial Board for Handbooks
Family Law Section
Betty J. Hardy
William A. Martin
Financial Institutions Law Section
Ellis Lamar Pettus
Government Practice Section
Vincent C. Henderson
Brian H. Ratcliff
Jackson Farrow, Jr.
Judicial Council Liaison Committee
John F. Stroud, Jr.
Judicial Nominations Committee
James V. Scurlock II
Jurisprudence and Law Reform Committee
Law Related Education Committee
Mark W. Hodge
Law School Committee
Ron D. Harrison
Lawyers Assisting Military Personnel Lawyers Helping Lawyers Committee
Robert W. Wright Gary N. Speed
International & Immigration Law Section
Elizabeth L. Young
Juvenile Justice Section
Brenda N. Stallings
Labor & Employment Law Section
Kristin L. Pawlik
Natural Resources Section
Robert M. Honea
Sam E. Gibson
Probate & Trust Law Section
Jennifer R. Pierce
Alice F. Lightle
Real Estate Law Section
Stephen R. Giles
Leadership Academy Committee
Donna C. Pettus & Lamar Pettus
Securities Law Section
Frances S. Fendler
Legal Services Committee (Civil)
William A. Waddell, Jr.
Solo, Small Firm & Practice Section
William P. Allison
Section of Taxation
Long Range Planning Committee
Brian M. Rosenthal
Workersâ€™ Compensation Law Section
Young Lawyers Section
Member Benefits Committee
Win A. Trafford
Membership Development Committee
Gwendolyn L. Rucker
Mock Trial Committee
Matthew D. Wells
Online Legal Research Committee
Karen Sharp Halbert
Past Presidents Committee
Don M. Schnipper
Denise R. Hoggard
Professional Ethics Committee
Brad L. Hendricks
Public Information/Findalawyer Committee
Laura E. Partlow
Christopher DeWitt Brockett
Sustaining Member Committee
William C. Bridgforth
Task Force on Criminal Sentencing Statutes
Jack T. Lassiter
Task Force on Dues
James D. Sprott
Health Law Section Intellectual Property Section
Task Force on Judicial Elections
Robert L. Brown
Unauthorized Practice of Law Committee
J. Mark Davis
Rosalind M. Mouser
Uniform Laws Committee
G. S. Brant Perkins & Elisa M. White
David M. Fuqua
Women in the Profession Committee
Paula Juels Jones
The Arkansas Lawyer
NEW A Guide to Arkansas Statutes of Limitations Seventh Edition Revised March 2011
Prepared By Arkansas Bar Association Young Lawyers Section
Free download to members at www.arkbar.com
Young Lawyers Section Report
by Brian M. Clary
YLS on the Move
Greetings! I am honored to serve as Chair of the Young Lawyers Section for 20112012. I hope to continue to grow the work of my predecessors during the upcoming year. As the Chair from District C, YLS will be promoting its work and engaging its members across Arkansas. The YLS Executive Council recently hosted a reception for young lawyers and held its first organizational meeting of the year in Jonesboro. Look for us in a community near you. There are a number of ways to participate in YLS and the Association. This year, YLS will sponsor a membership and recruitment contest. Young lawyers will be asked to attend meetings and social events, volunteer at a YLS or Association event, and recruit new Association members. The young lawyer that contributes and participates the most will win a prize (to be determined, but well worth the effort) at next year’s Annual Meeting. Members will benefit from serving the community and networking with other attorneys from across the state. Look for details in the next YLS In Brief. Speaking of YLS In Brief, YLS always appreciates new contributors. Articles provide the YLS membership with an update on your work and a marketplace to exchange ideas. Over the last two years, the Communications Committee has set out to increase the range of topics, news, and features presented in YLS In Brief. Whether you would like to write an article on substantive law, procedure, practice advice or simply review a recipe, book, restaurant, or watering hole, we provide a forum for you to do so. In addition to the Communications Committee, YLS has several other committees that provide a way to serve the Association, its members, and the state. Over the last two months, the Disaster Relief and Pro
Bono Committees have assisted individuals affected by this summer’s storms and floods in Northeast and Central Arkansas. The Federal Emergency Management Agency requested that the Association and YLS assist citizens with legal questions and concerns. A group of YLS members fielded calls on a daily basis. The program is limited to pointing individuals in the right direction, but we were also able to match people with attorneys that could provide more in depth assistance. A recent success of the Law Related Education Committee was publication of 18 & Life to Go: A Legal Handbook for Young Arkansans. The Handbook is currently available on the Association’s website. One of the committee’s goals this year is to place printed copies in as many high schools as possible. Another project for the committee is distribution of A Level Playing Field to students. The DVD was developed by the Association’s Law Related Education Committee and seeks to educate students on the American judicial system. Law Related Education also handles Law Week activities and works in conjunction with the American Bar Association to host a Law Day poster contest for elementary students. The Minority Outreach Committee is primarily responsible for reaching out to those groups and individuals that are underrepresented in the legal profession. The committee made progress last year to organize and meet with undergraduate students to foster an interest in pursuing a legal career and provide information to them regarding different legal fields. The committee will work this year with undergraduate institutions and student legal groups to continue our efforts in this area. While not a complete surprise, the Recruitment and Social Committee hosts parties and membership receptions throughout
the year. We all need to blow off a little steam and relax with our peers. In the past, YLS has hosted Christmas and Cinco de Mayo parties in Fayetteville and Little Rock. YLS has also hosted a party during the Annual Meeting. I expect to continue these events and expand them to include other locations. Finally, I would like to take this opportunity to introduce the YLS Executive Council for 2011-2012 listed below. As you can see, there are a number of ways to be involved. Please do not hesitate to contact a council member or me if you have an idea for an event or wish to join a committee. I look forward to a great year. n
2011-2012 YLS Executive Council Chair: Brian M. Clary Chair-Elect: Vicki S. Vasser Sec-Treas: Anne Hughes White Immediate Past Chair: Brandon Moffitt Executive Council: District A: Ryan Pettigrew, Brian R. Lester & Vicki S. Vasser District B: Cory D. Childs, Grant M. Cox & Tasha S. Taylor District C: Susan Weaver, Timothy R. Leonard & Ryan M. Wilson At Large Representatives: Tessica Dooley, & Cliff McKinney Law Student Representatives: University of Arkansas School of Law: Angela Artherton; UALR William H. Bowen School of Law: S. Kate Fletcher
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
o u r A s s o c i at i o n , i t i s m y p r i v i l e g e to s e rv e a s the president and carry o n the Association’s heritage o f t r a d i t i o n , i n t e g r i t y, a n d t ru s t a s it adapts to the challenges facing the organized bar.” 2011-2012 President Tom D. Womack Photo by Bishop’s Photography 10
The Arkansas Lawyer
Tom D. Womack 2011-2012 Arkansas Bar Association President The Arkansas Bar Association will be in good hands this next bar year under the leadership of Tom D. Womack, the first president from Jonesboro in 41 years. Tom was sworn in as the 114th president of the Association on June 10, 2011. By Anna Hubbard
he Arkansas Bar Association will be in good hands this next bar year under the leadership of Tom D. Womack, the first president from Jonesboro in 41 years. Tom was sworn in as the 114th president of the Association on June 10, 2011. He is the president and managing principal of Womack, Landis, Phelps & McNeill, P.A. in Jonesboro. Tom’s pledge “to support, protect and defend the Constitution of the United States, the state of Arkansas, and of the Arkansas Bar Association” is heartfelt. He considers his commitment to serve as the Association’s president to be a public service both to the bar and to the general public. “I think it is a call to service, and I am glad that I have the wherewithal, the interest and opportunity to do it,” he said. Tom’s peers have encouraged him to run for president of the Association for many years. His longtime friend and law partner, John V. Phelps, knows of Tom’s ability to serve in this capacity. “Tommy Womack and I met on the first day of law school in September 1969. I shortly came to admire and appreciate his poise and commitment to the professionalism our education began teaching,” Phelps said. “He developed an instinctive commitment to perfect idealism and precise and objective analysis, attributes which he has continued to polish throughout his years of practice. He cherishes the friendship of his clients and the regard of all of us who are privileged to be his friends and colleagues. No one could better personify the better instincts of our profession." Tom had an idyllic childhood growing up in a farming family with his younger brother in Northeast Arkansas. He developed his strong work ethic early on from his father who led by example. Even as a young child Tom worked in the farming operation from daylight to dark when he was not in school. Tom’s hard work and strong work ethic prepared him well for his legal career. He earned a bachelor’s degree in accounting from Arkansas State University with distinction in 1968. He served six months in active duty in the Army National Guard before entering law school and earning his Juris Doctor from the University of Memphis School of Law in 1972.
After proving himself as a promising practitioner during the two law school summers he clerked for Barrett, Wheatley, Smith & Deacon in Jonesboro, he was thrown full-force into the law practice upon graduation. He started work the Monday after graduation and helped pull the weight of the firm’s heavy workload during an associate’s medical absence that coincided with Tom’s arrival. With his already busy work schedule, he was only able to take a few days off from work to prepare for the bar exam and he had no time for a bar review course. “I was an example of how not to study for the bar exam,” he said. “But it worked out.” He continued to serve six years in the National Guard, which included a month of active duty during his first year of practice when Jonesboro suffered major tornado damage. Tom recalls receiving a few funny looks from his peers when he was seen in full fatigues at the office on his way to and from daily duty. Tom had many mentors as a young lawyer including legal giants Joe Barrett and Jack Deacon. He believes that relationships with senior members are critical for younger lawyers to develop into capable practitioners. “My mentors were good about exposing young lawyers to the organized bar and forming meaningful professional relationships,” he said. “Even as a law clerk I attended the bar meetings in Hot Springs. These relationships had a lasting effect on me.” Mentorship of young attorneys is a top priority for Tom this year as bar president. He plans to establish a volunteer mentoring program for the newly-admitted attorneys. “In this time and age it is vitally important that new lawyers have access to the advice and counsel of experienced practitioners,” Tom said. “We tend to see more and more new admittees come out of law school, pass the bar and go into practice by themselves or in very small firm environments. Those people need the guidance and help of a mentor to assist with things that are vital to their ability to survive in today’s legal services marketplace. An experienced mentor can help a new lawyer not only with client or other counsel situations, but also in terms of actually managing and understanding the economics of operating a law office.” Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
In this time and age it is vitally important that new lawyers have access to the advice and counsel of experienced practitioners. We tend to see more and more new admittees come out of law school, pass the bar and go into practice by themselves or in very small firm environments. Those people need the guidance and help of a mentor to assist
with things that are vital to their ability to survive in today’s legal services marketplace.
Investiture above top: The Little Rock Airforce Honor Guard performs a posting of the colors before the investiture; above middle: Chief Justice Jim Hannah administers the oath of office to Tom; above bottom: Chief Justice Jim Hannah, Linda and Tom 12
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The volunteer mentoring program will connect experienced lawyers with new attorneys. The program will build upon the limited program that has been in place for a couple of years through the Arkansas Supreme Court Professional Practicum program of professionalism for new attorneys. “I think with the Association committing to this, publicizing this and structuring this we can provide a viable program,” Tom said. “This is not a bar program that is going to impact the budget in any significant way. It is just a matter of lawyers setting aside a little bit of their time to help young people starting in the profession.” Tom met his wife, Linda, when he was a senior in college. Linda is a long-time educator with beginnings as a math teacher in Jonesboro public schools, service as a faculty member at Arkansas State University, and now a math professor at Northwest Florida State College. For the past two years, she and Tom “commute” to and from their Miramar Beach home during the academic year. He said he suspects “she has the better end of the deal.” Tom and Linda are proud parents of two sons, Drew (31) and Derek (27), and proud grandparents of Reese (3) and Hank (2). Drew is the “family business man,” a graduate of the University of Tennessee with an MBA, and is married to Andrea who is a family law practitioner. They live in Tennessee with their two children. Derek graduated this May from Boston College School of Law and is preparing to take the bar exam this summer. Tom “was bitten by the bar bug early on” and has been active in the Association since earning his license. He has served multiple terms in the House of Delegates and was a member of the Executive Council. He is currently a member of the Association’s Board of Governors and has served as chair of the Probate and Trust Law Section and the Section of Taxation. He has been honored with the Charles L. Carpenter Award for his exemplary service to the Association. In addition, Tom is a long-time Sustaining Member of the Association and a Sustaining Fellow of the Arkansas Bar Foundation. A general practitioner in the early years, Tom now focuses his practice in the areas of business law, corporations, taxation, trusts and estates. His firm currently has 17 attorneys and is ranked the 15th largest law firm in Arkansas. Tom is a fellow of the American College of Trust and Estate Counsel where he serves on the College’s Professional Responsibility Committee and is the past Arkansas State Chair. He is a past president of the Craighead County Bar Association. Tom’s professionalism and volunteerism extend outside of the legal
Photo by White Sands Photos
above: Tom and Linda in Florida; top right from left to right: Linda, Andrea, Tom, Drew and Derek at the investiture; bottom right: Tom fishing in Montana community. He is a long-time member and trustee of Walnut Street Baptist Church in Jonesboro. He is a board member and has served as chair of the Greater Jonesboro Chamber of Commerce. He is currently a director of the Arkansas Children’s Hospital Foundation and has served as a director of the Arkansas Community Foundation. When he finds time away from the commitments of his profession, Tom may be found waist deep in a cold-water stream. His biggest hobby outside of the office is fishing, namely fly-fishing. Just like with his legal practice, Tom’s long-time fishing hobby has become more specialized over the years. Fishing for “just about everything” as a young boy with his grandfather, he now is primarily a cold stream fly fisherman. He and a group of friends known as the “Montana IV” have for 15 years taken an annual trip outside of the state in addition to fishing all of the Arkansas trout streams throughout the year. They have traveled to Montana, Alaska, Utah, Idaho, Michigan and Wyoming. “We take a week or so and go fish these great rivers,” he said. “It is a reward to us to go see other parts of the country. The great benefit to the fishing experience is that you get to enjoy all kinds of natural beauty, and the wildlife is incredible. So the fishing becomes part of it, it’s not the sole thing.” The Association will be served well by Tom’s keen accounting and business background. Tom has already taken steps to streamline the Association’s committee structure so they are more efficient. He
plans to grow the revenue sources so the member benefit and public service programs can be expanded as well as to continue to grow membership in the Association. Another one of Tom’s top objectives for the year includes an expansion of the Association’s law-related education programs. Tom expressed his concern to the business community in his article “Teaching Civics – The Time is Now” published in the June 6, 2011, edition of Arkansas Business. He states: “A substantial threat to our courts and to our entire system of self-governance is a national lack of understanding of how our government works. For too long, civic education has been neglected in our nation’s schools. This reminds us that a democracy cannot thrive in a vacuum of understanding.” Tom wants to expand upon the Association’s law-related education efforts by soliciting even more volunteer members to go into schools to emphasize the importance of civics. The Association will begin work with the Arkansas Council on Social Studies this year to work with teachers to get civics education in the classrooms. “Our Association is about volunteerism,” he said. “Our participation in the learned profession of law is a privilege granted to us and carries with it the responsibility to meet professional standards and expectations.” “In the 114th year of our Association, it is my privilege to serve as the president and carry on the Association’s heritage of tradition, integrity, and trust as it adapts to the challenges facing the organized bar.” n Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Legislative Update: 88th General Assembly by Jack A. McNulty
he Regular session of the Arkansas 88th General Assembly began on the cold, snowy day of January 10, 2011, and lasted until April 27, 2011. It is said to have been the most bipartisan General Assembly which has ever convened in Arkansas with 20 Democrats and 15 Republicans in the Senate and 54 Democrats and 44 Republicans (with 2 vacancies) in the House of Representatives. Less than 30% of the House had served in more than one regular session. The Lieutenant Governor, who presided each day over the Senate, had never served in a public office. Tea Party paranoia was running rampant. Even those who had observed the workings of the General Assembly for many years didn’t know what to expect under all of these foreign circumstances. From January 10, 2011, through March 7, 2011 (the deadline for filing bills), 2,235 bills were introduced. About 56% (1,242) of them were enacted. The number of bills introduced was less than the number introduced in previous recent sessions as were the number of bills enacted and the percentage of bills introduced which were enacted. The purpose of this article is to identify and summarize a number of new acts which may be of interest to legal practitioners. It is not the purpose to analyze and discuss those new acts in detail, but rather to identify them so that the reader may review and analyze those of interest. Of the hundreds of issues which were addressed, three received the most attention and were most widely publicized—corrections, tax cuts and congressional redistricting. Corrections The Public Safety Improvement Act (Act 570) is a comprehensive attempt to address the problems of prison funding and overcrowding. According to the preamble, the intent of the Act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs. Examples of some of the 14
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many issues addressed in this massive Bill (164 pages) are the thresholds for various theft offenses, probation, parole, early discharge, home detention, drug courts, incentive funding for reducing commitments to the Department of Corrections and record keeping requirements. Tax Cuts Initially, a number of bills passed in the House but were not addressed in the Senate and a number of bills passed in the Senate but were not addressed in the House. As the session progressed, an agreement was reached to pass four basic tax cut bills: •Reduction in Grocery Sales Tax (Act 755): The sales tax on groceries has been reduced by the legislature in every session since 2007 when it was 6 percent. This session, the tax was lowered by one half of a percent to 1.5 percent.
•Reduction in Sales Tax on Natural Gas and Electricity Used Directly in the Manufacturing Process (Act 754): Beginning in 2007, the sales tax on natural gas and electricity used directly in the manufacturing process has gradually been reduced on an annual basis with a cap on the total amount of refunds. This process was continued this session with the percentage of the tax being reduced to 2.625% on July 1, 2011. •Sales Tax Holiday (Act 757): At least one bill with the concept of declaring a sales tax holiday on certain items in preparation for the beginning of the school year has been introduced in each regular session of the General Assembly for years. This session the idea was embraced in the form of Act 757 which creates a sales tax holiday on the first Saturday and Sunday in August for such items as school instructional materials and art supplies.
•Reduced Sales Tax on Used Cars (Act 753): Under current law, if the amount for consideration for a new or used motor vehicle, trailer or semitrailer is less than $2,500, no sales tax is due. Effective January 1, 2012, the amount of consideration for which no tax will be due will be increased to $4,000.00. Congressional Redistricting The legislature must redraw congressional districts every 10 years based on the census redistricting data. The biggest shifts in population since the 2000 redistricting census data was the loss of population in the 4th congressional district and the gain in population of the 3rd congressional district. The last two weeks of the session dealt solely with congressional redistricting. The Legislative Package of the Bar Association All bills in the Bar Association’s Legislative Package passed the legislature and were signed into law by the Governor. •The Arkansas Arbitration Act (Act 695). In 1969, Arkansas adopted the Uniform Arbitration Act to govern situations where the parties have chosen to enter into an agreement to arbitrate their disputes. There were four “carve outs”—the law, as adopted, did not apply to personal injury or tort matters, employer-employee disputes or an insured or beneficiary under any insurance policy or annuity contract. During the last session the legislature adopted the Revised Uniform Arbitration Act, but with the major modification of retaining the “carve outs.” Since modifying the Uniform Act to exclude these important areas is such a major deviation from the Uniform Arbitration Act, it was decided that the Act adopted by the legislature should be titled The Arkansas Arbitration Act. •Amendments to the Uniform Principal and Income Act (Act 132). Arkansas adopted the Uniform Principal and Income Act in 1999. Act 132 made technical changes
to bring the Act into compliance with the Internal Revenue Service’s position for allocating Individual Retirement Account distributions. One provision relates to qualifying for the marital deduction and another relates to a trust being able to keep enough money after distributions to pay taxes. •The Revised Uniform Unincorporated Nonprofit Association Act (Act 202). Throughout the United States there are thousands of unincorporated nonprofit Associations. They include such organizations as parent/teacher organizations, book clubs and hunting clubs to name just a few. Act 202 replaces the Uniform Unincorporated Nonprofit Association Act which was adopted in Arkansas in 1997 with a revised version which covers many more aspects of, and provides default rules for, these types of organizations. •The Uniform Adult Guardianship and Protective proceedings Jurisdiction Act (Act 159). This act addresses some important issues which arise in connection with adult guardianships, conservatorships and other protective proceedings. The three key problems it addresses are (1) jurisdiction when there have been contacts in multiple states, (2) transfer from one state to another and (3) out-of-state recognition. •Amendments to Scire Facias (Act 227). In Arkansas, a judgment constitutes a lien on real property owned by the defendant in the county where the judgment was rendered. In order for the judgment to constitute a lien on
Jack A. McNulty is the lobbyist for the Arkansas Bar Association.
Legislative Timetable for the 2013 Legislative Session Members of the Association are encouraged to submit proposals for new laws or amendments to existing laws especially in their practice area where they are more likely to recognize the need for changes or additions. To get a proposed bill made a part of the Bar Association’s Legislative Package and thereby be sponsored by the Association and have the full support of the Legislation Committee and its lobbyist, deadlines have been established by the Association’s governing body. January 30, 2012 Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. April 2012 Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates. June 2012 House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. June - September 2012 Jurisprudence & Law Reform Committee and Legislation Committee modify package in accordance with directions from House of Delegates. If you are a Section Chair be certain that your members have been canvassed for any legislation to be sponsored by your section. For more information or to submit proposals, contact the Arkansas Bar Association office at (501) 3754606 or (800) 609-5668.
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
real property owned by the defendant in another county, the judgment must be recorded in that other county. The lien of the judgment on real property expires 10 years after the date the judgment is rendered. However, through the process of filing a writ of scire facias and obtaining an order reviving the judgment lien, the judgment lien will continue to burden the defendant’s real property for another 10 years. This act clarifies that in order for a judgment lien to be revived, the writ of scire facias must be sued out within the 10-year period after the date the judgment is rendered. It further provides that in order to revive the judgment lien in any county in which it was not rendered, before expiration of the judgment lien, a notice of reviver containing the information specified in the law must be recorded in the real property records of a county in which the judgment was not rendered. Other Legislation of Interest •District Court System (Act 1219). This Act continues the process toward the goal of Arkansas having a three-tiered court system—appeals courts, circuit courts and district courts—with full-time judges compensated
by the state. This act constructs the transition between the current pilot district courts to a full-fledge system to be fully implemented by January 1, 2017. •District Court Jurisdiction (Act 1137). As we have moved closer and closer to the three-tier court system, the jurisdiction of district courts has expanded to justify fulltime judges. In a per curiam opinion dated February 9, 2011, the Arkansas Supreme Court approved a district court judge presiding over a drug court program, a probation revocation proceeding, or a parole revocation proceeding, if authorized to do so by the General Assembly. This act authorizes such jurisdiction if it is authorized by the administrative plan for the judicial circuit required by Administrative Order No. 14. •Amount in Controversy (Act 336). When a plaintiff’s complaint in a civil matter states an amount in controversy for the purpose of establishing state court jurisdiction, the amount is binding for purposes of the case unless the plaintiff amends the complaint. The effective date of the act is March 18, 2011. •Fees for Appeals Transcripts (Act 1145). Beginning July 27, 2011, the fees a circuit clerk
can assess for preparing a transcript for a case record on appeal was reduced per page for the number of pages over 1,000. •Installment Payment of Fines (Act 1138). Defendants are sometimes allowed to pay circuit court fines in installments. Beginning July 27, 2011 each person who is authorized to pay a circuit court fine on an installment basis will be assessed an additional installment fee of $5.00 on the first day of each month. •Small Estates (Act 289) (Act 761). Act 289 raises the fee for a certified copy of the affidavit required for collection of small estates from $3.00 to $5.00. A distributee is required to publish notice of the decedent’s death and of the filing of an affidavit within 30 days of the filing of the affidavit under Act 761. The act also requires a distributee who is entitled to a transfer of real property to deliver notice of the transfer of ownership to the county assessor in the county where the real property is located. Both acts were effective July 27, 2011. •Uniform Power of Attorney Act (Act 805). The existing statutory law on powers of attorney is replaced by the Uniform Power Legislation continued on page 48
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Briefing in an Electronic Age by Judge Josephine Linker Hart and Guilford M. Dudley
he advent of electronic briefing approaches. Hand-held electronic readers—the Kindle and the iPad for example—presage the Arkansas bar’s coming reliance on these devices over paper. Our court rules also advance the movement from printed paper to e-reading. The Arkansas Supreme Court has promulgated a rule providing for electronic publication of the official reports of appellate decisions,1 a rule providing for the court reporter to offer an appellant at a nominal charge an electronic copy of the transcript,2 and an administrative order for the development of electronic filing.3 The court has issued a per curiam order providing for a voluntary pilot program for the filing of electronic briefs,4 and in fact, the court has proposed a rule that “would aid in moving lawyers and judges toward appellate e-filing by giving everyone more experience with handling appellate briefs, other papers, and records in electronic form.”5 The court asserts, however, that the proposed rule “would not create a pure e-filing procedure on appeal,” because for technical and practical reasons, the step would take “several years.”6 But given these technological advancements and the court’s apparent receptivity to electronic publication, perhaps it is time for the bench and bar to examine what an electronic appellate brief should contain. It is submitted that an electronic brief should not merely be an electronic copy of its paper version. And in considering this matter, the bench and bar should give particular emphasis to remedying the continuing problems related to the presentation of the record to the appellate courts in the form of the abstract and addendum system provided for in Rule 4-2 of the Rules of the Arkansas Supreme Court. The purpose of this article is to begin the dialogue. To that end, this article provides an overview of recent efforts to address the problems related to the brief, particularly the abstract. Further, the article will examine the current rule’s requirements. It will then review what the Arkansas Supreme Court continues to perceive as problems with briefs. Finally, this beginning of the dialogue proposes to the bench and bar that the electronic brief could result in elimination of various portions of the brief now required by the rule and perceived by some appellate lawyers as unnecessary, such as—importantly—the abstract and addendum.
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A History of Recent Efforts to Address the Problems Related to the Abstract The problems related to the preparation of an abstract have been a source of much discussion over the years.7 There have been previous experiments to change the abstract system. In 1989, after noting the concern of whether “abstracting of the record is worth the effort lawyers must devote to it, and thus the money litigants must invest in it,” the Arkansas Supreme Court proposed an appendix system similar to that used by the federal appellate courts.8 The rule permitted an appellant to provide in the brief copies of record pages “crucial to the decision of the case,” with the necessary factual background in the “statement of the case,” which in turn could also be “buttress[ed]” with copies of parts of the trial transcript.9 Beginning May 15, 1989, the Arkansas Supreme Court began its experiment.10 The court, however, later acknowledged that it “found cases submitted with appendices generally more difficult and time consuming than those submitted with abstracts.”11 The court noted that rather than replacing the abstract, the “appendix is only a reference tool,” and that the court “should be able to learn everything it should know about the case from the statement of the case found in the brief.”12 The experiment, however, ended on June 10, 1991.13 The court concluded that the “reason for ending the appendix experiment at this time is that we have found that it adds to the difficulty of, and the time consumed in, reading briefs.”14 The court further noted the difficulties with the appendix system, with the “main one from our perspective [being] the problem of expansion of the statement of the case, with appropriate appendix references, to an extent which would save members of the Court from having to scour the appendix for factual details.”15 In 1997, the court proposed, and later adopted in 1998, a rule instructing appellants to provide an abbreviated addendum.16 The rule limited the contents of the addendum to the order from which appeal was taken.17 According to the court, the addendum was created to address the “recurring problems with abstracts that do not contain material parts of the record and the fact that this lapse under our Supreme Court Rules precludes appellate courts from considering the appeal.”18 In 2001, another effort was made to “replace abstracting the record with a statement of facts/ appendix system similar to that employed in the federal appellate courts.”19 The co-authors of this article were not innocent bystanders during that time, having worked with Justice
Tom Glaze to present an alternative to the statement of facts/appendix system. As Justice Glaze noted in his concurring opinion, the proposed alternative would have eliminated the need for abstracts in “first-person abridgment” and instead the “testimony would be abstracted in the same format in which it appeared in the transcript.”20 It “recommended that advocates obtain a copy of the transcript in an electronic format so that the testimony may be electronically copied from the transcript and placed in the abstract.”21 The proposed rule also anticipated that a number of documents would be included in the addendum.22 Ultimately, the court adopted the proposed changes to the addendum.23 In 2001, the addendum was expanded to also include “not only the judgment, order, or decree appealed from, but also the relevant pleadings and other written documents.”24 The court rejected the statement of facts/appendix system, noting that the abstract was “essential for the appellate court to know the facts underlying the legal arguments in a brief.”25 The court observed that the “abstracting of testimony is beneficial to the judges, having confidence of their grasp of the record,” that it was “not an antiquated process,” and that “judges benefit from it, and we believe that the time expended by attorneys is rewarded when writing the argument portion of the brief.”26 The rule did, however, require court reporters to provide a copy of the transcript in electronic form to assist in the abstracting process.27 It also essentially eliminated the “affirmance rule,” allowing an appellant the opportunity to cure a deficiency, with the case being affirmed when the appellant refused or failed to cure a deficient abstract, addendum, or brief after being given an opportunity to cure.28 The court, however, acknowledged that “these changes are interim in nature because the rapid advancements in technology will eventually permit the electronic filings of record and briefs, and some of the issues with which we are struggling will disappear.”29 In sum, recent efforts to address the prob-
lems associated with the abstract have been continuous and responsive to directions from the bar and the needs of the appellate court. The steps taken by the court constituted a movement away from abstracting by placing some materials in an addendum. What was noteworthy of the court’s criticism of the statement of facts/appendix method was the difficulty that this method posed to the appellate court in obtaining the context of the case, which was to be provided by a statement of facts and supported by an appendix. These difficulties proved to be the deciding factor in retaining the abstract, as the abstract provided context. Changes to the addendum, however, proved successful. Also noteworthy is that the court, in 2001, did not adopt the proposal to eliminate firstperson abridgment, allowing the abstract to be electronically copied from the transcript. This change, along with the adopted changes to the addendum, would have essentially removed all items from the abstract and created a small record comprised of copies of portions of the original transcript and other documents filed of record and would have provided the context needed by the court while eliminating the problems posed by the mechanics of abstracting. Importantly, it would have set the stage for an ultimate transition to an electronic brief that provided each judge with the entire record. Current Rule 4-2 To continue this discussion, consider the requirements of what must be placed in a brief under our current rule, Rule 4-2. The rule requires a cover, a table of contents, an informational and jurisdictional statement, points on appeal, a table of authorities, an abstract, a statement of the case, an argument, and an addendum.30 The rule describes an abstract as “the material parts of all the transcripts (stenographically reported material) in the record” and further describes what is “material” as transcript “information essential for the appellate court to confirm its jurisdiction, to understand
Judge Josephine Linker Hart has served on the Arkansas Court of Appeals since 1999. Guilford M. Dudley has served as Judge Hart’s law clerk since 1999.
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Refer to Law Offices of Gary Green, P.A. We do the Work We Pay the Costs We Pay 1/3 Associate Counsel Fees 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 the case, and to decide the issues on appeal.”31 Examples of where material parts of a transcript might be found are described in the rule.32 The rule provides that exhibits that are transcripts must also be abstracted.33 The rule further provides that the abstracted testimony must be placed in “first person.”34 The “statement of the case” is five pages or less that are “sufficient to enable the court to understand the nature of the case, the general fact situation, and the action taken by the trial court.”35 The rule then describes the addendum as “true and legible copies of the nontranscript documents in the record on appeal that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.”36 Rule 4-2 provides a lengthy description of what documents an addendum should include.37 The rule also addresses what happens when either the abstract or addendum is deficient.38 For our purposes, in the instance where the court finds either deficient, the court advises the appellant to cure any deficiencies within 15 days.39 If the appellant does not do so, the case may be affirmed.40 The rule also addresses deficiencies in appellee briefs and in appellant briefs where the problem is not with the abstract or the addendum.41 The court may give the party 15 days to cure the noncompliance, and an appellant’s failure to timely correct may result in affirming at cost to 20
The Arkansas Lawyer
the appellant or otherwise giving judgment.42 Finally, if an attorney fails to cure any of the deficiencies described above, the practitioner may be referred to the Office of Professional Conduct, and additionally be subject to contempt, suspension of the privilege to practice before the Arkansas Supreme Court or Court of Appeals for a specified time or until the attorney can demonstrate a satisfactory competency of the rules, or imposition of any of the sanctions found in Rule 11(c) of the Arkansas Rules of Appellate Procedure–Civil.43 Thus, various sections of the brief required by Rule 4-2, the jurisdictional statement, the statement of the case, the abstract, and the addendum, serve disparate purposes, but all are there for the purpose of providing context so that the appellate court may properly consider the arguments raised on appeal. The other portions of the brief, for the most part, are there to place that information in some semblance of order. Continuing Problems Problems have continued with the abstract and addendum system. In 2007, the Arkansas Supreme Court noted the “diminishing quality of appellate briefs.”44 It observed that “justice was delayed for the parties” and “an additional expense was incurred for added legal work,” in part as a result of cases being returned to the attorneys for rebriefing.45 It also noted “the
extra work placed on this court for justices who had prepared the case, only to find that there was a deficiency and the briefs did not conform to our rules.”46 The court stated that “repeatedly there are glaring omissions in the filed briefs or some other failure to comply, which lead to an order from this court for counsel to rebrief the case within fifteen days.”47 The court threatened that “the court may be forced in the near future to return to its former rule of affirmance.”48 The court also noted that the “most prevalent problem leading to dismissal of a case due to a defective appeal” related to cases not “ripe for appeal,” as “attorneys continue to overlook” claims that were not resolved and parties that were not dismissed at the time of the appeal and that “[t]ime and again, this has led to dismissal of the appeal without prejudice to refile.”49 In 2009, the court noted that it had previously “highlighted problems relating to attorneys’ failure to comply with the rules for appellate briefs” and that the “warning apparently went unheeded.”50 The court, however, ultimately declined to adopt proposed amendments to Rule 4-2 that “would have precluded the appellate court from going to the record to affirm and the proposal regarding noncompliant briefs to require in certain circumstances an automatic referral to the Committee on Professional Conduct.”51 Justice Paul Danielson wrote, “It is my opinion that the problems the appellate courts have encountered regarding noncompliance with our appellate rules cannot be attributed to the way in which the rules are written,” and instead, “[w]ithout predictable and consistent enforcement, a rule, no matter how clear, will not consistently be followed.”52 In a subsequent opinion, the Arkansas Supreme Court noted that “[o]ur abstract and addendum rules exist so that this court can work efficiently to issue learned and informed opinions.”53 The court further noted that “[w]hile it may cause additional delay and expense to the appellant, this court does not order rebriefing either thoughtlessly or needlessly.”54 Rather, it ordered rebriefing to “ensure that we can achieve the utmost of judicial economy and efficiency in deciding the appeals and, more importantly, to ensure that every litigant before this court receives the justice he or she seeks and deserves.”55 The court advised that “this court, as well as the court of appeals, should, and must, be consistent in our application of our rules to every case and every litigant, and both courts must enforce those rules in a Briefing continued on page 50
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Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
J O H N “J A C K ” C . D E A C O N 192 0 – 2 011
ME NTOR. C OU NSELOR. FR IE ND.
The Arkansas Lawyer
F. Thomas Curry 2011-2012 Arkansas Bar Foundation President F. Thomas Curry, of Arkadelphia, began his term as President of the Arkansas Bar Foundation Board of Directors on July 1, 2011. Curry is a partner with the law firm of McMillan, McCorkle, Curry & Bennington, LLP. Prior to entering private practice, Curry served five years on active duty with the U.S. Army, Judge Advocate Generalâ€™s Corps and retired from the U.S. Army Reserve at the rank of Colonel. After receiving his Bachelorâ€™s Degree from Henderson State University, Curry earned his Juris Doctorate from the University of Arkansas at Little Rock School of Law. He has been a Fellow of the Arkansas Bar Foundation since 2004, is a Sustaining Fellow and has served the Foundation on the Board of Directors as SecretaryTreasurer and Vice President. He served the Foundation as Chair of its Long Range Planning Committee in 2009.
He is an active member of the Arkansas Bar Association and has served in numerous leadership capacities including as a Governor of the Board of Governors, a tenured member of the House of Delegates and currently serves as Secretary of the Association. He has been recognized by the Association for his leadership by receiving the Presidential Award in 2010 and a Golden Gavel Award in 2006.
Arkansas Bar Foundation Board of Directors Officers President F. Thomas Curry, Arkadelphia Vice President Thomas A. Daily, Fort Smith Secretary-Treasurer Laura Hensley Smith, Little Rock
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
2011-2012 Arkansas Bar Association Officers
Tom D. Womack President
Charles L. Harwell President-Elect
Harry A. Light Board of Governors Chair
Tom D. Womack of Jonesboro was sworn in as the president of the Arkansas Bar Association on June 10, 2011. Mr. Womack is the president of Womack, Landis, Phelps & McNeill, P.A. in Jonesboro. Mr. Womack is currently a member of the Association’s Board of Governors and has served as chair of the Probate and Trust Law Section and the Tax Law Section. He has been honored with the Charles L. Carpenter Award for his exemplary service to the Association. He has served multiple terms on the Association’s House of Delegates and was a member of the Executive Council. He is a longtime Sustaining Member of the Association. He is a Sustaining Fellow of the Arkansas Bar Foundation. He is also a fellow of the American College of Trust and Estate Counsel where he serves on the Professional Responsibility Committee and is the past Arkansas State Chair. He is a past president of the Craighead County Bar Association. He is a longtime member and trustee of Walnut Street Baptist Church in Jonesboro. He is a board member and has served as chair of the Jonesboro Chamber of Commerce. He is currently a director of the Arkansas Children’s Hospital Foundation and has served as director of the Arkansas Community Foundation. Mr. Womack obtained his undergraduate degree in accounting from Arkansas State University with distinction and his Juris Doctor from the University of Memphis School of Law.
Charles L. Harwell of Springdale assumed the office of President-Elect at the Annual Meeting. Charlie is a partner in the firm of Cypert, Crouch, Clark and Harwell. He has been an attorney for more than 29 years, all at the same firm. His professional time is divided between litigation and nonlitigation matters. Charlie is active in the Association serving on several committees. He currently chairs the Sustaining Member Committee and has served on the Finance Committee for 12 years. He is a tenured delegate of the House of Delegates having served two separate stints of six years each. He served a term on the Executive Council and recently finished serving two terms on the Board of Governors. Charlie was honored with the Charles L. Carpenter Award for his exemplary service to the Association. Charlie is a graduate of the University of Michigan, College of Literature, Science and Arts and received his Juris Doctor from the University of Arkansas at Fayetteville. For many years, Charlie has provided pro bono services, both as organized through the Arkansas Volunteer Lawyers for the Elderly and for individual clients whose need was apparent. He has also served on the boards of a number of non-profits through the years. He recently retired as President of the Board of Life Styles, an organization serving the developmentally disabled of Northwest Arkansas. He acts as its attorney on a pro bono basis as well.
Harry A. Light of Little Rock was appointed chair of the Association’s Board of Governors. He is a partner with Friday, Eldredge & Clark LLP. He practices in the areas of bankruptcy, creditors’ rights, commercial litigation and trademark/copyright applications. Harry has previously served six years as a member of the Board of Governors and is a tenured member of the House of Delegates. He has received two Golden Gavel Awards from the Association—in 2009 for his work as chair of the Annual Meeting and in 2010 for his work as cochair of the Annual Meeting Task Force. He also served as chair of the Technology Committee for four years and has served on the Debtor/Creditor Law Committee and Financial Institutions Section. Harry has served as the mayor of Cammack Village since 1995 and served as city attorney from 1994-1995. He has served as president of the Central Arkansas Rescue Effort for Animals, Inc. since 1998. He has served on the Board of Directors of Metroplan since 1995 and on the Board of Directors for Arkansas Better Business Bureau since 2002. He obtained his undergraduate degree from the University of Florida with honors and his Juris Doctor from the University of Arkansas School of Law.
The Arkansas Lawyer
2011-2012 Arkansas Bar Association Officers
Brian M. Clary Young Lawyers Section Chair Brian M. Clary has been named Chair of the Young Lawyers Section. Since 2006, Brian has represented the State of Arkansas as a deputy prosecuting attorney in Saline County. He handles a general felony caseload for the office. Brian was elected to the YLS Executive Council in 2008 and has served on the Association’s Leadership Academy, Membership Development, and Long Range Planning Committees and the Editorial Board for Handbooks. He is also a member of the Saline County Bar Association. Brian is a native of Memphis, TN. He completed his undergraduate degree at Rhodes College in Memphis and received his law degree with honors from the University of Arkansas at Little Rock William H. Bowen School of Law. At Bowen, Brian served as member of the Law Review Editorial Board and as a representative on the Student Bar Association. Brian was recently selected to join Bowen’s Alumni Board.
Sean T. Keith Parliamentarian
F. Thomas Curry Secretary
William A. Martin Treasurer
Sean T. Keith of Rogers was appointed Parliamentarian of the Association. Sean has served on the Arkansas Bar Association Board of Governors for the past nine years. He has served on numerous Association committees including the Legislation, Judicial Nominations, Governance, Long Range Planning, and Membership Development Committees. He works at his firm in Rogers, Keith Miller Butler Schneider & Pawlik, PLLC, that was founded in 1995 with partner Andrew Miller. His practice focuses on catastrophic car wreck, mass torts, drug injury and consumer class actions. Sean is a past president of the Benton County Bar Association. He is involved in his community as a Board Member of the Susan G. Komen Ozark Affiliate, former member of the Board of Directors for Rogers Rotary Club, Commissioner on the Rogers Public Library and Trustee for his church, Central United Methodist in Rogers. He completed his undergraduate degree at Westminster College in Fulton, Missouri, and received his Juris Doctor from the University of Arkansas at Fayetteville.
F. Thomas Curry of Arkadelphia has again been elected to serve as Secretary. Tom is a partner with McMillan, McCorkle, Curry & Bennington, LLP. He is a former Governor of the Board of Governors and tenured member of the House of Delegates. Tom received a Presidential Award in 2010 for his extensive service to the Association and for his work as Secretary. He received a Golden Gavel Award in 2006 for his work as chair of the Unauthorized Practice of Law Committee. Tom is currently serving as the President of the Arkansas Bar Foundation and and has served as its Secretary/ Treasurer and Vice President. He is a Sustaining Fellow of the Foundation. He is a member of the International and Arkansas Association of Defense Counsel. He received his bachelor’s degree from Henderson State University and his Juris Doctor from the University of Arkansas at Little Rock Law School. Prior to entering private practice, Tom served five years on active duty with the U.S. Army, Judge Advocate General’s Corps and retired from the U.S. Army Reserve at the rank of Colonel.
William A. Martin has again been elected to serve as Treasurer. Col. Martin served as executive director of the Association for 13 years and was its Secretary/Treasurer for the nine years and Treasurer for the past two years. Martin was a member of the Association’s House of Delegates for four years and has served as chair of the Finance Committee since 2000. He is a Sustaining Member of the Association and the Arkansas Bar Foundation, a member of the Board of Directors of the Pulaski County Bar Association, treasurer and past secretary of the Pulaski County Bar Foundation, and served seven years as a Board of Trustees member of the National Conference of Bar Foundations including four as its treasurer. Martin received a Juris Doctor from the University of Arkansas before entering the United States Air Force where he was a lawyer for 28 years moved through the ranks from second lieutenant to colonel. During that time he also earned an MBA from Arizona State University.
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
New HITECH Requirements and How They Impact Your Practice
By Bryan Looney and Amy Wilbourn* I. Introduction In 2009, Congress passed the Health Information Technology for Economic and Clinical Health Act (HITECH)1 aiming to advance electronic information technology within the healthcare industry. While offering many incentive-based approaches for encouraging the adoption of technological changes within the healthcare industry, HITECH also made changes to the Privacy and Security Rules adopted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and increased the penalties associated with violations of the HIPAA Privacy and Security Rules. Importantly, these changes impact lawyers to the extent they act as “business associates” (BAs) of clients who are “covered entities” (CEs).2 In the paragraphs that follow, we provide further detail regarding these changes as well as provide suggestions that Arkansas lawyers should consider to comply with their new obligations under HIPAA and HITECH. II. Change in Treatment of BAs and New Obligations Imposed on BAs Under HIPAA, lawyers are considered BAs to the extent they are not members of the CE’s workforce (e.g., in-house counsel employed by a hospital would not be considered a BA) and to the extent they have access to protected health information (PHI) from the CE. Historically, lawyers acting as BAs were only indirectly regulated by HIPAA through the “business associate agreements” (BAAs) that they entered with their CE clients. Hence, pre-HITECH, in the event a lawyer acting as a BA breached a requirement of the HIPAA Privacy and Security Rule, the lawyer generally was only liable contractually for the breach. HITECH changed the manner in which lawyers and other BAs are regulated under HIPAA. Rather than being indirectly regulated, because of the HITECH changes, lawyers acting as BAs now have direct regulatory liability for breaches of the HIPAA Privacy and Security Rule requirements. In addition to imposing direct regulatory liability on lawyers acting as BAs, HITECH, and the proposed rules that have been issued to implement HITECH (the “Proposed Rules”), also place additional requirements on lawyers. For example, pre-HITECH, lawyers acting as BAs were required only to adopt reasonable and appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and availability of electronic PHI.PostHITECH, lawyers are required to comply with all aspects of the HIPAA Security Rule. As another example, pre-HITECH, lawyers acting as BAs were required to ensure that any agent to whom the lawyer provided PHI agree to the same restrictions and conditions that applied to the lawyer (though not necessarily through a written agreement). Post-HITECH, if the Proposed Rules are finalized as 26
The Arkansas Lawyer
now stated, lawyers will now have to enter into a written BAA with any subcontractor (i.e., any person performing a function or service on behalf of a lawyer other than in the capacity of a member of the lawyer’s workforce).3 III. Increased Civil Penalties HITECH also increased the amount of civil monetary penalties assigned to violations of the HIPAA Privacy and Security Rules. Specifically, as summarized in the following table, HITECH created four violation categories and accompanying penalty tiers. Because, as discussed above, HITECH placed direct regulatory liability on BAs, lawyers who act as BAs are now subject to these increased penalties for violations of the HIPAA Privacy and Security Rule.
Per Violation Penalty
First Tier (Unknowing Violation)
$100 - $50k
Second Tier (Reasonable Cause, Not Willful Neglect)
$1K - $50k
Third Tier (Willful Neglect Later Corrected)
$10k - $50k
Fourth Tier (Willful Neglect Not Corrected)
HITECH also creates additional enforcement incentives and mechanisms. For example, HITECH contains provisions that allow individuals harmed by violations to have the ability to recover a portion of the civil monetary penalties or settlement payments collected with respect to the violation, thereby incentivizing individuals to more actively report HIPAA violations. HITECH also authorizes State Attorney Generals to file actions on behalf of persons who have been affected by a violation to enjoin further violations as well as obtain monetary damages. IV. Practical Advice As noted above, HITECH directly affects any lawyer or law firm performing work for a CE that involves the use or disclosure of PHI. Any such lawyer is now required to comply with the HIPAA Privacy and Security Rule or face direct regulatory liability for his or her noncompliance. Complying with the HIPAA Privacy and Security Rules begins with understanding the requirements placed on CEs and now, BAs.
Once such an understanding is gained, lawyers will need to take an inventory of their current practices and procedures for handling PHI, determine the risks with those current practices and procedures and implement a plan to reduce those risks and otherwise comply with the HIPAA Privacy and Security Rules. This will likely involve, among other things, the lawyer, or the law firm with which he or she is associated, creating policies and procedures that set forth the processes the lawyer or law firm will follow to ensure the HIPAA Privacy and Security Rule is met. Lawyers and law firms may also want to inventory their current list of BAAs that they have entered with CEs. If the Proposed Rules are finalized as proposed, BAs and CEs will have to enter into new BAAs and may have a limited period of time to do so. Given the changes contained in HITECH, taking steps such as those identified above will be crucial for lawyers who represent healthcare providers. Endnotes: * The authors would like to thank Kyle Childers for his contributions to this article. 1. HITECH was contained in The American and Reinvestment Act of 2009, specifically Division A, Title XIII and Division B, Title IV. For full text see http://www.hhs.gov/ocr/privacy/hipaa/understanding/coverdentities/hitechact.pdf. 2. CEs include health plans, health care clearinghouses and health care providers (e.g., physicians, hospitals, nursing homes, etc.) that transmit healthcare billing claims electronically. 3. Note that these proposed rules also treat any such subcontractor as a BA as well, meaning that such subcontractors could also face potential direct regulatory liability for a breach of the requirements under the HIPAA Privacy and Security Rule. n Bryan Looney is a partner with Kutak Rock LLP in Fayetteville and serves as counsel to all types of health care businesses and providers. Amy Wilbourn is a partner with Kutak Rock LLP in Fayetteville and counsels health care providers on a range of regulatory and transactional matters.
Private Placements and Limited Offerings of Securities A Guide for the Arkansas Practitioner By Frances S. Fendler Professor of Law UALR Bowen School of Law
“This book offers a comprehensive and understandable look for the Arkansas practitioner into the sometimes murky, sometimes arcane and always challenging world of securities law. Frances has performed a real service, not only for those who don’t have much experience in the area, but also for those who practice securities law on a regular basis, in providing this basic guide to federal and Arkansas securities law.” -- John Selig, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.
Order online at Lulu.com This book will be updated periodically through a Cumulative Supplement posted on the Association’s website www.arkbar.com
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Leadership – Is It Your Time? By Donna C. Pettus
For those of you who have not yet heard about the Arkansas Bar Association’s inaugural Leadership Academy perhaps the best way to introduce the Academy to you would be to tell you about its fourth and final session that occurred at the Annual Meeting in Hot Springs in June. The session was devoted to pro bono work, in this case, to providing powers of attorney, simple wills, and health care directives to seniors in Hot Springs who could not otherwise afford the services of an attorney. The 20 members of the Academy attorneys who began a journey to attend the Academy in January 2011 participated in the pro bono event. I cannot accurately describe the gratitude of the seniors who came and received the advice and services of the Academy participants. In less than two hours over 40 seniors received fully executed and notarized wills, powers of attorney, and/or health care directives. All of this was an opportunity to participate in a pro bono event that is part of the life of a leader. The mission of the Academy is to create a diverse group of lawyers with the knowledge, skills, and values to provide dynamic leadership to the profession, their communities, and the state. Its goals are:
• To build a statewide network of lawyer/leaders;
• To provide advanced training to proven community and bar leaders;
• To foster integrity and public service among lawyers;
• To encourage lawyers to more effec• •
tively discharge their responsibilities in the public interest; To enhance the diversity of lawyer/ leaders; To advance the administration of justice by involving more lawyers in bar and community leadership positions.
The 20 participants from all over the state first attended a two-day retreat at Lake DeGray in January. They came together mostly as strangers and left with bonds that grew even stronger over the coming months. They learned about their leadership styles,
leadership for life, the cost of leadership, leadership in a time of crisis and experienced some fun activities designed to build leadership teams. At the second session in March, the participants met privately with Governor Beebe at the state Capitol. The Govenor visited with the group about their ideas and concerns for the state. He listened, answered questions and asked for input and feedback. These lawyers also watched part of a legislative session, lunched at the Governor’s mansion, and met with Chief Justice Hannah and Justice Bob Brown at the Arkansas Supreme Court. At Mt. Magazine in April, the third session was devoted to community and Bar leadership, the whys, the how-tos, the details of the Association—all against the back drop of a gorgeous mountain setting in the state’s premier lodge. Quoting Gwen Rucker, an academy graduate, “There is no doubt that participation in the Leadership Academy, as promised, will enable you to learn more about yourself, your personality, your aptitudes, and your strengths and weaknesses. How do you manage your time? How do you handle stress? What type of leader are you? How can you develop the potential of others? Why not invest the time in learning more about yourself—you’re worth it.” There will be publicity and an opportunity to apply for the next Arkansas Bar Association Leadership Academy in the coming months. Perhaps it is time for you. n
2011 Leadership Academy
Opening retreat at Lake Degray
Mount Magazine retreat
Meeting with Governor Beebe
Congratulations 2011 Graduating Class
Amber Wilson Bagley Khayyam Eddings Amy Freedman Hollie Greenway Jason L. Horton Matthew R. House David L. Jones Paula Juels Jones Leon Jones, Jr. Anthony W. Juneau
Leslie J. Ligon Coby W. Logan Paul A. Prater Gwendolyn L. Rucker Jonathan P. Sellers Jay L. Shue, Jr. Keesa M. Smith Jocelyn A. Stotts Vicki S. Vasser William Zac White
Pro bono session in Hot Springs Take it to the
vel Next Le in Leadership
2012 Leadership Academy Applications due October 3, 2011 Go to www.arkbar.com for more information
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Arkansas Supreme Court Historical Society
Sterling Robertson Cockrill: The Youngest Chief Justice, Part 1 By Michael B. Dougan In October 1870 a newly minted lawyer arrived in Little Rock, where fellow lawyer John Hallum noted, “he had neither friend, acquaintance or prestige from any sources to advance the professional career.” Two years later the young attorney married Mary Ashley Freeman, the granddaughter of Episcopal Bishop Andrew Freeman and of pioneer lawyer and U.S. Senator Chester Ashley. In 1874 Cockrill was taken into partnership by Augustus H. Garland, the state’s governor following ousting of the Republicans, but the partnership ceased when Garland entered the U.S. Senate in 1876. Just as Garland had taken into partnership the young Cockrill, 20 years earlier William Cummins had taken in Garland and, before him, Albert Pike. Who was this young man who moved up so rapidly? Born in Nashville, Tennessee, on September 26, 1847, he was given the same name as his father and in the press was often identified as “junior.” His mother, Henrietta, was the daughter of James McDonald, who had distinguished himself in the War of 1812. His father was educated at Transylvania University and studied law but mainly was a successful planter with lands in Tennessee and Alabama who settled in Arkansas near Pine Bluff after 1855. A scientific farmer and industrial promoter, he served as vice president of the Cotton Planters’ Association and argued for Congress to create a cotton commodity bank. Young Sterling attended school in Nashville, Tennessee, but following the occupation of the capital by the Union army, he attended a military school in Georgia and then followed his two elder brothers into the Confederate army, enlisting at age 16 in the Confederate artillery. Wounded in the Battle of Atlanta, he rose to the rank of sergeant and stayed with the colors until the war’s end. Then he attended Washington College, whose president, Robert E. Lee, was a distant relative. After graduation he studied law at Cumberland University at Lebanon, Tennessee, then probably the foremost law school in the South. Thus his coming to Arkansas, where his father already lived, was hardly as Hallum pictured it. The young lawyer was quoted by Hallum as saying: “I had acquired industrious habits and knew how to study. I always kept your advice 30
The Arkansas Lawyer
and ‘kept my office,’ business or no business, and made familiar friends with the law writers.” By 1875 he had argued seven cases before the state high court. The Brooks-Baxter War that led to the collapse of the Republicans ushered in a new era. Many older members of the legal profession were profoundly disturbed by the post-war introduction of code pleadings and demanded a return to the old technicalities of the common law. Cockrill, however, represented the younger, college and law school-educated generation that better reflected Dean Christopher Columbus Langdell’s case method of legal instruction. The death of Chief Justice Elbert H. English on September 1, 1884, proved to be a watershed in the court’s history. The state Democratic Convention in October picked Cockrill as the party’s nominee, but it was only on the 59th ballot that Burrill B. Battle, Henry Gaston Bunn, and Samuel W. Williams were eliminated. General Robert L. Newton, in announcing Cockrill’s victory, credited the victor for having “a head as old and as prudent as any in Arkansas.” In the November election the young man who barely qualified for the position by his age and years of legal experience defeated Republican Mason W. Benjamin. In 1888 he was elected to a full term. Cockrill’s first opinion came in Beard v. State, 43 Ark. 284. Justice John R. Eakin reported: “A very poor man, dependent wholly, for daily bread, on daily labor, with a wife who had been sick for most of the year” sold a small portion of crop and agreed with the mortgagee’s father to work off the balance. Nevertheless, the man stood convicted of a felony even though the value of the crop was less than twenty dollars. Cockrill wrote the court’s opinion sustaining the conviction. Although in the common law mortgages on things not in esse—un-harvested crops in this case—were void, the first post-Reconstruction legislature had removed this impediment. But the heart of the case for the defendant rested on asking the circuit court to instruct the jury that they needed to find felonious intent in order to justify a guilty verdict. Cockrill held that since the statute made the act of selling alone felonious the instruction was properly refused. Fellow justice John R. Eakin eloquently dis-
sented. Because of his long years in equity, Eakin insisted there needed to be an evil motive. Had the sharecropper stolen instead of selling the mortgaged crop, it would have been petit larceny instead of a penitentiary offense. Eakin was willing to trust the jury and to apply “the common law doctrine that no acts are felonious not done with felonious intent.” Cockrill, however, effectively legitimized another kind of slavery that encompassed poor whites and blacks alike for the next sixty years. During Cockrill’s years the court was expanded from three to five justices, and the work of the court greatly expanded. Railroad and other business and commercial suits increased greatly. What did not increase was the pay of the justices, and on April 21, 1893, with a growing family, Cockrill, following the example set by Associate Justice William E. Hemingway in March, resigned his seat. “A serious loss to the cause of enlightened jurisprudence,” said the Little Rock bar. Cockrill then reentered private practice with his son Ashley. He was head of the Arkansas Bar Association at the time of his unexpected death on January 12, 1901. Uriah M. Rose, the titular head of the Arkansas bar, wrote of Cockrill’s “enlightened and liberal conception of jurisprudence” and the “terseness, condensation and clearness” of his opinions. Cockrill was buried in Mount Holly Cemetery. [A second article will elaborate on his opinions.] Michael B. Dougan is a Distinguished Professor Emeritus in History at Arkansas State University and is widely renowned as one of the foremost authorities on Arkansas history. His publications include numerous books and articles on Arkansas history. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@ arkansas.gov; Phone: 501-682-6879.
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Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Drafting Limited Liability Company Operating Agreements John M. Cunningham (2d ed. Wolters Kluwer 2010). Book Review By Frances S. Fendler Lawyers involved in forming LLCs will be happy to greet the second edition of John M. Cunninghamâ€™s Drafting Limited Liability Company Operating Agreements, a recently published revision and update of the leading U.S. generic (i.e., non-state specific) form book and practice manual. The book is intended primarily for lawyers who are inexperienced in LLC formation practice but who want to become expert in it (as a law professor, I place myself in this category), providing these lawyers with all the basic knowledge and practice tools necessary to handle these formations at a high level of competence. It is safe to say that even those lawyers who have significant experience will find much in it to help them further improve their LLC formation practices. The author of the book is John M. Cunningham, of counsel to the New Hampshire law firm of McLane, Graf, Raulerson & Middleton, a Professional Association. Mr. Cunningham is also the coauthor, together with Vernon R. Proctor, of Drafting Delaware LLC Agreements (Aspen 2009). He was a principal drafter of the New Hampshire Limited Liability Company Act as enacted in 1993 and of the major amendments to that act in 1997; he also is currently chairing a committee revising that act. His
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practice is centered on LLC formations under the laws of Delaware, Massachusetts, and New Hampshire. Mr. Cunningham has been a presenter on LLC formations at numerous nationwide continuing legal education programs. On the basis of their ownership structure, management structure, and federal tax structure, the book identifies 10 principal types of LLCs and, in a compact disc, it provides a complete set of 28 forms specifically tailored for use in forming these LLCs. These forms include six for single-member LLCs owned by individuals; three for single-member LLCs owned by entities; and 19 for multi-member LLCs, including LLCs with general partnership, limited partnership, and corporate management structures. It also includes four special-purpose forms, including forms for husband-wife LLCs. Finally, the compact disc contains alternative provisions to meet specific client needs not addressed in the standard provisions of the forms. The book also provides detailed guidelines for choosing among these various forms and alternative provisions for particular LLC formation clients. The book contains a comprehensive detailed analysis of internal governance topics that should be addressed in carefully considered
and well drafted operating agreements, including distributions, dissociations, redemptions and cross purchases of membership rights, meetings and voting, dissolution and liquidation, and dispute resolution. One entire chapter is devoted to handling fiduciary duties in LLC formations. Several chapters discuss federal tax issues in terms accessible to a nonspecialist. Finally, two chapters are devoted to planning memos and other tools addressing the difficult question of how best to communicate to clients all the complex LLC information likely to be useful to them. In sum, this work provides a detailed and exhaustive treatment of just about all the significant LLC formation issues one can imagine, and forms for just about all conceivable permutations of organizational and tax-driven variances. As an academic, I hesitate to opine about the usefulness of practice tools to practitioners. But this is a work that will clearly be valuable to real-world lawyers dealing with real-world LLC formation clients. n Frances S. Fendler is a professor of law at the University of Arkansas at Little Rock William H. Bowen School of Law. She teaches Business Associations, Securities Regulation, Sales, and Drafting Contracts.
More personnel. More personal.
Kate A. Lachowsky
Charlotte has been with the firm for nearly two years now, and, as the firm’s paralegal, is the person who runs the show and sees that the work gets done. She graduated from the Institute for Paralegal Training in August 1987, and brings a wealth of experience to the firm having previously worked at Wilkes McHugh, Barron, Barron and Tucker, and other top litigation firms that handled cases involving medical malpractice, wrongful death, nursing home negligence, products liability, class action litigation, and general personal injury. Charlotte is also a world champion dog trainer, just ask her clients!
We are also very pleased to announce that Kate will be joining the firm as an associate after clerking for the firm for the past two years. Previously, Kate interned with Judge Rita Gruber at the Arkansas Court of Appeals. She volunteers at Arkansas Children’s Hospital. Kate is from San Luis Obispo, California, and graduated from Sonoma State University where she received her B.A. in psychology.
We are pleased to announce that Kaylen Lewis has joined the firm as law clerk. Previously, Kaylen interned for Justice Jim Gunter at the Arkansas Supreme Court, was a summer law clerk for the Arkansas Attorney General’s Office, and clerked at the Law Office of David Hodges. She is from DeQueen, and graduated from the University of Arkansas in Fayetteville where she received her B.A. In International Relations with a minor in Spanish.
THE LAW OFFICE OF
DAVID H. WILLIAMS
Centre Place Building 212 Center Street Second Floor Little Rock, AR 72201 (877) 492-3030 (501) 372-0038 dhwlaw.net
Of Counsel - Payne Mitchell Law Group Dallas, Texas | www.paynemitchell.com
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer 7-11-072.indd 1
7/8/11 12:29 PM
113th Annual Meeting 1
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June 8-11, 2011 • Hot Springs, Arkansas 22
Save the Date for Next Year! June 6-9, 2012
1. Tom and Linda Womack, Patti and Jim Julian, Judge Joyce Williams and Butch Warren 2. Patti, Jim and Katy Julian 3. John Vines, Jim Julian, Governor Mike Beebe 4. Charlie Harwell, Gaye Cypert, Linda Harwell 5. Bill Martin 6. Cliff McKinney, Jim Julian 7. Tom and Linda Womack 8. Frank Sewall and Allan Horne 9. Tom Curry 10. John DiPippa and Cindy Nance 11. Cyril Hollingsworth, Rosalind and Kirby Mouser 12. Charles Roscopf, Chuck and Ann Roscopf 13. Don and Mary Ann Schnipper 14. Brandon and Regan Moffitt 15. Lyn Pruitt, Allan Gates, David Boling 16. John and Marietta Stroud, Janet and Jimm Hendren 17. Mary McGowan, Steve Giles 18. Carol and Byron Eiseman 19. Vicki, Glenn and Judy Vasser 20. Jimmy and Connie Phillips, Becky and Mark Allison 21. Leon Jones, Jr., Paul Prater 22. Donna and Lamar Pettus, Jocelyn Stotts 23. UALR Bowen School of Law Plus Program Students and Cliff McKinney 24. Legislative Panel 25. Arkansas Supreme Court Committee on Model Jury Instructions - Civil: bottom row: Kris Baker, Larry Brady, Teresa Wineland; middle: Louise Tausch, Don Judges, Roger Rowe; top: Sam Ledbetter, Chip Welch, Steve Lancaster 26. ABOTA Masters of Trial speakers and planners 27. ABOTA Masters of Trial 28. Pat James, Jesse Gibson, Darren O’Quinn, Matt House 29. Gridiron 30. Children’s Dance Program 31. Ladies Halftime Show 32. Luncheon in the Exhibit Hall 33. House of Delegates Meeting
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Arkansas Bar Foundation / Arkansas Bar Association Stephen Engstrom Outstanding Lawyer Award
Charles W. (Chuck) Goldner, Jr. Outstanding Lawyer-Citizen Award
Allan W. (Dick) Horne C. E. Ransick Award of Excellence
The Outstanding Lawyer Award is given in recognition of excellence in the practice of law and outstanding contributions to the profession.
The Outstanding Lawyer-Citizen Award is given in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct.
The C. E. Ransick Award of Excellence was created to recognize outstanding contributions to the profession.
Stephen Engstrom, a partner with the firm of Wilson, Engstrom, Corum & Coulter in Little Rock, is the recipient of the 2011 Outstanding Lawyer Award. His years of tireless dedication and service to his clients and the profession, his absolute sense of fair play, and always applying a standard of excellence to his work that few can achieve are just among many of the reasons Steve was nominated for this award. Through the years, Steve selflessly mentored countless law-clerks and young lawyers, giving them advice and helping them advance in the profession. He has co-counseled or referred work to help advance them in their careers, while introducing them to members of the legal community and always doing so without being asked or expecting anything in return. Steve gives the same type of care and concern to his clients, particularly those in his domestic relations practice. His clients feel comforted and empowered to deal with difficult situations because they put their confidence in him—an attribute to be admired.
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Dean Emeritus and Professor Charles W. “Chuck” Goldner, Jr. of the UALR William H. Bowen School of Law has been selected to receive the 2011 Outstanding Lawyer-Citizen Award. His work has opened up the courts to thousands of Arkansans of modest means, improved the ethics and professionalism of future lawyers and improved the quality of legal education in Arkansas and around the nation. Dean Goldner served two terms as Chair of the Arkansas Access to Justice Commission. He joined with other leaders in assuring the Commission took a comprehensive approach to meeting civil justice needs. He also chaired the Arkansas Professional Practicum in 2004, to enhance the public’s confidence in the legal profession and promote lawyers’ professionalism and ethical conduct. Dean Goldner serves on the American Bar Association’s Accreditation Committee and chaired the Wastewater Task Force for the cities of Little Rock and North Little Rock.
Dick Horne, a senior partner with Dover Dixon Horne LLP of Little Rock, has been selected to receive the 2011 C. E. Ransick Award of Excellence. Dick has served his profession in many ways, and his professional life is one of devoted and effective service to the legal profession. Dick has been honored as among the best lawyers in Arkansas in administrative and insurance law and was awarded by The Best Lawyers in America their Gold Standard for accuracy and integrity. He was appointed as Insurance Commissioner by Governor Rockefeller. He is founder and a past President of The Federation of Regulatory Counsel, a national association of insurance regulatory attorneys. He has served the Bar and his community as a former member of the House of Delegates of the Arkansas Bar Association, past President of the Pulaski County Bar Association and currently serves on the Board of Directors of the Arkansas State Chamber of Commerce.
2010-2011 Annual Joint Award Recipients A. Glenn Vasser James H. McKenzie Professionalism Award
Senator Robert Thompson Equal Justice Distinguished Service Award
Arkansas Bar Foundation Writing Awards Best General Writing Category Phillip A. Pesek “A 12-Step Program: Rehabilitate Your Relationship With Your Corporate Client” The Arkansas Lawyer Spring 2010
Recognizes sustained excellence through integrity, character and leadership to the profession and the community which garners the highest honor to the legal profession. Glenn Vasser, a partner in the firm of McKenzie, Vasser & Barber in Prescott, is the recipient of the 2011 James H. McKenzie Professionalism Award. Glenn embodies the most laudable traits of our profession. Through his work and the life he leads, he brings nothing but the highest regard and respect upon himself and his profession. He is a credit to his profession and his community where he chose to practice law since 1972. He has generously given of his time to the Bar as a leader, serving as President of the Arkansas Bar Foundation, the Arkansas Bar Association, and the Southwest Arkansas Bar Association. He has served as a Municipal Judge, a Special Judge on the Arkansas Court of Appeals and has been the City Attorney for Prescott for more than thirty years. He also represents the profession with integrity in his community as he has served as President of the Kiwanis Club, a member of the Board of Directors for the Bank of Delight, and an active member in many leadership roles in his church.
The Equal Justice Distinguished Service Award is given to recognize commitment to and participation in equal justice programs for the poor, including pro bono efforts through legal services programs. Senator Robert Thompson has been selected to receive the 2011 Equal Justice Distinguished Service Award. In addition to leading an illustrious career as a lawyer and state legislator, Senator Thompson has and continues to be a tireless advocate for access to justice efforts in Arkansas. He has served as a member of the Equal Access to Justice pro bono panel since its inception in 2002 providing representation to low-income clients in at least 15 cases and has served as a Commissioner since 2007 for the Arkansas Access to Justice Commission. As a legislator, he has championed the cause of access to justice through a bill to provide funding to Arkansas’s two nonprofit legal aid organizations and a bill to correct an oversight in state law that could otherwise have restricted the ability of legal aid providers to represent individual clients in court.
Best Legal Writing Category Kenneth S. Gould “A Dynamic Development Under the Arkansas Rules of Civil Procedure: Arkansas’s Favorable Approach to Class Actions” The Arkansas Lawyer Fall 2010
Outstanding Local Bar Association Awards Recognizing outstanding activities which enhance the position and standing of the legal profession. Pulaski County Bar Association Sebastian County Bar Association Washington County Bar Association
Annual Award Nomination forms are available from the Arkansas Bar Foundation office upon request.
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Congratulations Arkansas Bar Association 2011 Award Recipients Maurice Cathey Award David H. Williams, of the Law Offices of David H. Williams in Little Rock, for his valued contributions to The Arkansas Lawyer magazine.
Charles L. Carpenter Award Anthony A. Hilliard, Ramsay, Bridgforth, Robinson and Raley LLP, Pine Bluff, for his exemplary service to the Association.
Judith Ryan Gray Outstanding Young Lawyer Award Gwendolyn Rucker, Law Clerk to United States Magistrate Judge Jerome Kearney, for her service towards improving the administration of justice.
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J. Mark Davis, Wright Lindsey & Jennings LLP, Little Rock, for his work as chair of the Unauthorized Law Committee.
Golden Gavel Award RoyBeth Kelley, Kelley and Collins, Russellville, for her work as Chair of the Legislation Committee.
Golden Gavel Award
Kevin A. Crass, Friday, Eldredge & Clark LLP, Little Rock, for his outstanding contributions to providing quality Continuing Legal Education.
Golden Gavel Award
J. Cliff McKinney II, Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, for his work as Annual Meeting Chair.
Young Lawyers Section Frank Elcan II Award Matthew R. House of James, Fink, & House, P.A. in Little Rock, for his outstanding contributions to the Young Lawyers Section.
Golden Gavel Award Regan Gruber Moffitt, Winthrop Rockefeller Foundation, Little Rock, for her work as Chair of the Lawyers for Literacy Committee.
Golden Gavel Award Donna C. Pettus, Attorney at Law, Fayetteville, for her work as Chair of the Leadership Academy.
Golden Gavel Award Spencer F. Robinson, Ramsay, Bridgforth, Robinson and Raley LLP, Pine Bluff, for his work as Chair of the Personnel Committee.
Golden Gavel Award Brian Rosenthal, Rose Law Firm, Little Rock, for his work as Chair of the Long Range Planning Committee.
THANK YOU! 2011 ANNUAL MEETING
SPONSORS Arkansas Bar Association Sustaining Members Arkanas Bar Foundation Ashley Group - Rick Ashley and J.D. Ashley, Jr. AY Magazine Baim, Gunti, Mouser & Worsham, PLC Barber, McCaskill, Jones & Hale, P.A. Benton County Bar Association Branch, Thompson, Warmath & Dale, P.A. Bushman Court Reporting Business Law Section Chisenhall, Nestrud & Julian, P.A. Civil Litigation Law Section Craighead County Bar Association Cross, Gunter, Witherspoon & Galchus, P.C. Cypert, Crouch, Clark & Harwell, PLLC Debtor/Creditor Law Section Delta Trust and Bank Dover Dixon & Horne PLLC E. Ritter & Company Family Law Section Financial Institutions Law Section Friday, Eldredge & Clark LLP Frost, PLLC Garland County Bar Association Gibson Law Firm, PLLC Government Practice Section Haltom & Doan Hamilton, Colbert & Scurlock, LLP Hamlin Dispute Resolution, LLC Hempstead County Abstract and Title Co. Hot Springs Convention Center Images James, Fink, & House, P.A. Labor & Employment Law Section Law Offices of Darren Oâ€™Quinn, PLLC Legal Directories Publishing LexisNexis
William A. Martin Matthews, Campbell, Rhoads, McClure, & Thompson, P.A. Mays & White, PLLC McMath Woods, P.A. Christi McQueen Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. Judge Randy Morley and Steve Morley Kirby & Rosalind Mouser Probate & Trust Law Section Ramsay, Bridgforth, Robinson and Raley LLP Real Estate Law Section Regions Insurance Group, Inc. Regions Morgan Keegan Trust Robert B. Gibson III of Streetman, Meeks & Gibson, PLLC Rose Law Firm Schwartz & Associates LLC Joe Short Southern Marketing Affiliates and The Hurt Family TCPrint Solutions The Arlington Hotel & Spa Tort Law Section UALR William H. Bowen School of Law University of Arkansas School of Law U.S. Trust, Bank of America Private Wealth Management Charles Walker Washington County Bar Association Wilcox, Parker, Hurst, Lancaster & Lacy, PLC Womack, Landis, Phelps, & McNeill, P.A. The Honorable Wm. Randal Wright Wright, Lindsey & Jennings LLP Yocum Law Firm, PLC Young Lawyers Section Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
JLAP... No longer the state’s best kept secret! Congratulations 2011 Presidential Award Recipients Sarah Cearley, Ph.D., LCSW, Executive Director, Arkansas Judges and Lawyers Assistance Program, Little Rock
Judge Alice Lightle, Little Rock District Judge; Chair of Lawyers Helping Lawyers Committee
SAVE THE DATE for the 2011 ADVOCATES’ DINNER, a fundraiser for JLAP! October 22, 2011
James E. Smith, Smith Akins P.A., Little Rock; long time Member of Lawyers Helping Lawyers Committee and the Arkansas Lawyers and Judges Assistance Program Committee
Matthew Reel, M.S., LMSW, Assistant Director, Arkansas Judges and Lawyers Assistance Program, Little Rock
2010-2011 Association President Jim Julian recognized these four individuals who assisted in creating training and providing members of the Arkansas Bar Association’s Lawyers Helping Lawyers Committee the opportunity to get more involved with the Arkansas Judges and Lawyers Assistance Program (JLAP) which benefits the entire Arkansas legal community.
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, Cases #06260, 05-112, 05-123 to Honorable L.T. Simes, 1st Division Circuit Court, West Helena, Arkansas.
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Final actions from April 1, 2011, through June 30, 2011, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]
SURRENDER: BURNETT, JOHN MAX, Bar #95082, of Rogers. On April 14, 2011, in Case No. 11-263, the Arkansas Supreme Court accepted the surrender of the Arkansas law license of Mr. Burnett in lieu of probable disbarment proceedings arising from two Complaints. The first was No. CPC 2010106, a complaint by Steven Bigger, who hired Mr. Burnett in September 2008 to represent him in a medical malpractice action. Approximately six months after Mr. Bigger hired Mr. Burnett, Burnett left the firm where he had his office, and Burnett
Attorney Disciplinary Actions was difficult to communicate with thereafter. Mr. Bigger left numerous messages which were not returned. Mr. Burnett filed suit for Mr. Bigger in January 2010, but failed to have the defendants in the matter served within the time allowed. Mr. Bigger terminated Mr. Burnett’s representation and sought to have the file contents returned, but Mr. Burnett took no action to comply. Mr. Bigger had new counsel try to obtain an extension of time to serve the defendants. The request was denied and the matter was dismissed with prejudice. Mr. Burnett’s failure to act left Mr. Bigger without the ability to seek redress for the medical issues in court. Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 8.4(d) were all alleged to have been violated in that formal disciplinary complaint. The Second Complaint was No. CPC 2011-006. Nancy Geary, who has since passed away, was represented by Mr. Burnett in a lawsuit claiming mis-diagnosis of cancer. Mr. Burnett was able to obtain a $525,000 settlement from the defendants in the lawsuit in September 2009. Local counsel in West Virginia wire transferred $453,970.70 into Mr. Burnett’s trust account on September 28, 2009. Immediately funds were used for the improper purpose of covering the $37,778.13 negative balance then present
in Mr. Burnett’s trust account on the date of the wire transfer. Within days, Mr. Burnett completely depleted the funds, even the $282,000 owed to Ms. Geary and / or Medicaid. Mr. Burnett never provided Ms. Geary with any of the funds prior to her death in May 2010. He has never accounted for the funds to her estate nor did he do so for her. Rules 1.15(a)(1), 1.15(a)(5), 1.15(b) (1), 8.4(b), and 8.4(c) were alleged to have been violated in the information contained in that formal disciplinary complaint. At about the same time as he was surrendering in Arkansas, he also surrendered his New Mexico license based on misconduct alleged in various matters there. HARTSFIELD, LARRY JAMES, Bar #69030, of Little Rock. On April 28, 2011, in Case No. 11-385, the Arkansas Supreme Court accepted the surrender of the law license of Mr. Hartsfield in lieu of disbarment proceedings which had been directed to be filed by the Committee on Professional Conduct, arising from his dealings with the Estate and Trust of George Hamilton Lescher, for which he served as the executor and sole trustee for about twenty (20) years. In early 2009, in a circuit court proceeding in Cross County, Mr. Hartsfield
ELECTRICAL ACCIDENTS Paul D. Mixon, Ph.D., P.E. Engineering Consultant P.O. Box 2154 State University, AR 72467 (870) 972-2088 (870) 972-3948 FAX email@example.com firstname.lastname@example.org
• • • • • • • •
Accident Investigation and Analysis Contact Cases and Electrocutions Electrical Injuries Property and Equipment Damage Electrical Fires Safety Code Compliance Expert Witness Disputes Settled
Johnson, Smith & Associates, PLLC Certified Public Accountants
Stanley Smith CPA, CBA, CVA
Business Valuation Economic Damages Litigation Support 201 S. Chester Little Rock, AR 72201 501-372-4180 Fax 501-372-1165 email@example.com
was found to not be able to account for about $220,000 that should have been among the trust assets, and judgment for $298,000 was entered against him. Mr. Hartsfield was unable to perfect an appeal. He then filed for bankruptcy protection, but the court denied him discharge of the Lescher judgment debt, finding it was based on a court finding of fraud. JONES, AARON C., Bar #2000011, of Little Rock and Benton. On April 14, 2011, in Case No. 11-272, the Arkansas Supreme Court accepted the surrender of the law license of Mr. Jones in lieu of probable disbarment proceedings arising from his felony conviction in September 2010 and resulting 10-year prison sentence in case No. 09-CR-287, in United States District Court in December 2010 on four felony charges— mail fraud and using fire to commit mail fraud. Mr. Jones elected not to appeal his federal conviction, and is now serving his sentence. YOES, ROBERT E., Bar #76148, of Fort Smith. On April 28, 2011, in Case No. 11Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
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
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 387, the Arkansas Supreme Court accepted the surrender of the law license of Mr. Yoes in lieu of probable disbarment proceedings arising from his dealings with $65,000 in funds of a client, Jerald Rhodes, in a 2006 real estate transaction. Mr. Yoes placed the $65,000 in his attorney trust account in August 2006, and thereafter his trust account balance fell as low as $130 in May 2007-April 2008 while it should have contained the $65,000. When demand was made on him for Mr. Rhodes, Mr. Yoes made full restitution in May 2008 with funds obtained from other sources. Mr. Yoes entered a “no contest” plea to a charge of felony theft of property in circuit court in May 2010 on the same matter, had sentencing deferred, and was placed on five years probation. SUSPENSION: BRIZZOLARA, JAMES P., Jr., Bar #2000180, of Little Rock and Tennessee, in Committee Case No. CPC 2011-014, had his Arkansas law license reciprocally suspended for a period of 24 months (beginning on July 29, 2010) based on a like Order from the Tennessee Supreme Court and Tennessee Board of Professional 42
The Arkansas Lawyer
Responsibility regarding his Tennessee law license. The suspension in Tennessee was based on failure to pay fees, to complete CLE requirements, and Mr. Brizzolara’s arrest, charges, and criminal case disposition in Williamson County, TN, relating to felony prescription drug fraud. REPRIMAND: CLOUETTE, JAMES P., Bar #74025, of Little Rock, in Committee case No. CPC 2010-002, on April 15, 2011, had a second hearing in this case, after an appeal by the Executive Director and a remand by the Arkansas Supreme Court, in Case No. 10844, in an opinion issued February 17, 2011, in Ligon v. Clouette, 2011 Ark. 86, affirming in part; reversing in part; and remanding in part for further proceedings before the Panel related to sanction. The Court held that a caution was a sanction not available to the panel where “serious misconduct” was found, based on Mr. Clouette’s being found guilty at a non-jury trial by the circuit court of felony possession of a controlled substance on August 1, 2008. At the second hearing, the Panel found that the new sanction shall be a Reprimand, with probation with
conditions for 24 months, being the same conditions imposed by the Circuit Court of Pulaski County in No. CV-2009-1191, as set out in the Order of Probation of that Court filed January 5, 2010. The Committee panel found Mr. Clouette had committed “serious misconduct,” which normally carries a sanction of a license suspension or disbarment. Where there has been serious misconduct, under the Court’s attorney discipline Procedures a reprimand is a sanction only available in very limited circumstances. The Executive Director filed a notice of appeal on May 9, 2011, from the second panel action, seeking to review the new sanction. The appeal is pending at this time. HARRELSON, JEFF, Bar #96118, of Texarkana, on April 26, 2011, in No. CPC 2011-002, was Reprimanded for violation of Rules 1.1 and 8.4(d). The Arkansas Supreme Court referred Mr. Harrelson to the Committee for his failure to comply with its directives in re-briefing a matter involving denial of a Rule 37 Petition by a death row inmate, Justin Anderson. Mr. Harrelson was directed by the Court to re-brief after his first appellant’s brief. The Court specifically set out in the Per Curiam ordering re-briefing what was expected of Mr. Harrelson. Mr. Harrelson filed a substituted brief but did not comply with the directives or instructions of the Court. The Court relieved Mr. Harrelson from representation of Appellant and appointed other counsel to prepare the brief. Justice Brown dissented to the extent that he thought Mr. Harrelson should be cited to show cause why he should not be held in contempt for failing to properly re-brief. IRWIN, TIMOTHY SETH, Bar #2002066, of Russellville, by Findings & Order filed June 20, 2011, in Committee case No. CPC 2011-017, after a panel ballot vote, was reprimanded for violation of Arkansas Rules 8.4(b) and 8.4(d) in a case that came to the Committee from newspaper accounts of his arrest in a state court criminal case. On April 4, 2008, Mr. Irwin and his friend Mr. Stringer, both of the Russellville area, were arrested coming out of Irwin’s law office after a meeting with an informant, who was assisting in a drug investigation in Russellville, Pope County, Arkansas, and both were charged with felony criminal offenses. Irwin was a local criminal defense attorney, and also served as a public defender
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BENHAM, KEDRON, Bar #2007075, of Springdale, on June 17, 2011, was cautioned on a consent to discipline agreement for violations of Rules 1.1, 1.3 and 8.4(d) of the Arkansas Rules of Professional Conduct in Committee Case No. CPC 2011-036. Jose Zuniga-Garcia hired Mr. Benham to represent his wife and he in certain immigration matters. They were seeking to be able to remain in the country and needed his assistance in filing all the appropriate documents in order to do so. A hearing was
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in the adjoining 15th Judicial District. On the day of his arrest, Seth Irwin was interviewed by members of the Fifth Judicial District Drug Task Force and gave a statement. Mr. Stringer did not give a statement. On March 10, 2009, Mr. Stringer entered a plea, and was placed on probation, with no time to serve, and thereafter was available to assist the State in the prosecution of the charges against Mr. Irwin. On March 12, 2009, Mr. Irwin entered a “no contest” plea to the amended count of Class C felony “possession” of cocaine, was ordered placed on probation for 60 months, to pay a fine of $1,850, and to serve a term of 180 days incarceration at a state Regional Correctional Facility. Mr. Irwin served his 180 days and was released in September 2009. The transcript of Mr. Irwin’s plea hearing on March 12, 2009, reveals that the Court accepted his plea of “no contest” to the felony charge and that the parties and the Court understood, and so stated, that if Mr. Irwin successfully completed the terms of his 60-month probation the criminal case against him would be dismissed and that there would be no conviction entered against him. The Committee panel found Mr. Irwin had committed “serious misconduct,” which normally carries a sanction of a license suspension or disbarment. Where there has been serious misconduct, under the Court’s attorney discipline Procedures a reprimand is a sanction only available in very limited circumstances. The Procedures do not provide any stated means for the Office of Professional Conduct to seek any review of such a sanction and panel disposition at a ballot vote that the respondent attorney accepts and makes “final.” The Executive Director filed a petition for writ of certiorari with the Arkansas Supreme Court on June 20, 2011, as Case No. 11-631, seeking a review of the sanction. The matter is pending at this time. CAUTION:
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www.mediateadr.com scheduled in March 2010 in immigration court in Kansas City on the relief requested, but the matter was not heard because Mr. Benham failed to timely file necessary and required supporting documentation. It then became necessary for a Motion to Reopen to be filed. Mr. Benham assured Mr. ZunigaGarcia that a Motion would be filed or he
would find another attorney to do so. Mr. Benham did not take action to do so until February 2011. Mr. Benham failed to recognize that a Motion to Reopen had to be filed within 180 days after a dismissal or closing of the immigration case and therefore did not file one in a timely manner. All conduct by Mr. Benham was admitted in
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
Attorney Disciplinary Actions an Affidavit he submitted on behalf of Mr. Zuniga-Garcia. GEAN, ROY R, JR., Bar #47007, of Fort Smith, in Committee Case No. CPC 2010082, on April 25, 2011, after a hearing, was cautioned for violation of Arkansas Rule 1.4(a)(3) on a complaint by David and Stephanie Porter. Mr. Gean represented the Porters in a motor vehicle accident in December 2004 involving Mr. Porter, Amanda Gregory, and Billy Maxey. Ms. Porter believed that her husband’s headaches and series of strokes were related to the motor vehicle accident. During the period of Mr. Porter’s medical treatment, Shelter Insurance filed suit against Mr. Porter and Mr. Maxey. Mr. Gean represented the Porters in that matter. In December 2007, Mr. Gean filed suit on behalf of the Porters against Mr. Maxey, and Maxey was served. In July 2008, the Court sent a letter to Mr. Gean stating that Mr. Maxey had been served, that no answer had been filed, and Mr. Gean should submit a proper court order within ten days from the date of the letter, or the court would
assume there was no objection to entry of an Order of Dismissal. No response to the letter was filed by Mr. Gean. Mr. Gean stated that he believed the service on Mr. Maxey was not good. Mr. Gean stated that he told Ms. Porter that he needed a medical opinion which would show Mr. Porter’s headaches and stroke were related to the accident, and that the Porters must obtain that medical opinion. Mr. Gean stated that he could not
obtain the medical records as by doing so he would violate the Rules of Professional Conduct which prohibit attorneys from providing financial assistance to clients, if he paid for the records. The medical opinion was never obtained and the court dismissed the lawsuit in October 2008. KEARNEY, JESSE L., Bar #76062, of Pine Bluff, was cautioned by Committee
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Attorney Disciplinary Actions Findings and Order filed April 22, 2011, in Committee Case No. CPC 2010-115, on a complaint filed by Rob Kraus of Global Financial, for violation of Rule 1.15(a)(5). Mr. Kearney represented Stanley Williams in a civil suit in U.S. District Court against Williams’ insurance company for denying his claim against his renter’s insurance policy. While the litigation was pending, Williams entered into an agreement with Global Financial for a “litigation” loan or advance. Before any funds could be disbursed, Global sent a Letter of Instruction to be signed by Williams and Kearney. The document gave Kearney instructions, approved and agreed to by Williams, to place a lien and security interest against any and all proceeds due Williams from his suit. Kearney was instructed to protect and satisfy the debt owed to Global by Williams before paying any funds over to Williams. Kearney and Williams both signed the Letter of Instruction agreeing to abide by the terms and the signed document was returned to Global. Only after receiving the signed document from Kearney and Williams agreeing to protect the loan, did Global issue a $1,980.00 check to Williams. Kearney and the insurance company settled Williams’ claim and the lawsuit was dismissed. From the settlement, no disbursement was made to Global pursuant to the signed Letter of Instruction.
LAMBERT, WALTER CRAIG, Bar #87100, of North Little Rock, in Committee Case No. CPC 2010-010, by Findings & Order filed May 20, 2011, was cautioned and fined $500 for a violation of Arkansas Rule 1.3, on a referral from the Arkansas Supreme Court in No. CR10-108, Brian Heard v. State. Mr. Lambert represented Mr. Heard in a Rule 37 petition in Calhoun County Circuit Court. The court denied the petition, a timely notice of appeal was filed, and the record was timely lodged. After two requests for extensions of time to file a brief for Mr. Heard had been filed and granted, Mr. Lambert filed another request for extension of time which was denied. A brief on Mr. Heard’s behalf was due to be filed by October 28, 2010. No brief was filed. After a motion to dismiss was filed by the State, Mr. Lambert filed a Motion for Belated Brief, which was granted by the Arkansas Supreme Court. Lambert was referred to the Committee on Professional Conduct.
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SMITH, STEVEN R., Bar #91177, of Little Rock, in Committee Case No. CPC 2011020, by Findings & Order filed June 24, 2011, on a self-referral and a referral from the Arkansas Supreme Court, was cautioned in a case involving a criminal appeal for Denisse Serrano, for violations of Arkansas Rules 1.3
and 8.4(d). The Serrano record was due to be filed with the Arkansas Supreme Court Clerk on August 9, 2010. Mr. Smith did not tender the record to the Clerk until August 11, 2010, and filed a Motion for Rule on the Clerk on the same date. The motion was denied, because the notice of appeal, though
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Attorney Disciplinary Actions timely, failed to correctly identify the convictions from which the appeal was being brought, as required by Rule 5(a) of the Rules of Appellate Procedure–Civil. On September 9, 2011, Mr. Smith filed a second Motion for Rule on the Clerk, which was granted, and the matter was referred to the Committee on Professional Conduct. WANN, MASON J., Bar #2007293, of Fayetteville, by Consent Findings & Order filed April 15, 2011, in Committee Case No. CPC 2011-008, agreed to a caution and $500 fine for violation of Arkansas Rules 1.3 and 8.4(d). In a case in which he was not trial counsel, Mr. Wann failed to file the record on appeal for the firm’s clients, Tom and Nancy Muccio, within ninety (90) days of the date of the filing of the first Notice of Appeal. A Motion to Dismiss Appeal was filed by the appellee. Mr. Wann responded in great detail about why the civil appeal should not be dismissed, but the Court dismissed it based on the procedural error. As a result of the dismissal, the clients do not have an opportunity for appellate review of the $828,926.23 Judgment entered against them, and which has been satisfied from their supersedeas bond. WEST, B. DALE, Bar #89192, of Monticello, by Consent Findings & Order filed June 17, 2011, in Committee Case No. CPC 2011-032, agreed to a caution and $500 fine for violation of Arkansas Rules 1.3 and 8.4(d) in a criminal appeal for Ronald Deron Green. The Judgment and Commitment Order was entered on September 9, 2010, and a timely notice of appeal was filed.
ARKANSASFINDALAWYER® The Arkansas Bar Association receives many calls from the public every day asking for the name of an attorney to help them. Our staff refers the caller to:
www.arkansasfindalawyer.com Just $75/year List up to 7 practice areas Help potential clients find you on the Web site that receives over 5,000 hits per month! NEW! Sign up with your membership enrollment! NEW! Reduced rate for members practicing <2 years On December 20, 2010, Mr. West tendered the record to the Arkansas Supreme Court Clerk but the record was incomplete, lacking volume four and the circuit clerk’s certification. After being notified, Mr. West tendered the remainder of the record and filed a Motion for Rule on the Clerk. The Arkansas Supreme Court granted the motion and referred the matter to the Committee on Professional Conduct. n
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Legislation continued from page 16
of Attorney Act effective January 1, 2012. One major change involves the issue of whether a power of attorney is durable or non-durable. Under current law a power of attorney is presumed non-durable unless it specifically says it is durable. That presumption is reversed by the Uniform Power of Attorney Act and a Power of Attorney will be presumed durable unless it specifically states it is non-durable. The new Uniform Act contains a statutory form which can be used and financial institutions are protected for recognizing a power of attorney in the statutory form. •Non-Testamentary Transfers of Vehicles and Motorboats (Act 335). The title to vehicles that are registered with the Department of Finance and Administration may be transferred upon death by use of a certificate of title with beneficiary. The title to motorboats may be transferred upon death by use of a certificate of number with beneficiary. •Statutory Foreclosures (Act 885). Effective July 27, 2011, additional requirements were imposed as conditions to initiating a statutory foreclosure action. Before the foreclosure action is initiated, the mortgagee or beneficiary must have personal knowledge
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of certain information and must provide the grantor, mortgagor or obligor with certain information. Also, the Act requires a certification before the foreclosure sale that each forbearance and loan modification applicant has been notified at least 10 days before the sale that the applicant does not qualify for the assistance requested. •Hunting Leased Farmland (Act 869). Effective July 27, 2011, a tenant of leased or rented farmland does not have a right to hunt or fish or to grant permission to hunt or fish on the farmland unless the owner grants authority. The act also lists a number of acts which may be performed in the course of the owner exercising his or her right to hunt or fish on the farmland. •Adoption Fraud (Act 697). This act creates the offense of defrauding a prospective adoptive parent. The offense is committed by knowingly obtaining a financial benefit from a prospective adoptive parent or his or her agent with the purpose to defraud and not consenting to the adoption or completing the adoption process. •Aggravated Assault on a Certified Law Enforcement Officer (Act 277). Ark. Code Ann. § 5-13-211 has provided for the criminal offense of aggravated assault on an employee
of a correctional facility for throwing, tossing, expelling or otherwise transferring certain bodily fluids. This act extends the criminal offense to engaging in those actions in connection with a certified law enforcement officer. •Cyberbullying (Act 905). Transmitting, sending or posting a communication by electronic means with the purpose to frighten, coerce, intimidate, threaten, abuse, harass, or alarm another person constitutes the Class B misdemeanor of cyberbullying if the transmission was in furtherance of severe, repeated, or hostile behavior toward the person to whom the transmission was made. The Act became effective July 27, 2011. •Filing a False Instrument Affecting Title (Act 172). Under Ark Code Ann. § 5-37-226 it has been a Class A misdemeanor to file a false instrument affecting title or an interest in real property with the intent to cloud the title. This Act amends § 5-37-226 to make a second offense a Class D felony. It also makes the first offense a Class C felony if the action is taken because of the victim’s performance of his or her official duties and the victim is a specified official such as a judge. •Orders of Protection/Affirmative Offense (Act 810). This act amends the laws regarding the violation of orders of protection
by amending Ark. Code Ann. § 5-53-134(d) to provide the affirmative defense that the petitioner for the order of protection invited the defendant to the petitioner’s residence or place of employment listed in the order of protection and knew that the defendant’s presence at the petitioner’s residence or place of employment would be in violation of the order of protection. •Abolition of the Doctrine of Necessaries (Act 1183). The common law doctrine of necessaries was abolished in Arkansas effective July 27, 2011. Thereafter, absent express authority, neither a husband nor a wife is liable for the other’s debt obligations, including those for necessaries. •Definition of “Occurrence” in Commercial General Liability Insurance Policies (Act 604). Court decisions have caused uncertainty over whether the coverage provided to an insured under a commercial liability policy would include damages caused by faulty workmanship. In order to alleviate this concern, Act 604 requires commercial general liability insurance policies offered for sale in Arkansas to contain a definition of “occurrence” that includes accidents, including continuous or repeated exposure to substantially the same general harmful conditions, and property damage or bodily injury resulting from faulty workmanship. The act became effective July 27, 2011. Conclusion The Arkansas Bar Association’s involvement in the recent legislative session was successful. All bills in the Association’s Legislative Package were enacted into law. All bills opposed by the Association failed. All but one minor bill supported by the Association passed. Now is the time to start preparing for the next regular session. Association members are strongly encouraged to submit legislation they feel should be enacted to improve Arkansas law to the Jurisprudence and Law Reform Committee by January 31, 2012. Your Association provides an opportunity for you to have a direct influence on the state laws which govern our society and directly impact your practice. To not participate is a lost opportunity. Members of your Association who are in the legislature and members of the Association’s Legislation Committee spend a huge amount of time working to improve the laws which govern our state. Please thank them for their efforts if you have an opportunity. n
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Briefing continued from page 20
consistent fashion to achieve the order and predictability that the appellate process requires.”56 More recently, the court adopted an amendment to rule 4-2 that permits an appellant to file a supplemental abstract or addendum within seven days if the court concludes that there are “deficiencies or omissions in the abstract or addendum that need to be corrected, but complete rebriefing is not needed.”57 The court has also adopted various rule changes to address problems related to appeals lacking finality.58 But when an appellant provides the appellate courts with a deficient abstract or addendum, the Arkansas Supreme Court—and also the Arkansas Court of Appeals—remands for rebriefing. Proposed Changes It is submitted that it may now be time to fulfill the Arkansas Supreme Court’s 2001 prophecy that the abstract and addendum system is an interim solution awaiting a technological solution. Changes could be made so as to eliminate the continued concerns of the Arkansas Supreme Court. The argument portion of the brief is what draws the most keen interest from the appellate court. Perhaps that section of the brief could be enhanced, providing not only the arguments presented, but also the factual and procedural context for the argument. The argument could expand beyond its more traditional uses and provide the context required to address the arguments on appeal. The court needs certain information for context. Counsel would include: a description of the procedural history of the circuit court proceedings along with a description of the cir50
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analyze medical records detect tampering in medical records offer assistance with or create demonstrative evidence research and evaluate medical information locate expert witnesses provide professional nursing opinions regarding the causation of injuries and the assessment of damages to individuals
lawsuits relating to defective medical devices and harmful pharmaceuticals.
cuit court’s orders and findings; an explanation of why the notice of appeal constitutes a timely appeal from the order in dispute; an explanation of whether the appeal is from an appealable order; and a recounting of the facts relevant to the questions on appeal. Appropriate references to the record would have to be made for all of these. The argument would then provide an argument, with each point on appeal starting with a point heading. There would be no need for the practitioner to dwell extensively on the headings. Rather, the point headings merely would apprise the court that another argument on another issue is presented for consideration. The argument would consist of a discussion of the relevant facts gleaned from the facts previously recounted, a discussion of the applicable law, and an analysis that applied the law to the facts and explained why the facts and law required a particular result. Counsel would also have to provide citations to the portions of the record relied upon as well as citations to supporting authority. Counsel would also explain why each point on appeal is preserved for appellate review.59 Finally, counsel would explain what relief is desired. An insufficient statement of the case with a lack of factual detail was the problem that defeated one previous experiment. If the appellant’s argument failed to provide adequate context, then the appellee would be obliged to do so in its own argument. As an incentive to the appellee to correct errors in the appellant’s brief, the court would not permit rehearing or review of cases premised on the conclusion that the court’s discussion of facts contained errors that arose from the appellant’s uncorrected misstatement of facts in the appellant’s brief. As it now stands, the burden is on the appellant to pro-
vide the appellate court with “a record, abstract, addendum, and brief that allows” the appellate court “to understand and address the issues presented.”60 Perhaps it is time to demand more from those who have prevailed at trial. But if the appellant’s argument and the appellee’s argument are too incongruous, with, for instance, both mentioning only favorable facts, judges would have to read the entire record to obtain the context necessary to understand the argument on appeal, thus impeding the disposition of appeals. In such instances, rebriefing may be ordered by the court, perhaps requiring counsel for the parties to provide a joint discussion of the facts. To avoid the problem altogether, the parties, as an initial matter, might decide to provide a joint discussion of the facts. Another possible concern would be the failure by counsel for both appellant and appellee to recognize facts that ultimately decide the issue, as in a case where the court affirms based on a theory not relied on by the circuit court and not advanced by the appellee. Attorneys would be advised, even at the risk of being overinclusive, to cover matters at the outer extreme of relevance to a point on appeal so as to limit the necessity of the court having to glean relevant facts from the record. With these items, the arguments on appeal would be sufficiently put in context. But appellate judges also like to see the transcript and the items filed of record. Providing the entire record to each judge would eliminate the problems that arose from an insufficient appendix. Appellate counsel would submit the argument, the transcript, and the items filed of record in an electronic format, which would be viewable by the individual judges on an e-reader or other electronic device. The submission of these items
electronically would be especially useful if electronic links from the argument to the relevant portions of the record could be provided, as well as electronic links to statutory and case law cited in the argument. There would be no need for duplicate paper filings with the Clerk of the Supreme Court. Presumably, providing the court with all of the materials would eliminate the appellate court=s need to order rebriefing for leaving something out of the abstract or addendum. The change to an electronic format, with an electronic copy of the enhanced argument and the record, would call into question the need for other parts of the paper brief. Many of the rule’s current requirements, the informational statements and jurisdictional statements, the statement of the case, the abstract, the addendum and the points on appeal, would be subsumed by the argument portion of the brief. And, arguably, the cover page, the tables of contents, and the tables of authorities would not be as useful in a searchable electronic format that could easily be maneuvered through. These changes would allow for the elimination of these parts of the brief. As for other concerns that face the appellate practitioner—margins, font, line spacing, page length—these could be manipulated by the reader so that the style would fit the needs of the individual reader. The length of the brief could be limited to a maximum word count. Problems regarding the binding of the brief, of course, would go away. The general format of this enhanced brief would be no more complicated than a letter brief filed with the circuit court. But most importantly, the brief would no longer require an abstract or addendum. Conclusion This is a mere sketch. Obviously, much work will need to be done to determine what technology is currently available to make feasible submission of the record and the argument electronically. The purpose of this article, however, was not to examine the technology, but to suggest that the bench and bar consider what an electronic brief should contain. It is submitted that by freeing up appellate counsel to focus solely on the argument portion of the brief, without the necessity of providing an abstract, an addendum, or other portions of the brief that are now required, perhaps the overall quality of appellate work would also improve. Endnotes 1. Ark. Sup. Ct. R. 5-2(b). 2. Ark. Sup. Ct. R. 4-2(a)(5)(C)(iii). 3. In re Administrative Order No. 21 - Electronic
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Filing, 2010 Ark. 304. 4. In re Establishment of a Voluntary Pilot Program for the Filing of Electronic Briefs, Excluding the Addendum, in the Supreme Court and Court of Appeals, 370 Ark. App’x 618 (2007). 5. In re Proposed Arkansas Supreme Court and Court of Appeals Rule 1-8, 2010 Ark. 303, at 1. 6. Id.
7. John Watkins, Abstracting the Record on Appeal: The Dragon Lives, 2001 Ark. L. Notes 85; John Watkins & Price Marshall, A Modest Proposal: Simplify Arkansas Appellate Practice by Abolishing the Abstracting Requirement, 53 Ark. L. Rev. 37 (2000); David Newbern, Truth in the Abstract, Trouble in the Telling, 51 Ark. L. Rev. 679 (1998); Terry Crabtree, Abstracting the Record, 21 U. Ark. Little Rock L. Rev. 1
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
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of the Record with an Appendix System, or To Modify Abstracting System, 343 Ark. 835, 835 (2001) (per curiam). 20. Id. at 836 (Glaze, J., concurring). 21. Id. 22. Id. at 837. 23. In re Modification of the Abstracting System— Amendments to Supreme Court Rules 2-3, 4-2, 4-3 and 4-4, 345 Ark. App’x 626, 627 (2001) (per curiam). 24. Id. 25. Id. 26. Id. 27. Id. at 629. 28. Id. 29. Id. at 628. 30. Ark. Sup. Ct. R. 4-2(a). 31. Ark. Sup. Ct. R. 4-2(a)(5). 32. Ark. Sup. Ct. R. 4-2(a)(5)(A). 33. Ark. Sup. Ct. R. 4-2(a)(5)(a). 34. Ark. Sup. Ct. R. 4-2(a)(5)(B). 35. Ark. Sup. Ct. R. 4-2(a)(6). 36. Ark. Sup. Ct. R. 4-2(a)(8). 37. Ark. Sup. Ct. R. 4-2(a)(8)(A). 38. Ark. Sup. Ct. R. 4-2(b). 39. Ark. Sup. Ct. R. 4-2(b)(3). 40. Id. 41. Ark. Sup. Ct. R. 4-2(c)(2). 42. Id. 43. Ark. Sup. Ct. R. 4-2(c)(3).
44. In re Appellate Practice Concerning Defective Briefs, 369 Ark. App’x 553, 553 (2007) (per curiam). 45. Id. 46. Id. 47. Id. at 554. 48. Id. 49. Id. 50. In re Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2, 2009 Ark. 350 (per curiam). 51. In re Arkansas Supreme Court and Court of Appeals Rules 4-1, 4-2, 4-3, 4-4, 4-7, and 6-9, 2009 Ark. 544 (per curiam). 52. Id. at 10 (Danielson, J., concurring). 53. Roberts v. Roberts, 2009 Ark. 306, at 3 n.2, 319 S.W.3d 234, 235 n.2. 54. Id. at 4 n.2, 319 S.W.3d at 235 n.2. 55. Id. 56. Id. 57. In re 4-2(b) of the Rules of the Supreme Court and Court of Appeals, 2011 Ark. 141 (per curiam). 58. For a discussion of these recent changes, see
Megan Hargraves, Common Procedural and Jurisdictional Pitfalls to Avoid in Practicing Before the Arkansas Supreme Court, 33 U. Ark. Little Rock L. Rev. 119, 124-28 (2011). 59. For a discussion on the preservation of issues, see id. at 132-33. 60. Meyer v. CDI Contractors, LLC, 2009 Ark. 304, at 2, 318 S.W.3d 87, 88. n
John C. ‘Jack’ Deacon Arkansas Bar Association Past President John C. “Jack” Deacon of Jonesboro died on July 15, 2011, at the age of 90. In an article in The Jonesboro Sun, Ralph Waddell said: “He was truly dedicated to the practice of law and his clients and set a tremendous example for the rest of us to follow. He very much believed in maintaining the professionalism of the practice of law and expected the same from the rest of us. While he held us all to high standards, he was also a patient and attentive mentor who was willing to invest his time in each of us to make us better.” In the same article, Judge Price Marshall said: “Whatever he was doing, he was 110 percent in, whether it was serving the community in some way or representing a client. I’m struck by how he was the model lawyercitizen who found as much time to serve Jonesboro and Northeast Arkansas as he did to practice law and build a law firm.” Mr. Deacon served his country in two tours of duty, first as a captain in the U.S. Army Intelligence during World War II and then as a major in the Army, serving in the Pentagon during the Korean Conflict, according to an obituary in the Arkansas Democrat Gazette. After serving in WWII, he finished law school at the University of Arkansas and moved to Little Rock, where he practiced with the Rose Law Firm. After his service in the Korean Conflict, he moved to Jonesboro to begin practice with his fatherin-law, Joe C. Barrett. He was the founder and managing principal of the Barrett and Deacon law firm in Jonesboro and was proud to have practiced law with four generations of his family. He had a long and distinguished legal career, serving as president or chairman of numerous local, state, national and international legal bodies and receiving numerous honors and awards recognizing the many
achievements of more than 60 years of legal service. A longtime active member of the Arkansas Bar Assocociation, Mr. Deacon served as President of the Association in 1970-71 and served on numerous committees and sections. He was one of the first recipients of the Laywer Community Legacy Award in 2006 and was awarded the Outstanding LawyerCitizen Award in 1973. He was a Sustaining Fellow of the Arkansas Bar Foundation. Almost six decades worth of leadership and accomplishments at the local and state level made his name well-known in the public service arena. Perhaps one of his proudest accomplishments is his role as a founding board member of what is now the United Way of Northeast Arkansas. He served as president of the Commissioners on Uniform State Laws and was on the governing board of the American Bar Association. He is survived by his wife, Dorine; one daughter, Marie Deacon Landon; and three sons, Barry Deacon, John Deacon and Rush Deacon, along with numerous grandchildren.
Judge Richard B. Adkisson Judge Richard B. Adkisson of Little Rock died May 18, 2011, at the age of 78. He retired as Chief Justice of the Arkansas Supreme Court in 1984 and had served terms as Prosecuting Attorney and Circuit Judge of the 6th Judicial district for Pulaski and Perry Counties. He earned his undergraduate degree and Juris Doctorate from the Univeristy of Arkansas in Fayetteville. Judge Adkisson served in the United States Air Force from January 1951 to July 1954. He was a member of the Arkansas Bar Association. He was a Fellow of the Arkansas Bar Foundation. He was Past President of the Arkansas Prosecuting Attorney’s Association.
Albert Graves, Jr. Albert Graves, Jr. of Hope died on May 8, 2011, at the age of 74. Mr. Graves graduated from Hendrix College in 1958, where he served as student body president and then from Harvard Law School in 1961. He returned to Hope after graduation to practice law at Graves & Graves with his father and grandfather, according to an obituary in the Arkansas Democrat Gazette. While practicing law at his family firm, he served as Deputy Prosecuting Attorney from 19621966; member of the Board of Law Examiners from 1971-1974; City Attorney from 19791981; Juvenile Judge from 1978-1981 and 1985-1986; Circuit/Chancery Judge, Eighth Judicial District of Arkansas in 1982; and Special Chief Justice, Arkansas Supreme Court in 1991. He was a member of the Arkansas Bar Association where he served on numerous committees and sections. 2011 marked his 50th year of the practice of law. He is a Fellow of the Arkansas Bar Foundation. He is survived by his wife, Cortney Suzann Graves; and his daughters, Julie Graves and Allison Graves Warner. Charles Thomas Pearson, Jr. Charles Thomas Pearson, Jr. of Fayettville died April 29, 2011, at the age of 81. He earned his undergraduate degree and Juris Doctorate from the Univeristy of Arkansas in Fayetteville and a Masters Degree of Arts in International Relations from Boston University. A native of Fayetteville, he practiced law in the Pearson law firm that his grandfather founded in 1902 and where his father also practiced. Tom was extremely proud of his service in the U.S. Navy as a legal officer for the Judge Advocate General Corps from May 1955 to June 1963, according to an article in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association.
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
In Memoriam at Fayetteville. He was a member of the Arkansas Bar Association. He practiced law in West Memphis for 45 years, actively in Worker’s Compensation, Insurance Law, Estate Planning and Real Estate. He was a former president of the Crittenden County Bar Association.
Justice Steele Hays Former Arkansas Supreme Court Justice Steele Hays died June 22, 2011, at the age of 86. He was one of the original members of the Arkansas Court of Appeals in the late 1970s. Hays served as an Arkansas Supreme Court associate justice from 1981 to 1994. He earned a bachelor’s degree in history and political science from the University of Arkansas in 1948, and earned his Juris Doctorate from George Washington University in 1951. He is survived by his wife, Peggy; his son, Steele, and daughters Melissa and Sarah. Contributing author Fred Petrucelli in an article “Steele Hays and His Wit” in the Fall 2010 issue of The Arkansas Lawyer magazine said the following about Justice Hays: “An effusion of wit and humor are the marks of a man imbued with a winning personality, and such a man is Steele Hays, former attorney, circuit court judge, state Supreme Court justice and storyteller par excellence, not to mention bon vivant.” Judge Thomas L. Hilburn Judge Thomas L. Hilburn of Cherokee Village died May 11, 2011, at the age of 71. After graduating trom Walnut Ridge High School in 1957, he served in the U.S. Marine Corps from 1957 to 1964, according to an obituary in the Arkansas Democrat Gazette. He earned his Juris Doctorate from the University of Arkansas School of Law in Fayetteville in 1970. Upon returning to Walnut Ridge, he served as City Attorney for 10 years and in 1983 he was elected Chancellor of the 3rd Judicial District until his retirement in 2003. Charles D. Barnette Charles D. Barnette of Texarkana, Texas, died June 13, 2011, at the age of 62. He was a member of the Arkansas Bar Association where he served on numerous sections. 54
The Arkansas Lawyer
Melinda R. Gilbert Walls Melinda R. Gilbert Walls of Little Rock died May 4, 2011, at the age of 46. Melinda graduated from Henderson State University in 1985 and earned her Juris Doctorate from the University of Arkansas School of Law in 1987. She practiced law in North Little Rock, opening her own practice in family law, according to an obituary in the Arkansas Democrat Gazette. In 2008, Melinda was elected to the 11th Division Circuit Court, 6th Judicial District for Pulaski and Perry counties, a juvenile court. She was a member of the Arkansas Bar Association where she served as chair of the Juvenile Justice Committee. She was a fellow of the Arkansas Bar Foundation. Melinda is survived by her husband of 21 years, Carroll Walls, Jr.; her daughter, Caroline; her son, Connor; her mother, Helen Berg; and husband, Ralph. Mark Eugene Velasquez Mark Eugene Velasquez of Fayetteville died May 13, 2011, at the age of 44. He earned his Juris Doctorate from the UALR Bowen School of law. He owned Velasquez Law Firm in Fayetteville where he practiced immigration/naturalization law, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association where he served on the Technology Committee. David Carter Shelton David Carter Shelton of West Memphis, died June 29, 2011, at the age of 72. He graduated from Drury College with a Bachelor of Arts in Business. He served in and served in the U.S. Army Corps in the 35th Infantry Division Band, according to an obituary in the Arkansas Democrat-Gazette. He received his Juris Doctrate from the University of Arkansas
Preston Gray Hicky Preston Gray Hicky of Forrest City died April 21, 2011, at the age of 61. He earned his Juris Doctorate from the University of Arkansas School of Law in 1974. He began his legal career as an attorney in Forrest City and continued there for 36 years until his retirement in 2010, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association. David T. Hubbard David T. Hubbard of Fort Smith died May 16, 2011, at the age of 69. He earned his Juris Doctorate and Masters in Business Administration from the University of Arkansas School of Law in Fayetteville. He worked for over 40 years in the legal profession and retired as an Administrative Law Judge, according to an obituary in the Arkansas Democrat Gazette.
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 law-related charitable efforts. Contributions may be sent directly to the 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 April 1, 2011 through June 30, 2011: In Memory of Judge Richard B. Adkisson Justice Robert H. and Mary Lynn Dudley B. Jeffery Pence Judge John and Marietta Stroud Mike Wilson In Memory of George E. Campbell Justice Robert H. and Mary Lynn Dudley In Memory of Judge Melinda R. Gilbert Coplin, Hardy & Stotts, PLLC Hyden, Miron & Foster, PLLC B. Jeffery Pence In Memory of Albert Graves, Jr. Dennis and Jane Shackleford Fred S. Ursery Mr. and Mrs. Damon Young In Memory of Justice M. Steele Hays Justice Robert L. and Charlotte Brown Judge and Mrs. John Norman Harkey Gordon and Hayden Rather Judge John and Sue Plegge Judge John and Marietta Stroud Fred S. Ursery Mike Wilson In Memory of Preston Hicky Richard and Irene Proctor Roscopf & Roscopf, P.A. In Memory of Judge Thomas L. Hilburn Justice Robert H. and Mary Lynn Dudley Retired Judge John N. and Willa Harkey Judge Adam Harkey James A. McLarty In Memory of David T. Hubbard Mike Wilson In Memory of Margery J. Kressel Judge James G. Mixon* In Memory of Margaret LuAnn McCarty Judge James G. Mixon* In Memory of H. Maurice Mitchell Justice Robert H. and Mary Lynn Dudley
Judge James G. Mixon* Edward T. Oglesby Donald L. Parker II Ed and Evelyn Penick Gordon and Hayden Rather Roscopf & Roscopf, P.A. O. H. Storey III Fred S. Ursery Mike Wilson In Memory of Tom Pearson, Jr. Dennis and Jane Shackleford In Memory of John M. Shackleford, Jr. Designated to the Shackleford/Phillips Scholarship Fund Judy Butler In Memory of Richard H. Wootton Donald C. and Rose Pullen Dennis L. Shackleford *Designated to the Ernest G. Lawrence, Jr. Scholarship Fund
Other Contributions In Honor of Judge G. Thomas Eisele upon his retirement from the Bench O. H. Storey III Scholarship Contributions Rose Law Firm Scholarship Fund Rose Law Firm Charitable Trust Sebastian County Bar Association Scholarship Fund Sebastian County Bar Association U.M. Rose Scholarship Fund Rose Law Firm Charitable Trust Wright, Lindsey & Jennings LLP Scholarship Fund Wright, Lindsey & Jennings LLP
Vol. 46 No. 3/Summer 2011 The Arkansas Lawyer
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Index to Advertisers PAGE ABA Retirement 3 ADR, Inc. 43 Arkansas Community Foundation 17 Arkansas Investigations 44 ArJLAP 40 Avansic 32 Barrett & Deacon, P.A. 22 Bank of America 44 Delta Trust 21 Fastcase 31 Fendler, Frances 27 Ferstl, Tom M. 42 Frost, PLLC 23 Hamlin Dispute Resolution, LLC 46 Johnson, Smith & Associates, PLLC 41 Landex Research 52 Law Offices of Darren O’Quinn 48 Law Offices of David Williams 33 Law Offices of Gary Green, P.A. 20 Law Pay 28 Legal Directories Publishing 4 Lexis-Nexis Inside Back Cover McMath Woods P.A. 51 Mixon, Paul 41 Munford, Luther T. 47 Pulaski Heights Realty 27 Regions Insurance Back Cover Schwartz & Associates LLC 16 Taylor & Taylor Law Firm, PA 45 Thompson Mattox Group 50 Thompson West Inside Front Cover Tracer USA 49 Tschiemer, Robert 28
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