Our deep appreciation for excellent legal counsel
OVER FORTY YEARS
And our sincere congratulations . . ..... .
JOE C. BARRETT
E. C. BARTON &: COMPANY OWN ERS AND OPERATORS Of"
'Building ,\faleria ! Stores JONESBORO , ARKANSAS
JANUARY, 1972 VO l. 6 NO. 1
llfe THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION
Arkansas Lawyer SP ECI AL FEATURES
OFFICERS Paul B. Young, President Henry Woods, Vice·President Robert D. Ross, Secretary·Treasurer EXECUTIVE DIRECTOR C. E. Ransick
Mid-year Meeting & Standards Workshop III .......... ... 26 The World and The Law ........ ..... . Charles S. Rhyne 28 Canon 8 and A Rising Aspiration ....... .. . John P. Frank 6 Practitioners' Stake in I nternational Law ... . .. . ............... Joe C. Barrett 13 No-Fault Insurance .... ..... ......... Richard M. Marcus 17 Democratization ..................... Winslow Drummond 4
EXECUTIVE COMMITTEE James West, Chairman Phillip Carroll James B. Sharp Lynn Wade Dale Price John Mann Ex·Officio Paul B. Young Henry Woods Robert D. Ross John Lile J. C. Deacon James B. Blair Stephen Matthews Louis l. Ramsay, Jr.
EDITORIAL COMMITTEE Robert D. Ross Philip E. Dixon C. E. Ransick
REGULAR FEATURES President's Report .....•.•.•.•............ Paul B. Young 3 Juris Dictum . ...... .... .. ... .. .............. C. R. Hule 15 Law School News ......•.....•.•.... Robert Brockmann 35 Oyez-Oyez . . .................... ... . . .. . .... B. Ghormley 2 In Memoriam . ....... .... .. . . ..•. ..• ......... . ....... . .. 36 Executive Committee Notes ....•.• .• . . . . Robert D. Ross 14 Published bl-monthly by the ArKansas Bar Association, 408 Donaghey Bldg., Littl e
Rock, Arkansas 72201. Second class postage paid at Little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $2.00 per year Included In annual dues. Any opi n ion e)(pressed herein Is that of the author, and not necessarily that of the Arkansas Bar Assoclatlo"", Th e Arkansas Lawyer, or the Editorial Committee. Contributions to the Arkansas Lawyer are welcome and should be sent In two copies to the Arkansas Bar Center, 408 Donaghey Bldg., Little kUCk, Arkansas 72201. All Inquiries regarding advertising should be sent to AdvertiSing Department, Ark· ansas Lawyer, Post Office BO)l( 4117, North Little Rock, Arkilnsas 72116.
By B. Ghormley
James Van Dov er, Marianna, is th e new President of the Marianna Chamber o f Commerce. Robert E. Garner, formerly of Warren. has been appointed by Prosecuti ng Attorn ey Frank Wynne to serve as his Deputy for Bradley County. Herby Branscum , Jr., little Rock. wi ll open an office in Perryville at the Old Cafe Building on Mondays only starting November 22. 1971 . Two Pine Bluff lawyers, John Harris Jones and C. Wayne Mat thews , have entered into a partnership with offices in the National Building . Dick Jarboe an d Leroy Blanken ship , Walnut Ridge , have opened an o ffi ce in the American Legion Bu ilding in Imboden, Arkansas to be o pen for servi ce on Monday, Wednesday and Saturday. Independence County held a special Memorial service for the late Judge Chartes F. Cole in Chance llor Robert Dudley ' s cou rt with Keith Rutledge as master of ceremonies. Jim Spear s. Fayetteville . as new ly elected second vice-p resident 01 the Un iversity of Arkansas Sludent Bar Association. will be the liaison with the A ssociation . Verlin E. Upton. President of the Greene-Clay County Bar Association has in formed us that they hold meetings on the second Wednesday of every month in the Dining Room of the Motel at Rector. All are invited to meet with them . Municipal Judge J . G . Ragsdate, EI Dorado, has been elected president of th e Municipa l Judges Asso c iation and Judge William R. Butler, Little Rock. is the new vice-president. Lynn Wade , Fayetteville. spoke to members o f the Young Demo c rats C lub at the Arkansas Student Union on prison reform . The law firm of Barrett, Wheatley. Smith and Deacon have announced that Tom W. Cardin , formerly of Batesville. has joined them as an associate. The law firm of Harkey and Walmsley. Batesville. are located in a new office building at 415 A llen Street. William Nash and J. Gaston Williamson , members of the law firm Rose , Barron , Nash , Williamson, Carroll & C lay, are members of the 1971 commi ttee of selection for recipients of Rh odes Scho larships in Arkan sas. Mr. Nash will serve thi s committee as its secretary. Ray S. Smith, Jr. , Hot Springs. h as been e lec ted chai rm an of
Verlin E. Upton
Judge J. G . Ragsdale
the Board o f Governors o f th e Counc il o f State Government an d is the first Arkansan to hold this p osi tion . Win slow Drummond . little Rock. discussed no-fault insurance at a meeting o f the North Pulaski County Bar Association meeting . Bob Stroud . fo rmerly o f Desha. is now serving as attorney for the Arkansas Beverage Con trol Board . Allyn Tatum. Batesville . is the new president o f the Independen ce County Bar A ssoc iation wi th Bill Walm sley. also o f Batesville. serving as vice-presi dent. Mitchell D. Moore. Osceo la, was elected new pre sident o f the Nor theast Arkansas Bar Associ ati on at its December meeting with Edward L. Maddox , Osceola. as Secretary-Treasu rer. It has been announced that James A. Mc Larty. Newport. has become a partner in the law firm of Pickens & Boyce. BAR ACTIVITIES A prog ram on docket con tro l and law ye rs' fees was presen te d at the De ce mber 10th meeti ng of th e Nor th east Ark ansas Bar Assoc iati on by Chairman Mitc hell Moore o f th e Econo m ics o f Law Pract ice Committee o f th e Ar kansas Bar Assoc iation . Fo rt y-seven lawye r s at ten ded the session . At th e October 13th Meeti ng o f th e Ouachita Coun ty Bar A ssoc iati on . di scussions were held re minimum fee schedu les an d conce rning ways fo r the Associat ion to be more active and better serve the interests of Ouachita Coun ty citizens an d allorneys. Some 15 allorneys at ten ded . Congressman David Pryor an d Circu it Jud ge Melvin M ay field of EI Dorado were honored guests at the Bar Bar-B-Q for members an d their wives . The Washington Coun ty Bar ASSOCiation IS sponso ring two Boy Scou t Explo rer Posts. These Posts limit th eir ac tiVitie s to law re lated subjec ts. as ou r pri son system. th e drug pro blem . pre -law curric ulums. et c. A ssoC iation members su pervi se the pro gram s and pro vide material s. Girls are permitted to belong to the se Boy Scout Expl o rer Posts. Th e WaShing ton County Bar Association is also engaged in working wi th Pro fessor Charles Carnes o f th e Law School In thi S connec ti on . The Pul aski County Bar ASSOCiation has had a number o f lunc heon meetings this Fall. with guest spe akers In c ludin g Corrections CommiSSIOner Terre l Don Hutt o . A special co mmittee has been working for the proposed new Pul aski County Community Correctional facility. A week ly breakfast. with somewhere between 10-20 faithful participants. is he ld to discuss the current advance sheets o f the Arkansas Reports. A public de fender office is being sought for Pulaski County.
BIPOIT By Paul B. Young
The action of the Arkansas Supreme Court in raising the annual license fee to make possible a full time disciplinary office I S a step every practi c ing lawyer in Arkansas should support. If we are honest with ourselves. we have to admit that the legal pro fession has not been shouldering its public responsibility in this area. That was the conclusion reached by the committee on the Evaluatio n of Disciplinary Procedures which the American Bar Association established in January of 1970 with the former Supreme Court Justice Tom C. Clark as its Chairman.
over a space of many years . Th ey provided the lunds needed by the American Law Institute to ca rry out its restatement of the law practice. Without any doubt the number of lawyers involved in disciplinary problems is very small. (One of the great benefits of a full time of fi ce to the profession will be the prompt disposition of unfounded complaints .) Howeve r , those few instances where discip linary action ought to be taken attrac t a dispropo rti onate amount o f public attention. If we say that it is in the public interest that the members of the legal profession in the bench an d bar have exclusive contro l of discipline . the n it fo llow s that the public has a right to ho ld us accountable to handle it in a satisfactory way . The prime purpose o f a full time disc ipli nary office is, o f cou rse. to bring Into play more prompt and effective di scipline in Instances where it is appro priate . But it is bound to improve the stature of th e profession both in fact and In the pubh c view. Probab ly you read accounts in the press concerning organi zat ion of a nonpro fit corporation ca lled A rkansas Private Legal Services, Inc. as a vehicle to set up a pilot Judicare Program in Ar kansas. Under J udicare. a lowe r income person who needed legal services w ould choose a priv ate attorney of his own. Depending on the client's finan cia l status. all o r part of his attorney's fee would be paid by the agency administering the Judicare Program - in thi s case Arka nsas Private Legal Services, Inc . There are severa l proposa ls now under consideration before the Congress concern ing free legal services but the Judicare conce pt is preferred by th ose who wish to preserve the c lient's right to c hoose his own attorney . Of cou rse. the implementation o f this program is dependent upon the necessary funding bei ng secured . Oscar Fendler o f Bl ytheville . a member o f our Legal Aid Committee who has been a very active and enthusiastic advocate of Judicare (as on ly Oscar can be) , met recen tly with attorney John Mitchell at Washington in an effort to obtain federal funds for the new Arkansas Corporation . We are hopeful the money will be obtained and that a p ilot proje c t proposed for Northwest Arkansas will demonstrate Judicare is an appropriate 'and a preferred way of providing free legal services. You will be kept advised and in fact when Judicare beco mes a realit~ you will be asked to coo perate by taking a part in the program . In order to preserve for the profe ssion as we know it a substan t ial part 0 1 th e future prac ti ce o f the law every member of the p racticing bar, no matter how busy or how success ful, is going to have to become informed and personally involved on this su bjec t o f legal aid .
AI our annua l meeting in June. 1970. Mr. Justice Clark told the Arkansas Bar Association that " the enforcement of disc ipli ne in the United States is practically nil. practica ll y nil. n-I.1." Mr . Justice Clark did pay Arkan sas a compliment on It s procedura l rule regulating professi ona l con duct of attorneys as being "one o f the finest structures in disciplinary enforcement of any state :' But he c riti cized the legal professIOn In Arkansas for providing too little money to enforce "your excellent structure. the equal of which I do not know exists In any o ther state." In praising the procedure. Justice Clark was talking about the fact that In Arkansas . the Committee on Pro fessional Conduct is also under control of the Supreme Court. Since the committee must answe r to the court there is not the conflict of interest that might eXist If lawyers were judging other lawyers without the authortty o f the court behind them . Also the Supreme Court commi ttee has the power to hold private hearings and if It fi nds th at a co mplaint is justified it may reprimand the offending lawyer without any publicity or it may go ahead with the complaint in circuit o r chancery court. While the Arkansas Bar Association has Its own grtevance com mittee. the on ly sanction it can give is expulsion from membership and as a pra c ti cal matter, it can only ac t in a very limited way . The Arkansas Bench and Bar accepted the challenge. Wh i le the Arkansas Bar Association cannot take c redit for the ac llon o f the Supreme Court, we can properly say that the o fficers and Grievance Committee gave their active encouragement and coo peration . As a result of Jack Deacon 's efforts. the Arkansas Bar Foundation obtained a $10.000 grant from the Le on Falk Family Trust of Pittsburg " for the purpose o f aSSisting in the implementation of the recommended pro cedures for disciplinary enfo rc ement of the members o f the bar in the State of Arkansas ." This money will be made available to the Supreme Court Committee on Professional Conduct and will probably be used for capita l expenditures necessary in setting up a full time office. The Falk Trust has been very interested in the legal profession
NEWS RELEASE Arkansas Bar Association 408 Donaghey Building Little Rock, Arkansas 7220 I For additional information, contact: Winslow Drummond , Chairman Constitution and By-Laws Committee
Democratization As o f January 1 the floor is open for nominations to the House of Delegates which will carryon the business o f the Arkansas Bar Association . Th e first meeting o f the House will take place in Hot Springs in June 1972. In order to insure transi tion to a truly representative Association , a full comp lement o f Delegates must be du ly nominated and e lected prior to May 8. The new constitut ion of the Association permits nomination for the o ff ice of delegate upon petition of on ly three Association members in the district from which a particular delegate is to be elected . The form o f the petition is not prescribed as such . The constitution merely provides : "The membership of the House of Delegates shall consist of voting members o f the Association resid ing within a particular Delegate District and elected by members of the Association residing within that District. Three (3 ) members of the Association residing within a Delegate District may nominate an Association member within that District for the office of Delegate by filing a petition in writing with the Secretary-Treasurer at the office of the Association at least sixty (60) days prior to the first day of the annual meeting of the Association ." The House will consist of fifty-four elected delegates. six ex-officio members, and two law student section delegates. The fifty-four elected delegates will serve staggered terms of three years . eighteen to be elected annually. In 1972. however. a full membersllip will be elected and the terms of office determined by lo t. A map outlining .the twenty-nine De legate Districts within the state. and the number o f delegates to be e lected from each district. will be published in the next issue o f The Arkansas Lawyer. By ear ly March eac h Association member wi ll receive a notice from the Secretary-Treasurer relative to any office open to nomination upon petition . the date o f c losing of nominations, and the number of signatu res required to effect nomination . However. the elective provisions of the new constitution are already operative. and nominating petitions may be filed at any time. Actual balloting for the office of Delegate is required only if the number o f nominees exceeds the number of delegates to be elected from a particular district, so those persons interested in serving in the House would be well advised to file early and perhaps avoid th e necessity for a contest by ballot. A truly democratic Arkansas Bar Association can come into being only if the members of the Association manifest their support of this principle by ele c ting their governing representatives. The time for action is now!
The Barretts of Washington Street.
The Barrel t's dauqhter Dorine is shown with her husband . Mr . J. C. Deacon.
Mr . and M rs , Jo e C. Barrett.
Proceedings of The Forty Sixth Annual Meeting
FOREWORD To the Bar Association of Arkansas :
The stirring era in which we live challenges the intelligence and ingenuity of every thinking man and woman . The problems of a government of , by and for the governed have ever received thoughtfu l and earnest consideration by the organized bar . Now with democracy threatened by enemies from without and by conflicting views from within. we must be vigilant and thoughtful to a degree not heretofore required in this generation. II is imperative that statesmanship prevail over personal desire. local interest and selfish purpose . if we are to demonstrate to o urselves and to the world that people can govern themselves. To attain this end our responsibility is limited only by our individual capacity. intellect and opportunity. Patriotism of lawyers in time of national peril has ever been manifested by courage zeal and devotion in c ombat. but to those of us left in civilian life there is a more prosaic but none the less important duty to foster and maintain those basic principles forming the pattern of the way of life we now defend with arms. To the accomplishment of this purpose with all that it implies. we dedicate our fortunes and our lives.
JOE C. BARRETT . JOE C . BARRETT Pres ident 1943-44 Arkansas Bar Association
President September 1. 1943
R ead with pride
R ead with concern .
Canon 8 and a Rising Aspiration by John P Frank Th e more ellicient ca uses of progress include a high standard of excellence, inculcated by t il e ab lest and best men, embodied in the laws . c ustoms and traditions of the nation, and enforced by public opinion . (C h arles Darwin . The
Descent of M an) I. Introduc t ion The mid-twentieth cen tury has no J eremy Ben th am o r David Dudley Field . but it d oes h ave Albert Jen ner o f Chicago and J oe B arrett of J onesb o ro. Arkansas. We may begin with them . bec ause they represent what the Code of Professiona l Resp onsibility's new Canon 8 1 is really all abouL Z Joe Barrett Albert Jenner is remarkab le; since he comes from a great firm in a great city. this is not in herent ly unlikely. But Joe Barrett comes from as country a coun tryside as there is. and somehow this makes his public service in international law a ll the more astonishing. Jo nesbo ro. Ar k ansas (popu lation 26.580). with a ll deference to that community. is no world center . Jo e Barrett, now 72 years o ld, was graduated fr om the George Washington University Law School in 1924 and has prac ticed in Jo nes boro ever since . The senior partner of a se ven-man firm . he works in rea l estate. probate, trust, and taxation . As his publi c se rvi ce activi t ies for the improve ment o f the law, Mr. Barrett has been Chairman o f th e Section o f International and Comparative Law of the American Bar Association . He worked on the Human Rights Conventions, the C onven ti on on the Law of Outer Space, the Legal System for Governing and Exploitation of th e Deep Seas. the question of Sovereign Immunity in the Courts of the Un ited States, the prob lem of service abroad and taking eviden ce in intern ati ona l litig ati o n. Other inte rnational law duties have made him a delegate to the Hague Conference on Private International Law and a Senior Advi so r o f the State Department on all matters in that field . In short. from his o ffice in J onesboro, Arkansas. Mr. Barrett has reached to th e bott om o f the seas and to th e outermost reaches o f space. But hi s activities have not always been so far from home : he has also helped to prom o te a constitut iona l con vention fo r hi s ow n state . And then we come to what is perh aps Mr. Barrett's mos t important work . He has been an ac tive member o f the Nationa l Con ference of Commissioners on Uniform State Laws. Undoubtedty, he is on e o f the litt le handful of prac路 titioners mo st deeply involved in all Unifo rm Commercial Code problems: as a member of the Code's perm anen t editorial board . he has had a parti cu larly heavy d uty in revising its troublesome Arti c le 9 .
National Conference of Commissioners on Uniform State Laws session with Dean Robert R. Wright , joe C. Barrett and Jack C. Deacon. Mr. Barre tt has been a Commissioner from Arkansas for 30 years , having received appointments from five governors , and is now a Ufe Member. Mr. Barrett served two years (1954-56) as President of the Nationa l Conference, and is the on ly Arkansan to be so honored. Mr. Barrett has served for 25 years as the Chairman of the Arkansas Commission on Uniform Laws .
Albert Jenner ha s been pra c ti c ing law for 39 yea rs and is senior partn er o f a firm o f 66 lawyers in Chicago . There can be no meaningfu I desi gnation o f anyone as the fo rem ost li tigation man in America- there is a sma ll upper perch on which mo re than one man can roost. But certain Iy any enumeration o f the maj o r litigati on lawyers in the United States wou ld in c lude Mr. Jenner. Yet he find s time to d o other thing s. too . As a former President o f the American Col lege of Trial Lawyers, he has p arti cipated in preparing its man uals on preparati on and trial of crimina l cases and its materials for te ac hing advocacy in th e sc hools. H e was sen ior co un se l fo r the Warren Commission: he is a member o f th e co ntemporary Com mi ssio n on th e Causes and Prevention of Vio lence: and. as his most tim e-consuming ac tivit y. he was C hairman o f the American Bar Committee on the se lection of th e federal judges from 1965 to 1969. A member o f th e Committee on the Feder al Rules of C ivi l Procedure, w hic h is d eeply inv o lved in a ll rules revisions of this decade, he has also been Chairman si nce 1965 o f the spec ial committee preparing Uniform Federal Rule s o f (J ohn P. Fr an k is a man o f many accomp li shments- member o f the Lewis & Roca law firm . Ph oen i x: author and edito r ("Cases and Materials on Consti tuti onal Law," Callaghan & Co.: "C ases on the Constitution." McGraw-H ili ; '路Mr. Justice Bl ack." Alfred A. Knopp, Inc.: "Marbl e Pa lace, Th e Supreme Court in American Life," Alfred A. Knopf, . Inc.: " Lincoln as a Lawyer," University of Illino is Press: " J us ti ce Daniel Dissenting ." Harvard University Press: " The War ren Oourt." The MacMillan Co.; " American Law. " 'The Case o f Radica l Reform.' The MacMillan Co.) : Associate Professor o f Law (1946-54) at Indiana and Yale: director, American Judicature Society: active in ABA : B .A .. M .A .. LL.B ., J.S.D .: member of Wisconsin, Arizona and D.C. Bars.)
(Editor's Note : This IS the text o f Mr. John P. Fri:J.nk 's '1ddress at the American Bar Association Code o f Professiona l Responsibility Symposium in 1969. We on ly ask th at you read the lirst two sentences- you will never be able to stop there . Read. with pride. about Lawyer Joe Barrett of Jonesboro, Arkansas. Read , with concern. a lawyer's responsibilities under Canon 8 of th e Code o f Pro fessio nal Responsibility. which has been adopted by the Arkan sas Supreme Court. We are indebted to Fred B. Ro thman & Co . for permission to reprint this article from the January 1970 issue o f the Te xas Law Review.)
course. ref lects recognized and admired high ideals. But it is a1\ the more innovat ive because its su pp o rt in the literature is thi n: Professor Robert E. Mathews in his pathbreaking ethics instructional work describes the difficulty in giving problem s on public work where . "n ary a co mmittee. nor a court. nor even a canon. h as ever trod ."4 Arthur T. Vanderbilt has discussed the lawyer's rela ti onshi p o f service to c lients an d the p ub li c.~ an d Professo r Elli ott Cheatham has written a little on the lawyer's role in the development o f the law .1i Th ere are materials on whether the lawyer can serve the cause o f law improvement at the same tim e that he serves th e c lient.1 Th at is ab ou t all th ere is in the no te s to the Canon itself . Pr ofessor John Su tt on. the draftsman and rep o rter fo r the co mmittee. has shared with me other sources on the same theme: but except fo r a little ta lk on the subject in Countryman and Ftnman 's Th e Lawyer in Modern Society.8 th ere is no t much in th e literature on the actual nature of a duty for law improvement. Canon 8 . at least in the portion under discussion here. is thus a genuine breakthrough in the law . For the Canons are law . They will actua ll y be adopted in many state s. and they become part of the legal system of America . They range from prohi b ition of o bvi ous c rimes, such as Canon 6 with its broad ethical consi derations and its practical Rule 6104(A) th at "a lawye r sha ll no t misappropriate the pr operty of a c lient." to legal fence-mending . such as Canon 3 on the unauthorized prac ti ce of law . But in Canon 8 , we leave the world of rules against conduct malum in se, such as the prohi biti on on stea ling, or malum prohibitum, such as the rules on w"o may perform a given service. Canon 8 postu lates as an ethical idea l a mand ate to the bar to u se our skil ls in the socia l servi ce of mankind by the everlasting improvemen t o f the system wi th whiCh we work .
Evidence. which have recen tly been distributed to the bar. A speaking duty goes with the evidence work: he has led discussions of th e proposed rules at eight of the judicial circuit con ferences. But this is by no means all of his publi c work. Since 1949. Mr. Jenner has been Chairman of the illinois Unifo rm State Laws Commission. and for the past tw o years he has been Chairman o f the Executive Committee of the National Confere nce 0 1 Co mmissioners on Unifo rm State Laws. He has been involved In the Uniform Probate Code. the Uniform Antitr ust Act. th e Uniform Lan dlord and Tenant Act. and many others. He is a past-president of the American Judica ture Society. ac tiv e in the American Law Institute . active in the effor ts for constituti ona l reform in I ll inois. active in so many projects that the list for this purpose need be no longer. We may lei th e description go with the adjective "ac tive ." The lives and services of these men . and a good many others whose activities will be consi dered here. make a pathway to the new Canon 8. Mr. Barrett gives some thi ng like one-third of his professional time to legal publi c service . Mr. Jenner gives almost half of his time to his extracurricular activities. New Canon 8. boiled down a little. says ' 1. The lawyer should propose and su pport legislation an d programs to maintain and improve our lega l system . He should encourage Simplification of laws. repeal or amendment of ou tmoded laws. and revision s of substan ti ve or procedural law to prom ote Justice . 2. The lawyer should promote the ava ilab ilit y of co mpetent lawyers and not fence the bar to keep needed men out. 3. The lawyer inevitably wears tw o hats. sometime s representing a c lient and sometimes representing his own best ludgment. He may advance the view of a c lient whether he agrees with it or not. but when he espouses the public Interest. he must be loyal exclusively to II. 4. The lawyer has a duty. un less barred by con fide nce. not merely to aVOid misdeeds himself but to reveal fraudule nt. decepti ve. or otherwise illegal conduct by a partiCipant In a proceeding . 5. The lawyer has duties to aid in the selection of competent Judges. to sustain them as they do their work . and to aVOid car ping c riticism . 6. The lawyel should aid in establishing and enforcing standard s of professional conduc t adequate to prote ct the public . 7. The lawyer. if he ho ld s a public office. shou ld avo id conf licts o f interest. a conce pt broadly cons idered . 8. The lawye r shou ld encourage and aid in making needed ch anges and improvements in our legal sys tem .3 These apparently diverse ethical considerations are linked toge ther by the title. " A lawyer shou ld assist in improving the legal system." and it is this e thical spirit. th e heart o f Canon 8 . on which 1 concentrate these paragraphs. A po rtion o f the new Canon is either traditional or c lose to traditional- the general duties concerning qualification of Ju dges. honorable conduc t. and so on. happily. have a long history. But the Canon breaks new ground when it establishes as an actual ethical duty the res ponsibility to propose and support legislati on and other programs both to improve the legal sys tem as a who le and to improve legal procedures in particular. The draftsmen are so convinced o f the imp or tance o f this breakthrou gh to a new pl ateau of professional responsibility that they say it twi ce- th e fir st paragraph opens the topic with the duty of the lawyer to improve the system. an d the last paragraph c loses on the same note. The new Canon does not spring fu ll-blown and fresh from th e heads of th e Committee that sponsored it. and it. o f
II. A Surv ey: L egal Improv ement Ideals in Pra c tice In this essay. I would like to explore the practica lities of the duty that Canon 8 imp oses. Assume that a scrupu lous and conscientious lawyer is planning his nex t month or his next year. Assume that he is the kind o f good human bei ng as well as good lawyer who wants to meet hi s e thi cal ob ligations all the way. Precisely what is he to d o? What is expected of him? He will nol need to spend much time on th e admon itions against stealing or adver ti Sing . If he is my hypothetical good man . his moral fiber rejects the former . and his con ditioning rejects th e latter. But he will need to give thought to th is new du ty. What does his pro fessi on really expect o f him ? Since the underlying literature is thin , there is no way o f knowing with prec ision what the Committee had in mind . But we are speaking o f a high ideal. and we may usefully consi der what those lawyers actua lly do who clear ly are heavil y motiva ted by it. Of cou rse there are lawyers who , for want of interest or for want of oppor tu ni ty, do not in fact cont ribute to the improvement of the lega l system at all: alas. there are d oub tless th ose whose dead weight of inertia or even whose posi tive con duc t goes against improvement of the system, not for it. But there are also those who tru ly serve . Fo r the purpose therefore of expl oring not the bottom nor even an average . but o f di scovering what the meaning o f thi s self-imposed duty is to tho se who have imp osed it heavily upon themselves. 1 have sent to some o f them a questionnaire on what they are doing . The com posite o f t~ ir answers will se rv e as a ben c h mark measuring the highest ideal of the du ty to impro ve the system as reflected among the pra c ticing bar at th e moment that Canon 8 becomes officia l. The sample is small for purposes of con venie nce. and un路 dou btedly many good lawyers were omitted . Some lilty Conti n ued on p.ge 8
inqui ry. and high visibi lity in the fi e ld of publi c service is like ly to mean that the man has been at it for some time . Thi s is c lea rl y tru e o f the thirty participan ts res p onding in thi s inqu iry. The average years o f pr act ice were thirty-three. with ten yea rs as the minimum and fifty -seven as th e maximum . Eleven had degrees from Harvard . two each from George Washington . Columbia. and Yale . and other schoo ls had one gradua te apiece Joe Barrell is not quite a un iq ue exception in term s of th e size o f town represented . Fou r of the group are from Washington . 0 C .. three fr om Los Angeles and New Yo rk . two from C hicago . and one each from ot her c ities. of wh ic h Wewoka. Oklahoma (p opulat ion 5.954) . and Fayetteville. Arkansas ipop ufa ti on 29.72 4) are tw o of the sma llest. Of our thirty. twe n ty- seven are in private practice . One law pro fe sso r. an assistant United States Attorney. an d a lawyer in governmen t se rvi ce are In the ne t. The firms o f the private practitioners average forty-one members in size. ran ging fr om three to one hundred fifty members. Probab ly because so many were c hosen fr om rules co mmittee s. there is a prepon derance o f litigati on lawye rs in the group. Twen ty-tw o o f th em spe nd as mu c h as one-fourth o f th eir time in litigation : twelve give as mu ch to co rp o rate an d co mmercia l law : and eight g ive a sim il ar amount o f th ei r time to p robate . The res t are sca ttered thr oughout the practi ce among government rela ti ons. co pyright. p ublic uti lities law. insurance and b anking. lab or law . cr iminal law. maritime law . ta xa ti on. banking. and other activities. In sho rt. th e lawyers who respon ded to thi s inquiry and whose activities set a high no rm as exemplars o f Canon 8 are private pr ac titi oners. in big to large cities. in big to very large law firm s. T hey are pri nci palt y in liti gation and corporate law . But there is a thorough-going smattering o f the o th er activities. o f the smaller cities. and o f the sma ller firms . While the sc hoo l o f graduation in thi s sampling is
Continued fr o m page 7
reque sts were sen t to a li st p ut toge ther from the roster o f the Counc il o f the Ameri can Law I ns tit ute, from suggestion s by th e Insti tute o f Judicial Administration and by cor respondents around the coun try , from th e federal committees o n prac ti ce and procedure , and o ther sources. Thirty o f m y co rre spon dents res po nded in full. Th e answers were given on the assurance o f conf ide n tiality co n cerning individual detai ls. but I may append th e li st of names o f those wh o responded .9 This was an inq ui ry into law improvement defined as covering a ll forms of statute -sponsorin g an d ru lemaking o r su bst antive or procedural or legal systems improvement. It cove rs work with the American Law Ins titute : Un iform Law Commi ssioners: o ther law revision co mmi ssion s: the tnstitute of Judi c ial Administration : th e Ameri can Judicature Society. or any th ing of th e like It inc lude s publi shing to ad vocate what the participant conce ives to be legal im prove ments and case-handling in which substa ntial law improve ment is a domin ant g oa l. as apart fr om mere ly ach ieving a particular resu lt in a particular case . It includes w o rk in th e select ion o f judges. whic h is squ arely w ith in th e scope o f th e Canon. but excludes Bar Assoc iation work not directly connected to subst antive or pr ocedural improve men t- th e co mmittee on the new mining co de is in . but the co mmittee on the annual conven t ion or on professiona l economics is ou t. ABA Section wo rk o f a substan tiv e sor t is in. but ad ult legal education is out. Each o f the parti ci pant s was invited to make his own ground rul es if th ese did no t fit his p art ic ular case . A. Th e ParticIpants Th e method o f se lection o f the parti c ip an ts depended on a high visibility: the d i ligent and mos t wort hwhile loca l figure probably wou ld not h ave been rea ched by this
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B. The Canon 8 Man's Selection of Public Service Canon 8 represents a kind of pub lic an d community service Ihrough law . It is a kind of service that those who drafted the Canon obvious ly applaud . but equa lly obviously. it is not the on ly kind of public service. and a reasonable and conscientious lawyer-citizen might perfectly we ll choose to put his primary energy somewhere else. Many do. The Canon and this inquiry do not even encompass all types of very genuine legal service. For example. as was noted above. bar activities and professional services apart from law improvement are excluded . What then do these particular men do with their public service time? The inquiry investigates six categories of interests other than law improvement activities. Their interest in public service organ izati ons of a nonlegal sort such as museum boards. symphony associations, and sociafwelfare organizations were listed for inquiry. The extent of their activities in charities. in politica l parties. in legal organizations apart from the ir law improvement activities. in churches. in social and sporting clubs were all part of the inquiry. The participants were asked to classify themselves as very active. moderately active. or inactive in each of these fields. The responses are classified in the table following : the " x" is put next to the labe l that most c learly describes a substantia l majority of the group . When the group is fairly equally divided . an "x " w ill be put in more than one category. As measured in this sample. a lawyer who is active in law improvement is also active in other forms of community betterment and of social activity. Almost everyone is " very active " in at least some other activity. and everyone is at least
Public Service O rganizati o ns Chariti es Legal Organizati on$, Local, Regio na l, Nat io nal Po litica l Pa rti es Church Social and Sport ing Cl ubs
"moderate ly ac tive" in two o r more of the ot her areas. In other words. a Canon 8 lawyer is not a man pursu ing on ly law improvement interests: he is. as wou ld be expected. pu lled by his interest. or his enthusiasm. or his sense of community duty into other di rections as well . T he Canon 8 lawyer is likely to be a multipurpose fe llow .
C. The Law Improvement Activities We have here thirty men who have been active in law improvement. What have they done? A profile is difficult to sketch because o f the d iverse activities of these leaders in law improvement. But the work of the group can be defined by ;4reaS and thus suggest the work of individuals. Those respo l Iding. on the average , p articipated in at least three of these areas. Uniform state laws have been a consuming interest of the lawyer active in law improvement. As President of the Un iform State Laws Comm ission, mem ber o f the Nat ional Conference of Commissioners or members on its Editorial Board. or as a member of the Executive Comm ittee of the Board of Di recto rs o f the Nationa l Conference of Commissioners. the leader in law improvement has drafted many uniform codes . Whether a member of the Editorial Board of Continued o n page 10
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This leader in law improvement has been deeply Involved in wo rk with the American Law Inst itute. He may have served on the Committee on Conflict of Laws or Foreign Relations Law. or worked on the division of ju r isdiction between state and federal courts and public contracts reform . His ro le in this work has been decisive as PreSident. member of the Counc i l. or member of an advisory committee of the American Law Institute. These have been areas of major concern for the practitioner unusually active in taw Improvement. However. the man whose professional behavior Canon 8 encourages has also been active in other areas. Whether on the Advisory Committee of the Amer ican Law I nstitute on PreArraignment Procedure. ABA Special Committee fo r Minimum Standards for the Administration o f Criminal Justice. ABA Sect ion on Criminal Law, or the National Commission on the Reform of Federal Criminal Laws, crim inal law improvement has been an ac t ive concern of this leader. Some of the group have written for law reviews and other publications: one he lped inspire t he crea t ion of the Federa l Register , Others have given time to issues on the front iers of the law such as Electoral College reform. legis lative reapportionment. the Civil Rights Commission. the revision of Bankruptcy Ru les. or a new patent code . The list is obviously not all of the pub lic service lawyers of America. nor even a large part of them, bu t it is. at a minimum. a distinguished samp le.
the Unifor m Commerc ial Code. the Review Committee for A rt icle 9 of the UCC. o r a draftsman of the Uniform Consumer Credit Code. Uniform Community Property Act. or U n ifo rm Em inent Domain Ac t. the typica l member of the group has played a decisive role in the growth of uniform state laws. This group has a lso been deeply involved in procedural reform. By work ing on the deve lopment of Federa l Ru les of Appe llate Procedure: revis ions of local rules of a United States district court: discovery provisions of the Federa l Rul es of C ivi l Procedu re: revis ion. genera lly. of state and fede ral procedure: by sitting on the Advisory Committee on C ivi l Procedure o f the Judic ial Conference of the United States. or as Chai r man of an Advisory Committee on Civil Ru les of a sta te sup reme cou rt. o r the ABA Special Comm it tee on the Federal Ru les of Civil Procedure or the Commi ttee on Evidence. these lawyers have affec ted p rocedura l reform at many leve ls. They are also interested in substance. pa rticularly as it re lates to procedure: one in part icu lar has been especial ly active in matters relat ing to auto accident law refo r m. Per haps as a result of his heavy p rofessiona l invo lvemen t with litigation. the responding lawyer has been deep ly invo lved in improving the process of judicial se lection and administration. He has worked generally to relieve court congest ion. to improve judicia l selection . tenure. and compensation, and he has sponsored a federa l court cert ification statu te for judicia l selection. More specifically he has been a member of the Judicia l Selection Committee of the ABA. the Standing Committee on the Federal Judiciary. and the ABA Council o f the Sec t ion of Judicial Adm inistration. Director of a Seminar lor Appellate Judges. and Chairman of the ABA Committee on Federal Judicial Reform or Chairman of the ABA Judicial Se lection Committee. As one interested in adjusting the lega l system to c h anging social rea lities, the leader in law improvement is active in deve lopi ng a means for bring ing lega l services to the poor. He may be a member of the Special Committee of the AB A on Avai lability o f Legal Services. p romote lawyer referra ls and group lega l services. work for the provision of legal services for the indigent in criminal and civi l ma tters. re form laws govern ing landlord-tenant relations. assure equa l op po rtunity in housing, education. and emp loyment. act as President of !tIe National Legal A id and Defender A ssociation. or participate on the National Advisory Comm ittee of the O EO Lega l Services Program. A t t he state level. the practitioner is actively engaged in revising the state consti tu ti on. aiding the Committee on Corporate Law of the State Bar Section of Corporate Bank and Business Law. pe t it ioning the state court to adop t Canon 35. o r sponsoring the local Un iform A r bi tration Act and Uni form Limited Partnership Ac t. T hese ac tivities o f a typ ica l leade r in law improvement ref lec t the high standards by which he abides. He also partic ipa tes in forma lly setti ng e t h ical standards fo r hi s en t ire pr ofeSS ion. As C hai rman o f th e AB A Profession al Ethi cs C omm ittee. he undo ubted ly influ enced a ll th e C an o ns, inc lud ing Canon 8 th a t states the stan d ard o f wh ich he is a prime examp le. He mi ght h ave pa rtici p ated in the Special Com mittee o f the ABA on Eva lua tion o f Ethica l Standard s. improving Congressiona l ethics, setting AB A standards for d iscip lin ing lawyers' mi sconduct. or as C h airman of t he Committee that produced the Code of Professional Res ponslb tl lty. Legal improvement is no t only a national matter. Mr. Barrett's role In developing in ternational law has been mentioned O thers have helped fo rmu late the radical new development o f recen t years in admiralty.
D. What Difference Do They Make? Canon 8 ca ll s on lawyers to help improve the legal system. This clear ty contem pt ates both (a) he tping. and (b) improving . That is to say, something more is expected than noble effort- if Canon 8 is significant, then there ought to be results. What happens as a consequence of all the activities just described? The answer is that. while there are an infinite number of mountains left to be moved. concrete results are flowing from what these men do . The last decade has seen extensive ru le revisions in many fie lds, both national ly and in the states. These men have he lped make those revisions. Restatements are moving out with their developing body of the law. The Uniform Law Comm issioners have made repeated and substantia l proposa ls. The Commercial Code has become the law o f the Il'tnd The re h as been a revision of the standards of legal ethics. There is an infinitely broader distribution of legal services than ever before. Prog ress is being made in protection of consumers. tenants' righ ts. and equal opportuni ty generally. T he standards of cr imina l justice have been ra ised. Progress is being made on judicial selection. tenure. and com pensation. More can reasonab ly be expected in a new criminal code. state constitutiona l revisions. congressional ethics reforms. and an international convent ion on recogn ition o f divorce decrees. These men are gelling results. E. How Much Time Do These Men Give? Here we hit the rea ll y im portant question: here is the p lace in which. if Canon 8 is to have meaning. we begin to get a real measu re o f t hat meaning. If the law is to be improved. it is going to be improved by p lain hard work. work in c reating. work in study. work in drafting, work in advocacy. work in overcoming the resistance to change . This. inescapab ly. means time . Canon 8 is essentia lly a call from the profession to g ive ti me, and un less the lawyer who in car rying out his Canon 8 du ti es is willing to give of his time. he may as weI! no t start. How much time? Lawye rs can commonly give to their professional activities. act ivities for gain and for public ser-
G. What Should a Lawyer Do?
vice together. something between 1.500 and 2.000 hours a year . Every lawyer knows exceptions. but if a lawyer works fifty weeks at forty hours he will total 2.000 hours. and this is a normal top . The average for this group is about 1.750 hours a year . The draftsmen of the Canon have specIfied no particu lar amount of time to meet their demands: this is an assignment that each man will have to make to himself. But in making that self-assignment. each lawyer may be curious about what Ihe leaders do. The average number of hours given to law improvement for the past five years among the thirty is 350. The average percentage of total working time. rounded off. is twenty per cent. The same thing can be calculated in do llar terms . Substantially all of the persons responding could sell as much of their time as they have to sell. If we assume. absolutely arbitrarily because no inquiry was made on this point. that the average charge per hour for the time of these persons is fifty dol lars. then the average dollar contribution in time of each IS 17.500 d o llars. F. The Involvement of the Assoc iates Canon 8 is not simply a vote of confidence in the public service leadership. It IS. instead. a mandate to all lawyers. Not everyone will be the chairman of a committee. the principal adv o cate before a legislature. the sponsor- there will also be the members of the committees. the students of particular narrow subje c ts . the draftsmen . the large number who partIcipate as best they can according to their abilities and time . Clearly if Canon 8 is to be meaningful. the law reform ac tivities are not merely for the distinguished : they are for every lawyer. Hence. the persons responding were asked the extent to which they had observed law firms that used their associates to do substantial basic work in law reform projects. It is here that Canon 8 has its biggest job to do . Many of the responding leaders are functioning on their own . Many of them do not even know of offices in which associates are engaged In supporting work : for some . a desire to avoid interference with their own associates keeps them from asking for help in law improvement duties. But while there is a sizeable minority of these isolated workers in the vineyard of law improvement . many others are working With their associates. or have observed such actIvities in other offices. Many firms encourage their younger members to serve on bar committees which deal with law Improvement : it must be so if Canon 8 is in fact to be a genec:al rule of conduct among the bar. Concrete illustrations were reported of firms using associates extensively. for such projects as housing law reforms or legislative reapportionment. On balance. this is the precise point at which there is the greatest opportunity to give Canon 8 meaningful general application . Pretty clearly . the leaders in law improvement actiVities have frequently tended to shy away from sharing much of the activity with their associates. probably because 01 a desIre to aVOid unreasonable drains on firm time and energies. But if that service is to spread. it can most easily spread where it is already started . Under the impetus of the Canon . those already active in law improvement proje c ts may be expec ted more deeply to involve those with whom they are practicing . One firm reports that its office has been heavily involved in defense of prisoners. indigent work in courts of review . local poverty programs. and law reform work across the board . This large firm . which keeps close statistics. has. apart from the reporting member. two other partners who are actively engaged in similar types of committee work . I t reports. on the basis of c lose ly-kept statistics. over 5.000 hours a year in defense of prisoners. and in b o th bar-oriented and other law reform prOJects. The do llar measure of such a contribution to public service is simply staggering .
By their efforts. those who responded to this inquiry have earned the right to lell the rest of us what they think about the lawyer's duty to law reform . Each was asked to give his own thoughts on the new Canon. his own estimate of what the busy prac titioner should call upon himself to do in law improvement. how the duties shou Id be shared in a firm . how much time should be given . Here are some extracts from sample answers: 1. " I like (Canon 8). as I helped write II. All practitioners should devote some time to law improvement- some more than others. bul dependIng on ability. opportunity and experience and inclinat ion . Natura ll y o lder lawyers can devote more time un less younger ones are encouraged and given opportunities." 2. " I think every prac ticing lawyer has a duty to make a gratuituous contribution of a fair portion of his time in the public interest. I do not limit this activity sole ly to improvement of the administration of Justice. I inc lude in it specific charitable . religious activities and the like designed to aid the economy and social prob lems o f a local community . All lawyers In my office from top to bottom are encouraged to do this . but they are permitted to se lect the activities that appeal to each of them . I encourage them to spend at least 10 per cent of their time in this kind of public service and have no objection to it running as high as 20 per cent. I find that age and experience is quite usefu I in activities dealing with improving the administration of justice simply because the younger men have not yet had opportunity to understand those prob lems and obtain a full grasp of them." 3. " In a large firm. where the interests of partners vary greatly. it is too much to expect each partner to devote a substantial amount of his time to law reform . It is. however . necessary for some of the partners to do so :' 4. "Improving the lega l system is a primary obligation of our profession . I think the new Code expresses our duty and our opportunity very well. Lawyers should start '1 oung - when they have all that energy! Criticising proposed state and federal legislation for a Bar Association Committee is a good place to start. The good work is done by lawyers who are interested enough to give unsparingly of their leisure time- a sense of duty is not enough . If a lawyer really gets started down this road he will usually continue until he drops." 5. "The new Canon is an improvement in the sense that it is a statement of what a lawyer should do. rather than only what he should not do. Moreover. I think it states the right attitude- the lawyer shou Id interest himse lf in improving the legal system . It is not always easy 10 know how to do this. particu larly for younger lawyers. but they should at least be alert to take advantage of opportunities. And certainly it should be a responsibility of every lawyer. not just of some in a firm . or in a city . " 1 would lind it hard. however. to say how much time one should spend this way . It doesn't come in even amounts per day. or per week . It may require much time for six months. and then very little. Probably it should depend on his temperament. his other outside (nonlegal) activi t ies. the kind of practice he has. and what he can afford in terms of income lost . In that sense. the lawyer should p robably do more during his later years at the bar than at the outset." 6. " It does appear to me that a firm should be able to pool its effort in this regard. because the contribut ion generally means a deduction from chargeable wo r king time and if the members of the firm wish to have some of them devote more time in compensation of the tack o f time devoted by another member. that seems entI re ly ap路 propriate to me . It seems to me it is most d i fl icul t to fi x any Conti n ued o n page 12
provement efforts. A reasonab le proportion of a lawyer's time to be devoted to correcting deficiencies in the legal system would. I think. be difficult to fix , alghough if I were required to state a figure it would be 5 per cent to 10 per cenl. as a minimum. The quanti ty of duties should vary with age and experience. and I should think that the older. more experienced lawyers would be more likely to become involved and better ab le to achieve resu Its that the younger members of the bar. excepting of course the underlying legal work, tha.t is. research, drafting of statutes, etc. As a general proposition . lawyers have responsibi lity for the decency of the law and to bring about its continuous reform . The vast majority of lawyers have no t accepted and probably will not accept any such responsibility . either individually or as members of a group. unless the responsibility is deemed to be fulfilled by the payment of bar organization dues. Indeed . most lawyers acting individually could not be effective in bringing abou t law reform . They should. however, seek involvement through groups. The prinCipal need these days is in the criminal fie ld. where emphasis should be placed upon rehabilitation of offenders and speedy release of the innocent."
Continued from page 11
kind of reasonable proportion of the lawyer's time. but I shou ld think an hour a week or so would be a minimum . " 1 doubt that the quantity of duties should vary with age and experience. although as a practica l matter the ability to con tribute is certainly going to vary with age and experience. I feel the obligation is a fairly uniform one throughout the lawyer's active practice." 7. " When a particular lawyer- by taste . aptitude. and experience-is more particularly suited to active participation in given law improvement projects his partners shou ld back his efforts with understanding . consultation. associate assistance. and secretaria l- library resources. Act ive participation by the novice. the inept. or the self-aggrandizers does more harm than good and is to be discouraged ." 8 . "A ll lawyers. busy or otherwise (but especially the busy ones). should respond to every opportunity that is presented . They should not limit themselves to mere invitations or accept membership on committees without working hard at the comm ittees' subject mailer. Lawyers shou ld be at pains to engage in public activities. Here I include legislat ive service. other than office holding and the like. but I have more in mind political. civic, charitab le. etc. activities that do not involve the holding of public office. " The lawyer who engages in law reform and in various activities that tend to bring about law reform shou Id d o so since rely. that is. not with the view in mind of expanding his law business or bringing about other personal gain or emolument. but with the single. all-consuming thought of contribu ting to the improvement of his profession and of the society we all think we are serving . "I leel that this duty is clear ly to be expected of all lawyers in a firm . It is not enough if on ly some of the members and associates 01 a firm give their time and leave the major work or activity to one or two partners or one or two associates. In fact. I strongly be lieve that a firm must be at pains to see that all members and associates are aware of the ob ligati ons of the profession and individual lawyers in this connect ion . and that a record be kept of the extent to which firm members discharge their duties in this area . One o f the difficulties o f firm work in the se areas is th at if one or two partners are highly motivated and devote a good deal of time to law reform there is a tendency on the part .of other partners and some associates to gOld-briCk and to rest on their oars." (This lawyer believes that 10 pel c(:!n l should be the minimum time which a lawyer should give to this kind of activity. that the highly motivated lawyer may give as much as 35 to 40 per cent of his time. and that "the average lawye r who is consc ious of his privileges and ob ligations might devote somewhere in the neighborhood o f 20 per cent of his time .") 9 . I c lose by breaking my rule of anonymity. This statement of William Gossett. retiring President of the American Bar Association. will serve as a valedictory to the subject: "Assum ing that this question is limited to law improvement activities. the new Canon is admirable. I think. as a statement of ideals of th e profeSSion and of individual lawyers. As a practical matter. however. most lawyers will contribute materially towa rd the law improvement objectives described in Canon 8 only by organizing or becoming associated with a group having common aims. The activities of most individu a l lawyers in the area of law improvement will be motivated and g overned by the interests o f some client. The busy practitioner should call upon himse lf to become engaged in some law improvemen t activity. either as a member of a group or individually. His responsibility cou ld be fulfilled through his firm. by financing the act ivities of some of his partners or associates in law im-
III. Con c lu s ion One of those reporting says. " There is nothing new in the new Canon for me. I have fOllowed such princip les all of my professional life . If a lawyer does not follow such principles as a matter of cou rse without regard to such guidance. then the Canons will not have much effect upon him- except as a deterrent to engaging in improper conduc t. It is in the breach rather than the observance of Canons of Ethics that such Canons have had real importance." Let me conclude by saying respectfully that I think this on ly partly so . Clearly those who responded to this inquiry . those who are now giving so liberally o f their time to the improvement of the law for the American people . did not need Canon 8 to put them on the job . The Canon is not a goad to them. but is rather modeled from them: and in this sense any of them cou ld respond that "there is noth ing new in the new Canon for me ." But what is new is that what ha s been regarded as exemplary now becomes. at least in a kind of a way. part of the positive or at least the written law. There will obv ious ly be no sanctions: there are no concomitan t disciplinary rules. But there is an expression of an ideal which may inspire others to greater effurt. The new Canon does. in the spirit of Oarwin 's observation with which this article began. inculcate a standard of excellence into the laws. customs. and t raditions of the nation. as exemp lified by able and good men : and that , hopefully. the Canon will encourage greater efforts by codifying an ideal as a part of profeSSional opinion. FOOTNOTES , ABA Code 01 ProfeSSional ResponSibility. Canon 8 1 ThiS art'cle IS limited almost enhrely to law .mprovement ac tlv.t.es 0 1 pract, clng lawyers Clearty one reason why we have no F.eld among the pract'honers .s thaI loday most leadership and service. particu larly In po,nt 01 I,me. co me from the law SChools My academiC colleagues In procedural work do lar more than I The meaning 01 Canon 8 lor the law schools WOuld require a separate art,cle J Some dlSClpimary rules follOW after these ethical conSiderations They are prelly much lormer Canons I and 2 and do not warrant speCial comment They are. in eHec!. that a lawyer as a public oHlcer shO\J1d not Ime hiS pockets and that a lawyer m relahon to ludges should speak no laisehoodS See ABA Canons 01 Proiessionai EthiCS. Nos 1.2 I R Mathews. Problems lIluStralive 01 the Responslbilihes 01 Members 01 the Legal ProiesSlon 200 (rev ed t966) ~ Vanderblfl Report 0 / the Con ference on Pro /esslonal ResponSIbIlity . '" Selected Read.ngs on ProieSSlonal ResponSibility 409 (t962); Vanderblfl . The FIve Fun ctIons o /l/1e Lawyer ServIce 10 Cllenls and Ihe PubliC . 40 A B A J 3t (t954) â€˘ Cheatham. 1ne Lawy er's Role and Surroundings. 25 Rocky Mt L Rev 405 (1953) (s tresses the umque opportunity and obllgatoon 01 the lawyer to Improve law ad. mlnlSlratoon and e~erCIse mrruence on the e~ecutlve and legislative centers o( lawmaking powed See A A L S . Selected Readings on the Legal Profession 407 -22 (1962) ThiS chapler contams a senes 01 short statements and articles authored by Arthur T VanderbIlt Woodr ow Wilson. Elihu Rool. George Wickersham. Stanley Reed. Will,am 0 Douglas. Muroay Seasongood. and Harlan F Stone Each statemen t deals WIth the lawyer's respan. Continued on page 36
Because relatively few individuals h ave met them or having met them failed to recognize the impact , few Lawyers and hardly any laymen relate International L aw prob lems to Arkansas j urisprudence. Ho peful ly thi s writing will po int up some aspects and stimu late some interest. Oversimplified , I nternational Law may be divided into two catego ries: 1. Public International Law dealing with the rules of condu c t governing the rela ti onship between one sovereign state and another, and 2. Priv ate Internationa l Law dealing with rules governing the re lationship between c itizens o f one sove reign state with the citizen s of ano th er. While it is the second c lassification that more frequently arises. bo th can have impact upon a mid-continent practitioner and bu sinessman . In addition , the first c lassification presen ts opportunities for public service in aid ing the President an d the United States Senate to se lect sound principles for our national pOSition which may affe c t th e foreign policy of the United States. Two pending examples may be noted . 1. Protection o f Cultural Property. There is already in draft form a multilateral c onven ti on on this subject which mayor may not be submitted to th e Un ited States Senate for ratif ication at the request of th e Department o f State. This draft is now under study by the legal fraternity for its views on whether the Pr esident shou Id submit the draft to the Senate and if so, whether the Senate should ratify it. While tw o United States lawyers participated in preparation of the draft . the organized bar saw it only after the draft was comp leted and hence, too late to have any impact upon th e language. It is the writer's view that the draft is vague and uncertain and that under one provision as many as three nations cou ld con tend that the same item is a part of their cultura l heritage. Further, if ratified the draft wou Id impose moral, if not legal. ob ligations upon the United States to set up administrative procedures with adequate fundi ng to fulfill our national o b ligations. Shou ld this draft be submitted for ratificati on . the Senate would have only three options : A . Accept as is, B. Reject in toto . OR C. Ratify with reservations . If called upon to act , the Senate wi ll welcome the views of the organized bar. 2. Legal Regime for a'd ministration o f the Resources o f th e Sea Bed beyond the limits of national juri sdiction .
Practitioners' Stake in International Law by Joe C Barrett (Ed itor's Comment : As Chairman o f the Arkansas Bar Association 's International Law Committee, Mr. Barrett will submit hi s Commi ttee' s Report to the Assoc iation's Exe cutive Committee for ac ti on before the A.B .A . Meeting in New Orleans. February 1972. Th e report concerns the tw o international proposals referred to in this article, viz .. the UNESCO " Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Trans fer of Ownership of Cultural Property" and the draft " United Nations' Convention on the Internationa l Seabed Area." The A.B .A. House of Delegates is scheduled to consider these proposals, In the article. " Canon 8 and a Rising Aspirati on ," published elsewhere in this issue. Mr. John P. Frank makes reference to Mr. Barrett 's con tribut ions in the Internati onal Law field.)
Here the United States has tabled a working p aper in th e form of a draft multilateral convention. but on ly after the policy questions had been under stUdy for some five to six years . In the study process ou tstanding judges, legal scho lars and practitioners participated . Here the draft h as not been frozen and the consensus o f the o rganized bar can have great impac t upon what may become the final draft. Estab lishment of a wo rkable legal regime can have profound effect upon United States foreign po licy and it is of sign ifican t importance to the petroleum industry, the hard mining industry. the fishing ind ustry. the national defense, commercial navigation, marine co mmunicati ons, protec tion of marine life an d to ecology, The organized bar has a marvelous opportunity to p artic ipate in giving o f its collective ta len ts to the preparation o f position papers to guide th ose who wi ll ultimately be spokesmen for this country at a diplomatic con ference where the problems will be d iscussed and hopefully reso lved . The lead time for doing this is rapidly approaching zero. but this is not the proper place or time for the writer to go into details. The real o pportunity arises b y reason
of the fact that stateme nt of ou r national policy is not yet a " fait accompli ." The Pr ivate Internationat Law area is o f pr actica l im po rtan ce to all lawyers. Prac titi oners may face problems having international aspects at any time and in any law office. In 1970 acco rding to Chase Manhatten Bank , 70 billion United State s dollars were in direct foreign investments. I have no figures on foreign securities he ld by United States cit izens, Foreign sa les by U nited States affiliates were estimated to be 70 to 75 billion dollars. The number of fo reign United States affi liates were estimated to be 25,000 and the number owned and contro lled by United State s parent companies was 3.500 . Last avai lable figure s indicated some four an d one-half million United States ci tiz ens live abroad more or less permanently. Some two millio n travel abroad annually. There are some three millio n registered aliens in the United States. Ail take their law problems with them , but not necessarily their law . A substantial porti o n o f the cotton , rice , soybeans and poultry produced in Arkansas goes to foreign markets. Inventories of Arkansas retailers contain large q uantities of i mpo rted goods. Navigation on the Arkansas River provides water transportati on to ocean seaports. A few illustrations of Private International Law problem s reaching state an d federal cou rts follow : 1. An Oklahoma cou rt had jurisdiction of a tort action brought there against an Oklahoma cor p o ration even th ough the injury occurred in a Middle East count ry . Neither lit igant offered proo f o f the law of the situs, hence the case was decided under Oklahoma law . If law of the situs had been more favorable to one o f the litigants than the law of the forum , professional liability of counse l might have been a nightmare. 2, Adoption of foreign born persons may present United States counsel with problems of seeing that nationality ties with. the country of birth are effe c tively severed . Recently a naturalized United States c itizen who was subject to our Selective Service Act and served in Vietnam received notice to repo rt for service in the Fren ch army, apparently because he was still a national o f Fran c e under its law. 3. The c lash between domicile of origin and domicile of c hoice was decided by the Supreme Court of Iowa (192 Iowa 78) . That court also dec ided a knotty prob lem of succession to proContinued on page 14
EXECUTIVE COMMITTEE NOTES by R obert D, R oss. Secretary-Treasurer
The Executive Committee at its meeting of December 11, 1971 , adopted a resolution supporting the Arkansas Supreme Court's action in establishing a fu II time office of executive secretary to its Committee on Professional Conduct. The resolution in part states: " That the Arkansas Bar Association fully supports the Arkansas Supreme Court in its determination concerning the establishment of a fu II-time office and staff to assist its Commi ttee on Professional Conduct and to increase the Supreme Court license fees to finance this highly desirable protec tion for the Bar and the public ." Upon request of Prosecuting Attorney Jim Guy Tu cker, the Committee endorsed the concep t of a Public Defender system for the Sixth Judicial Circuit (Perry & Pulaski Counties) . En dorsement by the Association is
Conti nued from page 13
perty and the effect thereon of the 1954 Treaty o f Friendship with Greece (126 SW2d 342). 4. Th e courts of Pennsylvania, New Jersey and Florida had to face whether a Cuban policy ho lder was entitled to payment in United States dollars or Cuban pesos (203 At2d 505 and 232 At2d 863) . 5. Th e Federal Tort Claims A c t was held applicab le to injuries suffered in the American Embassy at Bangkok (330 F2d 9) . 6 . A varie ty of unusual questions of Internationa l Law faced a New York cou rt. including : (1) Statutes of Limitations of New York and Belgium , (2) Abandonment o f a painting by its owner, (3) Requisition in time of war ,
necessa ry before the Law Enforce ment Assistance Agency will co nsider requests for funding a pilot Public Defender program . The appointment by President Paul B . Young of Robert A . Leflar, Richard M cCu lloch of Forrest City and Steven Reasoner of Jonesboro to three year terms on the Arkansas Law Review Board was confirmed by the Executive Committee. Dr. Leflar's appointment is a reappointment. Chancellor J . H. Evans of Booneville was appointed by Pres ident Young to fill a vacancy on the Constitution and By-Laws Committee. This is the committee whose duty it is to see that the new Constitution and ByLaws of the Association are fu lIy implemented . Forms for petiti on for use by candidates for the House of Delegates of the Arkansas Bar Association will be available at the o ffi ce of the Association . The Committee directed that the petition requesting the Arkansas Supreme Court to adopt additional rules
of criminal procedure pertaining to the fair trial-free press be filed with the Court by the Association . The proposed new rules would not apply directly to news media people but would apply to the sources of news in particular, judges, lawyers, clerks, other court personnel and law enforcement people. These proposed rules are designed to meet Constitution requirements and to maintain a balance between First and Sixth Amendments . The Association Membership has topped the 1500 mark which is a new all-time high. That figure represents an increase of 62 over the cou nt for the same date last year. The Annual Audit Report of E. L. Cullum & Co. for the fiscal year 197071 was received and approved by the Committee. The audit showed an excess of receipts over disbursements of $6,489.06. After allowance for depreciation o f furniture and equipment and for 1969-70 expenses paid in the 197071 fiscal year, the increase in membership equity was $4 ,505 .02.
(4) The Act o f State Doc tri ne. and (5) Treaty Obligations (267 NYS' 804). 7. Sec ti on 47 of the New York Deceden ts Estate Law was held not in con fli c t with a treaty between the United States and Switzer land even though the decedent was a Swiss domiciliary (267 NYS' 138). 8. A California court denied Soviet heirs rights to property of a Ca lifornia decedent for lack of a reciprocal right in property situated in the Soviet Union (44 Cal. Rep . 731). 9. A Canadian was convicted in Texas fo r conspiring in Canada to violate United States Law (375 F' 882) . 10. Recognition of a Mexican " quickie" divorce has been before New York courts and a Michigan court fa ced enforcement of a support order entered in Ontario.
11. An Arkansas woman married to a Dutchman was denied a United States passport for voting in a Dutch election . A private bill in Congre ss corrected her prob lem. but several years later the involved provision of our Nationality Act was declared uncons titutional (387 U.S. 253) . 12. The will of an Arkansas domic iliary execu ted in Ca lifornia but affecting property in New South Wales was admitted to proba te there on ly af路 ter expert testimony that the will was admissab le to probate in Arkansas. Much is taking place looking toward better International Judicial Cooperation and resolution of Conflicts of Laws problem s. A summary of these activities would require separate treatment too long to incorpo rate here.
JURIS DICTUM by C.R , Hu ie Executive Secretary. J udicial Department
On June 15. 1969 lhe Supreme Cou rt of Arkansas adopted new ru les regulating the professional conduct of attorneys (published
March 1970 issue of "The Arkansas Lawyer"). Later, former United States Supreme Court Justice, Tom C. Clark, in an address to the Arkansas Bar Association stated that Arkansas "has one o f the finest structures in disciplinary enforcement of any state." and praised the stale for being one of "only three o r four states that have any effective administration of disciplinary procedures," but he criticized the legal profession fo r providing too little money to enforce "your excellent structure. the equal of which I do not know exists in any other state." Following Justice Clark 's address, members of the Supreme Court and leaders of the Bar gave much thought to the matter of providing the committee with sufficient funds to effectively ca rry out its objectives. The committee's work was supported entirely by a $2.00 annua l license fee paid by all lawyers to the Clerk of the Su preme Court. Mr. Justice Clark offered to be of assistance in this undertaking and it is particularly fitting that we here acknow ledge the related public leg al service of an Arkansan by birth . To better understand the circumstan ces we now give you a thumbnail biographical of our benefactor~Mr. George A. Stinson, President of the National Steel Corporation . He was born in Camden , Arkansas where members of his family still live and left there to attend Northwestern University and Columbia University Law School, graduating in 1939. After a period in the USAF, he practi ced law as a partner in the New York law firm of C leary, Gottlieb, Friendly and Hamilton un til 1961 . He took a year's leave in 1947-48 to wo rk for Mr. Justice Tom C . C lark who was then Attorney General. He was ~cting
Assistant Attormeney General for part of this period . He has been in the stee l industry since 1961 and has been president of National Stee l since 1963. He just co mpleted a term as Chairman o f the Ameri c an Iron and Steel Institute. Mr. Stinson was interested by Mr. Justice Clark in the disciplinary en forcement project of the Arkansas Supreme Court. In turn , Mr. Stinson involved the Leon Falk Family Trust in the project. The Falk Trust has been very interested in the legal profession for many years and has previously made substantial grants to the American Law Institute. Mr. Leon Falk. Jr. is the family representative and Mr. Lewis A. Devin . Jr. serves as secretary
C . Clark, Mr. Leon Falk , Jr. Mr. Lewis A. Devin , Jr., and Mr. George A . Stinson. On November 15. 1971 by Per Currian order license fee s for attorneys were increased from $2.00 to $17.00 per ca lendar year for the purpose of providing funds to support the establishment o f a full time office of Executive Secretary to the Committee on Professional Conduct and the rules of the Supreme Court regulating pro fessi ona l conduct of attorneys were amended as fo llows : " PER CUR tAM Sections I and III of the rules of the Supreme Court committee on Professional Conduct are hereby amended 10 read as fo llows:
I Canons of ethics adopted . - Violation disciplined. ~ The Court ado pts the Code of Professional Rsp onsibility of the American Bar Asoc iation as the standard of professional conduct of attorneys at law, and an attorney who violates any of such canons or who shall be guilty of any felony or infamous cri me, or improperly retaining his client's money, or of any deceit or misdemeanor in his professional capacity. o r shall be a habitual drunkard shall be dealt with as provided herein .
G eo rge A. Sti n son to Ihe Leon Falk Family Trust. Through the good offices of these concerned individuals, the tru stees of the Leon Falk fam ily approved Mr. Stinson 's request for funds on behalf of the Arkansas Bar Foundation and granled $10,000.00 " seed money" for the purpose of assisting in the implementati on of the reco mmended procedures for disciplinary enforcement in the Arkansas Bar. Mr. Stinson has stated that he con tinues to be deeply interested in the legal profession and will fo llow the progress o f the Ar kansas project with great inlerest. The Arkan sas Ben ch and Bar are highly appreciative of the interest and e fforts o f these men-Mr. Justice Tom 15
Executive Secretary Authorized -S alary' a nd Qu alifications . The committee shall have. and is hereby granted autho r ity to employ, an Execu tive Secretary who sha ll not be a member o f the Committee . Such Executive Secretary may be paid such reasonab le salary and expenses as may be deemed necessary and appropriate by the Committee p ayab le from funds co llec ted fo r use of thE! Committee under rules of th e Court , and avai lab le for th at purpose as herein provided . The salary and expense arrangement made by the Committee , I and subsequen t changes therein , shall t2,e su bject to the approval of the ~ourt. The Executive Secretary sha ll not be a member o f, o r otherwise connected with the Committee, and shall have no vote on any matter presented Continued on page 16
Continued from page 15
to the Committee for decision . The Executive Secret ary shall be subject to replacement at the will of a majority of the Committee. Prior to employment as Executive Secret ary, such a person must agree to devote his full time and effort to promptly and efficiently receive , investigate and process comp laints and carry out o ther duties assigned by th e Committee," It is an ti ci pated that the Supreme Court Committee on Professiona l Conduct, formerly known as t he Bar Rules Committee. wi ll shortly after the first of the year emp loy a full time Executive Secretary wi th sufficient
staff and offi ce space to implement the enforcement of its disciplinary rul es. The lega l profession has been criti cized by many as being neg ligent in providing a system for self discipline. The estab li shment of the full time o ffice with adequate staffing will. it is hoped, lay those criticisms to rest permanently. Members of the committee charged with the enforcement of the disciplinary rules are: James Hale, West Memphis, Chairman; David Solomon, He lena : William M . Moorehead, Stuttgart: Mark Woolsey . Ozark : Don Smith . Pine Bluff ; James A. Ross , Monticello : and E. l. McHaney, Little Rock . â€˘
Joe Barrett comes from as country a countryside as there is, and somehow this makes his public service in inter-national law all the more astonishing. -John P. Frank
JONESBORO, ARKANSAS is proud of
ABSTRACTERS OF TlTLE JONESBORO â€˘ LAKE CITY ARKANSAS
Money doesn't care where it's made. Or moved. Stephens, Incorporated. Little Rock Investment Bankers. 16
NO-F AUL T INSU RANC E Richard M. Markus (Mr. Markus, President o f the American Trial Lawyers Association.' ~as a featured speaker at th e 73rd Annual Meeting of th e Ar kansas Bar Assoclallon , June 2-5, 1971. The following ;s the tr anscrip t of his address.)
O n e might wonder whether th e topic 10 which I address myself today, au tomobile insurance and particularly no -raul! insurance, is appropriate for an after -dinner presentation . I think in Ihal co nl exl I sho uld lell yo u Ihal my wife is nol present. She is at the ladies meeting because from her viewpoint this has become al our ho me an afterdinner, a d uring-din ner and a prior-IOdinner discussion subject. She is, therefore, quite content 10 be al the ladies meeting elsewhere. I think il is mosl appropriate that this subject is being considered by the Women's Bar Association here. II has been , in my iudgment , thE" Wompn 's Bar Ac;sociations w ho have u suall y been more attent ive to th e progress of new lega l changes than th e men 's bar associations. Maybe we men have something to learn and to catch up with . I would like to suggest thai an answer 10 Ihe question that I was asked in the hallway as I came downstairs earlier today - d o I favor or oppose no-fault insurance - is most difficult until I find Qut what the words mean . You see there are al present more than one hundred differenl proposals Ihal have been given the label " no-fault in surance." It is a convenient Madison Avenue phra se that se ll s but generall y co n fuses, and so when people ask me do I favor no-fault ins uran ce, I am in a q uan dr y beca u se I don', know quit e w hat it is t hey are ask ing me if I favor o r oppose. I was most impressed wit h the recent Gallup poll in which they asked co unt ryw ide: Do yo u first know what no-fault insurance is? Second, if yo u think you kn ow what it is, d o yo u think you unders tand what it repre sents? Eighty-two per cent of the pop ulation said they did not know Ed it or's Com ment : Associaion Pr esiden t Paul B. Young has appo inted t he new Automobile In surance Commillee to study and report on " no-fault " in surance and related measures as th ey app ly in Arkan sas . The Commillee is chaire d by Mr. Bruce T. Bullion of lillie Rock.
wha t it was ; they had never hea rd of it or did n01 understand what il was . Only eighteen per cent o f t he population even thought to themselves thai they had any rea l understandi ng of the sub ject . I am afraid that is typ ical. Th e general population has almost no un derstanding of this subject and are being to ld, in large part by specia l inte rest groups through va ri o u s so urces, what il is and whether it is good for them o r bad for them . This is one o f the most unusual purported social improvements , in that it is nOI coming from Ihe bOllom , it is coming from th e top. I am afraid Ihat if the ph rase " nofa ult " means what I think it m eans, then I ha ve to say thai I am opposed to it. I have to say that it is a fraud . It is a hoax thai is being played upon some ralher unfortunate peopl e who do not rea ll y kn ow what it is they are being asked to accept. I hope in o ur brief opportunit y to be together today I will have a chan ce 10 review wit h you what it really is, as I understand it and what it is nOI , as I understand it , and perhaps we can then se parat e reform from retreat, becau se all change is not necessarily progress, as we all know . l et me start by saying what it is not , because it is not whal most p eop le seem to think il is when they are, I regret to say, badl y mi sinformed. Fir st, it is not a method for lowe ring automobile ins uran ce premiums . The honest proponent s o f these proposals do nol suggest that they are intended in any way 10 reduce insurance premiums . Indeed many o f them w ill can didl y confess t hat I h ey will probably increase th e premium . Jeff O'Connell, o ne of the oUlstanding spokesmen for t his, has various ly suggested that it would produce preCisely 23.7 p er ce nt - o r is it 46 .2 p er ce nt or is it 37.9 per ce nt reduct io n - and on olher occasio ns has acknow ledged that il will probably produce an increase in premiums. l et me suggest 10 yo u why il is n ot a program that is intended 10, or ha s anything to do , with premium levels at all. II is a proposal which would say that everyone will be compensated to
some exten t for ce rtain losses that th ey have, and that people who are now compensated will not be fully compensated as they are now but will instead have some reduction of com pensation . That is a lot o f words, but it m ea n s simply this : The drunk who run s into a tree will be entitled to some compen sation that he is nol n ow entit led to. In o rd er to decide what effect that will have on th e premiums, we have to know h ow man y drunks the re are thai r un into trees . Believe it o r n o t, we haven' t the slightest idea. Believe it or not , nobody knows h ow man y p eople are inj ured in automobile accidenls today. There are again ve ry authorita tive sta tisti cs released by the Federal Government and by o th er authorita tive so urces that say t h ere are exact ly 2.2 billion - or is il 3.7 million or is il 4.4 million , or vario u s intermediary numbers? Since we d o n 't kn ow h ow man y people there are who are injured, it makes il very difficult for us 10 say how much il will COSI to pay those people. We do know how man y peo ple are n ow tori victims - that is, who are injured and have a legal claim which is asserted again st an insu ror. We have some reaso nabl y good idea abo u t that because we ha ve som e historical data. There is no historical dala at all upon which 10 ba se the v ari o u s proposals which say we will pay everybo dy somet hing. As a result , th o ugh I co uld give yo u an excellent demonstration o f the fact that premiums will go up precisely fifth-five per cent - and I' m not kid ding; I ca n make thai su und ve ry acc urat e and very auth o ritativ e - I must honestly say 10 yo u that I haven 't Ihe slight est idea what would happen wit h th ese various proposals, th e mo re than o n e hundred proposal s, as far as premium s are co ncerned . I kn o w that the only e ffo rt th ai has Continued on p.ge 20
Mr. Barrett gives something like one-third of his professional time to public legal seroice.
-John P. Frank We, his neighbors, are proud to join in this l
tribute to one who has given so much - - -
Theodore Roosevelt said: " Every man owes part of his time and money to the (profession) in which he is engaged."
Joe C. Barrett
Manufacturers of • Casters. Utility Tool Boxes . Skids
Telephone Area Code 501 935·3711
Jonesboro. Ark . 72401
Like Mr. Barrett. We Serve..
Lone Star Co . Inc. Petroleum Products
A.M . HERINGER JR.
• Platform Trucks. Wheels . Dollies 103 N . Nesbitt p.o . Box 39
Joe C. Barrett
1 1 19 F ails Jonesboro
116 E. Washington
Franchise Stran Steel Dealers
SOUTHGATE PLAZA Jonesboro
Mrs. -Caleb Watson
ROBERT'S RICE MILLS, INC. Weiner, Arkansas
CITIZENS FEDERAL SAVINGS AND LOAN ASSOCIA nON 501 W. Washington
PAUL JOHNSON GROVER FREEMAN PHIL JONES
MAIN STREET •
We pay our respects to
a very satisfactory friend
HOUSE AND GARDEN
Indian OIds-Cadillac Co .
JOE C. BARRETT
TRUMANN. ARKANSAS 72472
Shap H. Pryor -- T.H. Buck Pryor
Compliments Of 1"
PARDEW REAL ESTATE
GREA T SOUTHERN COACHES, INC. Mr. Charles Seipel
Guy A . Pardew , Jr.
322 W. Monroe
Continued from page 1 7
give n u s an y info rmati o n at all - the Mass ac hu se ll s e)( per im ent - is o n e o f th e mos t mi sleadin g and co nfusing I ha ve ever seen. I kn o w , fo r e)(a mple, tha t th e average m o to ri st in Massa4 chu sell s is n o w paying abo ut twentY4 five p er ce nt m o re fo r au to mo bile in 4 suran ce than he did in th e prec eding yea r. I don 't blam e thi s o n th e fa c t that th ey ha ve introduce d a partial n04 fault p ro posal but I recogni ze it as a fa ct tha t mak es it mo re difficult 10 evaluat e th e meaning o f th e data . I am so rry to say th at th e data that ha s been released b y th e p erso nn el in ch arge o f in suran ce o perati o n in th e Stal e o f M assachu sell s is no t reliable. Thi s is all b eing kept very c lo se ly guar 4 ded fo r po lit ical reaso n s, I su spect, and so we ha ve imm en se diffic ult y in evalua ting th e mean ing o f an y o f thi s. Th e raw data is being ve ry close ly guarded , and we are not abl e to tell an yo ne in te lligenll y w h at it mean s. I repo rt again that it is n o t th e pur4 p ose o r fu n ctio n o f an y o f th ese p ro p osa ls 10 redu ce p rem i um s. Th at is no t what th ey are int ended fo r, and it may we ll b e that is n o t w hat th e effect w ill b e. Th ere is a co mm o n mi sund er4 st anding th ai I think the peopl e in th is roo m can immedia te ly di sp el - th e
amo unt that peo pl e pa y to law ye rs will b e dec r ease d an d, th e r e f o r e , prem ium s will be dec rease d . BUI every lawyer in thi s roo m kn ows ve ry we ll th at the amo un t th e injured vict im pa ys to hi s lawyer ha s no affect what 4 ever o n I he premium . If he gave all th e mo ney to hi s law ye r, il w o uld n o t make th e premium h igh er o r lower; i f he gave none o f th e m o n ey 10 hi s law ye r, it wo uld n o t m ake th e premium higher o r lower. Th e premium is de term ined b y th e am o unt of m o ney th e in suror mu st pa y to th e vict im , no t how mu ch ~ f that th e victim c hooses 10 p ay 10 h iS la wye r, o r the bu tc h er o r th e baker o r th e candl estic k 4m aker. Th ose ha ve n o impact w hatever o n prem iu m levels. So I suggest, first, tha t " n o faul t" is n ot a meth od of lowe rin g pr em iums . Secon d , it is gen erall y no t a m eth od fo r pa ying fo r au to m o bile d am age. Thi s is to me th e greates t mi sunder4 standin g o f all . I ha ve ha d man y people come 10 me and say " How ca n yo u o ppose n 0 4faul t pr o p osa ls? I h ad a case myself. I h ad my ca r sill ing o n the str eet and a fe llow w as sp eeding do wn th e road and he ran int o my ca r and damaged m y ca r, and il too k me a lo ng tim e 10 ge t paid fo r th e damage to my ca r, and I didn 't get full paym ent fo r the damage to my c ar."
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Th e thin g he did n ot und erstan d is that alm ost all of I h e s0 4ca lled n o- fault proposal s make n o c hange w hat ever in the m anner in w h ic h p rope rty damage co lli sio n c laim s will b e han 4 died . Th ey do n ' t cove r th e subjec t; th ey d o n 't d ea l w ith it; th ey ca re full y avo id it. They dea l o nl y with p er so nal injur y clai m s, n o t pro p ert y d am age c laim s. To th e e)( tenl th at Ihey d o d eal w ith pr o per ty damage cl aim s, t h ey wo uld make a much w o rse pr o bl e m fo r thaI man than h e has alrea dy. Th e very few of th ese pr o p osal s that d o in c lude pr o p e rt y dama ge c laim s wo uld pr oduce th e fo llow ing res ul ts . Thi s fellow had co lli sio n in suran ce, h e w as enlil led 10 all b UI $100.00 d edu clible fro m his ow n in suro r. Hi s o wn in suro r ho rsed h im aro un d a lo n g, lo n g lim e and fi nally gave him all bU I $100.00. He th en tri ed to rec o ve r th e remaining $100.00 fro m th e in suro r fo r th e man wh o w as at fault. Ev entuall y h e got half o f Ihal. U nd er a n o-fa ult appr oac h to au to mo bil e damage, h e w o uld st ill h ave his co lli sio n cove rage, b eca u se that is what yo ur co lli sio n co v erage is. Co lli sio n cove rage is no - fault cove r age. II is paym ent wit h o u t regard to fault. And h e w o uld STili st ru gg le with his ow n In suro r fo r mo n th s tr Ying to ge t p aym ent fo r th aI c ar, less th e $100.00 d edu clible. An d w hen he had fin all y gOllen th at, Ihat w o uld b e th e end o f th e co n ve rsatio n b ec au se h e wo uld ha ve n o righ t to recover th e $100.00 fro m th e fello w w h o ran int o him o r fro m t ha t fe llow ' s in suror. Th at wo uld be a no 路faull appr o ach . W h et h er yo u like it o r nOl , w h et h er it is good o r b ad , th ere is a terribl e m isunderstandin g b y th e publi c wh o think s il wi ll be a w ay in whi c h th ey ca n ge t th eir car s fi )(e d rapidl y o r m o re co mple tely o r o b tain m o re co mple te paym en t fo r th ei r ca rs. Third , it is no t a me th od fo r ending ar bitr ar y in suran ce p o li cy ca nc el 4 lat io n s. Ma n y p eople w it h good reaso n are angry with in suro rs th at h ave c an ce lled th eir p olicies fo r n o se n si bl e reaso n al all , with n o acc id ent e)(per en ce , wi th n o hi story o f probl e m s, but p erh ap s b ec au se that in suro r n o lo nge r w ant s to w rit e in that li ll ie seg m ent o f th e tow n, o r b ec au se th e agent fo r that in suro r ha s be en di sco n 4 ti nued o r fo r reaso n s th at are to tall y une)( plain abl e b y an yb o d y. Th ose are real pro bl em s, but th ey h ave abso lu te ly n o th ing to do with th e n o 路 faull lec hniqu e. The n o路 faull sc h em e is m eaningl ess to th em. Yo u co uld have rem edies th at wo uld ha ve so met hing to d o with th ose pro bl em s; yO U c o u ld have th em w ith th e n o- fau lt
pr o p osal s or wit h o ut t he n o- fault pro pos al s. It is ius t like saying we o ugh t to have strict er enfo rce m ent o f traff ic laws. Yo u ca n d o that with n o- fault pro posal s o r without no-fault prop osal s. Th ey have nothing to d o with each o th er. In the sam e wa y, th ere are co m plaint s abo ut the meth od s in w hi ch companies do th eir underwritin g: That they are unfair, that th ey d o n 't char6e rat es that relat e to the indi vidual , that th ey have poor o r p eculiar ra ting cla ssificati o n s. So metim es th ose are ve ry fair and very reali sti c co mpla int s. I kn ow that there are v ari o u s cat ego ri es o f peopl e wh o ar e co n sidered bad ri sks b y so m e in suro rs. It might surprise yo u to kn o w t ha t law ye rs are co n sidered , b y so m e in suro rs, as bad ri sks. I su sp ect that , at least as o f thi s time, I am c on sidered pro b abl y o ne o f the wo rst ri sks avai labl e. Again , that ha s ab so lu te ly n ot hing to d o wi th th e no-faul t c o n ce p t. Yo u ca n have rul es o r regulation s o r law s that w o uld im pro ve that situati o n with o r with o ut th e n o- faul t pro p osa ls. Sn if we nnl permit ou:sclves to be deceived ab o ut w hat it is not, let's talk abo ut what it is. What is a n o -fault pro p os al? I w o uld say that th o ugh th ere is tha t tr em endou s ran ge o f different pr o pos al s, th ere are u suall y two co mm on features that w e find in alm os t all o f th em . Th ose two co m mo n features ar e: first, co mpul so ry h ea l t h and acci d e n t i n sura nce ; seco nd, reduced b en efits to th e innoce n t. l et's talk abo u t th ose two separ ately. We c an the n reac h an indep en dent judgmen t ab o ut wh eth er th ese are goo d o r b ad go al s, good o r bad proced ures. Righ t n o w everyone in thi s roo m has no -faul t in suran ce. I do ub t there is a so ul here wh o d oesn 't ha ve it. Anybod y here ha ve co lli sio n insuran ce o n yo ur ca r ? Th at is n o- faul t in su ra n ce. An yb ody here ha ve life ins urance? That is n o- fault in surance. A n ybod y h ere ha ve Blu e-Cro'i'i- Blu e Shi eld , M ed ical Mu tual. Mutual o f O mah a? That is all n o- fault in suran ce. Th is is no thin g new o r clever o f di ffe rent tha t some bo dy brilli antl y dream ed up la st wee k. Eve rybo dy h ere ha s su ch c o ve r age . Ei ght - fi ve p e r ce nt of th e Amer ica n mo to ri ng population n ow has no- faul t prolect io n of so m e fo r m fo r medica l expen se o r wage losses that th ey eit her have as fringe benefit s fr o m th eir employm ent o r fr om som e oth er so urces. Th e first half o f th ese pro pos al s sim ply say, " It is co mpul sory, yo u mu st bu y thi s health and ac cid ent in surance wh eth er yo u alr eady ha ve it or n ot and wh eth er yo u want it o r n o !. Th is is an add iti o nal h ealth and acc iden t po licy
that yo u mu st buy." Yo u c an se t th e levels o f suc h a health and acc id ent po lic y an y wa y o n e c h ooses. W e kn o w becau se we deal with h ea lth and acc ident policies, as la wye rs, tha t yo u c an wril e a po li c y that ha s ve ry high limits o r ve ry low limit s, h as man y exc lu sio n s o r ve ry few exclu sion s. Thi s is th e reaso n - al least o n e o f t he reason s wh y th ere are so man y n o- fault pr oposals; bec au se yo u can change thi s h ealth and acc id ent p o li cy and pa c kage it in all so rt s o f differen t form s. Yo u Sl ill ha ve a healt h and acc ident polic y. It is co mpul so ry. W hat does thai m ean ? If you are a fa c tor y w o rk er and yo u have frin ge benefit s th at ha ve b een hard -fo ugh t, n ego tiat ed b en e fit s in pla ce o f wage in creases an d th ey p rov ide that th ey w ill pa y yo ur medical bill s and a wa ge co ntinu ati o n fo r several m o nth s if yo u are ill or injured , yo u wo uld now b e requ ired 10 b u y add ition al ins u rance t hat pa ys fo r precisely t he sam e pr otec ti on yo u alr ead y have. I have so m e d o ubt as to w h et her thi s is a d esirable approac h, but I at least recogn ize tha t it is n o t tot all y un pl easan t. It ma y n o t b e th e m ost im po rtan t o r appropria te me th o d o f s(Jlving our soc ial probl em s, but at least it doesn 't hurt an yb o d y except th e fellow w h o h as t o p ay th e pr emium . l et's th en turn to w h at 10 m e is th e more dras t Ie part o f these pro p osal s, th e seco nd half o f th e n o- fault pro pos al s. Recogni zing that th e fi rst ha lf mea n s t h at m ore poepl e are goi ng to ha ve to p ay m o re fo r mo re cove r age, somethin g ha s to be d o n e to reduce cos t s. One axio m in all o f
th o se propos al s fo r in suran ce re fo rm is that th e y dare no t substantiall y in crease premium s. That is a p o litic al axio m . No legi slatio n whi c h c all s fo r a subst antial in crease in premiums is po liti cally ac ceptable. Th ere fore, th e re ha s 10 b e so m e met ho d o f c ull ing cos ts wh en yo u are now co mpelling peopl e to bu y in surance that th ey did no t perhap s want o r nee d . Wh at is I h e mel h o d of d o ing that ? Thi s, in virtuall y all of th e pro po sals, is th e sam e. Th e fellow wh o n o w is en titl ed to payment , th e inn ocent vi c tim , will gel less . In so me prop osai s, he will ge t substantially less. In so m e pr oposa ls, h e will get som ethin g less. Bu t al way'i h e w ill get less. l et 's talk abo ut so m e o f th e stan dard plan s and yo u wil l see what im pa ct t h ey w o uld have. On e of th e pro minent propo sal s is th e on e that is prese ntl y b eing made b y Sen ato r Hart fro m th e Stat e o f Mic higan in Co n gress . Hi s bill pr ov ides that th ere w i ll be n o ca mpen sat ion b eyo nd th e health and acc ident po licy that h e requ ires unless th e indi v idual h as sevent y per ce nt p erman e nt parti al di sabili ty. Those of yo u w h o are n o t in th e wo rkm en 's co mpen sation fi e ld m ay no t kn o w w hat that number m ean s. l eI me give yo u so m e examples, and I la ke th ese b y re feren ce to th e Am eri can M edic al Associ ati o n publi cati o n , A Guide To Th e Evaluati o n Of Per man ent Impairment Of Th e Extremities And Th e Ba c k; and al so I take th em fr o m th e bull et in o f th e Unit ed St ates Continued on page 2 2
GREERS FERRY LAKE 5 Mile Shore Ii ne SPECTACULAR WATERFALL S 135'x175' Wooded Lots Underground Wiring Recreation Areas Horseback Riding Air Strip CHALETS FOR RENT 4 to 12 peop le 3 nights $65 to $90 Completely Fu rnished HIGHWAY 92 BETWEEN DRASCO & THE NARROWS P. O. Box 107 , Heber Springs, 372-3075
Continued from page 21
Bur ea u o f Labor Statistics desc ribing th e experience and agreemenrs of rh e Associallon of Indu sl rial Accidenr_ Board s and Commissions. Th e following Ihings are no r seventy per ce nt perman enr parrial di sabilir y: loss o f th e arm al Ihe sh o ulder; loss o( I h e leg at rhe hip; loss of an eye; loral dedflle~~, (ur d yuung Inall , lu~s of bOlh hands. Th ese are n o r sevenly per ce nt p ermanent partial di sabi lity. Peo ple who suffer tho se co nditions o r anything le ss Ihan those co ndition s, unde r the Hart -Magnuso n Bill would be entitled 10 recove r o nly from the insurance that Ih ey have paid for, You kn ow, n o thing co mes (or nothing. They pay I h e premium and t h ey will be enlitled to recove r ba c k for Ihal premium their m edICal expen se, pari of I heir wage los s, (not all of I h eir wage loss ) and only pari of Ih elr wage loss for two and a half yea rs, nOI forever - p eriod . A more specifi c exam pl e ~ a young man is In an aul a accident. H e loses hi s right arm al I h e sh o ulder. He is a seco nd year medICal 51udenl . He plans 10 b e a surgeo n. HIS medica l expense is $1,000.00. It I S n ol r 00 expe n ~ i ve the se days to amputate an arm . Regret lably, he doesn 'l gel Ihal $1,000.00
because hi S father had a heallh and accident po licy already, a Blu e Cross p o licy, Ihat had paid his medical ex pense hi s doc l o r btll and hi S hospital bill. So he gels no thing for medical expense beca u se the Han Magnuson Bill says you gel it o nl y if it's not alrea dy b eing paid from so me olher so urce. He gels nOlhing for tha t. Wage loss? He doesn't ha ve any wage lo ss . H e is d ~t UlJ e n l. H e won ' t have any wages in that two and a half yea r period t hat 's ah ead , becau se during that two and a half year period he would still b e a slUden t. So h e gels nOlhing for wage loss. And he gels n o thing fo r di sm em berm en t, di sfigurement, di sability, lo ss o f future income beyond Ihal Iwo and a half years, loss of ea rning ca pa city, loss of ability 10 en Joy life, loss of ability 10 ca rryon hi s profession . He is totally unco mpen sated from any so urce whatsoever, nor -withstandin g rhe fa c t that all o f hi s I ro ubles c am e when a drunken driver gOI ng eighty miles an ho ur struck him goi ng d ow ntown , HOI Spring s, Arkansas, c ra shing a red ligh t. To me, Ihal isn 'l rUSllce, and that is rhe wrong way In pay Ihe fellow w ho c ra sh ed the red light . He also, b y the way, had had a brok en leg III thi s acci d ent. H e had $750.00 medi cal bill s, and he will n ow gel th ose medical
bills paid because he was 100 cheap to buy an y Blue Cro ss c overage befo re. He didn 't ha ve any wage proteClion plan beca u se he In Sisted o n gelli ng a wage in cr ease IIlslead of a wage co n l inuario n plan for disability. So he will gel paid . I do n 'I ob Jec l 10 hi s gelling paid , bur r o bject to tha t innocen l viclim paying him . To me, that is w rong. Tha t IS Ihe Harl -Magnuson Bill. There are less exlreme forms of Ih ls type o f remed y. Th ere is the Massachusell s bill. Thi s is a pr o po sal Ihal says "we recognize il is ieally unju st 10 take away the right s to paymenl for human losses so we will o nl y take Ihose right s away from so me peopl e. We will have a lillie injusrice instead of lOlal injustice." Under rhe Massach u se ll s b i ll you are enlilled to recover general damages - that is, 10 any o f yo u who are n ot law ye rs here , paym ent for di sabi lity, inability to ca rryon your n o rmal activities, the pl easure of life, all o f the th in gs Iha t are no! o UI -o f-p oc kel , !hal are n ot I h e mere cosl of r unning th e human machine. Yo u are enlilled 10 recover Ihose if yo u have m el o n e of several condirions, Ihe mosl co mm o nl y desc ribed of which is the $500.00 medi ca l thresho ld . If you have sp enl $500.00 for a d ocl o r, then yo u are e n!itled 10 rhose
payments . That means if you go to a d oclor who c;ay5, " I don ' t IIk f' Ihe way you look following the aCCident. You'd beller go in the ho e;pi lal for four daye;." or "ix daye; or whatever the number of day .. necee;e;ary 10 get a $500.00 doc tor bill in your community, then you are entit led to general damages . But if you have a doclor who .. ays , " You " ta y home for three monlhe; and don 't go 10 Ihe hospital," you are not entitled to genera l damage.:; . The co ncept t hat I he payment of damages will depend upon the whim of I he physician in t he c hoice of medical treatment - and he may well ha ve good rea son for eit h er c h oiceseems to me to be a sill y method of deciding whether or not people ha ve gone thro ugh substantial problems. An attempt has obvio u sl y been made to decide w h ICh are .,erious and which are not serious cac;es; and I c redit the effort but not the resull. Beca u se the res ult IS thaI there are a number of se riou s cases where there is n o o pportunit y 10 obta in full compensation and there are some rath er triv ial cases in which there ie; an opportunity 10 obtain full compensation. Really, Ihe ultima te question i s Ihis: do you want 10 take money from some innucent victim ... - I\\a s~ achu s ell:. has
decided not 10 ,ake it from all, just lake it from some innocent viciun .. in order 10 pay the guillY? I have to say thai philosophically Ihis bother~ me. I Don 'l think it 1<; right . If I am say ing that the no路fau1t approach doesn't really make good sense, then what sh o uld be done, if anything? Should we jusl sit back and say everYl hing is dreamy? Ce rtainly, my associat ion has never I aken I hal position Ind eed , for a good IwenlY years, we have been pr essing for some insurance reforms that we thi nk are esse nt ial. And do you know who ha s oppoe;ed them? The insurance co m panies . Th e sa me in su ran ce co m paniee; who are n ow saying they see profil bonanza in the no-fault plan . Don'l kid yo ur sel f; that'~ where the $10 million public relations campa ign is commg from, principall y the old lin e stock comran ies who have b ee n unable to compete with Ihe direct underwriters and who see that t hey ca n make a much bigger profit b y se ll ing health and accident in suran ce than they can b y se lling casually in suran ce. II is just t hat simple, and they are right . They wi ll make a mu c h bigger profit. I have no que .. lion about it. W ha t can b e done? Fir st, let's realistically do something about reducing costs . I am going to suggest something
that isn 't ve ry clever, but it i s probably the most obvio u s method of reducing costs. You reduce costs by red u c ing lo sses. That is I he most obvious, I h e most human e, the mosl rea so nable mel hod of reducing cost s. How do you rec uce losses? First , yo u r educe the frequency o f accidents . Your slate can and mu st hav e se n sibl e regulations thai will keep drunken drivers off the roadway. There has been so m e movement in a number of states toward improving Ihls sit uallon . There musl b e reaso nabl e reg ulat ions of drivers' lic e n ses so I hal they are not simply a li ce nse to kiJl, but a recognition of Some ability to operate a motor ve hic le . So if yo u reJucl::' the frequency of accidents yo u have done a great deal. Second, we can reduce t h e damage Ihal occ urs in Ihe accident. This raises perhaps o ne of 1he most st art ling quest ions of all. If 1 were 10 ask you ' what part of the automobile insurance premium do you think ha s to do with pe r sona l injury in view of these staggering big judgments that you read about occasionally in newspapers? What part of the total premium ha s to do with that ? What part ha3 10 do with automobile .. ? Conttnued on page 24
THE CRAIGHEAD COUNTY BAR ASSOCIATION is proud to join with the
ARKANSAS BAR ASSOCIATION
to honor one of its membersthe internationally-known "country" lawyer
HON. JOE C. BARRETT Jonesboro, Arkansas 23
Continued fr o m page 23
The an sw e r nationall y i s tha t two third s of th e pre mium go es for sh ee t metal and gla ss, and one -third o f th e premium goe s fo r fl es h and blo o d . On e might say that if w e wan t to redu c e premium s, the sen sibl e w ay to start would be b y atta c king th e bigge r piec e of th e pie in stead of the littler pi ece of t h e pi c. At pre se nt th e average 1971 automobil e in a fiv e mil e an h o ur impact - [hal is the sp eed I walk - again sl a so lid barrier, su stain s $320.00 damage. If the ve hicle c o uld be manufa c t ured so it co uld su stain a five mil e an hour impact , w e would save m o re than a billi o n dollar s a year. Ve hicles can and should be manufa ctured so they c an su stain v irtually no damage whatever in a len mil e an hour impa c t , if nol more. legi slation is nece ss ary to c omp e l the manufa c turer s nol to make t infoil autom o biles . Unlil they d o, your in suran ce pre mium s are going to b e staggering, be cau se that is wh e re mo st o f I he m o n ey i s going. I can ass ure you and at least on e o f the major in that if you suror s assur es you require motor vehi c le s to su stain a fi v e mil e an ho ur impa c t , yo u will see at lea st a twenl y per ce nt redu ct io n in yo ur premium s immediatel y. That i s wher e your money i s going. I might say that thi s approa c h to reducing premium s i s no t clev e r, no t new , n o t pr o fo und , but i t is workin g. About a week ago la st Friday th e Wall Stree t Jo urnal reported what ha s b ee n fairly clear to th ose o f u s wh o ha ve b ee n watching thi s more c lo sely. liability in surance companie s are making m o ney. lot s of mon e y. la st year wa s th e large st pr o fit year in th e hi story o f State Farm . N o w man y in suror s are redUCing th e ir premium s voluntarily. Seven pe r ce nt is the es ti mat e nationally fo r pe rsonal injury lia bility, five per cent for pr o p erty damage, b ecau se the se approa c he s thai wp are talking about are working even though they are being und e rtaken very slowly. Even th o ugh w e are not making any truly c onseientiou s effort to reduc e th e frequ ency and sev e rity of losse s, w e are d o ing so ; some of the regulation s of the Depart ment of Tran sp o rtation ove r vehicle design some of the in c rea sed al1enti o n at stat e level s to operation of ve hicl es have been sl o wly beginning 10 fee l their impa c t. What e l se should we do? W e should , in my judgment , do something to reduce th e delay that occ ur s in th e settlem e nt of ca se s. I mu st [ell yo u that there i s not the kind o f d e lay that tho~ f' proponent s would lik e to claim . Almo~1 ilily p e r cent of all p e rsonal in -
jur y Clalnl S ari sin g o u t of aut o m o bil e acc id en ts ar e sâ‚Ź lli ed in I h irty da ys, stati sti c all y. Sure, t he more se ri o us c ases tak e a lot lo nger , and th ey should tak e a lot lo nge r. If a c li e n t c om es to m e ha v in g su ffe red a ve ry se ri o u s injury and says, " I w ant to se tt le to da y," I tell him , "Yo u ar e fo o li sh . Yo u can se ttl e toda y if yo u want to , but you d o n 't eve n kn o w what I h e impa c t o n yo ur life is go in g to b e until sev eral mo nth s hav e gone by." Th ere ha s b ee n d ela y. So m e o f that dela y i s necessary and de sirabl e; som e o f it i s n o t. Th e re are m et h o d s whi c h can reduc e that dela y and I sugge st we con sider thi s legi slat ive ly. I suggest thaI int e re st should run on th e sp ec ial damage part o f the loss, the liabilit y c laim , from th e tim e tha t it is in c urred . Thi s will en c ourage ad van ce paym e nt s for special damages, whi c h should be en co uraged , bec au se th en the ec ono mi c loss will be c o vered promp t ly. I sugge st al so tha t t he re should b e greater equiti es. One o f th e co m plaint s of th e n o- fault ers is that th ere are inno ce nt vic t im s who ar e not n o w rec ei v ing c omp e n sat io n ; and I am ashamed [0 say th ey ar e ri gh l. There are inno ce nt v ic t im s wh o ar e not re ce ivin g pa y men t, and I he y o ugh t to rece ive paym e n t: Peo pl e wh o ar e barred by soverign immunit y (the t heo ry tha t th e gove rnm ent o w es n o re srw!l sibilit y to it s own c itize ns) o r b y immunit y (th e t heor y int e rfamilial that a famil y o we s no res p o n sibili ty to it s own lov ed o np s) o r th e gu es t st atute s whi c h say that th e dri ve r of an aut o mobile ow es n o res po n sibili ty to the people that h e likes b es t (hi s o wn g ues ts, hi s friend s, hi s famil y ). Th ese, to m e, ar e sill y rul es, and t hey are pre venting so me inn oce nt v i ct im s fro m o b taining c ompen satio n . Th ey sh o uld
go . Finall y, I sugg est that th e pro blem s o f canc e lla t io n and und erwr i ting can be legislati v el y handled and are be ing leg isla t ive ly handlprl . My statp , Ohio , ha s pa ss ed law s affecting th e ab ili ty to cancel. Iowa ha s pa ssed a law affec t ing the abilit y to can cel arbitrarily. The se thin gs are d es irabl e but ha ve n o thing to do with no -faull. I mu st say that in approa c hing thi s qu es tion , w e as lawye rs ha v e a particularl y diffic ult pr o blem . There i s an aut o ma t ic respon se eve ry tim e w e speak . It is not an unint e nd ed res p o n se; it ha !! bee n +
planl e d . The prin c ipal pr o p o nent s, th e A meri c an In suran ce Ass o c iation , who repre sent the old lin e stoc k co m panie s, have put in every singl e press relea se (and t h ey ha ve fl oo d ed the new spap e r s with t he se re le ases ) : " D o n 't li st e n to th e law yer s, t hey are
o nl y sp eakin g in the ir ow n 'ielfin te rest. It is o nl y t he ir p oc k et b oo k s tha t they ar e te lling yo u abo u t." lh ey kn o w ve ry w e ll th at th e la wye rs ar e t he o nl y reall y in forme d group w h o can p o int o u t wha t is re all y fraud i n som e o f th ese pr o po sal s. Th ey ha ve, I am afraid , poiso ned th e mind s o f man y, and our v iew!! will no t b e easil y heard. That d oes n ' t mean t hey sh o uldn 't be sp o k en . I fee l Ihal I d o ha ve a se vere bia s. I ha ve a bia s becau se m y life ha s b ee n sp e n t in repr ese nting innoc e nt v ic tim s to b e so ld d o wn t h e riv e r - th e pa st vic t im s or th e fUlUre v ic tim s. Fran k l y, I d o n ' t care wh el h e r it he lp s my pr o fe ss io n o r hur ls m y pr o fess io n ; I d o c are t ha t the inn oce n t v ictim s n o t b e malign ed . It is so m el hin g like a n ew spap er man who te ll s people tha t th ey sh o uld ass i st him in hi s go al to pres erve fr ee d o m o f th e pre ss. Peo ple mighl say, "We ll , wait a minu te, you ha ve a sp ec ial int e res t in fr eed o m of th e press. W e ar e no t go in g to li slen to yo u te ll u s ab o ut free dom o f th e pre ss . W e o nl y want to li ste n to adverti ser s te ll u s abou t fr ee d o m of I he press." It see m s to me that th e sam e inc o n grui ty exi sts he re. Ce rtainl y new spaper s ha v e a financ ial in teres t in freed o m of the pr ess; and ce rtainl y at least some law ye rs have a finan ci al in te res t in t h e mann er in w hi c h litigation i s hand le d , o r th e manner in whi c h c laim s are p aid , o r t h e mann er in whi c h o ur e ntire legal syste m fun cti o n s. That d o esn 't mak e I h e n ew spap erm e n rig ht or w rong. That d oes n ' t mak e th e law ye rs right o r wro ng. Th ese iss ues ha ve to b e dec id ed squarely o n their m eri ts, and it is so m etim es hard fo r u s to addre ss our se lves to merit s wh en label s are so mu c h m o re appealin g. So I suggest 10 you t hat if yo u agree wi t h an y of th e se ntim ent s t hat I have expresse d , yo u will b e suppo rt ing an extr e m e ly unp o pular c au se, that o f pe rso nal res p o n sibilit y. That i s an un po pular cau se n o w , let 's recogniz e il. Yo u w ill be suppo rting an extrem e l y unpopular c lient , th e inn oc en t pe rso n . H e is n o t a p o pular p erso n n o w . N o o ne se em s to care abou t him any more at all. So if yo u are willin g 10 acl , as I wa s to ld in law sc ho o l thai I wa s supp ose d to do , to advo cat e unpopu lar cau ses and represe nt unp o pular c li e n ts, t he n I sugge st yo u should be sp eaking o ut fo r th e inn oce nt vi c tim and p er so nal res p o n sibilily. I sugge st t ha t you ec h o and re -ec h o the th es i s - d o n 't gi ve your right up to full pay m e nt so le ly to e nric h so m e in suror that i s unabl e to compe te ad equat e l y und e r th e pr ese nt sys tem .â€˘
The highest reward that can come to a lawyer is the esteem of his professional brethern. That esteem is won in unique conditions and proceeds from an impartial judgement of professional rivals. It cannot be purchased. It cannot be artificially c reated. It cannot be gained by artifice or contrivances to attract public attention. It is not measured by pecuniary gains. It is an esteem commanded so lely by integrity of character and by brains and skill in the honorable performance of professional duty. - Charles Evans Hughes
Esteemed MemlJer- Arironsos Bor Associo/ion
• • • • • • • •
19TH MIDYEAR MEETING AND JAN. 20,21 1972 - ARLINGTON CHIEF JUSTICE JACK G . DAY-Courl of Appeals (8th District) 01 Ohio . Pro fessor. Trial Lawyer. Labor Arbitrator . Author . Judge. et ai - a li in one man . Vice.Chalrman and Member of Council . ABA Section of Crlmmal Law : Chairman. Constitutional Rights Committee of ABA Sec ti on of Crlmma l Law . President. National Association of Defense Lawyers cn Criminal Cases. 1966-68 (Secretary. 1961-65 : President-Elect. 1965). Forme r Chairman. Ohio Advisory Committee to US Civil Rights Commission. Served under Presidential apPointment as Vice Chairman . National Wage Stabilization Board in 1946. Associate Professor of Political SCience. Western Reserve University. 1946-49: Lecturer. Case Western Re serve Law School. 1967·70. Co--edltor: Labor Re lat ions and th e Law ; Author of many law review articles. to include- Mental Suffering as an Element of Dama ges i n Defamati o n C ases; Som e H istorica l A s p ec t s an d Rece nt Deve lopm e nt s in th e Ex cl usionary Rul e of M app v. Ohio ; and Prob lems of Trial Pra c tice in l oyalty and Security Ca se s . Judge Day was prevented by an eye injury from appeanng as the Dinner Speaker for Standards Workshop II. HIs Interest In the Arkansas program red to his current commiltment as the Speaker lor the Friday JOint lun c heon seSSIOn 01 the 191h Mid-Year Meeting and Standards Workshop 111. Judge Day and his 10p1 C. " The Ethics of Criminal Justice ."' sound most in· tngulng - h ls address should prove of Interest to all attendees.
GOVERNOR DALE BUMPERS will address the 10lnt Dinner Session on Thursday evening. January 20th HIs topic will concern " The New Look In Arkansas Justice ," The Arkansas Workshops on the Standards for the Administration of Cnmlnal Justice have been sponsored by the Arkansas Supreme Court with Ihe Arkansas JudiCial Council: Arkansas Prosecuting Attorneys ' Association : Amencan Bar Asso cia tion : Arkansas CommisSion on Crime and Law Enforcement: and Arkansas Bar Association . It IS a flltlng c limax to these Workshops for Arka nsas' Chlel Executive to review the work accomplished and to help point the way for further programs in thiS vital area o f the Law Accordingly . the ad· dress 01 Governor Bumpers will concern all attendees at Standards Workshop III and the 19th Mld·Year Meeting .
MR . JUSTICE TOM C . CLARK . II IS not possible here to recount the honors and experien ces of thiS great American . He was named Attorney General of the Unlled States by President Truman in June 1945: he was nominated Associate Justice 01 the Supreme Court of the United States by PreSident Truman on August 2.1949 : and he served on the Supreme Court until hiS retirement on June 12. 1967 01 particular Interest- he chaired the ABA Spe cia l Committee on Evaluation of Disciplinary Enforcement. which published In June 1970 the soca lled C lark Report on Problems and Recommendations in Disciplinary Enforcement; he is Chairman of the ABA Committee to Implement the Standards for the Administration of Criminal Justice. Mr. Justice Clark's address. " Disciplinary Enforcementj-a comp liment and a Challenge." delivered at the 72d Annual Meeting of th e Arkansas Bar Association , is published in the September 1970 issue of The Arkansas Lawyer (pages 84-87) and is a " must" on the Best Reading List for the Bench and the Bar. In view of the important deve lopmenls in Arkansas in the field of Disciplinary Enforcement and in the revision study of the Arkansas Criminal Code and Procedures-areas of tremendous in teres t to a ll members o f th e Arkansas Bar- Mr. Justice Clark is the perfect keynote r to address th e opening joint lun cheon o f th e 19th Mid-Year Meeting and S tandards Workshop III .
ST ANDARDS WORKSHOP III HOTEL-HOT SPRINGS - ARK.
(Edilor's nole : II is parlicularly fitting that we publish Mr. Rhyne's address in this issue of The Arkansas Lawyer, honoring Chairman Joe C. Barrett of our International Law Committee. Mr. Rhyne is a Past President of the
American Bar Association and Faun路 der of Law Day, U.S.A. More than 4 ,000 leading lawyers and judges from 114 nations worked intensively at the Belgrade Wor ld Conference on World Peace Through Law at Belgrade. Yugoslavia, July 20-25, 1971, discussing major current law needs domestic and international - of the wor ld . Mr. Rhyne addressed the Inaugural Session of the Belgrade Conference. The Arkansas Lawyer published in the March 1970 issue Mr . Rhyne's address to the Fourth World Confterence on World Peace Through Lawai Bangkok , Thailand on September 8, 1969, His theme was " The World Peace Through Law Plan ." By reading both articles, one can appreciate the progress of the last two years in this field .J The status and function of law in the world is a matter that affects every human being . This is true whethe r one considers domestic or international law. In our day the lives 01 all of us are so inextricab ly intertwined th at events anywhere affect everyone everywhere. A major breakdown in th e rule of law. or a major strengthening of the rule of law, can have a widespread impact. We who are gathered here are the largest internationa l assemb ly of law leaders in the history of the wo rld . Co llective ly we therefore have th e greatest responsibility of any international group ever to meet-fo r the status and function of law in the wo rld . At the outset . I predice th at the era we are now entering w ill be known as the " golden era of humankind ." This prediction is based upon the enormous turn to the law which I now report to you and to the peoples of the world .
The Law Reform Tide The greatest discernib le tide which exists in human affairs today is a turn to the law . Law to reform ancient legislation or law to cover new needs of humankind . When one examines the current and proposed law of the wor ld- domestic or internationa l- this law tide stands out loud and c lear. Nation after nation is strengthening and updating its laws : nation after nation is reforming its judiciary in response to the ever stronger desire of the people for better and more equal justice. Daniel Webster's famous comment that " justice is the greatest interest o f man on earth " is a true reflection of the mood of the people worldwide . From the great issues of war and peace to other burgeoning international matters. to social and economic problems that exist in each nation it is being proposed that the agreements o r solutions o f each be embodied in laws. statutes. treaties and conventions to give them effect and permanence. The Parliament. the Congress. o r the legislature of nearly every nation has a vast law reform program on its agenda. More international law has come into existence in the past 25 years than in all the history of man . While the UN is not a legislative body. and there is no world legislature. there are some 200 UN and regional international agencies whose rules or actions can result in law. UN-approved treaties and conventions become law only when accepted by nations. The world is becoming a vast cooperative society. Due to ever accelerating trade by multi-nation enterprises, ever increasing tr avel. and ever increasing contracts between individuals and nations. transnational law is of necessity growing in acceptance, in coverage and thus in importance and effectiveness.
ove rwhelmingly the rap id growth of law , the turn to the law o f which I speak. When the governments of the World. prodded by the fears o f their peop le. agreed to prohibit weapons o f war in outer space they embodied their understandings in a law convention . A treaty dedicates Antarctica to peacefu l uses thereby making the agreement o f participating nations to bar military uses into permanent international law . The agreement upon a no-war weapon use of the Seabed, likewise is given permanence and effectiveness by being cast in the form of an international law Convention . Having thus by giant steps completely outlawed mi litary use of space , Antarct ica and the seabed , the nations of the world are moving painfully, and slowly, and with seemingly minute baby steps to outlaw military uses of the Earth 's surface. Witness the Stra路 tegic Arms Limitation Talks (SALT) where Atomic Test Ban and nonproliferation of Atomic arms agreements were written into law Conventions but these have been followed by slow progress in other areas. Are as however where it can be expected that agreements will be encased in law treaties to give them power, effectiveness and permanence. My point is that it is to the law that nations turn- are expected by the world's peoples to turn - to give effectiveness and permanence to great agreements. And illustrations of this turn to the law in the world community are not confined to arms limitations. In the vast co mmercial field, the social, trade and economic areas, li terally hundreds of treaties are being updated. or written to cover new areas. as the world reorganizes itself out of sheer necessity, to accommodate to the realities of today. Realities which inc lu de a growing common life style throughout the wor ld which generates common wants and a desire for common solutions.
Evidence of the TUrn To International Law recently comp leted a book in which I set forth the existing international law. I also described both private and public agencies which are working to expand that law. This is a thrilling picture because it proves
Evidence of a TUrn to The Law for Domestic Reform The World Peace Through Law Cen ter wi ll publish before this year's end a survey entit led THE LAWS OF NATIONS . It will cover Ihe laws of 130 nations. This volume will update our previous publication on laws of na-
Hons and courts of nations. The material on each nation 's judiciary will be published separately in a volume entitled COURTS OF NATIONS. Our latest survey of the laws of nations is irrefutable evidence of the worldwide turn to the law to so lve man 's social. economic and other problems. This survey also proves that throughout the world nations are modernizing their court system~ . While each nation surveyed has its own . sometimes unique problems. my chief conclusion is that the major thrust of this world-wide law reform movement is to increase the status. the well being. and the freedoms of the individual human being . These recent legislative measures provide more human liberty. more social. and more economic progress. They inc lude provisions to abolish racial, sex and other discriminations. They c over measures to eliminate want and disease. They also provide a whole rash of environment anti-pollution laws to improve liveability of communities, nations and the World , Noteworthy are measures in the criminal law field . I have just visited England where there were many references to that Nation's first major reform of her criminal law in 600 years. I was given 44 Law Co mmission reports . 17 Law Reform Committee reports , and 10 Criminal Law Revision Committee reports . Most of the recommendations of these reports have been ena c ted into law by England 's Parliament. Th is is the greatest reform of England' s law in all history. There are many such examples of tremendous law reform programs in other nations. Italy' s new divorce law is merely the most publicized part of recent law reform there . India' s nationa lization of insurance is just an example of many far reaching Isgislative changes in that great Nation , There is a vast Agrarian law reform in Brazil and in other Latin American Nations. Laws to encou rage social and economic development and to improve government are being enacted throughout Africa . Japan' s far reaching anti-pollution laws covering air and water are mode ls for other Nations. Law increasing the rights of women . a new environmental law . and rather sweeping judiCial reform and reorganization , highlight the recent law updating program of France . Germany's recent court reform is given impetus by law reform measures in both the criminal law and civil law fields, I understand Yugoslavia has enacted constitutional amendmen ts providing your six Federal States greater autonomy and that many changes in criminal and civil law have
been made or are under consideration here. Even the Canon Law of the staid old Catholi c Church is undergoing tremendous revisions , as Po pe John once predicted to many of this group when he granted us an audience some years ago. I could go on and on with examples proving that modernization of law is sweeping the wor ld by such recitations of new law developments and uses in many nations. But the examples cited prove my thesis of a vast turn to the law in the domestic area. They prove my claim that the people are demanding and getting more and more law to protect their freedoms and to provide better justice . They prove the ever growing reliance upon and respect for law by use of its concepts to provide newly recognized needs such as pollution-free air and water. Adaptation of the taws of nations to the growing internationalization of life is an essential part of our task of building a world law system for a peaceful world order with justice. Respected domestic law is an essential foundation for our international
a world basis to serve man's thirst for an improved rule of law. We must service man's desire for improved justice in our courts. national and international. This is a task the legal profession has not ye t adequate ly per formed . We in the Center have done outstanding jobs on a few subjects in the international area. but we must gear up to do this law update and law expansion task on an ever-expanding sca le to fue l the entire law reform movement proper ly. The turn to the law is a most wonderful deve lopment and we must not let the law fai l ever growing pub lic expectations, re liance and respect. Ours is a task of marshalling and dissemination of ideas, experience and information on both the laws of nations and international law . No one except the Center is perform ing this essentia l task of a central information source on the law of the wor ld, and we are not doing as good a job as we shou ld do and will do.
law program . A people which does not
community embodies : (1) internationa l
respect and rely upon law domesti c ally will hardly turn to and adopt and respect law internationally. In u Itimate thrust the basic principles are the same .
law ru les to govern and guide tr ansnational re lations among men and nations: (2) international law institutions such as Courts and quasi-judicial agencies to reso lve or decide peace fu lly dispu tes among men and nations: (3) enforcement of peaceful order with justice. Enforcement can be via proper international action including a police force or by en forcement of judgments of internationa l tribunals in national Courts. The Center's program recognizes that each of these components is weak today. Its work program is in fact deSigned to strengthen each to the point that a law system for the Wor ld can rep lace the current force or arms system in providing security, in providing wor ld order with justice. The evidence overwhe lmingly proves that such a prog ram works within nations and wi ll work in the world community when universally accep-
law Principles Underlying National and International Law To be acceptable to the peoples of today's world the basic princip les of international law must embody the same principles of fairness and reasonableness which underlie all respected domestic law . To be acceptab le internationa l law must be based on right reason . Some ancient international law fails to meet this test as it was formu lated to meet archaic situations which no longer exist. That ancient law can no longer be effective as it is no longer acceptable. Gaps which exist in international law must
be filled with provisions so logical and so reasonab le they will be acceptable. The ru le of reason must be ap plied to and be embodied in all law, domestic and international , for which one can fairly expect universal acceptance.
The Cent er' s Pr ogram The Basic three components of the Center's law program for the world
Th e Center ' s Task We in the Center must focus public attention on the importance of the law making processes nationally and internationally, We must also focus
That international law ru les wo rk when universally accepted is proved by such law ru les as those on diplomatic immunity, sea use. and air travel. The Postal Convention is unive rsa lly accepted law which wo r ks so we ll one can send a letter in to and receive letter!! from every nation on Earth . Self interest of nations and the necessi ty of operating in ou r in terna-
pub lic attention upon the pri nCip les
tionalized wo rld is constantl y ex pand-
which should be embodied in updated law or in new law. We must mobilize law information and law manpower on
ing this list of universally accep ted
Continued on page 30
Continued from page 29
and respected law rules . Especially is this true in areas like trade and travel. That law institutions, courts and quasi-judicial administrative agencies work when universally accepted and respected is proved by the fact that all except one of the World Court's judgments (Eng land's recovery against A lbania for the latter's mining of the Ocean) have been vo luntarily complied with. There has been similar compliance with the more than 1,QOO
judgments of the European Court of Justice on Common Market disputes. The International Civil Aviation Organization's decisions on disputes between airlines illustrate the workabi lity of such quasi-judicial institutions internationally. UN police forces in the Congo, Cyprus and the Middle East have worked well. thus proving the effectiveness of an international police force to enforce peace. The tragic results of withdrawal of the latter c learly evidences this. That there is no
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international police force ready to enforce the peace when law break s down from time to time within or among nations merely proves its need . That no one has conceived of a poli ce force ca pable of containing the World 's super-powers again merely proves the need for concentra led effort to develop an arms con trol program . In today's world man can achieve any program he can envision . We can envision an effective arms control program and in time we will have it in being . The Rome Convention agreement of European common market nations provides that their national courts will enforce judgments of the European Court of Justice. This is an enforcement idea which could well be emulated by Nations which belong to the World Courfs Statute and other international judicial bodies. The World Peace Through Law Center 's program encompasses vast plans and proposa ls to strengthen the whole of the law of the world . The Center's work is the most ambitious program ever mounted to focus worldwide attention on law inlernationally. More than 150 specific international law subjects receive special attention of Center Committees. The UN's law development activities receive constant study and encouragement. The General Principles of Law Adhered to by Civilized Nations have been stated and adopted by the Washington World Conference in 1965. I have referred to the surveys of the laws of nations which have been or will be published. The treaties and conventions adhered to by nations have li kewise been assembled . A special publication which the then Chief Justice of the United States. Earl Warren. presented to the Geneva World Conference in 1967 surveys the treaty law of the World . A plan to put the law of the World on a computer in Geneva. to computerize both the law of nations and treaty law, has been developed and awaits proper financing . World Law Day Through sponsorship of WORLD LAW DAY the Center seeks to focus attention by laymen as well as judges and lawyers on the promise and the effectiveness of the rule of law . Today is WORLD LAW DAY . In more Ihan half of the nations of the world there wi ll be a function or a Proclamation or a statement of their head of state directing attention to law and its potential for wor ld peace. President Nixon has issued such a WORLD LAW DAY Proclamation .
Rese arc h Repo rt s of Cent er Committ ees The able research reports of Center ':;ommittees have produced solid foundations which forward law progress . Distinguished judges and lawyers have devoted themse Ives to producing we ll researched reports which are in fact landmarks along the law road which .the world is following. We realize that until experience and information is compiled. and careful study performed, mankind will not be willing to take large steps forward in accepting law so lutions to world problems. The Center' s Committee reports perform this educational purpose . Their carefully researched proposals prod political leaders into action . Illust ration s o f Cu rren t C en ter Crea t ive Accomplishm en t s On Aircraft Hijacking , Leonard Sussholz and Bruce Piggot were given the task by the Bangkok Conference of energizing a vast reform of the Tokyo Convention and domestic laws of Nations to make Aircraft Hijacking law adequate to control that suddenly burgeoning problem . Within 30 days they- with expert help from airline, pilot and government officials-did a draft of a proposed convent ion and a
proposed model law for nations. Thousands of copies were sent in 3 languages throughout the world. At a Montreal Conference of representatives of governments on this critically important subject Chairman Sussholz spent days debating law needs and supplying information his Committee has compiled from throughout the world . For example, the Committee accumulated and published basic data on the punishment meted out by nations to some 350 Hijackers in the past 30 years. These punishments, ranged from 7 days to death . On the basis of the Montreal Conference and the Committee's research a redraft was then . done of the Center's Convention and its model law . Again world-wide circu lation was made . Again at the Hague Conference the ideas thus developed helped in drafting a new Convention. A Convention which is before all nations as of this moment for their consideration. In the early 1960's Aaron Oanzig started talking and writing about recovering the riches of the seabed for the benefit of all mankind. At the Washington Conference in 1965 he stirred up enough interest to be asked to do a draft Convention. A resolution was adopted on this subject by the Geneva Conference in 1967. Since
then world-wide interest in this subject has flourished and the Center's reports, reso lutions and ever improving drafts of its Convention have attracted much highly deserved attention as they were circulated throughout the world . On this very day in Geneva the preparatory meeting on the proposed new Con ference on the Law of the Sea has these before it as part o f its foundation material. This was further vital pioneering work by the Center. An enormous advantage of the Center lies in its capacity to search the world and select the best informed leaders on any law subject and harness their knowledge and capacity for the benefit of humankind. This has been true of the newest and most rapidly growing field of law, i.e., ecology or environment. When the Bangkok Conference resolved that the Center make the Environment a major subject of concern , the Center persuaded the World 's greatest expert, Professor Carl A. Fleischer of Norway, to head up this Center effort. He drafted a Convention on Environment Control justly hailed by other experts throughout the world as the best possible starting point for Cont inued on page 32
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a vast world-wide effort in this all important field . This Convention will receive major conside rat ion at this Conference. but already it is part of the basic materials being considered by th ose preparing the UN's World Conference on the Environment now scheduled for Stockholm in 1972. Everyone recognizes th at clean air
and wate r are an international problem o f vast magnitude. We are all fellow voyagers on space sh ip Earth and dependent on the same life support system. There is no such thing as local pollution . Air polluted New York, Moscow, London. or Tokyo can move poison into the air over Belgrade. Buenos Aires or Lagos. There is a growing realization that the threat to mankind of extinction comes not just from Atomic bombs but from deadly pollutants of air and water. Elimination of a poisoned, polluted environment is everybody's business. It is a global problem which demands a g lobal solution . Here a vast combined domestic and in ternation effort is required. This global effort can on ly be done through the law. International and domestic laws must be developed which provide the essential regulation at both levels of human pollutant activity. Here again the Center's Convention-the first ever drafted-is pioneering in providing a vital law service to humankind . Weather contro l is one of man's most ancient dreams. In my Country we have tried to make it rain by using everything from Indian prayer dances to the rain gods to airplane seed ing of c louds . Scientists confi rm that weather control is indeed possible and international control is essential
to avoid disaster through individual ac tions of nations. New York City once paid out enormous sums in damages when it hired a cloud seeder via airplane whose activities caused extraordinary c loudbursts which destroyed crops of many farmers. On Weather Control the Center persuaded the world renowned Canadian Professor, J . W . Samuels, to draft an international convention on this subject. He did so in the form of a Protocol amend ing the ex istin g World Meteorological Convent ion . This proposed new international law will regulate increases or decreases in preCipitation, the suppression of hail or lightning , the dissipation of fog and the suppression or diversion of storm systems. This facinating subject will receive major consideration here. The Bangkok Conference adopted a resolution requiring this Center effort after receiving a report that: " Weather Control can be a more dangerous weapon than an atom bomb. It can be a means of torturing nations and continents into submission . This can be done by depriving them of their source of water, or drenching them with downpours." Our program at this Conference on UN Charter Reform is based on two years of tremendous work by Dr. Max Habicht. The ideas which he and his committee of some 100 experts from throughout the world have developed will be debated at this Conference. That the suggestions finatly agreed upon will have a profound effect upon the future of the UN is certain . They will be sent to all Heads of State, foreign ministers, to UN Ambassadors of a ll nations, and to other influential people throughout the wor ld .
The Center's more man 100 Committees provide a real window on the law world . They study every UN law action and every European Common Market or other international development. Th ese studies are published in bi-annual reports which receive wor ldwide distribution . La w s of Nation s The Center 's role with respect to the laws of nations is to supply information on those laws to those who require such material and to draft model laws on those subjects, like airplane hijacking and envi ronment control, which lend themselves to such an approach . Model laws to accompany treaties and conventions such as our airplane hijacking model is a new activity for the Center. Our environment. weather control. and seabed conventions must be accompanied by appropriate model nati ona l laws. Here is a vast undone task to which the Center is addressing itself as the growing common life style and internationalization of life create more and more demands for similar laws in many nations. Our Geneva office can supply the text of the laws of near ly all nations. We will develop a model law serv ice for Nations as the need is obvious and growing . At this Conference we have an exhibit of Law Codes of Nations along with some national Constitutions, city codes, and other cu rrently effective law of nations. The Center's Wor ld Law Library in Geneva wi ll house these after this Conference. We have invited every nation to provide its current law for the Wor ld Law Library and have urged them to keep these up to date so the Center can supply the cur-
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rent law of every nation to all who wish to use that information. Progress of Cen t er's Prog ra m The Center's law building program is practical and its accompl ishments impressive and encou raging . We have over the past eight years o f the Center' s existence gradually gathered strength in manpower, in knowledge of the law of the world, and in knowledge of how to work together to strengthen that law into an effective peace process. No group or association has done more. World-wide the law is on the march due in no small degree to Center initiatives. The Center has grown tremendous ly in scope and function . I am proud of our record .
Judges You Judges who have come here from allover the World can do much to cause this law reform , this law re liance, and law respect, movement to grow for the great benefit of humanity. You can by exchanging experience in your Conference learn from each other of ways to improve and speed up court processes, of ways to make court processes more available to the poor, of ways to enable courts to provide an even greater protection for individual rights . You are the ultimate arbiters of justice as between men and men, man and government. There is no more important function than that of serving as judge. We honor and applaud you and wish you tremendous success in your efforts to develop methods to improve justice.
Work for Peace While recognizing that any successful world law system must be created on a solid law foundation which encompasses the whole of the law, we also recognize that our great goal is to deve lop a World law system capable of achieving and maintaining peace, We meet to work together on programs to create world peace with order and justice. Billions for weapons and millions of deaths in wars have not brought peace. We must go to some other means. I sincerely believe that means is law . And just as I have emphasized the world-wide turn of the peop les to the law, let me underscore
the turn of the peoples away from war. The "expectations" of the people of the world are important and the world's peoples today want and expect an end to war. Belgrade, celebrated cross-roads of East and West , is a wonderful site for our work for peace, for peace under law. If we do our work well , we can hurry the day when law replaces force as the controlling factor in the fate of humanity. We here in Belgrade can create ' the dawn of a new day for peace. The peace process is a law process. The Age of Peace can only arrive when that law process is strong enough to provide peace . To succeed in our program. man 's ancient tendency to depend upon war and violence to achieve his goals must be ended. The mood of the world is for change , vast change in the way we
unite to achieve and to preserve peace . At various times man has grown in mind to the pOint o f condemning brutality by man upon man which was previous ly considered moral ly correct. For examp le, in years gone by, a convicted th ief's hand was amputated as punishment. Man no longer tolerates such bruta lity. A few years ago it was lawfu I for men to due l to the death with swords or guns to settle even minor disputes. Such brutality is no longer tolerated . Whi le war was once looked upon as a proper method for deciding international disputes and its brutality accepted as not immoral, recent wars have so revolted mankind that the brutality of war is no longer tolerated by most of humanity. I believe that we are close to the day when use of the war method will end forever, just as cutling off hands of thieves and due ls to the death have ended. I am going to work and work and work to make that day of the demise of war a reality . I ask each of you to join this crusade. In the Center' s program we have the capacity, the plan , and the program to carry the idea to fruition . The people of our day overwhelmingly consider war an outmoded institution for the decision of disputes between nations. Everyone agrees that the price of war is not worth the cost in lives, in wasted substance. in disruption. and in human misery. Many say eliminate the war method Cont inued on page 34
W e are pro ud to call Joe Barre tt our n eighbor and friend. CITIZENS BANK JONESBORO
Continued from page 33
of deciding disputes between nations, But few face up to the ingredients 01 how it is to be done. The only way to eliminate the war method is to replace it with a better method. That better method is the law process where in disputes go to cou rth ouses rather than battlefie fds.
Who Are We Who Compose This Conference We are the law leaders of the
wo rld . • We co me from the whole of the world. • We are the largest international law gathering entity in all history. • We are the first world conference of law leaders in a Socialist Nation. • We speak all languages. • We adhere to all religions. • We live under all forms of government. • We share the common ideals of the rule of law which transcend our diversities. • We share a common belief in and respect for the rule of law . • We are men of peace. having dedicated our lives to peaceful resolution of disputes between men and between nations. • We in our talents exceed those of any body of men and women ever gathered in one Conference to work on law for peace.
What Can We Do? Due to man's overriding desire for a peaceful world order with justice, our known capacities. WORLD LAW DAY. and world-wide publicity. the eyes of the world are today focused upon this
Belgrade Conference . We must achieve mightily to meet our responsibilities to the peoples ot the world . Their expectations are great. Great must be our efforts. With this tide of law reform sweeping the wor ld it is our duty as men of the law to provide positive organized leadership for that reform . To bring about worthwhile changes requires that we use our knowledge of existing law as well as our capacity to w rite new law to aid in accomp li shing the law reforms which the peoples of the wor ld are demanding . Here in Belgrade we must review and expand the Center's Work program to provide the information, manpower and brainpower which are essential to cause this law reform movement to grow ever faster. We should be proud of this turn to the law by the peop les of the world . As law grows in strength , as reliance upon law grows. respect for the law grows. As the law grows in usefulness it grows in importance to , and acceptance by, all humankind . We here at Belgrade are not dealing with abstracti o ns. We are no t dealing with hoary precedents from musty law books nor indulging in the theoretical, the spe culative. the Chimerical. the arcane , the fan c iful. the will-o·-the-wisp. We are n ot ru led here by the dead hand of the past. We are dealing with clear and present dangers and the demands they make upon the law . We are dealing with emergin g problems of international law. We are preparing for the problems that we can see will be emerging in the future . We are seeking new so lutions to old problems.
We are seeking new soluti ons lor new problems. This is a Conferen ce o f cre ativity. Our job is to create new laws. new legal in stitution s. c rea te impro vements for old laws an d exi sting institutions. The rusty , antiquated . o bs o lete . defective machinery o f internatio nal law must be upgraded and updated to the mechanic al effi c iency o f the space ship age. Thi s opportunity to promote the peace of the wo rld by readying the tools of internation al law is the greatest cha llenge that the lawyers of the world have conf ronting them . Let no man of the law in any nation fail to vo lunteer his talents. his expertise, his prestige for the c ause of world peace through the rule of law. The pages of history prove that every perceptible turn to the law has created a golden era for humankind . Such is the lesson of Hammurabi 's Code . Justinian ' s Roman C o de , England ' s Magna Carta. France ' s Declaration of the Rights of Man and of the Citizen. Napoleon 's Code Civile. and the Un ited States De c laration o f Independen c e and C onstitu tion . Man 's c easeless search for ac hievement has brought forth a n ew technol ogica lly-advanced world . That ceaseles s s earc h must no w be focused on the creati o n o f a Pe ac efu I World through intern ational law if an atomic ho locaust is to be avoided . From the beginning o f histo ry un til today. manki nd 's greatest dream has been a warless wo rld . a peaceful o rder with justice internationally. But never befo re has the achievement of this dream been so urgent. There is a co nvic ti on . based on an
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by Professo r Robert Brockmann On October 1, a "New Developments in the Law " panel was presented at the Law School. The panelists were Oscar Fendler of Bytheviffe who spoke on " Judicare," Ed Bethune of Searcy who spoke on " Progress of Criminal Standards Committee " and John Lineberger of Fayetteville who
Hot Springs who has been responsible for presenting several programs for the students at the Fayetteville Division of the Law School over the' past several years. Ruth Brunson of the Little Rock Division recently appeared on the program of the Conference For Legal
spoke on the " Public Defender Pro -
gram ." Moderator and organizer of the program was Don Schnipper of
Coachmen ' s Inn in Little Rock . Ruth also was appointed to the Special
World Law Continued from page 34
tunity. Let us here and now resolve to live up to that challenge . let us seize and live up to our opportunity. I propose that WP. here in Belgrade recognize the law reform movement which is sweeping the world and that we take action here and at home to lend impetus and to provide positive organized leadership to that movement. let us march proudly forward toge· ther under the banner of the law with full knowledge that every strength· ening of the rule of law will meet with overwhelming approval of all men of peace in every nation on Earth . Life in the 1970's must be based upon eternal preparation for peace, not eternal preparation for war . This means and can only mean vast revi· sian o f law and law processes to pro· vide peace. The world·wide turn to the law gives to the law an ever growing importance . This means that the role of our profession is also growing in impor. tance . It is growing in numbers. in capacity, and in influence . let us use all of these to help create a peace edifice out of law which ' will translate humanity's most ancient dream into reality . let us use all of our capacities to create a law system Which can pro· vide a Warless World in which a peaceful o rder and equal justice wi ll exist for all men and for all nations. We of the law know wel l that whenever and wherever the ru le of law prevails any man, woman, or ch i ld can walk anywhere on the face of the Earth or trave l into the vistas of end· less space in freedom, dignity and peace .•
understanding of the sum of history, that mankind can enjoy safe and or· derly progress only under the Rule of Law. While the pages of history are in large part a chronicle of wars and warrior and the weapons they used to kill, destroy and enslave , no one can dispute that the brightest chapters of history are those which record advan· ces in utilization of law . The golden eras of man ' s past have always been those where the Rule of Law has prevailed, providing order, growth and progress. In every city , state, province or nation. civilization has blossomed and advanced as law has replaced force . Every new advance in civiliza· tion's progress has been accom· panied by a new crest in the use of the rule of law . The regressive eras of man's past have always been those where the Rule of Law has broken down bringing chronicles of fear, horror and death. This understanding of the relalion· ship between law, order and progress is in the public mind universally. This is true regard less of race. religion , language or form of government. It applies to internationa l re lations as well as to local or national relations . This understanding explains why humankind has so strongly turned with such great expectation to the law. This understanding exp lains the cu r rent law reform movement. The current law reform movement presents to us judges, lawyers and teachers of law a great cha llenge, a great oppor·
was held at the
Committee on Law library Service to Prisoners of the American Association of Law Librarians by Mrs. Vio la Bird, president of that organization . Assistant Professor David Hendrick of the Little Rock Division spent some six weeks in Washington this past summer as Consultant to the Program of Advanced Policy Studies of George Washington University law School. The project involved a Type B Operation Breakthrough contract with the Housing and Urban Development Department. David is also coordinator of the Wiretap Project Subcommittee of the Committee on Civil Rights and Civil Liberties of the Young lawyers Section of the American Bar Associa· tion . Several new additions to faculty have been made this year. Milton Copelanq who is a native of Hope came on as Associate Professor. Milt holds a bache lor and masters degree from Abilene Christian college and received his J .D . from George Washington University. He was most recently in the private practice of law in the los Angeles area. Gary Nelms came to the Fayettevi lle campus as an Assistant Professor this fall. Gary re· ceived his lL.B. from Duke University and was in pr ivate practice in St. louis, Missouri . Glenn E. Pasvogel joined the Little Rock Division as Assistant Professor this Fall. He was most recently a Graduate Teaching Assistant at the University of Il linois School of law . G lenn received his un· dergraduate degree from Elmhurst College and his J.D . from DePaul University.
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In Memoriam John W. Barron (1904-1971) John W. Barron, senior member of the law firm of Rose. Barron, Nash. Williamson . Carroll. and Clay. died in Houston . Texas in November. 1971.
weeks. Mr. Barron was born in St. Louis, Mo., and was educated at Webster Military Academy in Alton . Illinois. and also at Washington University in St. Louis, from which Institution he received his law degree. He has been a resident of Arkansas and a member of the Arkansas Bar Association since 1921; and is sur~ vived by his wife. Mrs. Lorna Barron , a son John W. Barron II. a daughter Mrs. Lorna Sharp. and a step-son Alston Cameron. Mr. Barron was one of the most experienced trial lawyers in Arkansas. John E. Bull (1942-1971) John E. Butt died in a camping accident in October, 1971 . He was born on Feb. 17. 1942 in Fayetteville. Arkansas, the son of Dr. and Mrs. W. J. Butt. and Ihe grandson of Han . F. O. Butt of Eureka Springs. slill one of the geat lawyers of Arkansas. John E. Butt graduated from the law school of the University of
Arkansas in 1966. and was a first lieutenant in the army reserve. and also a member of the Arkansas Bar Association . At the time of his death he was deputy prosecuting attorney of Pulaski County. He is survived by his wife. Mrs. Ouida White Butt. his parents and grand father . and also by his uncle. Chancellor Thomas F. Butt .
Bruce Ivy (1893-1971) Mr. Bruce Ivy died in a nursing home in Hattiesburg. Miss. after a lengthy illness. He was born on a farm near Henderson , Tenn . in 1893; and received his education at Freed-Hardeman College in Tenn . and also Cumberland University in Lebanon. Tenn .. from which institution he received his law degree. In 1921 , he came to Arkansas to visit a kinsman, and fell in love with the State and its people, and moved to Osceola. Arkansas where he lived and engaged in the law practice tor nearly fifty years. He was a member of the First Christian Church. the Rotary Club and also the Arkansas Bar Associat ion . Until his health failed . he was one of the most active and successful lawyers in eastern Arkansas.
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sibility 10 do oulslde work and 10 S8fVe Ihe public as a whole. See also M. Pirsig . Cases on ProfeSSional Respon. sibility 332 (1965) Uhe editor deyotes si ~ pages to yariOUS short statements urging the lawyer's role in law reform and public professional responslbilily) : Slone. The PuOlic In lluence 01 the Bar. 48 HafV . L. Rey I (1934) (this is a printed lecture on Ihe lawyer and public professional responsibility. In wh ich the lale Justice caul Ions against the trend 01 lawyers in becoming 100 cllent-orlen ted. He UrOIJ5 the bar aod indl ... idual lawyers to follow tne lead 01 a lew professionals by joining With law SChools in law retorm activilies). , Stayton. Cum Honore OffiCium. 19 Tex. B.J . 765 (1956). Paul. The La wyef as a la~ Adviser. 25 Rocky MI. l. Re .... 41 2 (1953). concedes thai through a lawyer should not lei his priyate notions olliscal policy intrude Into work lor his c lients. he should nOI hesitate to make eHorts toward im· proying tax law when he is nol work ing lor clients. See Generally Gibson. ABA Code Canon 5-Pro/esslonal JUdgment. 48 Texas l. Rev. 351 (1970) . • V. Counlryman & T. Finman. The Lawyer in Modern Society (1966). e list includes Joe C Barren. Jonesboro. Arkansas. Robert A. Lellar. Fayene ... llie. Arkansas: and Edward L Wright. linle Rock . Arkansas . •
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RESOLUTION Joe C. Barrett has retired after 18 years of service as a Director of Mercantile Bank. There are no standards by which hi s contribution can be measured. Nevertheless, we who have worked with him know that it was sub stantial. His reputation reflected maturity, sound judgement, high ethical standards, foresight - all those qualities which every Bank tries to project as its image. Contribution to the image of the Bank would have been enough for some busy, successful men, but not for Mr. Barrett. He was a working director. He constantly probed for weaknesses in bank policy or procedures. He suggested new approaches to old problems, and explored alternative solutions to new problems. Now, therefore, Be it Resolved by the Board of Directors of Mercantile Bank, that Joe C. Barrett, by this means, be made aware of the sincere appreciation of his fellow directors, and through them , of all stockholders and employees, for his service to the Bank. Adopted this 17th day of August , 1971. Attest :
L . l(l~
Chairman of the Board