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JANUARY 1975 VOL 9, NO.1
~e THE OFFICIAL PUBLICAliON OF THE ARKANSAS BAR ASSOCIATION
Arkansas Lawyer SPECIAL FEATURES
OFFICERS James B. Sharp, President Robert C. Compton, Vice-President James M. Moody, Secretary-Treasurer
EXECUTIVE COUNCIL Douglas O. Smith. Jr. Robert Hays Williams Thomas F. Butt
Julian B. Fogleman David Solomon Wayne Boyce Herman Hamilton, Jr. John A. Davis, til LeRoy Autrey Winslow Drummond Leonard Scott Boyce Love
Ex-Officio James B. Sharp Robert C. Compton
James M. Moody James E. West R. Keith Arman Guy Amsler, Jr.
The Human Backbone Dr. Hoyt Kirkpatrick 1975 Midyear Meeting National Conference of Commissioners on Uniform State Laws An Introduction to Securities Law and Practice - Part II Walter W. Davidson Travel Adventures The Speakers' Bureau Aegis Recent Literatu re 77th Annual Meeting Legislative Package
4 22 23 30 21 16 19 26 37 40
REGULAR FEATURES President's Report .........•.......... James B. Sharp Juris Dictum C. R. Huie Legal Economics Richard A. Williams Law School News J. Steven Clark Oyez-Oyez B. Tarkington In Memoriam Executive Council Notes James M. Moody Service Directory
2 13 36 29 3 38 17 16
EDITOR
C. E. Ransick EDITORIAL COMMITIEE
Donis 8. Hamilton Samuel C. Highsmith Robert T. Dawson
Published bi·monthly by the Arkansas Bar Association, 400 West Markham, little 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 $3.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association, The 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. 400 West Markham, Little Rock. Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer, above address.
January 1975/Arkansas Lawyer/1
PIISIIIIT~S
IEPOIT by James B. Sharp
LEGISLATIVE PROGRAM With the splendid cooperation from the members of your House of Delegates, and under the able leadership of Henry Woods as Chairman, during November your Legislative Committee has had regional, legislative dinners throughout the State. Those groups in attendance were members of the General Assembly, members of the Judiciary, members of the Legislative Committee of our Association, and our Legislative Liaison Representative, James R. Rhodes. From the lively interest shown at each of these meetings in the discussion of the legislative program adopted by your Association, as the occasions arise, you who are active in politics should expect calls to assist the Legislative Committee and James R. Rhodes in obtaining passage of this legislation. Please do your best to help, but please don't make these Bar Association representatives think that you are doing them a personal favor. The members of the Legislative Committee draw the same salary from the Bar Association that you do. In the past, your help has always made the difference between success and failure. MIDYEAR MEETING We should be very proud of the work that we have received from the Commissioners from Arkansas on Uniform State Laws. Dean Robert A. Leflar and Mr. Joe Barrett now are lifetime members of the National Conference of Commissioners on Uniform State Laws - honors well deserved.
William S. Arnold of Crossett, Philiip Carroll of Little Rock, and J. C. Deacon of Jonesboro have rendered exemplary services to this conference, and, in turn, to the State of Arkansas. Largely as a result of the high esteem in which these Arkansans are held by the other commissioners, your Committee on Continuing Legal Education, chaired by Martin Gilbert, and the two Co-Chairmen for the Midyear Meeting, William S. Arnold and Phillip Carroll, have arranged for the Midyear Meeting one of the most outstanding arrays of experts on evidence that can be found anywhere. There is hardly a lawyer in Arkansas that does not encounter the Law of Evidence at many stages in his practice. Since this is such a basic topic, and since the proposed rules of evidence for our Federal Courts will probably be adopted soon, most of us will have a very practical and timely interest in this excellent program. Please take note of the activities of the ladies and the enjoyable social affairs already planned. Your programs for this outstanding event have already been forwarded to you and I urge you to register now for this great January meeting.
SEMI路ANNUAL MEETING The House of Delegates has a very busy session scheduled for Thursday morning, January 16th. These meetings are always open to all members of the Association, and i urge any of you who can to be present to hear these proceedings. It will be a fine opportunity to learn of various matters in which your Association now is engaged.
By B. Tarkington Drew Bowers, 88. of little Rock, was honored in a session of Federal District Court especially called for Drew Bowers Day. Harvey L. Bell, Little Rock. has been appointed by Gov. Bumpers as State Securities Commissioner. John S. selig, Little Rock. is now Vice President and General Counsel of First Arkansas Bankstock Corporation. James E. Baine, with the Murphy Oil Corporation in EI Dorado, passed the Louisiana State Bar Exam. At the annual meeting of the Arkansas Savings & Loan League in Hot Springs, Ike Allen Law., Jr. of Russellville. was elected as Chairman of the Savings & Loan Section for next year. E. Mac Anderson, Magnolia. was the principal speaker at the attorney's forum of the League's meeting. Four attorneys were named by the Supreme Court to the State Board of Law Examiners: Ernest G. lawrence, Jr., Bentonville; Chancellor Kenneth B. Balm, Pine Bluff: Philip E. Dixon, Little Rock: and William K. Ball, Monticello; their terms expiring in 1977. The North Pulaski Bar Associa~ tion will supplement the efforts of the Le~ gal Aid Bureau of Pulaski County by providing legal services each Saturday to eligible residents of Pulaski County north of the Arkansas River. Bill R. Holloway, Lake Village, was a speaker at the Mississippi Trial Lawyers Associa~ tion. The Arkansas Municipal Judges Council met in November and new offi~ cers were elected; Judge Dean Morley, North Little Rock. President: Judge Edward Grauman, Helena, Vice~President and Judge Milas Hale, Sherwood, Secretary-Treasurer. Sid McMath, Chiaf Justice Carleton Harris, and Jim Guy Tucker were speakers at this meeting. J. L. Shaver, Jr., Wynne, was elected as President of the Northeast Arkansas Bar Association at its November meeting which also honored Judge Charle. Light. The Woodruff County Bar now has eight members and new officers: George Proctor, President; and T. B. FitZhugh, Secretary-Treasurer. Arkansas County Bar Association also has new officers: F. Russell Rogers, President; Malcolm Smith, Vice~President and Vir路 gil Moncrief re-elected Sec.-Treas. Gregory P. McKenzia has opened his law office in Ozark. James W. Atkins, former assistant Attorney General, has opened a law office in Mountain Home. Forrest E. Dunaway is now engaged in
the practice of law at Horseshoe Bend, Arkansas. Wade, McAllister, Wade & Burke, P. A. announces that John R. Eldridge, III and Betty J. Burke are now associated with the firm. R. Edward Buice, recently elected City Attorney of Eureka Springs, is an associate of Ledbetter & Associates, ltd. of Harrison.
Mrs. Eyelyn Drake has moved her law office to Heber Springs. Robert D. Stroud has recently become associated with the Batesyi lie law finm of Murphy and Blair. Fitton and Meadows, Harrison, have been joined in the practice of law by Donald J. West. Thomas M. Hughes III, formerly with CNB, has opened his law oHice in Beebe. Philip Farris has opened his office for the practice of law in Batesville. Daye W. Harrod, formerly of Greers Ferry, has moved his office to Heber Springs. Ben E. Rice, Jacksonviile City Attorney, plans to open expanded law office facilities in January. John Elrod of Rison retired in October and Sanford Beshear, Jr., his partner will continue practicing at their offices in the courthouse. Rodney C. Wade, formerly of Crossett, now ;s in practice with Eubanks, Flies & Hurley of Little Rock. Associate Justice George Rose Smith spoke at a November meeting of the Craighead County Bar Association. New officers have been elected for the Student Bar Association - LR Division: Joe Purvis, President; Doug Mays, Vice President: Martha Lou Grubbs, Secretary; and David Calhoon, Treasurer.
samuel F. Beller has announced the opening of an office for the practice of law at Batesville. Erwin, Bowie & Boyce, Newport, has announced the association of Harold S. Erwin for the practice of law. West Fork, Arkansas has a second attorney with the opening of the offices of David Brand\. Richard L. Arnold has been appointed Chief Law Clerk for United States District Judge Robert W. Porter in Dallas, Texas. Rick Weaver, native of New York, has announced the opening of his law office in Clarksville. Georgia Kimbro Elrod has joined her husband John Elrod and his father Russell Elrod in the practice of law in Siloam Springs. B. Michael Easley, native of Kentucky, has joined Knox B. Kinney of Forrest City in the practice of law. He.bert Ray, formerly of Springdale, has moved his law office to Salem. Arkan~ sas. George D. Ellis has joined Laser, Sharp, Haley, Young & Boswell and will be practicing in the Bryant office. B. Richard Allen has announced his association with Gerald W. Carlyle for the practice of law in Newport. Harold H. Simpson II has become associated with SPitzburg. Mitchell & Hays of Little Rock. Thomas M. Hughes III, formerly with CNB, has opened his law office in Beebe. Philip Farris has opened his office for the practice of law in Batesville.
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January 1975/Arkansas Lawyer/3
THE HUMAN BACKBONE -Dr. Hoyt Kirkpatrick This article is written as a response to a request by Mr. Robert Dawson. Mr. Dawson asked that I write a discussion of conditions involving the vertebral column which might be of interest to attorneys. He asked that I start with the premise that attorneys know nothing about the anatomy and function of the vertebral column. I do not share this opinion at all, as the various attorneys with whom I have been associated in court and in depositions have uniformly appeared to me to be sneaky smart about this whole subject. The paper represents an expansion of portions of lectures given at the University of Arkansas and University of Oklahoma Law Schools in medico-legal seminars. I apologize in advance for the elementary nature, but the discussion simply represents an over-view of a very complex and complicated SUbject. The intimate anatomical details which must be considered in the individual assessment of these patients have been intentionally omitted. In this discussion consideration will be given to injuries to the vertebral column commonly seen in an active orthopaedic practice. These injuries occur in every way you can imagine and some in ways none of us can conceive. Recurrent patterns develop. Assault by auto, assault by machinery. assault by slippery floors, assault by motorcycle and assault by heavy loads are all seen frequently and in general make up a great percentage of the ordinary practice of orthopaedic surgery. The human backbone or verteoral column was never designed for use in the erect posture. The mechanical principles of design work well for a quadriped posture, but not a biped. In infancy, the entire vertebral column is a Ccurve which gradually changes as the infant assumes the erect posture until, in adult life, four curves have deveioped. Two of these curves are lordotic, or convex forward curves, and two of them are kyphotic, or convex backward. Lordotic curves are present in the cervical spine and in the lumbar spine, and kyphotic curves are present in the dorsal or thoracic spine and in the pelvis or sacrococcygeal area. The number of degrees in the lordotic curves equals the number of degrees in the kyphotic curves, thus allowing for the fully erect posture. The kyphotic curves of the vertebral column are much more rigid than the lordotic curves due to the presence of the rib cage about the dorsal curve and the fact that the sacrum and coccyx are fused 4/January 1975/Arkansas Lawyer
into single bones. Spinal motion, therefore, is primarily present in the lordotic curves of the back, and it is not surprising that primary back injuries occur in these areas of greatest motion. Study of Figure 3, which is a lateral view of the vertebral column, will show that the points of greatest arc are in the mid-cervical spine and at the lumbosacral joint. These areas represent the points of greatest motion in the back. They also represent the areas of greatest stress and are the points at which injury is most likely to occur.
Figu,. 1, 2, 3 The structure of the vertebral column is that of a series of cylinders with numerous processes growing out of each. A vertebra consists of a vertebral body, transverse processes, pedicles, laminae and spinous processes. On either side of the vertebra posteriorly is a superior and inferior facet so that each vertebra may articulate in its posterior portion with the vertebrae above and below it. Between the vertebral bodies are the intervertebral discs - to be discussed later. Certain vertebrae have specialized functions so that these vertebrae are anatomically different. For example, the first cervical vertebra is shaped like a washer to assist in rotation of the head on the neck. The second cervical vertebra, the axis, provides an axle or odontoid process for the same purpose. Figurel 4, 5 (Individuel typel 01 vertebree) The head is a 10-12 pound ball sittin~ on top of the cervical vertebrae. It is held by a group of ligaments and muscles spreading out to the shoulder girdles and upper chest wall, much in the manner of guy wires holding up a pole. Longitudinal muscles are also present, but these muscles are much more for motion than they are for stability. The muscles about the cervical spine include the trapezius and paravertebral extensors behind and laterally, the sternocleidomastoids laterally and anteriorly and the scalene muscle groups anteriorly. Lesser longitudinal muscle groups, such as longus colli and multifidus muscles are much less important. ligamentous structures such as ligamentum nuchae, anterior and posterior spinal ligaments, the interspinous and interlaminar ligaments also add to the stability of the neck. However, these are static braces and do not give the active supContinued on P-V- 6
Dr. Hoy! Kirkpatrick is an orthopedic surgeon with the Holt-Krock Clinic of Fort Smith. Dr. Kirkpatrick is a native of Fort Smith and did his undergraduate work at Notre Dama and graduated from the St. Louis University SChool of Medicine. He did advance study at U. S. Naval Center in Bethesda, Maryland; Alexandria Hospital In Alexandria, Virginia; University of Maryland Hospital; Baffimore City Hospital; Kerman Hospital for Cripple Children in Baffimore; and the University of Illinois. He has been an instructor at the University of Arkansas School of Medicine and has lectured at the University of Arkansas and University of Oklahoma sChools of Law. He is married to the former Elizabeth Louise Rhodes, who is a graduate of the University of Arkansas. They have five children, Terry Kirkpatrick Guzman, a graduate of the University of Arkansas School of Law who is currently serving as an instructor at Drake University School of Law; Neal Kirkpafrlck, a graduafe of the University of Arkansas School of Law, who is presently serving in the JAG Corps at Ft. Benning, Georgia; Dennis Kirkpatrick, who is attending graduate school at the University of Southern California; Michael Kirkpatrick, who is a s~nior pre-med student at Hendrix College; and Kelley Kirkpatrick, who is a sophomore student at the University of Texas.
Fi gure 2
Figure 1
} CERVICAL
} CERVICAL
VERTEBRAE
VERTEBRAE TRANSVERSE PROCESS
TRANSVERSE PROCESS
VERTEBRAL BODY
VERTEBRAL BODY
DORSAL VERTEBRAE
)w",,"
VERTEBRAE
1
SPINOUS PAOCESS
DORSAL VERTEBRAE
)'""~
VERTEBRAE
--SACRUM --SACRUM
COCCYX
COCCYX
FrOlll, or alllnopOItnlor VlfW of thf vfrlfbral eolumn, l\lulUltUll its lubdl'l'1I10llJ.
Figure 3
Baek or pOitno-anttnor VltW of tht vtrttbral column.
t ~~~~\-_SPINOUS PROCESS
The Arkan... Lawyer is indebted to Matthew Bender & Co., Inc. for permission to reprint the FIGURES used
VERTEBRA~L __~
INTERVERTEBRAL
-F~~~~~~;~~FORAMINA
by Dr. Kirkpatrick with his article. The FIGURES are from Proving Medical Olagnool. and Prognool. and the Attorney.' Taxtbook of Medlclna published by Matthew Bender & Co.. Inc.
BODY
-...-_- SACRU M
,JL---t--COCCYX Sidf or Illeral VlfW of th vutfbrJI column.
January 1975/Arkansas Lawyer/S
BACKBONE Continued from page 4
Sup.. rior up.' I
port and the dynamic protection of the muscle groups.
'.t.1 lor odonloid prot•••
WHIPLASH INJURY: This is a bad term. In my opinion, it has no real significance in orthopaedic surgery. The reason for this is that the term is not a diagnosis. It describes the method by which an injury occurs rather than the findings as a result of injury. The term does, indeed, have a dramatic ring and suggests sinister overtones, but it does not have any definite surgical meaning. I much prefer the diagnosis of "cervical sprain", as this term leads itself to a classification of the severity of injury. This classification is based on the depth and the importance of the struc· tures injured, and allows one to evaluate the severity of injury. For example: 1) A mild strain of the muscles of the neck will recover promptly and leave no permanent impairment of function. 2) A severe sprain with stretch injury to the interspinous and interlaminar ligaments will result in long term partial dis· ability, but usually an eventual recovery. 3) If the laminae of the vertebrae are actually pulled apart, the underlying ligamentum f1avum or yellow ligament is stretched and then en/oided. This is a serious injury because of possible bleeding about the spinal cord and subsequent swelling of the ligament, with the danger of cord pressure. As the depUl of the injury progresses. the intervertebral discs may rupture or one or both of the facet joints may frac· ture or dislocate or the vertebral body may be fractured. All of these injuries are exceeding serious and the catastrophic possibility of quadriplegia with total and permanent loss of function exists. The typical patient with a sprain of the neck complains of pain in the neck and shoulders due to trapezius muscle stretch and headache. There is ordinarily no arm pain. Such pain is referred along one or more of the cervical nerve roots and is known as radicular pain. The headache is usually about the occipital or back portion of the head. It may become quite severe. The muscle groups become tight and are described as in "spasm". This muscle tautness or spasm - a state of continuous contraction - is nature's way of holding the area immobilized so that healing may occur. With external support, medication for pain and time for healing, the injury resolves, and the patient recovers. About the only physical findings which may be found are those of limitation of motion of the neck, tight muscles, tenderness and areas of point tenderness. A negative neurological eXJ=lmination is ordinarilv present and the x-rays are uniformly 6/January 1975/Arkansas Lawyer
Figure 4
of .. I.
l'an ...., •• prouu
Sup.rior up.. ,t OdoNollIS prou'"
'od, Cd....tood proc... IL-->--Impr ... lon lor alar
Ii"a ..... ,,' "aC'1 for 1.I,ra'
"",n of eU •• Bod,
Sup.rior up.,t lod,
lat.ral
a~p.ct
C.rvical 7 The various types of ver-tebrae, with superior view on the left and lateral view on tbe right.
within normal limits. A more serious sprain will give the same complaints, but they are more severe. The headache is worse and may be referred to the base of the skull or behind the eyes. In this situation, the neurological examination will still be negative. but x-rays will show a straight or a reversed cervical curve. The treatment is the same, but it must be continued much longer and some degree of permanent impairment may result. The ruptured cervical disc is a result of severe neck sprain or a severe lifting injury. It is characterized by neck pain and radicular pain, ordinarily in one arm. The most common levels are those of C4-5 and 5-6, because these are the levels in the cervical spine subject to the greatest stress and in which the greatest degree of motion occur. Arm pain is
most striking and the patients will trace the involved nerve root or roots quite accurately in their description of their diffiCUlty. An accurate and detailed history is of specific value in the diagnosis of a herniated intervertebral disc. Reflex changes appear early in the course of the condition and atrophy of the involved muscle groups, that is in those muscles supplied by the involved nerve, also appears early and is ordinarily progressive. The diagnosis of a herniated intervertebral disc is reached by consideration of the characteristic history and the physical examination and by cervical myelography. A cervical myelogram reo quires hospitalization. The examination is carried out in the x-ray department. A spinal puncture is done and 5-6 cc·s. of spinal fluid is removed for analysis. 912cc's. of Pantopaque solution is then
introduced. This solution has several atributes: I) II is visible on x-ray. 2) II is heavier than spinal fluid. 3) It is cohesive and thus forms a column which may be moved up and down the spinal canal bv raising or lowering one end of the x-ray table. When the Pantopaque is properly positioned and the position verified by fluoroscopy, films are taken. The normal cervical myelogram has a characteristic outline and thus extradural defects such as ruptured cervical discs show as in· dentations of the column of dye. The indentation produced by a herniated disc is quite characteristic in appearance and is earily differentiated from defects due to degenerative arthritis of the neck (spondylosis) or the defect of a cord tumor. Following the completion of the examination, the d l ' : ' is removed insofar as pcssible. The patient is kept at bedrest for approximately 24 hours following the examination.
COMPLICATIONS OF MYELOGRAPHY: 1) Allergy: A careful history for ailergy to iodine containing compound must be taken prior to the myelogram. In the case of allergy, the examination should not be done. 2) Infection: The examination must be carried out under aseptic conditions as this complication may be quite severe and might even result in a meningitis or worse, a myelitis. 3) Headache: This is a quite common occurrance following myelogram, but it is ordinarily self-limiting, ordinarily due to leakage at the needle site and may ordinarily be controlled by simple bedrest and the use of intravenous fluids. In my experience, the accuracy of a well done cervical myelogram is excellent. In my opinion, operation for cervical discectomy should not be done in the presence of a negative myelogram. CERVICAL DISCOGRAM: In this examination, Pantopaque is actually injected into the cervical discs. Xrays will then show Pantopaque leaking out of the disc space, and in addition, the arm pain as described by the patient will be reproduced. In our practice, we do not use the cervical discogram, feeling that physical rupture of the annulus fibrosis in the cervical spinA is apt to lead to as much difficulty as it resolves. This feeling is not shared by all orthopaedists and neurosurgeons throughout the country. Many feel that discography is a great aid in proving or disproving the presence of a ruptured cervical disc. TREATMENT: Conservative treatment of the herniated disc is similar to that of the severe sprain of the cervical spine. Bed rest, with head halter traction, muscle relax-
Figure 5 Su~rior up~ct
D.ml.'.e.I_<t.=:~=d 10' " •• 0 of rill>
lodJ'
Splrw
Thoracic.
.cuuor, prot...a Sup~rior a5p~ct
::..."-. 'I:~-:--::T r :~:;:;:-
80d)'
lumbar 1 A ......"-.,.'... ,or .,I,cular p,oe.1I Lal~r.1
upret
I,.I."or .rlleul., p'oe ....,
lumbar S The various types of vertebrae, with superior view on the left and lateral view OD the right.
ing medication, a contour pillow, local measures such as moist heat and medication for pain will help if the cervical disc is not large or if there ;s not severe pressure on the nerve root. Should the herniated disc be of a large calibre, however, an operation may become almost mandatory. The operative treatment of the herniated cervical disc has been entirely changed in the past few years by Cloward of Honolulu. Cloward developed the anterior approach to the cervical spine, completely changing the results of the surgical therapy. Prior to the use of this method, results of operative treatment were most discouraging, primarily because of the postoperative pain state which persisted. This was due to the very close quarters involved in the
interior anatomy of the cervical spine from the posterior approach. In my opinion, the anterior approach has completely revolutionized cervical spine surgery with results so greatly superior to the pcsterior approach that the laller is only used rarely, and then for neoplastic diseases or for fracture and dislocation.
ANTERIOR CERVICAL DISCECTOMY TECHNIQUE: The operation is conducted under endotrachael anesthesia, ordinarily on the right side of the neck. The incision is transverse, ordinarily in a skin crease. The faschial sheath between the strap muscle and the carotid sheath is identified and blunt dissection is utilized to exContinued on page 8
January 1975/Arkansas Lawyerl7
BACKBONE Continued lrom page 7
pose the underlying structures. The midline of the paravertebral fascia is utilized for opening of the disc space. Orientation as to the level is obtained by x-ray control. The disc space is evacuated of its contents and a bone graft is inserted and impacted. This graft is obtained from the pelvis. The wound is closed after hemostasis is obtained. Postoperatively, semi-rigid bracing is employed with later physical therapy and active exercises after the fusion is identified on x-ray. The primary complication of this operation is quadriplegia so that great care is necessary when the depths of the interspace are evacuated. Fracture and dislocation of the cervical spine results in long-term disability which may be permanent in nature and total in degree if spinal cord injury of a serious nature is present. A simple bruise of the cervical spinal cord may result in physiological transection of the cord due to bleeding or hematomylia. Localized pressure about the cord due to bony fragments or epidural hematoma may also gIve a permanent paralysIs, but is less likely to do so. Treatment is longterm in nature and often requires surgical intervention. This surgical treatment may be through either the anterior or the posterior approach depending on the circumstances of the individual injury. The surgery may vary from simple removal of some fragments and decompression of the cord with section of the dentate ligament up to the entire replacement of the vertebral body with bone graft to the contiguous vertebrae above and below. In any event, these are extremely serious situations requiring absolutely topnotch operative facilities and the presence of well trained and experienced neurosur, geons and orthopaedists. Fractures and dislocations of the cervical spine are absolutely catastrophic injuries with transection of the cord occurs. The diagnosis is obvious due to the quadriplegia which is present and the x-ray appearance. Disability is total and permanent. Treatment is supportive in nature and lifelong in duration. If the injury is above the 4th cervical vertebra, the ordinary result is fatal, either immediately or shortly thereafter, due to paralysis of the diaphragm. Lower transection levels also result in a greatly decreased life expectaney, most often due to repeated bouts of ascending urinary tract infection or repeated episodes of pneumonia. DORSAL SPINE: Injuries of the dorsal spine occur due to hyperllexion or to hyperextension. The hyperflexion injury or jack-knife injury is much more common. This injury results in strain of the dorsal musculature, 8/January 1975/Arkansas Lawyer
sprain of the interspinous and interlaminar ligaments and compression fracture of the dorsal spine. Unless the injury is severe enough to produce pressure on the spinal cord with resultant paralysis, treatment is quite simple and consists primarily of bedrest, hyperextension exercises and possibly the use of a brace. The hyperextension body cast has largely been discontinued. The fracture of the dorsal spine will take some three to six months to heaL but the physical impairment arising from this injury is ordinarily not severe, unless cord injury has occurred resulting in a more or less severe degree of paraplegia. Long term disability due to the altered mechanics of the spine present when a compression fracture has occurred is ordinarily not too severe. Arthritic changes in later life are, of course, to be expected, again because of altered mechanics in the entire vertebral column. Most fractures of the dorsal spine do not require surgical intelVention and most fractures do not have neurologic involvement. When surgery is required, however, it is my feeling that the anterior approach is to be preferred because of the much greater exposure which can be obtained and because of the more secure fixation which is possible. LUMBAR SPINE: All of the conditions described in the celVical spine occur in the lumbar area as well. In addition, the very common presence of congenital anomalies contributes to low back disorders. In various studies, these anomalies are described in from 10 to 20% of the population as a whole. The severe congenital anomalies play no part in a discussion of injury to the back as they are so severe and cause such profound disability that the patients afflicted with them are really not active enough to be injured. Conditions such as meningocele and meningomyelocele or a spina bifida, so serious as to constitute rachischisis or split vertebra, are not compatible with an active life. Fortunately, such severe and serious conditions are rare and the much more numerous minor anomalies allow a more or less normal life. These conditions make up such things as spina bifid a occulta, asymmetrical facets, spondylolysis or spondylolisthesis. These conditions tend to decrease the stability of the lumbar spine further and to cause a simple straining or spraining injury to be much more severe and to hang on much longer than would be the cause if they were not present. Injuries to the low back constitute by far the greatest simple industrial hazard; I think it is probably fair to say that the expense of these injuries cost industrial casualty companies as much or more than do all other industrial injuries combined.
The low back injury typically occurs when one is engaged in heavy lifting or when one has a sudden strain on the low back. For example, a co-worker drops the other end of a load. Sudden jerks and jars will cause a rupture of the disc as will a hyperfiexion injury to the low back. A Jack-knife injury in a collision or the feet flying out from under are both common causes of a herniated disc. The intervertebral disc is a remnant of the notochord. The disc consists of a strong interlaced fibrous ring about the periphery and this structure is called the annulus fibrosis. Solid end plates of the vertebrae above and below make up the top and botlom of a small. flat. discshaped cylinder which contains a semiliquid center or a nucleus pulposus. The unit thus formed makes up a hydraulic shock absorber which is, indeed, the primary function of the intervertebral disc. In its uninjured state with a semi-liquid center, the intervertebral disc is difficult to injure. If, however, aging changes have occurred, or if the disc has been previously injured, or due to any cause, the semi-liquid center of the disc has become dried or degenerated or inspissated, a very trivial injury can cause a ruptured disc. I know of examples of persons who herniated a disc completely into the spinal canal from maneuvers such as sneezing, stepping off a curb or lifting up a powder puff. Most often. however, the force involved is considerable and is of a lifting or spraining type as previously described. When an intelVertebral disc ruptures, back pain is quite severe. As further changes develop and the nerve root on the involved side becomes more and more involved, ordinarily the back pain will get belter or may disappear entirely. When back pain is the only complaint, one should suspect a central rupture of the disc rather than one which occurs to either side. The central portion of the distal' end of the spinal cord or the cauda equina will be involved rather than one of the roots causing radicular pain into the leg. Bladder and bowel involvement may occur with a large central rupture of a disc. The most common history of a rupture of the intervertebral disc is that of one of the injuries of the types described above resulting in back pain. Radicular pain down the leg will occur and this is particularly severe. As the leg pain increase, the back pain will tend to decrease. The leg pain is sharp and shooting in nature and is referred along one specific nerve root. Numbness or paresthesia or hypesthesia or even anesthesia of the affected nerve roots is a common complaint. Since pain is a purely SUbjective complaint, really meaning nothing except to the person who is having it, descriptions of radicular pain in herniated disc situations will vary widely. Such terms as
shooting, burning, tearing and bursting are all employed. The paresthesias may be described as numbness, tingling, needle sticking, etc. All of these patients are most graphic in their description of pain and paresthesia and occasionally a diagnosis may be made on history alone if the patient is a good historian. The typical physical findings are those of limitation of back motion, tenderness in the iliolumbar area of the back or about the interspinous ligaments, a positive straight leg raising test. reflex changes, particularly a decrease in the tendoachilles or heel reflex, atrophy of muscles of the calf and muscles of the buttocks. One of the earliest findings of muscle atrophy is sagging of the buttocks as the patient stands in the erect position. Weakness of the muscles of the foot, particularly those of dorsiflexion of the foot, is also a valuable diagnostic aid. II a person is unable to walk on the heels or if a dropfoot gait develops following a lifting or straining injury, the diagnosis of a complete herniated disc is to be strongly considered.
,, ,
Figure 6 X-rays are of little help when they are plain films. An acute back injury will show a reversed or a straight lumbar spine and possibly a decrease or a tilt of the involved interspace. These changes are not diagnostic, but should make one somewhat suspicious. Should the neurological examination begin to show changes, a lumbar myelogram is indicated. It the lumbar myelogram is unequivocal and a large defect is noted, surgical intervention should then be considered, As described above, myelography is not entirely without danger and its use should be reserved to such persons in whom a positive finding is anticipated. A lumbar myelogram will answer several questions: 1) Is a disc present? 2) If a ruptured disc be present. what is its levei? 3) if a ruptured disc be identified, is it large enough to require surgery? Figure 7 The same dangers are present in lumber myelography as are present in cervical myelography. The lumbar myelogram, in my opinion, is not as accurate as the cervical myelogram. The column of oil may be far enough separated from the posterior longitudinal ligament that a herniated disc of fairly large caliber can be present without showing on the myelogram. Fortunately, the errors in lumbar myelography are primarily those of false negatives rather than false positives so that an unindicated surgery may be largely avoided. Surgery is by no means indicated in every case of a herniated disc. A large proportion of individuals with back pain
Figure 6
A POST.
B
c
Different forms of injured intervertebral discs compared with a normal one. A. A true posterior protrusion. B. A normal Disc. C. A posterolateral protrusion without tearing or rupturing the annulus fibrosul. D. A posterolateral protrusion with rupture of the annulus tibrosus. E. A posterolateral protrusion with rupture of the annulus tibrosus and with fragmentation of disc substance.
and sciatica may be treated successfully by conservative means, utilizing bedrest with or without traction, and a series of flexion exercises to the low back. Living with a ruptured disc which is not causing a great deal in the way of symptoms is largely an educational matter. Indeed, one entire fairly new system of treatment of low back disorders hab been developed in Sweden, utilizing an educational approach to the problem. The conservative approach to low back disorders, specifically the herniated disc may fail, however, and in such conditions and under such conditions, surgery may be indicated. The indications for early surgery in a situation of a herniated intervetebral disc, in my opinion, are these: 1. Failure of conservative treatment. 2. Intense and continued pain requiring the use of narcotics for relief. 3. The development of progressive muscle weakness about the lower extremities, or progressive bladder and bowel dysfunction. 4. The absolute insistence of this patient that this pain is so severe that
something must be done now, even if it is wrong. The above indications pertain when a myelogram is either a strong positive, or equivocal in such a way that a hidden disc may be present. It is my opinion lumbar discography has the same disadvantages as cervical discography, and this procedure is not used in our practice. The surgery necessary for correction of a herniated intervertebral disc consists of hem i-laminectomy and discectomy. With the patient in a flexed position, a small portion of the lamina above and below the involved disc space is removed, the underlying ligamentum flavum is removed, the nerve root is dissected free and moved toward the midline. The disc space is thus visualized and the herniated disc is removed with pituitary ronguers. This operation is an extremely useful one and one which has enjoyed a large degree of success, The operation has been used since 1934, when it was accidentally done by Mixter and Barr in Boston while operating for a Continued on page 10
January 1975/Ar1<ansas Lawyer/9
Figure 7 A B
Schematic diagram to illustrate the appearance of the x·ray films in • myelographic study. Since these are anteropostenor views, the patient's nght is
OD
the left side of the drawing.
A. Normal. B. The thecal sac is shorter, a finding whicb may he congenital or traumatic in origin. The lower nerve sleeve at L·t is absent on the left. With a history of trauma, this finding suggests a space·occupying lesion which oblitentes the nerve sleeve. C. The indentation of the thecal sac on the left side of the patient hetween L·t and L-S is a filling defect. The thecal sac is not symmetrical and is narrowed at L·s. The findings are abnormal and suggest that a large mass has compressed and altered the ()nlours of the thecal sac. D. A large filling defect in the thecal sac 00 the patient's left at L-4 and L-5. E. Absence of 1st sacral nerve root 00 patient's left.
BACKBONE Continued from page 9
suspected spinal cord tumor. Since then many millions of laminectomies have been done throughout the world with re· suits varying widely according to the papers of different investigators. Grading of the results of this procedure, in our practice, is as follows: 1) Excellent-This patient really never knows he has had a back operation. He is able to continue his regular work and he has no remaining difficulty. 2) Good-This patient is able to remain at work and is able to do heavy activity. He does, however, have occasional back pain. He has no leg weakness and does not lose time from work. 3) Fair·This patient has occasional frequent episodes of pain in the back. He may have some degree of radicular pain in the leg. He may miss some time from work. 4) Poor·This patient continues to have back pain and leg pain and is unable to work. 5) Failure-This patient is no better than before his operation and, indeed, may be worse. 10/January 1975/Arkansas Lawyer
SPINAL FUSION: In my experience fusion is not indicated as a primary procedure at the time of laminectomy. If some condition be present which warrants fusion above and beyond the presence of an intervertebral disc, then one might consider primary fusion. This refers to such things as severe degenerative arthritis of the lumbar spine, marked asymmetry of the facets, spina bifida, spondylolysis, etc. A severe degree of instability of the lumbar vertebrae noted at time of the laminectomy may also be an indication for fusion. I do not feel that the results 01>tained from the laminectomy and fusion, done simUltaneously, are as good as the results obtained from laminectomy alone with fusion later, if indicated due to additional reasons. There is a definite difference in the results obtained from laminectomy done on private patients and those patients who are operated on an industrial basis, or in those patients with whom litigation is involved. This does not mean that all persons involved in litigation, or who are being cared for under the workmen's compensation program, are exaggerat-
ing their symptoms or malingerers. lt means purely that such people are ordinarily doing heavier work than those who are treated on a private basis, or that third party intervention is present. The stimulus to return to work, and remain at work, is much greater in the private patient. The primary difference, however. in my opinion, is the heavier work done by the industrial patient.
ADDITIONAL DIAGNOSTIC AND TREATMENT AIDS Thermography: Ultrasensitive heat sensors have been developed during the past ten years, primarily for military use. These have been adapted for use in medicine, however, in an instrument called a thermogram. By virtue of increased blood supply, inflammatory conditions may be accurately delineated due to their increased heat productivity. The primary use of this in orthopaedic surgery is to diagnose and to localize rheumatoid arthritis. Tumors also have an increased blood supply and thermography is readily utilized in the diagnosis of certain tumors, namely carcimona of the breast. The fibers which carry temperature are the same nerve fibers which carry pain sensation. There is considerable evidence to show that an actual pain state, due to any state, will cause change in the thermogram. It is inaccurate to state, at this time, that a thermogram is an actual measure of pain, but such studies are underway at this moment and may, some time in the near future, give us a much more accurate means of measuring pain states due to any cause, and especially those due to inflammatory causes. CHEMICAL TREATMENT OF HERNIATED. DISCS: Several years ago Dr. Lyman Smith, in Cleveland, began experimenting with an enzyme which liquifies the intervertebral disc. This enzyme was obtained from the papaya plant and is called Chymopapase. Some 10,CXJO cases have now been done at the hands of various investigators. The procedure is still experimental and the drug has not yet been released by the FDA. The procedure consists of a lateral approach by needle to the intervertebral space and the performance of a discogram to be positive that the needle is in the right space. Chymopapse is then injected into this with resultant liquification of the intervertebral disc. The results, to date, have been comparable to those results obtained with a well performed laminectomy. There is a very great advantage in that the spinal canal has not been invaded surgically and that scar formation does not occur. Several problems remain to be resolved about
the procedure, notably anaphylactic reaction due to the drug. To my knowledge only two deaths have been reported in the approximately 1,000 or so cases which have been done. One of these was due to infection and one due to incorrect use of the procedure. The procedure and drug have not yet been released for general use; however, this is expected within the year. The American Academy of Orthopaedics is presently engaged in some courses and workshops directed toward familiarizing individuals in the use of this new approach to herniated disc disease.
The psychology of the person with the injured neck, or injured back, deserves considerable consideration. It is apparent that injuries of the neck or back, or injuries regardless of where they occur in the vertebral column, take a long time to heal. A person with such an injury has no honorable scars to show for his pain; he is not immobilized in a plaster cast, he has no steel plates, rods or other devices that demonstrate his discomfort and he has no obvious external cause for his disability. A workman with a broken arm is in a cast but he knows that sooner or later the cast will be removed and he will be able to return to work. The workman with the severe back sprain or with a ruptured disc or with a chronically sore neck does not know when he will return to work, or if he does return if he will ever be hired again. The patient is severely depressed. He has seen numerous doctors. He has been in contact with insurance adjusters and with attorneys, or he may have impending litigation. All of these conditions contribute greatly, in my opinion, to additional tension, increasing his disability, and mitigating against an eventual good result. I know of no way in which his situation can be alleviated other than simply to wait it out. Sooner, or later, he will largely recover. It is important, I think, that immediate treatment be instituted in all cases. It is my personal feeling that a patient with a disc problem should be investigated thoroughly and promptly, that the disc be handled by operable or non-operable means, whichever is indicated, and that treatment be continuous until the patient is restored to a work capacity. If light work is available for him, or if it can be made available, light work should be utilized. An individual recovering from a low back operation working at a light job is a useful member of society, but an individual recovering from a back operation, who is not working, is an invalid. Some ten to fifteen years ago a neurosurgical group in Memphis, headed by Semmes and Murphey, published an article in the Journal of the American Medical Association. This article was
entitled "Whiplash Injuries Ten Years Later". In the article a discussion is held regarding a group of individuals who have been injured, and all of whom have received substantial disabilities ranging from 10% to 25% of the body as a whole. Some ten years later practically all of the individuals have resumed normal activities. In this paper the psychological overtones of neck injuries were described in detail. Semmes, Murphey, et al. described the tensions to which patients are SUbjected when examined by plaintiff's doctors and defendant's doctors, when they had depositions, when they gave depositions to various attorneys, and when they went to court for judgment. All of these tensions, which were not readily apparent, were said to contribute greatly to the patient and made the eventual disability greater. When these 1en-
3ions were removed, disability largely resolved itself. I have reserved until last the question of permanent impairment of function. In this connection, it is my feeling no blanket statements can be made. Estimation of permanent impairment must be based, in my opinion, on the individual case and must include such factors as range of motion, strength of various muscles, speed and accuracy of movements, reflex change, x-ray change and Earle-McBride catch-all classification "Worth As A Workman". Certainly, with accurate diagnosis, with prompt and vigorous treatment, and with an intelligent approach to living with decreased function of the vertebral column, most individuals can be restored to an active normal, or near normal life, and invalidism be greatly reduced.
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JURIS DICTUM by C. R. Huie Executive Secretary, Judicial Department
Mr. Justice Lyle Brown of the Arkansas Supreme Court recently invited our attention to an article by William Nash. Esquire appeanng in the June 1974 issue of the The New Age, official publication of the Supreme Council3JO Scottish Rite of Freemasonry of the South Jurisdiction. United States of America. He observed that the little known facts concerning Albert Pike's tenure as a Justice of the Arkansas Supreme Court deserved wide circulation among the Bench and Bar of Arkansas. It is therefore with gratitude to Mr. Nash for his meticulous research and scholarly treatment of the subject, and to Mr. Pauler. Editor of The New Age for his permission. that we repnnt Mr. Nash's article. ALBERT PIKE: JUSTICE 0 F THE SUPREME COURT OF ARKANSAS The several biographies of Albert Pike and other specialized studies of his life mention that for a time he served as a member of the Supreme Court of the State which he adopted and in which he was made a Mason, but none gives an adequate presentation of the background leading to his appointment or of his work on the Bench, This is understandable in view of the fact that Pike was blessed with a long life. rich in experience in many different spheres. while his tenure on the Bench was shortlived. obscure and less striking than many of his other undertakings. Nevertheless. it may be useful and perhaps interesting to review the circumstances that led to his appointment, to correlate his activity as a jurist with his work in Masonry. and to explore briefly his contributions to the case law of his State. His career as a jurist began and ended in the troubled war years when Arkansas was a member of the Confederacy. With the Nation at war. on May 10. 1861 a Constitutional Convention in Little Rock accepted the provisional Constitution of the Confederate States of America. On June 1 the Convention adopted a new State Constitution which provided for an election to be held on the first Monday in October, 1862 for State officers to serve the State as a member of the Confederacy. In the race for Governor, Henry M. Rector, the incumbent, was defeated by Gen. Harris Flanagin, then with the Confederate forces in Tennessee. He returned to Little Rock for his inauguration on November 15th, and to assume his duties as Governor, but when Federal troops occupied the city on Septem ber 10. 1863 he transferred the seat of
government to Washington, Arkansas, then a city of some importance near the Texas border and at a safer distance from the Federal troops. The war in Arkansas did not progress well for the Confederate army, and there soon developed a movement to return the State to the Union, a movement given impetus by Lincoln's Amnesty Proclamation of December 8. 1863. A convention assembled in Little Rock on January 4, 1864, which elected Isaac Murphy Provisional Governor and called an election for March 14, 15 and 16 to pass on a new State Constitution and, as a member of the Union, to elect State officers. A new constitution was adopted. and Murphy was elected Governor. T. D. W. Yonley was elected Chiet Justice, and Charles A. Harper and Elisha Baxter were elected Justices of the Supreme Court. The Legislature, under a new constitution, met from April 11th to June 2nd. On August 9th Governor Flanagin called a special session and the "Contederate Legisfature" assembled September 22. 1864. Thus, at the moment there were two Governors: Flanagin of the Confederate State and Murphy of the Union State; two capitals: Washington, Arkansas for the Confederate State and Little Rock tor the Union, and there were two legislatures. each in session during the period. There were also two Supreme Courts.
It was against this background that Governor Flanagin, on June 8. 1864, appointed Albert Pike a Justice of the Arkansas Supreme Court to join Elbert H. English and constitute a two-jUdge court. His commission, of record in Arkansas Supreme Court Record Book H, page 19. for 1864, recites:
THE STATE OF ARKANSAS TO ALL WHOM THESE PRESENTS SHALL COME-GREETING! Know Ye, That, reposing special trust and confidence in the ability, honesty and fidelity of ALBERT PIKE, of the State of Arkansas, and by virtue of the authority in me vested by law, I, Harris Flanagin. Governor of the State of Arkansas, do hereby appoint and Commission the said ALBERT PIKE. a judge of the Supreme Court, in the State of Arkansas. to fill the vacancy occasioned by the resignation of the Hon. Hulbert F. Fairchild. He. the said ALBERT PIKE. is hereby authorized and impowered to hold said office of Supreme Judge during the time prescribed by law, and he is authorized and required to do and perform all and singUlar the duties incumbent on him as a Judge of the Supreme Court aforesaid according to law and trust reposed in him. In Testimony Whereof, I have hereunto set my hand and caused the Seal of the State of Arkansas to be fixed at Washington. this the eighth day of June. in the year of our Lord, One Thousand Eight Hundred and Sixty-four. (SEAL) H. FLANAGIN. The last official act of Governor Flanagin, apparently, was the issuance of a proclamation on May 23. 1865 to call upon the citizens to assist in the prevention of crime then on an increase in the State. Lee and Johnston had surrendered and. on June 15th. a Committee on "Law and Order" met in the Courthouse in Washington and adopted a resolution recognizing the government at Little Rock. This led to a general acceptance of the Murphy government. Continued on page 14
January 1975/Arkansas Lawyer/13
GENERAL ALBERT PIKE
ALBERT PIKE Contln.-d from page 13
In keeping with this action, there was added to the Supreme Court record of Pike's Commission the following mar路 ginal notation: "The proceedings subsequently recorded in this Record Book, having taken place since the adoption of the Constitution of 16th March, 1864, are considered to be null and void and so treated." The notation is undated and unsigned. The course of events is here traced with some care and in some detail in dates in order to set in perspective his contemporary service in Masonry. Pike's services as a Justice involved participation in two advisory opinions to the Governor. The calling the general election for the first Monday in October, 1664 Flanagin knew that counties in the hands of the enemy would not respond and that without the members of the legislature from those counties there would be no quorum at the regular session, as required by the Constitution. Accordingly, he asked the Court whether he had the authority to call a special session to fill vacancies in the Legislature and to hold a special session, to which English and Pike replied that the Executive had the inherent power to call special elections and to hold special sessions of the Legislature at any time. Hence the election on July 25th and the special session of the Legislature on September 22nd. When the Legislature assembled on September 22nd it did, in fact, lack a quorum. Flanagin then asked the Court whether the Legislature could legally proceed in the absence of a quorum. The Court answered that if there was a quorum based on members from counties not under the control of the enemy, the Legislature was empowered to proceed. In addition to these two advisory 14/January 1975/Arkansas Lawyer
opinions, Pike wrote four opinions accepted later by the Court and reported and at least one opinion not so accepted. Prior to his appointment to the Court in June, 1864 Pike had completed perhaps his most arduous Masonic work. He was made a Mason in Western Star Lodge No.2 in Little Rock in 1850 and had received all of the York Rite Degrees before February 9, 1853. Albert Gallatin Mackey conferred the Scottish Rite Degrees, the Fourth through the Thirty-second, on Pike, on March 20, 1853 in Charleston, South Carolina. He was Coroneted an Inspector General Honorary of the Thirty-third Degree on April 25, 1857 at New Orleans. Appointed a Deputy of The Supreme Council in Arkansas on March 30, 1853, he established a Grand Consistory in Arkansas August 2, 1858. He was elected an Active Member of The Supreme Council at a Session in Charleston. South Carolina, March 20, 1858 and elected Sovereign Grand Commander January 2, 1859. Meanwhile, with the same vigorous enthusiasm that marked his meteoric rise in the Scottish Rite, Pike had undertaken a revision of the rituals which he saw accomplished and finally accepted by The Supreme Council in April, 1861. He continued his work of revision thereafter, and possibly at the same time he worked also on Morals and Dogma, and it is likely that he was so engaged while ;erving as a Justice of the Court. Having in mind this intense intellectual activity in Masonry. one must wonder to what extent, if any, his writings in Masonry spilled over into the law. His four opinions, Trapnall v. Burton, Marshall v. Green, Branch v. Mitchell, and Twombly v. Kimbrough are found in Volume 24 of the Arkansas Reports. December Term, 1866, at pages 371, 411,431 and 459, respectively. The Court was not in session following the 1863 June term until the 1865 December term, in which only one decision was handed down. In the 1866 June term there were five decisions. and in the December term. fifty decisions. of which four were those of Pike, His Chief Justice, Elbert H. English. contributed three. These opinions had been prepared quite some time previously. had been reviewed by the Court after the return of the State to the Union. and had been adopted as opinions of the Court. Pike's opinions are quite lengthy. his four constituting only 8 percent of the opinions reported in the 1866 December term. but accounting for more than 28 percent of the pages in the Report. Notwithstanding what must have been his tremendous expenditure of intellectual effort in the revision of the rituals and the composition of Morals and Dogma, a careful reading of the four
opinions. as lengthy as they are. discloses no idea, no suggestion of principle, no language directly traceable from the rituals or from his great work. From these. the profane would catch no gleam of esoteric Masonry. In Trapnall v, Burton, Pike discusses and develops at considerable length title to lands acquired by adverse possession for the statutory period of seven years. elaborating on the elements of adverse possession, and holding in the instant case that whatever title plaintiff might have had was lost by adverse possession held by defendants and their predecessors in title. Additionally. Pike held for the defendants on the ground of equitable estoppel in that plaintiff disclaimed to the defendants any intention to claim the lands and thereby knowingly permitted the defendants to buy and improve the lands when they might not have done so otherwise. At a time when there was little case law in the State and the Court had to resort extensively to the English Common Law and the maxims of Aoman Law, Pike's well-reasoned opinion was a valuable contribution to the jurisprudence of the State and, of course, remains good law today. This case does hold some additional interest. Among the defendants were the Trustees of SI. John's College, an institution of higher learning and perhaps the first in the State, sponsored by the "Grand Lodge of Free Masons and the Masonic Fraternity of Arkansas." Plaintiffs objected to the testimony of one of the Trustees on the ground that he was a Mason and, therefore, disqualified from testifying on behall of the College sponsored by Masons, an objection which Pike quickly dismissed with the reason that the Trustee had no pecuniary interest. Pike might well have resorted to the language of Masonic ritual in the discussion of equitable estoppel but did not. In Marshall v. Green, Pike confirmed the finding of the lower court that under the testimony presented a conveyance of lands by a son to his father was in fraud of creditors and should be set aside. In Branch v. Mitchell, the question was which of two chains of title to real property was superior. with Pike holding that once the United States of America had made a valid conveyance it had no title thereafter to convey. Finally, in Twombly v. Kimbrough, Pike held that a tax sale of lands not made in accordance with the statute is void. In a fifth opinion, Arkansas v. Williams (not adopted by the Court for obllious reasons, although said to be the opinion in which Pike took his greatest pride), a quo warranto proceeding initiated in the Supreme Court put in issue the right of
Samuel W. Williams to hold the oHice of Attorney General under the Murphy government in Little Rock. Pike de~ fended the Confederate government at Washington. Arkansas. on the basis that the State's sovereignty pre-existed the Union, that this sovereignty had been preserved during the Union and was properly exercised when the State withdrew from the Union to join the Confederacy, that the State Constitution of 1864 was adopted without legal authority. and that, therefore. the government claiming to exist under that Constitution was without authority. The outcome of the war, of course. decided otherwise. During his service on the Bench, Pike was in illustrious company. His Chief Justice was in all likelihood better known to Arkansas Masons than Pike
Scottish Rite Degrees from Pike. On March 30. 1860 he took his seat as an Active Member of The Supreme Council and is listed as the Sovereign Grand Inspector General in Arkansas in March.
him by Masonic ties. men who were eminent in York Rite Masonry. holding the highest offices of the Order. and men on whom he himself conferred the Scottish Rite Degrees. and with at least one of whom he served on The Supreme
1860, apparently the first in Arkansas, Sam W. Williams. subject to Pike路s opinion in the quo warranto proceedings. Williams v. Arkansas, was also a very popular Mason. serving as Grand Master in the years 1870 and 1871. He. too. was among the first eleven. Thus, the men most closely involved with Pike in his year on the Bench, men with whom he must have made almost daily contact, were all closely bound to
Councii. Yet none of this is suggested in the four opinions in the Official Law
Re~
ports. While on the Bench. Pike had one more Masonic experience, little noted. to
add coior to the bright tapestry of his life, He was Grand Orator of the Most Worshipful Grand Lodge of Arkansas for 1864. :/,
.,.,.
himself. Elbert H. English first served as Grand Master in 1849 and later for the
years
1859 throu9h
1868,
inclusive,
longer than any other incumbent. He was the Grand Master while Pike was on the Bench. English was Eminent Com~
mander of Hugh de Payen's Commandery No, 1, established by Pike for the years 1860-1862 and 1866, and served as Grand High Priest of the Royal Arch for the years 1874 through 1877, in-'
clusive. Albert Pike communicated the twenty-nine degrees of the Scottish Rite on eleven "active and eminent Free~ masons" in Arkansas in 1859. among them English. who in the same year was Coroneted and made an Honorary Member of The Supreme Council. L E. (Luke) Barber, Supreme Court Reporter for Pike, was Grand Master for
I
OLD COURTHOUSE, WASHINGTON, HEMPSTEAD COUNTY, WHERE LEGISLATURE SAT IN SEPTEMBER, 1864
the years 1852, 1853, 1857 and 1858, and was one of the first eleven to receive the
-20c per word-$5 minimum-
l
j
Lawyers' Mart
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The Arkansas lawyer
LAW BOOKS AND OFFICE EQUIPMENT FOR SALE
Complete set SW Reporter Vols, 1501 (2nd): Am. Jur. Vols. 1-51: Acts of Arkansas through 1971: Case Books, Dictionaries, etc.; Labor and Wage & Hour Cases: Office Desk with Glass Top: Headrest Couch; Several Straight Chairs: 2 Swivel Chairs. All in downtown Little Rock office. Call 663-2351 for further information.
Used ALR 3rd-Current-to-Date DAN BLANEY, 109 Shawnee Jacksonville, Arkansas 72076 Phone: 982-4431
Used Am. Jur. 2d - complete through 71. Or will trade for federal materials. J. W, Hall- 375-9143.
Vol.
Conference Room Furniture
ARKANSAS BAR ASSOCIATION 400 West Markham Little Rock. Arkansas
Phone: 375-4605
Atlas for Attorneys; Arkansas Digest Am. Jur. Pleadings And Practice Forms & CJS. Contact: Jack Carter, P,O. Box
2044, Texarkana, Texas 75501, Phone: 214-794-2711.
January 1975/Arkansas Lawyer/15
NOTE: Any organization desiring to use the free services of the Speakers Bureau should request the related pamphlet from the Arkansas Bar Association. 400 West Markham. Little Rock, Arkansas 72201 (375-4605). The pamphlet gives the necessary instructions, etc. If an Association member wishes to participate as a speaker in the Speakers Bureau. the member should send name and topics to the Arkansas Bar Association. THOMAS A. DAILY of Fort Smith. Chairman of the Association's Consumer Law Committee. was the featured speaker at
the Annual Banquet of the Greenwood Chamber of Commerce, LEWIS H, MATHIS of Little Rock addressed the Hilltop Kiwanis Club on Tax and Related Problems, The November meeting of the Jacksonville Rotary Club was addressed by JAMES BUTIRY. WILLIAM T. KELLY presented a program on Pensions and Profit Sharing to the Hilltop Kiwanis Club. RALPH G. BRODIE addressed the Kiwanis Club on Estate Planning. Mr. Brodie used the Arkansas Bar Foundation's Pamphlet on Wills as a handout in this connection. Moral Law was the topic of discussion when JIM NASH of Litlle Rock addressed a Kiwanis Group in little Rock on December 19.
J-",<-
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EXECUTIVE COUNCIL NOTES By James M. Moody Secretary-Treasurer
At its regular meeting on November 23, the Executive Council was primarily concerned with hearing reports from the various Association committees and acting on their recommendations and requests. Jim Harper of Rather, Beyer & Harper reported to the Council on proposed changes in the professional liability insurance furnished to the Association by Continental Casualty Company. Two basic changes in the existing coverage would provide for a single limit of liability of $100,000 per claim with an aggregate limit of liability of $300,000 on three claims per policy; and the exclusion of all work done under the regulations of the Securities and Exchange Commission, Coverage for an additional premium can be obtained for SEC work. These changes were necessitated by the insurance company's loss experience and were approved by the Council on recommendation of the Association's Insurance Committee. Jim Sharp reported that all meetings between local bar associations and their legislators had been held and that bar sponsored legislation was being favorably received. Jim Rhodes will replace Bill Wilson as the Association's liaison man with the legislature. Jim will need the cooperation and assistance of all members of the Bar in contacting legislators for their support. The Council concluded consideration of the legislative program with an approved amendment to the proposed public defender bill concerning its funding and in refusing to refer the consumer protection bill back for additional consideration. The public information bill is still under stUdy by the jurisprudence and law reform committee but will be in form for consideration by the House of Delegates at its next meetino. The Council heard a report from Bob Jones on a proposed statewide lawyer referral service but deferred action on the proposal until the Committee can
determine the basic needs for such a program and the number of lawyers who are willing to participate in it.
Jim Sharp reported that the legislative council had voted to approve an appropriation of $50,000 for the civil procedure committee for its study of the rules. The funds are to be applied over a period of two years. The law school committee has had several meetings with the University's new president regarding the status of the law school in Fayetteville and the proposed day law school in Little Rock.
John Stroud reported on the activities of the Bar Foundation and its present plans to raise money for scholarships and other programs. Col. Ransick announced plans for the next INTRAV excursion entitled "Balkan Adventure. " Membership remains at a satisfactory level with 1,820 active members of fhe Association and 93 new members approved by the Council for a total of 1,913. Bill Wilson is working on delinquent members who should be encouraged to restore their active status.
COMMONWEALTH FEDERAL'S RETIREMENT FUND
A SERVICE FOR THE SELF-EMPLOYED
Recent Federal Government legislation now enables self-employed individuals to create their own retirement plans that allow you to deposit up to 15% of your gross earnings, not to exceed $7,500 annually. And, it's completely deductible on your tax returns with interest earned tax free until distribution of the funds.
IWDCommonwealth U' FederaL Savmgs and Loan Assoclallon
January 1975/Arkansas Lawyer/17
Great partnership: Orville &Wilbur ...another great partnership: RRKAnSAS BAR RSSOCIATIOn &
:.CNA !insurance Now working together to provide you with a long-term stable prog ram to combat the professional liability problem. With a partnership like this, wouldn't you expect more? There is, if you just participate. The future is uncertain-protect it.
PROFESSionAL LlRBILITY PROGRAm
Want more details? Call or write ,---------- ----- - - - ----- ----- -- - -
-- -- --- -
---,
Please send Professional Liability Program details. Arkansas Bar Association Administrator Rather. Beyer & Harper Three Hundred Spring Building Little Rock, Arkansas 72201 (501) 372-4117
Name Address City Zip,
'--~
l8/January 1975/Arkansas Lawyer
_ _ _ _ - __ '---_.....J
â&#x20AC;˘
Editor's
Comment:
AEGIS is a feature of fhe Arkansas Bar
Association's educational program concerning docket control and other areas of high risk experience in professional liability cases.
SAFEGUARDING YOUR PROFESSIONAL FUTURE
"A Word To The Wise Is Sufficient" If It's In Writing! the problem
A homeowner suffered a loss of some valuable antiques through burglary. After five months of negotiations he could not reach a satisfactory settlement with the insurance carrier. He then referred the matter to an attorney who had represented him in prior dealings. The attorney orally agreed to handle the case. After a short period of time, the client allegedly asked the attorney to withdraw from the case because he wanted to pursue the matter on his own. Nothing more was accomplished and the statute of limitations ran out. The insurance carrier refused settlement because the one year in which to file suit had lapsed. The claimant then initiated a professional liability suit against the attorney for his alleged failure to protect the interest of his client.
the result
A compromise settlement was made through the attorney's professional liability insurance policy because of the conflicting testimony between the attorney and his client as to the scope and duration of the representation.
advice
Always confirm in writing to the client when fhe scope or nature of the representation changes or ceases.
January 1975/Arkansas Lawyer/19
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ARKANSAS BAR ASSOCIATION
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-,-'-"'-1 :
-2O/January 1975/Arkansas Lawyer
I I I : I
I I
400 West Markham Little Rock, Arkansas 72201
:
Enclosed is my check for $ Names
($100 per person) as deposit. Address
City
State
Zip
Another Non-Regimented INTRAV Deluxe Adventure
I I I : I
TRAVEL ADVENTURES In 1972, the Arkansas Bar Association began a travel program in cooperation with INTRAV of Saint Louis. the travel company that has spent years developing deluxe personalized vacation at charter cost savings.
Orient Adventure Our first travel adventure in 1972 was to the Orient, where we visited Tokyo and Hong Kong with many exciting sidetrips. Tokyo is the world's largest city with a fascinating mixture of temples, towers and palaces. Here we found gracious traditional Japanese gardens and over two thousand Buddhist Temples and Shinto Shrines. Then on to Hong Kong, "Pearl of the Orient," with a BritiSh tradition and the intrigue of the Far East. From here, many took an optional sidetrip to Kyoto. capital of feudal Japan and Bangkok. the fairy-tale city. in the 路路Land of Smiles"路
Mediterranean Adventure We had a good response to the Orient Adventure, and as news traveled about the quality of our first INTRAV vacation, response to our 1973 Mediterranean Adventure was an even bigger success. The group went via chartered World Airways to Nice. France, where we boarded the Paquet cruise liner, MERMOZ. Ports of call included Sicily. Malta, Crete, Rhodes, Izmir, Turkey. Mykonos and Athens. The MERMOZ was really the group's floating resort hotel for two weeks. Members enjoyed cabaret shows, a costume ball, French cuisine and beautiful weather - the perfect atmosphere for a relaxing vacation.
spent in Copenhagen, Denmark's cosmopolitan capital, with "the fun-loving Danes." Everyone who participated in the Scandinavian Adventure enjoyed traveling through the oldest kingdom in Europe - Vikingland!
Balkan Adventure Our 1975 vacation plans have been made. And, if you have not traveled with the Bar Association in the past. here is your opportunity. It's a two路week trip to the Balkans - Romania, Yugoslavia and Turkey with an optional side trip to Kiev, Russia. We will depart Little Rock on July 19. 1975. by chartered jet and fly direct to Bucharest. Romania. Bucharest. Romania's SOO-year-old capital. has broad. tree-lined boulevards. city lakes and well-kept parks that charm the most traveled visitor. There is a feeling of anticipation just knowing you are behind the Iron Curtain, yet the pace is friendly and easygoing. Antiques. wood carvings and embroideries are good bargains. Sample Sarmale, a native dish of spicy meat wrapped in cabbage leaves. Or order your favorite steak and potato. Take an excursion into the lush countryside, passing small neat houses and Gothic fortress-like castles. Don't miss the brooding castle of Count Dracula and the optional sidetrip to Kiev. Russia. Istanbul is in vast contrast to the peacefulness of Bucharest. Golden domes and minarets dot the horizon. An air of intrigue permeates the city. Here is the tabled Blue Mosque of Sultan Ahmet and Sancta Sophia built by Constantine in 325 A. D. Visit the Topkapi Museum with its priceless collection of jewels,
ceramics and religious relics. In the Grand Bazaar shops bulge with trinkets and treasures. Copper and brass lamps. kettles and pitchers. Bursa silks. leathers, hubbly-bubbly pipes and oriental rugs create a montage of sensual sights and sounds. Nightclubs feature Turkish folk dancing. Try the national dish, shishkabob. with a glass of good Turkish beer. History buffs undoubtedly will take the optional sidetrip to Izmir and the ancient ruins of Ephesus. Leave the hustle and bustle of Istanbul for the calm and ancient walled city of Dubrovnik, Yugoslavia, perched on a rocky peninsula overlooking the Adriatic. Residents take great pride in their churches, monasteries, art galleries. museums and hundreds of apartment homes that are physical reminiscencAs of the medieval past. Take a drive to the restored fishing village of Sveti Stephan. Or have dinner in a Benedictine Abbey on a nearby island. Pigskin luggage, filigree jewelry, embroidered blouses and dyed wood rugs are especially good bargains. Yugoslavians are friendly, gregarious people who enjoy life in this historic and daZZling seaside resort area. It will be a perfect climax to your Balkan Adventure. Whether you have traveled with the A:kansas Bar Association-sponsored INTRAV trips in the past, or are a potential first-timer. we hope you will join us next July for this vacation of a lifetime. For further information or to make reservations for the Balkan Adventure, please contact the Arkansas Bar Association at 400 West Markham in Little Rock or telephone 501/375-4605 today. Space is ~, limited.
"'-
SCandinavian Adventure We chose to go to Scandinavia in 1974. This fantastic trip took us to Stockholm. Helsinki and Copenhagen. Stockholm is a city set on islands and rocky bluffs overlooking a lovely harbor that has a fascinating mixture of old and new. Then on to Helsinki called the "white city of the North," which is the capital of Finland. While in Helsinki. many of us participated in an optional overnight excursion to Leningrad. A highlight of this sidetrip was a visit to the world-renowned Hermitage Museum. The last exciting days of the trip were
January 1975/Arkansas Lawyer/21
1975 MIDYEAR M EETI NG
FOREWORD As you know. the Federal Rules of Civil Procedure were adopled In 1938, twenty-one 01 the eighty-six rules dealing with evid路
ence In 1961, Chief Justice Earl Warren appomted a Special
DEAN EMERITUS MASON LADD
Committe on Elvdence to study the feasibIlity of umform rules of evidence for use in the Federal Courts Thirteen years of study and debate followed It IS predicted that the amended Federal Rules of EVidence resulting from this monumental effort Will have been enacted by Congress before the end of 1974 The specter of separate rules of evidence for federal and state courts IS not a pleasant one. The National Conference of Com路 mIssioners on Uniform State Laws last summer approved new Uniform Rules of Evidence. patterned after the Federal Rules. for adoption by the slales Arkansas must give immediate con-
J
Sideration to these proposed rules. Four of the most distinguished legal scholars In the Uniled States will review both sets of rules and outline the diHerences between them at the Mid-Year Meeting of the Arkansas Bar Association in January. 1975 No Arkansas Lawyer who intends ever to appear again in court can afford to miss this meeting Wilham S Arnold and Phillip Carroll
Co-Chairmen 1975 Mid-Year Meeting
, PROFESSOR EMERITUS RICHARD H. FIELD
JANUARY 16-18
CAMELOT INN LITTLE ROCK, ARKANSAS PROFESSOR ROBERT E. KEETON 22/January 1975/Arl<ansas Lawyer
PROFESSOR E. WAYNE THODE
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
(Editors Note: It is particularly fitting at the time of the 1975 Midyear Meeting to carry this article in The Arkansas Lawyer; and to recognize the five current Arkansas Commissioners and their many outstanding predecessors. Commissioners William S. Arnold and Phillip CarroiJ are the Midyear Meeting Co-Chairmen; and Commissioners Joe Barrett, Robert A. LefJar and J. C. Deacon are presiding at the various sessions. Most important of ail is the Midyear Meeting's subject matter-the Uniform Rules of Evidence.)
Dr. Robert A. Lellar
Joe Barrett
John C. Deacon
William S. Arnold
Phillip Carroll
In Arkansas too few lawyers are acquainted with the organization and function of the National Conference of Commissioners on Uniform State Laws notwithstanding that Arkansas has played a significant role in the respectable record of achievement by that institution. A brief history of the Conference and Arkansas participation in it is informative. In 1881 the Alabama State Bar Association brought the subject of uniformity in state law to the attention of Bar associations in other states. In August of 1889 the American Bar Association adopted the following resolution upon motion of W. A. Collier of Tennessee; Recognizing the desirability of unitormity in the laws of the several states, especially those relating to marriage and divorce, descent and distribution 01 property, acknowledgement of deeds, execution and probate of wills; therefore be it RESOLVED, That the President of this Association appoint a committee, consisting of one from each state, who shall meet in convention at a time and place to be fixed by the President, and compare and consider the laws of the different states relating to these subjects, and prepare and report to this association such recommendations and measures as will bring about the desired result.' The New York le9islature in April, 1890 authorized the Governor to appoint three commissioners "to examine the SUbjects of marriage and divorce, insolvency, the Continued on page 24
January 1975/Arkansas Lawyer/23
on Uniform State Laws and made an a!' propriation for a contribution to the bud-
CONFERENCE Continued lrom page 23
form of notarial certificates and other
sUbjects; to ascertain the best means to effect an assimilation and uniformity in
the laws of the states, and especially to consider whether it would be wise and
practicable for the State of New York to invite other states of the Union to send representatives to a convention to draft
uniform laws to be submitted tor the approval and adoption of the several states '"
In August, 1889 the American Bar Association adopted a resolution recommending the passage by each state and by Congress for the District of Columbia and the territories of an act similar to the first section of the New York act. It is not known whether the ABA resolution in 1889 furnished the inspiration for the New York act of 1890 but undoubtedly the action of the. Association gave im-
petus to the formation and growth of the conference. By 1891 five states, Pennsylvania, Michigan, Massachusetts, New Jersey and Delaware, had followed the example of New York by creating Comm issions on Uniform State Laws. The first meeting of the Conference was held at Saratoga, New York in August, 1892. It was called the "Conference of State Boards of
get of the National Conference and for the expenses of the Arkansas Commissioners. Prior to that time the Commissioners from Arkansas were named by
the Chief Executive relying upon his in-
Rights, Uniformity of Private Interna-
herent appointive power. Commissioners from Arkansas serving prior to 1945 did so at their own expense and the
tional
Disclaimer of Gifts and Bequests. CommiSSioner Edward L Wright in
budget of the Conference came from contributions by other states and by the
Scope and Program and the Executive
American Bar Association. Consequent-
ly, it was only in 1945 that this state began to assume its full responsibility as a member of the National Conference.
Twenty Arkansas lawyers and law professors have represented this State in
the Conference from 1906 to the present time. They are listed below with the year of appointment and the length of service. The records of the Conference reflect sustained activity of the Arkansas Commissioners in the work of the Conference. Commissioner W. H. Arnold was a member of at least five drafting committees considering such SUbjects as War
Legislation, Registration of Land Titles, Prohibition, Child Labor and Interstate Compacts. He also served on committees handling administrative problems of
the Conference.
Uni-
Commissioner Rose in addition to be-
vormity of Law in the United States." Seven states were represented at that
ing a member of the Committee on Scope and Program, served on drafting
meeting. By 1900 some 32 states had named representatives to meet and work with commissioners from other states.
committees considering such SUbjects as Labor Laws, Evidence, Doing Business by Foreign Corporations, Death in
The
Common
Commissioners
name
of
for Promoting
the
organization
was
changed to National Conference of Commissioners on Uniform State Laws. Arkansas was first represented in the Conference in 1906 but it was not until
1945 that the Arkansas legislature formally created the Arkansas Commission
Disasters, Vegetable Seed
Laws, Civil Procedure. Simultaneous Death and Administrative Procedure. Commissioner Barrett, in addition to serving as Chairman of the Executive Committee. as Vice President and President. served on drafting committees
YEAR APPOINTED NAMF LENGTH 4 1906 John Fletcher, Little Rock 7 1909 John Moore, Little Rock 20 1909 Ashley Cockrill, Little Rock 3 1913 Joseph Hill, Fort Smith 1914 Frank Pace, Little Rock 18 1914 Nathan B. Williams, Fayetteville 5 1917 W. H. Arnold, Texarkana ~ 1919 George B. Rose. Little Rock 21 6 1923 J. H. Hamiter, Little Rock 3 1940 Frank Pace. Jr., Little Rock 31 1943 Joe C. Barrett, Jonesboro 29 1945 Robert A. Leflar, Fayetteville 12 1945 Edward L. Wright, Little Rock 4 1957 William Nash, Little Rock 4 1962 Herbert H. McAdams, Jonesboro 1962 Louis Ramsay, Jr,. Pine Bluff 6 3 1967 Robert R. Wright, Fayetteville 7 1967 John C. Deacon, Jonesboro 5 1969 William S. Arnold, Crossett 4 1970 Phillip Carroll, Little Rock 24/January 1975/Arkansas Lawyer
considering such subjects as Civil Procedure, Enforcement of Judgments, Administrative Procedure, Evidence, Uniform Commercial Code, Workmen's Compensation, Water Resources, Exclusive Forum in International Sales, Civil
OF SERVICE years years years years years years years years years years
years years years years
years years years years years
years
Law,
Anti-discrimination
and
addition to serving on the Committee on Committee was a member of drafting committees considering such subjects as the Commercial Code. Social Welfare. Enforcement of Foreign Judgments. Rules for Traffic Court Procedures and Insurance. Commissioner Nash served on drafting committees considering the Validity of Corporate Guaranties. Civil Rights of Convicted Persons and Retail Installment Sales. Commissioner McAdams during his tenure of office was on the drafting committee for the Uniform Probate Code. Commissioner Ramsay was on drafting committees considering Simplifica-
tion of Real Property Transfers, Cost and Expense of Civil Litigation and Supervision of Trustees for Charitable Purposes. Commissioner Robert R. Wright, now
Dean of the College of Law at the University of Oklahoma but at the time a Professor of Law at the University of Arkansas, during his three-year tenure was a valuable member of the drafting committees on the Probate Code and Eminent Domain. Commissioner Deacon, presently a member of the Executive Committee. served on drafting committees for Release on Ball. Marriage and Divorce. and was Chairman of the drafting committee on the Eminent Domain Code. Commissioner William S. Arnold was a member of the drafting committee on Jury Selection. and is now a member of the committees on Rules of Evidence and Residential Condominium Sales. Commissioner Carroll is now serving on the drafting committee of the Newsmen Privilege Act and Rules of Evidence and has been serving as the Arkansas member of the Legislative Committee. Beginning in 1953 Marcus Halbrook. as the Director of the Arkansas Legislative Council. was elected by the Conference as an Associate Commissioner. He was joined in 1970 by Kern L Treat. the Research Director of the Council. Commissioners Barrett and Edward L Wright were for several years members of the Executive Committee at the same
time. This was the only time in the history of the Conference that two Commissioners from the same state" were chosen to serve together on this important committee. Barrett is the only Commissioner from Arkansas to serve as
President of the NCCUSL and also holds the record of all Commissioners in the National Conference by attending 30 consecutive annual meetings of the Conference. The current appointive Commissioners from Arkansas are Jack Deacon of Jonesboro, William S. Arnold of Crossett and Phillip Carroll of Little Rock. Joe Barrett of Jonesboro, by virtue of his 31 years of service, and Dr. Robert A. Leflar of Fayetteville, having served as a Commissioner for 29 years, are both Life Members of the Conference. Mr. Deacon serves as Chairman of the Arkansas Commission on Uniform State Laws. The function of the National Conference is to draft uniform and model acts for enactment by the states, the District of Columbia and the Commonwealfh of Puerto Rico. The Conference undertakes such drafting only when it is determined by the Conference that uniformity of the law among the several political jurisdictions of the United States is both feasible and practicable. The NCCUSL meets annually for approximately 10 days to consider the drafts of the proposed uniform acts on which the Commissioners have been working during the year. The drafts are then considered line by line and fully discussed and debated by all of the Commissioners sitting as a Committee of the Whole. All committee drafts receive study by the entire Conference for at least two years before final adoption and many uniform acts were the work product of several years. Law professors are sometimes employed as reporterdraftsmen on the larger acts which are more time consuming and complex. Frequently, technical experts in the field under study are assigned to the drafting committee as advisors and sit with the Commissioners in their frequent drafting sessions held between annual meetings. The success in achieving uniformity has been greatest in the field of commercial law. For example, every jurisdiction represented in the Conference enacted the Negotiable Instrument Act and only two jurisdictions (Louisiana and Puerto Rico) have not yet adopted the Uniform Commercial Code. 3 The Reciprocal Enforcement of Support Act, frequently referred to as the "Runaway Papa Bill," was quickly enacted in all jurisdictions. The Uniform Partnership Act was enacted in all but eight jurisdictions. The Veterans Guardianship Act, the Testamentary Addition to Trust Act, the Simplification of Fiduciary security Transfer Act, the Limited Partnership Act, the Declaratory Judgment Act, the Criminal Extradition Act, the Attendance of Out-of-State Witness Act and the Anatomical Gift Act have all received wide
enactment. The Arkansas Securities Act was drafted by and received final approval of the Conference while an Arkansas Commissioner was its President. Arkansas has taken advantage of the work of the Commissioners by adopting fifty-two uniform and model acts drafted by the Conference. Only sixteen states have a higher record of enactments than the State of Arkansas' The membership of the National Conference is divided into seven Divisions. Commissioners are assigned to one or more of these Divisions and a number of Arkansas Commissioners have served as Division Chairmen, as well as chairmen of drafting committees. The Executive Committee of the Conference is the administrative body during the interim between annual meetings. It determines the SUbject matter for legislative drafting, establishes policy, approves assignments of Commissioners to Section membership, selects chairmen and members of drafting committees and prepares the budget. Probably the next most impcrtant committee of the Conference is the Committee on Scope and Program. An Arkansas Commissioner served on this Committee as early as 1927 and another served on this committee in the late Forties. At the present time members of the National Conference include Commissioners from each of the fifty states, from the District of Columbia and from the Commonwealth of Puerto Rico. Past Presidents of the Conference and Commissioners who have served in the Conference for twenty years and have been active and diligent in the performance of their duties are eligible for election to life membership in the Conference. Under the Arkansas act adopted in 1945 conferring legislative authority upon the Chief Executive to appoint Commissioners, those elected to life membership remain members of the Arkansas Commission. Most jurisdictions represented in the National Conference have a minimum of three Commissioners although some have more and a few have less. This is without regard to population. For example, California presently has nine Commissioners while New York has but two. Variations in the size of the membership from the different jurisdictions is not significant in the promulgation of uniform acts since in voting for approval of the text, the vote is by states rather than by headcount. Something like 70% of the Commissioners are active practitioners, 20% law teachers and 10% judges of state or federal courts. The Commissioners, therefore, represent a fair cross-section of the competence of the Bar of the United States and in considering drafts the Conference has the benefit of able and imaginative law professors as well as the benefit of presid-
ing judges who can visualize how an act will likely be applied by the Courts. It will be observed that in addition to very active participation in the National Conference by Commissioners from Arkansas, this state has made extensive use of the work products of the Conference, yet this result has been without fanfare. The selection of Commissioners from Arkansas has always been on a professional basis, political considerations have been cast aside by the appointive power. All Commissioners from Arkansas serve without compensation and are seldom reimbursed fully for their personal expenses. Commissioners from Arkansas have been outstanding lawyers and teachers whose motivation has been the improvement of legal processes in the administration of justice. *****
FOOTNOTES: 1. Laws of 1890. Chapter 205. page 413. 2. XIII Reports of American Bar Association.
29-337. 3. Louisiana found diffiCUlty in integrating the
UCC into its Civil Code but enacted 3 of the 9 Articles of the Code. 4. 1963 Handbook of National Conference of Commissioners on Uniform State Laws. pages 454-482.
Notice All lawyers who are members of the Massachusetts Bar must register with the Board of Bar Overseers by December 2. 1974.
Lawyers who have actually retired from the practice of law can register as inactive without paying the fee but those persons who are actively practicing law even though out of state must register as active members of the Massachuseus Bar with the Board.
For information contact: Board of Bar Overseers P.O. Box 797 Boston. Massachusetts 02102
January 1975/Arkansas Lawyer/25
l\ecent JLtterature Edited by Jas. Wm. Spears, Professor of Law. and David R. Hendrick, Jr., Associate Professor of Law. University of Arkansas School of Law - Uttle Rock Division.
With this issue of The Arkansas Lawyer we introduce a new feature on recent literature. It is our hope that these reports will help you. the practicing attorney. gain access to some legal research and writing which otherwise might not come to your attention. We have noticed that a number of state bar journals carry regular features on recent developments. Unlike Arkansas, many jurisdictions no longer have official reports. Bar publications in those states may perform a genuine service by reporting synopses of new decisions well ahead of the National Reporter System's advance sheets. and by reporting cases from courts of limited jurisdiction which would otherwise go unreported. Some bar publications include reviews of significant recent developments in the law. but we are not convinced that such an enterprise would be worthwhile in The Arkansa. Lawyer. Attorneys in Arkansas already have available a number of weekly and monthly publications which cover new law. while The Arkanas Lawyer is issued only quarterly. Further. the Arkansas Law Review is intended to provide in-depth treatment of significant cases and statutes. We suspect. however. that much professional and law review research and writing of value to practitioners goes unread and unused. because attorneys are unaware of it. Therefore. we have accepted the assignment to sift through recently published legal periodicals and to cite in this column a continuing sample of useful articles. notes, and comments. Some Initial thought. 1) We will seek to publicize articles of a practical nature. A great amount of periodical literature is written primarily for the use and benefit of teachers and students. Nonetheless, we have the impression that some attorneys avoid the quest for a gold mine. because the digging can become very time-consuming. 2) By practical we mean something broader than just "practice tips." We mean commentaries which. within their 26/January 1975/Arkansas Lawyer
topics, analyze important cases. present theories and arguments for application to future cases, spot decisional trends, outline or summarize the law on an important point. etc. We will attempt to exclude literature of local interest only to other jurisdictions. articles of a highly speculative or philosophical cast or otherwise too remote for direct application, and the obviously worthless. Due to the tremendous volume of legal publishing we cannot review each article, therefore. inclusion of an article is not a recommendation of its quality. but only its apparent value. 3) Hopefully, the timely pieces will be :Jalanced by those of more lasting aurhoritative value, although commentary. like primary authority, ever tends to become stale. 4) Commercial publications will be generally avoided on the theory that they are sufficiently publicized. 5) This effort is not a substitute for reference to the Index to Legal Periodicals. Space limitations will permit only a fraction of valuable works to be cited. Also. books. pamphlets. and tapes may be included in future editions. 6) Our citation form for new periodicals will not correspond to that of the Index or of A Uniform System of Citation. Periodicals are issued as paperbacks with pagination cumulative; we will employ a citation form designed to facilitate finding most issues from information on their spines or covers. Thus: volume number name (date) and pages inclusive of the article: for example. V17 N4 Standard L. Ray. (July 1974) at pp. 697722. 7) The topic headings we employ are ad hoc. They are not keyed to any other index or law book publishers system. To gain space we will not repeat citations. We trust the readers will scan the whole feature. 8) From time to time we plan to include special features. such as that in this edition on major law libraries in Arkansas. Your suggestions are welcome. Let us have your views on the value of this type of information service.
BANKRUPTCY With the downturn in economic activity we are witnessing an upturn in business and personal financial failures. From a mass of new writing in this field we include: • "Executory Contracts in Bankruptcy: Part II" by Professor Vern Countryman of the Harvard Law School. This long article seems to be a definitive treatment of the subject. V58 N4 Mlnneaota L. Rey. (March 1974) at pp. 479-587. Note: Part I of this work appears in 57 Minn. L. Rev. 439 (1973). '''A Bankruptcy Trustee's Avoiding Power. a Creditor's Attachment Lien. and the Alter Ego Doctrine" a student note. V48 N1 Southern California L. Rey. (Oct. 1974) at pp. 56-91. See especially pp. 65.Jl6. •"The Future of Testimonial Immunity in Bankruptcy Proceedings," a student note at V48 N1 Southern California L. Rey. (Oct. 1974) at pp. 92-120. See especially pp. 92-109. • "The New Rules In Straight and Chapter XIII Bankruptcies" by Clive W. Bare. Bankruptcy Judge for the Eastern District of Tennessee. ThiS lengthy article reviews the new rules and forms of practice effective late last year pursuant to Chapters I-VII (sections 1-72) and Chapter XIII (sections 601.Jl6) of the Bankruptcy Act. II U. S. C. Sec. 1 et. seq. (1970). V41 N4 Tenn.....a L. Rey. (Spring 1974) at pp. 587-634. • "Bankruptcy or Not? Advice for Attorneys Who Counsel Consumer Debtors" by Associate Professor Douglas Q. Wickham of the University of Tennessee College of Law. V41 N4 Tenn...ee L. Rey. (Spring 1974) at pp. 667-681. '''Bankruptcy and the Land Sales Contract: The Rights of the Vendee vis-a-vis the Vendor's Bankruptcy Trustee" by D. M. Lynn, a lawyer practicing in Dallas. Texas. This article does contain some local law. but it includes valuable observations for Arkansas practitioners. V5 N3 Texa. Tech L. Ray. (Spring 1974) at pp. 677-702. See especially pp. 687680 and 697-699.
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CONTRACTS·COMMERCIAL LAW-INSURANCE The American Bar Association Sec· tion of Corporation, Banking and Business Law has again made an annual review of the Uniform Commercial Code. Several authors contribute their findings in: • V29 N4 The Business Lawyer (July 19741 at pp. 1225-1314. The President has exercised his authority under the 1973 amendments to the Par Value Modification Act (P. L. 93110) and soon American citizens may once again buy. hold and trade gold as a commodity. Three authors in two recent articles assess the prospects for using "gold clauses" in contracts: "'Restoring 'Gold Clauses' in Contracts" by Rene' A. Wormser and Donald R. Kemmerer. Mr. Wormser practices law in New York City. while Or. Kemmerer teaches economics at the University of Illinois, Champaign. V60 Ameri· can B. Assn. J. (Aug. 1974) at pp. 942-
946. '''Value Clauses - Forms of Contractual Protection Against Changes of Value of Money" by E. Hirschberg. an Israeli lawyer and Research Fellow at Bar Sian University. V79 N9 Commercial L. J. (Sept. 1974) at pp. 350-354. Five articles are printed in the most recent The Forum, the journal of the Section of Insurance, Negligence and Compensation now of the American Bar Association. based on papers presented at the annual meeting last summer in Honolulu. Hawaii. The articles explore different aspects of a common fact situation involving the re-Ietting of construction subcontracts. They include: · "Contract Changes and Extras Clauses. Their Validity and Binding Effect" by John Michael McCormick, who practices law in Los Angeles, California. Vl0 N1 The Forum (Fall 1974) at pp. 5-27. "'Contract Changes and Extras Clause Improperly Applied - Contractor's Refusal to Perform" by John J. Petro. an attorney from Columbus, Ohio. VlO N1 The Forum (Fall 1974) at pp. 29-34. ·"Deviations in Re-let Contract Do Not Discharge Surety Where Right of Change Was Reserved" by Robert E. Leslie, a practitioner from San Francisco. California. V10 N1 The Forum (Fall 1974) at pp. 37-49. • "Deviations in Re·let Contract. Complete Discharge of Surety" by Penrose Wolf. Assistant Secretary of the Hertford Insurance Group. V10 N1 The Forum (Fall 1974) at pp. 51-61. '''Deviations in Re-let Contract. Pro
Tanto Discharge of Surety to Extent Prejudicial" by Robert D. Carnaghan, attorney and manager in the Claim Department of the Fidelity and Deposit Company of Maryland. V10 N1 The Forum (Fall 1974) at pp. 63-72. CRIMINAL LAW AND PROCEDURE Juvenile inmate and defendant problems abound. A recent symposium on Juveniles and the law sponsored by the Section of Criminal Justice of the American Bar Association yielded (among others) the following article: •"Trying a Juvenile Right to Treatment Suit: Pointers and Pitfalls for Plaintiffs" by Patricia M. Wald and Lawrence H. Schwartz, bofh attorneys in the District of Columbia associated with the Mental Health Law Project. V12 N1 The Amerl· can Criminal L. Rev. (Summer 1974) at pp. 125-163. Like a majority of the other states, Arkansas has re-enacted the death penalty for certain crimes. A student note examines these step-children of Furman Y. Georgia in: • "Discretion and the Constitutionality of the New Death Penalty Statutes. V87 N8 Harverd L. Rev. (June 1974) at pp, 16901719. Some lingering questions posed by Gideon Y. Wainwright are explored in: "'An Indigent's Right to the AffOrney of His Choice" by Peter W. Tague. V27 N1 Stanford L. Rev. (Nov. 1974) at pp. 73-99. Two items that could also be listed under TAXES conclude this heading: ·"Income Tax Evasion: Dealing With the IRS Special Agents and Prosecutor" by Henry B. Rothblatt. noted criminal lawyer and former speaker at an Arkansas Bar Association Program reprinted from the New Vork L. J. Rothblatt's comments appear at V10 N5 Criminal L. Bull. (June 1974) at pp. 437-442. ·"The PriVilege Against Self-incrimination in Federal Tax Investigation" by Graham Stafford, a New Orleans lawyer. and T. Victor Jackson, a pre-hearing attorney for the Michigan Court of Appeals. V34 1~4 Loulslena L. Rev. (Summer 1974) at pp. 703-743. EDUCATION-5CHOOLS AND COLLEGES-CONSTITUTIONAL LAW-SEARCH AND SEIZURE Disturbances in the schools continue to receive much publicity and to generate not a little litigation. Thus. we list the following: .. "College Searches and Seizures: Students. Privacy. and the Fourth Amendment" by Richard Delgado, Assistant Professor of Law at the Arizona State University. V26 N1 Hasllngs L. J. (September 1974) at pp. 57-88. · "Search and Seizure in the Public Schools" by Kelly Frels. a Houston.
Texas practitioner. V11 N4 Houston L. Rev. (May 1974) at pp. 876-893. · "Common Law Rights for Private University Students: Beyond the State Action Principle" is a student note in V84 N1 Vale L. J. (November 1974) at pp. 120-150. PROPERTV-TRUSTS AND ESTATES-TAXATION · "Securities Regulation of Real Estate Developments Financing Arrangements Considered as an Extension of Credit" by Janet Hart, Assistant Director, Division of Supervision and Regulation, Board of Governors of the Federal Reserve System. The article is part of a securities symposium. V35 N2 Ohio State L. J. (1974) at pp. 300-308. · "Current Developments in Summary Foreclosure" by James M. Pedowitz. a title insurance executive and Adjunct Professor. New York University Law School. V9 N3 Reel Property, Probate and Trust J. (Fall 1974) at pp. 421-432. On September 2, President Ford signed into law the Employees Retirement Security Act of 1974, a significant body of new rules affecting pensions and financial planning (effective date January 1, 1974). Transcripts of remarks at a symposium on this subject held last July 11 and 12 in Washington. D. C.. have recently been published in the Na· tlonal Tax Journal. The symposium was sponsored by the National Tax Association - Tax Institute of America and the Fund for Public Policy Research. We list only certain pages: · V27 N3 National Tex J. (September 1974) at pp. 433-440 and pp. 445-465. Herein a discussion of Private Employee Pension Plans and Individual Retirement Accounts. A series of papers were delivered at the annual meeting of the Sections of Real Property. Probate and Trust Law of the American Bar Association last August in Honolulu, Hawaii. These commentaries have been updated to reflect the enactment of the Employee's Retirement Security Act of 1974: • "Coverage and Vesting Requirements" by Philip S. Neal of the D. C. Bar. V9 N3 Real Property, Probate and Trust J. (Fall 1974) at pp. 433-437. Mr. Neal discusses coverage, participation, vesting, and decrued benefits. · "Benefit Limitations and Individual Retirement Accounts:" by John A. Cardon of the D. C. Bar. V9 N3 Real Property, Probate and Trult J. (Fall 1974) at pp. 438-445. · "H. R. 10 Plans and Lump Sum Distributions" by California attorney Norman B. Baker. V9 N3 Real Property, Probate and Trust J. (Fall 1974) at pp. 446-450. Mr. Baker includes Defined Benefit Continued on page 28
January 1975/Arkansas Lawyer/27
LITERATURE Continued from Dage 27
Plans and the new tax-free Rollover con· cept. · "Fiduciary Responsibility and Invest· ment Limitations" by T. Neal McNamara. an attorney from San Francisco. California V9 N3 Real Property, Probate and Trust J. (Fall 1974) at pp. 451-456. • "Reporting of Requirements" are discussed by San Francisco executive James B. Zischke at V9 N3 Real Property, Probate and Trust J. (Fall 1974) at pp. 457-460. Note: A question and answer session transcript is included at pp. 464-470 of the Journal.
TORTS-PERSONAL INJURY Common carriers are held to the "highest degree of care" for the safely of their passengers and. according to a recent case, this standard includes a duty to warn passengers before a flight of anticipated weather disturbances not serious enough to cause flight cancellation. but serious enough to be of concern to passengers. Fleming Y. Delta AIrlines, 359 F. Supp. 339 (S. D. N. Y. 1973\ is the subject of the following student notes: • "Torts-Negligence-Air Carrier Held to a Duty to Warn Passengers Before Departure, Where Turbulent Weather Is Anticipated During the Flight." V42 N3 Fordham l. Rev. (March 1974) at pp. 698-706. ... Airlines-Duty to Warn-Common Carrier Have A Duty to Warn Passengers of Predicted Turbulence Prior to Flight." V5 N3 Texas Tech l. Rev. (Spring 1974) at pp. 817-823.
TRADE REGULATION-ANTITRUST ... Antitrust-Standing and Passing On" by Jerry L. Beane. an attorney practicing in Dallas, Texas. V26 N3 Baylor L. Rev. (Summer 1974) at pp. 331-352. "'Antitrust and Foreign Trade: Exemption for Export Associations: by John R. Allison, Assistant Professor of Business Law. The University of Texas at Austin. V11 N5 Houston L. Rev. (July 1974) at pp. 1124-1150. • "Buyer Liability for Inducing or Receiving Discriminatory Prices. Terms. and Promotional Allowances: Caveat Emptor in the 1970's" a comment by Associate Professor Paul J. Galanti of the University of Indiana Indianapolis Law SChool. V7 N6 Indiana L. Rev. (May 1974) at pp. 962-1000. The Directors of the three major law libraries in Arkansas have kindly furnished us with the following statements of their rules and regulations. J- . . . . .
28/January 1975/Arkansas lawyer
THE UNIVERSITY OF ARKANSAS LAW LIBRARY AND THE PULASKI COUNTY LAW LIBRARY 400 West Markham Little Rock, Arkansas 72201 Phone: 501-375-8223 501-375-8224 Days of operation: Seven days a week. Closed on all University of Arkansas holidays (Schedule does not necessarily coincide with State or Federal Holidays).
Hours of operation: Monday-Friday 8:00 a.m. to 10:00 p.m. Saturday 8:30 a.m. to 5:00 p.m. Sunday 2:00 p.m. to 10:00 p.m. Number of volumes:
Approximately 41 ,()(x)
Users: Library is maintained primarily for the use of Law School faculty and students and practicing attorneys in Pulaski County. Other lawyers and non lawyers are welcome. Materials may not be removed from the library except duplicate textbooks may be checked out for 24 hours. Research: No researching because of limited staff. Reproducing: Photocopier available: ten cents per page charge, Specialties: All legal periodicals indexed in the Index to Legal Periodicals. Back issues being purchased as reprints become available. Annotated statutes of all states: selected casetles by Can dyne, All and IBP, Selected State Shephard's Citators: PLI Materials. Professional Personnel: Ruth Brunson. Law Librarian; Lambert DeCora. Assistant Law Librarian.
ARKANSAS SUPREME COURT LIBRARY 1st Floor Justice Building (on Capitol grounds) Little Rock, Arkansas 72201 Phone: 374-2512
Days of operation: Monday through Friday. Closed on all days that are legal state holidays. Hours of Operation: 8:00 a.m. until 4:30 p.m. Number of Volumes: Approximately 65,000 Users: The library is maintained primarily for the use of the Supreme Court but anyone (both attorneys and non-attorneys) is welcome to come in and use the library. No books can be taken from the library. If assistance is needed the staff will be glad to help in any way they can. Research: No researching because of limited staff.
Reproducing: Xeroxing machine operated by staH. len cents per page charge. Specialties: Session acts and annotated statues of all states. and most of the state reports from other states. Many English reports. Professional Personnel: Ruth Lindsey. Law Librarian; Bill Somers, Assistant Librarian.
By J. Steven Clark Director of Admissions Dr. Robert Lellar's new book Appellate Judicial Oplnlona has been pUblished by West Publishing Company. The forward for the book was written by the Honorable Warren E. Burger, Chief Justice of the Supreme Court of the United States. The text is designed Primarily for the use of newly named appellate Judges and will be used as the textbook In the seminars for appellate Judges. Additionally, Dr. Lellar published an article entitled "Appellate Judicial Innovation" in the Oklahoma Law Review. In October Professor Leflar conducted a two-day short course on "Opinion Writing" for the five newly elected justices of the Supreme Court of Tennessee at Vanderbilt University. Professor William W. Lancaster contributed a chapter on "Federal Taxes and the Insurance Agent and Broker" to the newly published book, Relponslbilltles Insurance Agents and Brokers, (Matthew Bender. 1974) by Judge Bertram Harnett of the New York State Supreme Court. Dean Wylie Davis attended a multistate bar examination committee meetIng In Chicago, October 25 and 26. The committee prepared contracts and questions for the 1975 multi-state bar exam. New officers for the Student Bar Association were elected in December. The officers are as follows: Tom Wynne of Fordyce. President Wayne Davis of Pleasant Grove. Vice President; Dan Leeman of Gandonville. Missouri. Treasurer: Peggy O'Neal of Fort Smith, Secretary; and David Switzer of Peoria. Illinois. FaCUlty representative. Professor George Skinner. member of an ABA inspection team, inspected the law library of Southern University Law School in Baton Rouge. November 21 and 22. New elected officers for the law review include what is believed to be the first woman editor-in-chief. Ms. Susan Webber of Texarkana. Other officers are Mark Grobmyer of Little Rock. Managing Editor: Phy'lIis Johnson of Fayetteville, Articles Editor: Wayne Ball of San Antonio, Texas, Comments Editor; Walter Pupko of New York, New York, Citations
0'
Editor: and Paul Young, Jr.. of Pine Bluff. Business Manager. Mr. Jack King. a second year law student. has given a scholarship in the name of John Cravens. deceased. of Ozark to the Law School Foundation. These scholarship funds are to be used for general student scholarships. Professor Morton Gltelman is working on the publication of a new edition of the text. Case. and Materials on Land Use, together with Dean Robert Wright of Oklahoma and Professor Jacob Beuscher. Newly elected officers of the law school's professional fraternities are Carter Hardage of Little Rock, Justice of
Phi Alpha Delta: Don Ries of Fayetteville. Vice路Justice of PAD; Leon Jamison of Monticello. Clerk PAD: Jim Gresham of Fordyce. Marshall PAD: and Jennifer Price of Fayetteville. Placement Coordinator PAD. The Delta Theta Phi atficers are George Bailey of Atkins. Dean; Fred Hart of Little Rock. Vice Dean. January 25th Mssrs. Walter Niblock, Phillip Lyon and Robert Branch are going to present a seminar on the economics of law practice at the Fayetteville Division. For the third straight year the Washington County Bar Association bested the Law School All-Stars in touch football at Razorback Stadium. J._~
LAW LIBRARY UNIVERSITY OF ARKANSAS SCHOOL OF LAW Fayetteville, Arkansas 72701 Tel. 575-5604
Hours: Monday-Thursday. .. . 8:00 a.m.-12:00 Midnight Fridays '" .. ..8:00 a.m.-l1:00 p.m. Saturdays.... .. 9:00 a.m.- 5:00 p.m. Sundays 1:00 p.m.-ll:00 p.m. The Law Library is closed on University holidays and open only from 8:00 a.m.-5:00 p.m. on Monday-Friday during vacation periods. Collection and It I Use: The collection of 80,000 volumes is primarily available for students and faCUlty of the law schooL but is also available for other University students and faculty and members of the bar needing use of its service. Loan privileges of certain materials are available. Copying service is available for ten cents per page plus postage. The library maintains a complete collection of all state reports and statutes as well as those for the BritiSh Commonwealth. 550 titles of legal periodicals are among the holdings. An extensive collection of treatises. administrative re路 ports. looseleaf services. all Shephard's Citations. as well as comprehensive collections of tax laws. labor law. and International law are available. Professional Personnel: George E. Skinner. Law Librarian Ms. Maurice Pope. Asst. Law Librarian Ms. Sara Fleming. Reference and Circulation Librarian Law Student Research Service: A research pool sponsored by the Student Bar Association is available to all members of the bar. Write Mr. Paul Young at the Law School.
January 1975/Arkansas Lawyer/29
An introduction to Securities Law and Practice Part II -Walter W. Davidson
This is only an overview of a field of law fraught with hidden historical and technical developments related to the remedial purposes of securities laws. The reader accordingly should refer to the precautionary comments noted in Part I of this article.
Anti-Fraud and Non-Disclosure Provisions under State and Federal securities Laws The Securities Act of 1933 (15 U.S.GA Sections 77a-77aa (1970) ) ("1933 Act"). the Securities Exchange Act of 1934 (15 U.S.G.A. Sections 78a-78hh-1 (1970)) ("1934 Act"), other Federal securities en· actments, the Arkansas Securities Act (Ark. Stat. Ann. Sections 67-1235 - 671263 (1973 Supp.) ) ("Ark. Sec. Act") and rules and regulations adopted under each of these enactments prohibit a wide variety of misconduct of persons engaged in securities activities and in general broadly require registration or exemption and prohibit direct and indirect conduct of any person in connec· tion with the offer, sale or purchase of any security which operates as a fraud or deceit upon another person. Further, such acts and rules adopted pursuant thereto make it unlawful in connection with the purchase or sale of a security for a person to make any untrue state· ment of a material fact or to omit to state a material fact necessary in order to make the statements made in the light of the circumstances under which they were made. not misleading. See. 15 U.S.G.A. Section 77g (1970) (1933 Act Section 17(a) ); SEG Rule 100.5 (2 Fed. Sec. Law. Rep. Section 26.744) adopted pursuant to 15 U.S.G.A. Section 78j (1970) (1934 Act Section 10); Ark. Stat. Ann. Section 67-1235 (1966 RepL) (all of which have similar wording): and other statutory provisions cited hereinafter. It should be noted that although the terms "fraud" and "deceit" are used throughout these enactments. there terms are not limited by common law JO/January 1975/Arkansas Lawyer
(Edltoria' Note: This is the second and final part of an article, the first part of which appeared in the October, 1974 issue of The Arkansas Lawyer which included a discussion regarding situations in which securities questions normally
arise, federal securities acts, the general regulatory approach of the Arkansas Securities Act end Rules of the State Securities Commissioner, certain key definitions, the expanding scope of securities laws to reorganizations.)
concepts. Ark. Stat. Ann. Section 671247(d) (1966 RepL). Selig Y. Novak, 506 S.w.2d 825 (Arl<. 1974). Myzel Y. Flalds, 386 F.2d 718 (8th Gir. 1967) and Affiliated Uta CItizens Y. U.S., 406 U.S. 128 (1972). There are several punitive sanctions for violations of these laws including, among others: loss of license or privilege to engage in regulated securities activities. injunctive sanctions, criminal prosecution and civil liability.
a security in violation of section 77e of this title (Section 5 of the 1933 Act which requires registration of the security with the SEC).... shall be liable to the per· son purchasing such security from him. who may sue either at law or in equity in any court of competent jurisdiction. to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security. or for damages if he no longer owns the security. " Similarity. Ark. Slat. Ann. Section 671256(a) (1966 RepL) provides; "Any person whol - (1) offers or sells a security in violation of Section ... , 7 (Section 67-1241 which prohibits any offer or sale without registration or exemption therefrom)..... is liable to the person buying the security from him, who may sue either at law or In equity to recover the consideration paid for the security, together with interest at six per cent (6%) per year from the date of payment. costs. and reasonable attorneys' fees .. ., A suit based upon failure to register the security need not show a causal relation between the violation and the pur-
Conduct Giving Rise To Civil Liabilities The violation of various securities laws and rules and regulations gives rise to either specified or Implied civilliabilities. In most situations. however. claims are found on the failure of the alleged wrongdoer to register the security or to make proper disclosure in connection with a securities transaction. There are a number of subtle differences in the various federal laws and rules which may tend to make one or the other more appropriate under particular situations. These differences are discussed in 1 A. Bromberg, Securities Law: Fraud, Section 2.1 (1973) (herein· after citied as Bromberg). The most significant difference between these laws and rules is the applicability of the 1933 Act only to the offer or sale of a security. Insofar as Arkansas law. atl civil liabilities arising under the Ark. Sec. Act are set forth in Ark. Stat. Ann. Section 67-1256 (1966 RepL) which is essentially a reproduction of the Uniform Securities Act in that regard. To date the Arkansas Supreme Court has not considered the question of an implied remedy for viola· tion of any provision of the Ark. Sec. Act not set forth in Section 67-1256. Failure To Register The Securily -15 U.S.CA Section 77e (1) (1970) (1933 Act Section 12(1 ) provides: "Any person who - (1) offers or sells
Walter W. Davidson
chase. Generally a causal relation could not be shown in such cases except by implication, Le.. if the security had been registered the investor safeguards inherent in the registration process would have been brought to bear and the sale thus avoided. The purchaser's case in chief in such situation merely requires proof (i) of the purchase of the security from the defendant as an offeror or seller and (ii) lack of registration of the se路 curity. See III L. Loaa, Securities Regulelion Ch. 11 B. 3. page 1643 and Ch. l1C.l.(b), page 1692 (Second Ed. 1961) (hereinafter cited as Loss) and VI L. Los., Securities Regulation page 3828 (Supp. To Second Ed. 1969). The seller (or "controlling person" or other specified persons who may be held liable under these statutes, as discussed hereinafter) then has the burden of proving any exemption from registra路 tion which may be applicable. See Ark. Stal. Ann. Section 67-1248 (d) (1966 Rep!.); Lively v. Hirschfield, 440 F.2d 631 (10th Cir. 1971); and I Loaa, Ch. 3D.4. page 712 and cases cited in notes 21 and 22 thereat. Allhough courts have been reluctant to do so, certain defenses such as waiver, estoppel, laches and in pari delicto have sometimes been successfully asserted in defense of actions based upon such securities violations. See Tucker v. McDell'a, Inc., 359 S.W.2d 597, (Tenn. 1962); Streley v. Universal Uranium and Milling Corp., 289 F.2d 370 (9th Cir. 1961); and Blanka v. American Southern Truat Co., 9 S.w.2d 310 (Ark. 1928). See, however Ark. Stat. Ann. Section 67-1256(g) (1966 Rep!.) which provides: "Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this act or any rule or order hereunder is void." Misstatements or Omissions in Registration Statementa - 15 U.S.C.A. Section 77k (1970) (1933 Act Section 11 (a) ) creates specific liabilities as to designated persons in the event the registration statement (filed with the SEC) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therin or necessary to make the statements made not misleading, at the time such part became effective. However, the Section contains a number of defenses which are somewhat limiting and confusing compared to other liability sections of federal secruities law which it overlaps. Consequently, this Section has been used as a basis for recovery only in a few cases. III Loaa Ch. l1C.l. (e), page 1721. Fortunately, the Uniform Securities Act omits any provision comparable to 1933 Act Section 11 (a) and accordingly the Ark~ Sec. Act avoids the overlap ambiguities. Misstatements or Omisslona In the
Offer or Sale of a Security - One such overlap occurs with 15 U.S.C.A. Section 771(2) (1933 Act Section 12(2)) which deals with the general offer or sate of a security rather than the registration statement in particular. The language of this Section, which applies when interstate commerce facilities have been utilized, is almost identical to Ark. Stat. Ann. Section 67-1256(a) (2). which applies to all sales of securities in the State of Arkansas. The Arkansas statute provides: "Any person who - (2) offers or sells a security by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of circumstances under which they are made, not misleading (the buyer not knowing of the untruth or omission), and who does not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission, is liable to the person buying the security from him, " The drafters of the Uniform Securities Act. then cognizant that a number of courts had implied remedies for violations of securities laws (inclUding SEC Rule 10b-5) and aware of the overlap confusion related to 1933 Act Section 11(a). sought to clearly specify the situations where civil liabilities would arise. Loss and Cowell, Blue Sky Law Section 410. pages 390-392 (1958). See However, Lane v. Midwest Bancshares Corp., 337 F. Supp. 1200 (E. D.. Ark. 1972). Under Ark. Stal. Ann. Section 671256(a) (2) and 1933 Act Section 12(2) a buyer seeking recovery for the purchase of a security is required to show that the oHeror or seller effected the transaction by means (i) of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in the light of circumstances under which they are made, not misleading. and (iil that he did not know of the untruth or omission. Proof of reliance and other elements now required as to untrue statements in SEC Rule 10b-5 claims were not intended to be required of the buyer in such actions. See III Loaa, Ch. l1B.3.(i) page 1645 footnote 83 and Ch. ltC.l(c) pages 1699-1705. The Seller (or "controlling person" or other specified persons who may be held liable under these statutes may avoid liability under these laws by meeting the burden of proof that he did not know. and in the exercise of reasonable care could not have known, of the untruth or omission; or by proof of estoppel, waiver. laches, ratification or in pari delicto to the extent that the court considers such defenses to be properly assertable in the particular case. See III
Loas, Ch. 11 B.8. (b) page 1676; Lane v. Midwest Bancshares Corp., supraj and the prior citations under "Conduct Giving Rise to Civil Liabilities - Failure to Register the Security" above. 15 U.S.C.A. Section 770 (1970) (1933 Act Section 15) and Ark. Stal. Ann. Section 67-1256(b) (1966 Rep!.) both provide for joint and several liability of controlling persons when the seller is liable unless the controlling persons can sustain the burden of showing lack of knowledge or reasonable grounds for not knowing such facts. In addition to the broad term "controlling persons," Ark. Stat. Ann. Section 67-1256(b) also specifies that "every partner, officer, or director of such seller, every person occupying a similar status or performing similar functions, every employee of such a seller who materially aids in the sale" and certain other persons are also liable unless they sustain such burden of proof of lack of knOWledge. SEC Rule 10b-S, 1933 Act Section 17(a) and other Implied Llabllitiea Unlike the 1933 Act, no express civil remedy was set forth in the 1934 Act. However, it is now clearly established that a right of recovery and injunctive relief properly may be granted against violators of certain SEC ru les adopted pursuant to the 1934 Act. Remedies are afforded to those persons designed to be protected by such rules. There are literally tons of accumulated writings with respect to various facets of implied liabilities arising under Federal and state securities laws. Professor Alan R. Bromberg's three volume loose leaf publication entitled Securities Lawj Fraud-SEC Rule 10b-S and discussions included at III Loas, Ch. 11 C.7 page 1757 as supplemented in 1969 will provide the reader with initial source materials for research. The law in this field is still developing and varies in material respects in the different Federal circuits. The SEC did not adopt Rule 10b-5 until 1942 and then only in a very casual way. See Conlerence on Codillcatlon 01 the Federal Securities Laws, 22 Bus. Law. 793, 922 (1967). Historically. although 1933 Act Section 17(a). supra (Which applies only to offers and sales) reads substantially the same as SEC Rule 10b-5, it was not construed so as to imply any civil liability until after the first recognition of a 10b-5 implied liability in Kardon v. National Gypsum Co., 69 F. Supp. 512 (E.D. Pa. 1946) and is still the subject of dispute in that regard. (This is relatively insignificant except for the fact that the 1933 Act affords concurrent state and Federal jurisdiction while the 1934 Act vests exclusive jurisdiction in Federal courts.) Although the U.S. Supreme Court recognized the principle of implied liability in J. I. Case CO. Y. Borak l Continued on page 32
January 1975/Arkansas Lawyer/31
SECURITIES ConUnt*t from
ptlgtl
change. (1) to employ any device. scheme or artifice to defraud, (2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made. in the light of the circumsiances under which they were made, not misleading or {3} to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." For the most part. civil liabilities have arisen out of clause (2) or Rule 10t>-5 and
31
377 U.S. 426 (1964) (regarding anti-fraud proxy rules adopted pursuant to the 1934 Act as amended) its first clear sanction of implied liabilities under SEC Rule 10t>5 came in the 1972 case of Afflll.ted Ut. CItizen. Y. U.S., .upr•. SEC Rule 10t>-5 reads' "Employment of Manipulative and
Deceptive Devices It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality or interstate commerce. or of the mails. or of any facility of any national securities exu • I'OSr .... L SERV'CE
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have been limited by the "purchaserseller" rule adopted in Birnbaum v. N.wport Steel. Corp., 193 F.2d 461 (2d Cir. 1952) except in situations where it has been fairly clearly determined that the acts or course of conduct of the wrongdoer fell within the intended scope of Rule 1Ot>-5. SEC v. C.plt•• G.lne R•••• rch Bur••u, 375 U.S 180 (1963); Vln. Y. Ben.flel.' Fln.nce Co., 374 F.2d 627 (2d Cir. 1967); Supl. 01 In.ur.nc. Y. B.nk... Lif... C••u.1ty Co., 404 U.S. 6,12(1971); and Afflll.ted Ut. Cltlz.n. Y. U.S.• supra. In the Eighth Circuit, (under Myz.' Y. FI.ld., .upr. City N.Uon.' B.nk Y. V.nd.rboom, 422 F.2d 221 (8th Cir. 1970) and V.ncI.rboom Y. S.xton, 422 F.2d 1233 (8th Cir. 1970) ) the traditional purchaser-seiler 10b-5 claim requires the injured party to sustain a burden of proof that: (i) there was a use of means or instrumentalities of interstate commerce or of the mails (an intrastate phone call is sufficient); (ii) securities were bought from or sold to him; (ii) the wrongdoer panicipated in the transaction. aided, abetted or conspired in connection therewith; (ivl an untrue statement or omission (which need not meet common law fraud requirements of affirmative mis· representations) was made to him; (v) such untrue statement or omission was material (Le., encompassed facts which in reasonable or Objective con· templation might affect the value of the securities involved): (vi) scienter existed. only in the sense that the wrongdoer knew or with the exercise of reasonable care should have known of the untruth or om ission; (vii) he relied upon the untrue statement claimed as the baSIS for relief (and possibly. of non-disclosure is claimed. evidence that he would have acted differently if the undisclosed facts claimed had been known by him); and (viii) other features of the "in connection with" test described in City N.Uon.' Bank Y. Vanderboom. supra. are met (which in essence is a determination of the materiality and reliance features described above and a predetermination that a reasonable investor in the exercise of due care would have been entitled to have relied upon the misrepresentations which were made to him by the wrongdoer or would have been entitled to be told of the omitted items of information by the wrongdoer in the light of the facts existing at such time). This last requirement has added the necessity in some Federal ciICuits that in certain cases the injured party must also show that "due or reasonable diligence" was exercised by him under the circumstances in making his decision to bUy or
sell. See Clement A. Evans & CO.tlnc. v. McAlpine, 434 F.2d 100 (5th Cir. 1970); and Jackoon Y. Oppenhelm, CCH Fed. Sec. L. Rep. Section 93.008 (S. D. N.Y. 1971). The extent to which an injured party is reqUired to show due diligence must obviously be balanced in each case against the fundamental purpose of the 1934 Act to substitute a philosophy of full disclosure for a philosophy of caveat emptor as discussed in the U.S Supreme Court decisions noted hereinbefore. Earlier comments regarding possible defenses to securities suits are essentially applicable In a 10b-S action. See 3 Bromberg, Section 115 (1973). While these vanous decisions present a confusing picture of how to categorically determine whether 10b-S liability will attach, it should be borne in mind that courts considering these cases are developing principles based upon a legislative Intent to elevate the standards of conduct in securities matters and invariable Will continue to mold an Implied remedy consistent with the purposes of the law and the equities of each case. The Ninth Circuit has candidly recognized this and in an excellent analytical opinion adopted a so-called "flexible standard" in 10b-S cases which stresses that the duty of disclosure is that which the circumstances require. While Y. Abrams, 495 F.2d 724 (9th Cir. 1974). Since the Ark. Sec. Act like the 1933 Act contains no specific civil remedy in a plaintiff-seller situation and the language 01 Ark. Stal. Ann. Section 67-1235 (1966 Repl.) tracks SEC Rule 10b-5 virtually verbatim, it is possible that our courts might Imply a remedy in an appropnate situation See III Loss, Ch. 116.6. and the Supplement thereto.
Need lor Specialization In The Registration Process As previously noted, registration may be required under the 1933 Act, the 1934 Act and/or various Blue Sky laws. Registration under any of these laws is at best expensive, technical and time consuming. In addition, various potential liabilities attach as a result of the registration process which dictates a watchword of enlightened candor for the attorneys, accountants, issuer and all other persons involved in the process. Experience can be critical in this specialized field, particularily with respect to new offerings of securities. Registration Under The 1933 Act To effect a registration under the 1933 Act. a registration statement. inclUding a written prospectus, must be filed with and cleared by the SEC pursuant to guidelines (somewhat deceptively called forms - the most common being Form
5-1) promulgated by the SEC. Detailed information about all affairs of the issuer and the nature and propriety of the investment must be Vividly spelled out. Except for newly formed entities, extensive finanCial statements prepared by Independent certified public accountants In accordance with generally accepted accounting principles are reqUired, which generally must include a current balance sheet, five years (three years' audited) operating statements, surplus analysis statements, schedules, certam related reports, and a "clean opinion" i.e., Without any serious qualification. This is often impossible for companies that have not kept adequate financial information or followed independent audit procedures in the past. Timing Invariably becomes critical in an offering and speedy printing of the voluminous detailed informatIOn IS essential if any realistic schedule is to be met. If the offering IS to be handled by an underwriter, either on a "firm underwriting" or a "best efforts" basis, sales efforts must be dovetailed to a selling schedule consistent with marketing conditions. Much preliminary planning is needed and operations of the issuer are severely curtailed during the "prereg istration," "in-reg istration" and "post-registration" periods. A time schedule of four to six months to complete a registration is not unusual and combined legal, accounting and printing expenses in the $50,000 range are to be expected. Underwriter discounts of 8% of the offering price and upwards will also be taxed as part of the outlay necessary to obtain funds through a registered offering. 1934 Act Reglo1ratlons - Since a registration under the 1934 Act relates to securities already outstanding, timing is generally less critical for such filings. When an offering is effected under the 1933 Act. the prospectus used therein serves as the basis of the initial registration statement under the 1934 Act. Conversely, when an offering of an issuer, the securities of which are registered under the 1934 Act. is made pursuant to a merger or other reorganization the proxy statements cleared by the SEC usually provide most of the material needed to complete a 1933 Act registration (as discussed in Part I hereof). SEC theory under both acts is meanmgful disclosure to security holders and the investing public. Recent changes in SEC rules have brought these enactments closer in this respect. Reglo1ratlon Under Ark. Sec. Act - If a registration is effected under the 1933 Act, a registration of the same securities by coordination may be completed under Arkansas law without a great deal of difficulty - provided the offering meets the "fair, just and equitable" standards
applied by the Arkansas Securities Commissioner ("Securities Commissioner"). A public offering to be made solely in Arkansas on an intrastate basis (in reliance upon an exemption pursuant to SEC Rule 147 discussed hereinafter) is somewhat cheaper and quicker. However, it is still expensive and time consuming; invokes a high fisk of violation of federal laws; requires a bond; generally eliminates effectuation through an experienced broker-dealer (thereby necessitating the Issuer to qualify in that regard); and limits post-offering marketability of the securities. The procedure was widely used in Arkansas during the SO's and 60's but is seldom used today by securities counsel
Exemptions From Registration Ark. Sec. Act Exemptions - Under the Ark. Sec. Act a security may be offered or sold without registration if the security itself is exempt or if the transaction is exempt. Ark. Stat. Ann. Section 67-1248(a) sets forth all "securities exemptions" and Sub-section (b) thereof all "transaction exemptions. " Certain securities, because of their nature, are exempt from registration generally on the leg islative theory that they fall outside the scope of desired regulation (e.g., non-profit organizations) or are issued by entities otherwise regulated to an extent that registration is not deemed to be necessary (e.g., banks, savings and loan associations, etc.). Before concluding that any security is exempt, the specific statutory language should be critically reviewed and the administrative and judicial history ascertained. It should also be noted that: "Before a security may be issued as an exempted security under (67-1248(a) (3). (4). (5). (6). (8) or (10Âť) a proof of exemption must be filed with the (Securities) Commissioner .. :' Ark. Stat. Ann. Section 67-1248(e) (1973 Supp.). Effective September 31. 1974, the Securities Commissioner adopted a new Rule 8.1. which, in effect. permits a public offering up to a maximum of $200.000 by use of an abbreviated registration process authorized by Ark. Stat. Ann. Section 67-1248(a) (11) (1973 Supp.). Use of this procedure will be substantially limited by the terms of Rule 8.1., however. A transaction exemption is afforded in a number of situations where registration is either deemed to be too burdensome for the protection afforded (e.g .. isolated non-issuer transaction) or unnecessary because other protection in such situations is regarded as sufficient (e.g., an offer or sale to a bank, saving Continued on page 34
January 1975/Arkansas Lawyer/33
l
SECURITIES Continued hom page 33
institution. insurance company. etc.). In planning for the offer or sale of a security by an issuer or control person, however. the most common transaction exemptions utilized will be Section 67-1248(b) (9) (the 25 offeree private placement); (10) (pre-organization offers and sales. without collection of any funds); and (11) (transactions pursuant to an offer to all security holders). Each of these requires prior filings of proof of exemption under Section 67-1248(0 and compliance with applicable provisions of Rule 8 of the Securities Commissioner. Exemption under one state's law is no assurance of exemption under Federal law or the Blue Sky laws of other states. Federal 1933 Act Ex.mptlon. exemptive provisions under the 1933 Act also follow a "security" - "transaction" exemption distinction. 15 U.S.C.A. Sections 77c and 77d (1970). However, with respect to "exempted transactions," federal law sets forth an exemptive scheme broadly keyed to "intrastate offerings," "transactions by any person other than an issuer, underwriter or dealer," and "transactions by an issuer not involving any public offering." See 15 U.S.C.A. Sections 77c(a) (2), 77d(1) and 77d(2) (1970). An understanding of each of these exemptions requires careful review of their historical development by the SEC and in the courts and an appreciation of the meaning of terms such as "comes to rest," "offering," "integration," "underwriter" and "investment in· tent." Years of complicated tightening of such exemptions has left securities counsel with an awareness of the precarious nature of reliance on such exemptions except in very limited situations See for example, Hili York Corp. Y. Am. International Franchise, Inc., 448 F.2d 680 (5th Cir. 1971) and SEC •. Contln.nt.1 Tobacco Co., 463 F.2d 137 (5th Cir. 1972) whereby the so-called "private placement" exemption was severely narrowed. The SEC came to recognize the need for clearer guidelines and very recently issued new rules which set forth objective standards 50 that reliable exemptions from registration might prudently be predicated within the framework and purpose of the federal securities laws. These SEC rules. without elaboration, are: a. Rul. 144 - Tron.'". ot R..trlcled 5ecurltl... See SEC Securities Act Release No. 5223, CCH Fed. Sec. L. Rep. section 78,487 (Jan. 11, 1972) and SEC securities Act Release No. 5306, CCH Fed. Sec. L. Rep. Section 2705F (Sept. 26, 1972). b. Rule 145 - "Reel...llleotlon. 01 S.eurltl••, M.rg..., Con.olld.tlon. and Acquilltion. 01 A...,.... See SEC
34/January 1975/Arkansas Lawyer
Securities Act Release No. 5316, CCH Fed. Sec. L. Rep. Section 79,015 (Jan. 1, 19731. C. Rul. 146 "Prl••t. Oll.rlng Exemption." See SEC Securities Act Release No. 5487, CCH Fed. Sec. L. Rep. section 2710 (Ap. 23, 1974). d. Rule 147 - "Introotot. Oll.rlng Ex.mptlon." See SEC securities Act Release No. 5450. CCH Fed. sec. L. Rep. section 79,617 (Jan. 7, 1974). Careful review and compliance with such rules in applicable situations should afford counsel with adequate guidelines to protect Clients' interests. although the rules still require more than a casual understanding of securities laws and regulations and will take on clearer meaning as the SEC continues to review specific situations and renders additional interpretive releases. There are a number of other limited exemptions from registration under the federal securities laws. In addition a 50called Regulation A "small offering exemption" exists for an offering up to $500,000 which is, in effect, a short form registration process handled through the regional offices of the SEC instead of the Washington Office of the Division of Corporate Finance. Perfecting C.rtaln Exemption. From Reglotratlon Under The Arkan.eo Securltle. Act An attorney retained to assist in matters which involve an offer or sale of securities should recognize that his client will very likely be called upon and need to be able to prove full disclosure and registration or exemption. The client. despite protestation about time and fees when the transaction is impending, will invariably claim reliance upon the advice and services of his lawyer when questions later arise from the SEC, Securities Commissioner. reviewing attorneys in acquisition situations. civil suits. criminal assertions or otherwise. Unlike some areas of practice which may allow counsel to confine his responsibilities, a securities practi· tioner will quickly find himself a "little bit pregnant" if he has allowed his Client to cut too many corners. A specific statutory exemption should always be pinpointed prior to expressing any opinion about the offer or sale unless registration is contemplated. Conformity with applicable rules and regUlations of the Securities Commissioner should then be confirmed. If the Seller is not the issuer or a control person of the issuer, the "isolated nonissuer transaction" exemption will generally be available. See Ark, St.t, Ann. Section 67-1248(b) (1) (1973 Sup~.). If however, the seller is the issuer, a control person of the issuer, has
acquired the securities from an issuer under circumstances which imply that he intended at that time to resell the securities or plans to offer a substantial block of unregistered stock in successive transactions. the exemption from registration most likely to be relied upon will be the so-called "25 offeree private placement" exemption under Ark, Sto" Ann, Section 67-1248(b) (9) (1973 Supp.) and Ark. Sec. Rule 8.K. (9/31/'74). This exemption, like its counter part under Federal law (SEC Rule 146, supra), is keyed to limited offers to a small group of related investors who acquire the securities with "investment intent" (Le.. with no present intent to resell or make a public offering thereof) who have access to information which would be available through the registration process and to abbreviated disclosure sufficient to assure that adequate information is made available to permit the purchaser to "fend for himself." See SEC '. Roillon Purina, 346 U.S. 119 (1953). Compensation for seiling the securities is precluded without the consent of the Securities Commissioner under Section 67-1248(b) (9). The perfection of the private placement exemption thus begins with counsel's critical determination, analysis and documentation of facts about the issuer, the security, and the seller which an in· telligent investor with hindsight might later decide was pertinent to his investment decision. Counsel's review should at least cover prior offers and sales of securities by the seller and its control persons, prior securities violations, financial statements. organization and operation documents (e.g., minute book. etc.), business information sufficient to determine the salient risk features. management qualifications and exeprience. affiliated transactions of any consequence and any significant matters which are indicated by such review. The attorney should then prepare a document to disclose such information in a candid factual manner sufficient to apprise the purchaser of all material negative features of the investment and to document the purchaser'S sophistication, "investment intent" and acknow· ledgment that the security will bear a legend restricting retransfers consistent with Ark. Sec. Rule 8.K. Ark. Sec. Rule 8.K. spells out the specific representations and documents required to be filed with the Securities Commissioner as the proof of exemption, which counsel should prepare and file prior to indicating approval of any offer or sale. The exemption, of course, is valid only if the otters and sales are made consistent with the terms of the proof of exemption and counsel should take steps to see that this is done. Ark. Sec. Rule a.A. also mandates retention
of records for five years to substantiate this follow up. A client should be advised of this and of his need to be able to verify compliance. In limited situations upon organization of an entity a private placement exemption under Section 67-1248(b) (9) does not require a filing with the Securities Commissioner. See Ark. Sec. Rule 8.K.(3) which provides: "The filing requirements of Section 14(11 (67-1248(11) are not applicable where five persons or less form a corporation or limited partnership, or enter into a trust agreement and receive the securities which are issued pursuant to the incorporation, partnership agreement. or trust agreement. where the requirements of Section 14(b) (9) (671248(b) (9)) are otherwise complied with." This Rule does not alleviate disclosure requirements, although the process may be somewhat abbreviated if a close relationship exists between members of the organizing group. It should be noted that a filing required to substantiate a Section 61-1248(b) (11) exemption (for transactions pursuant to oilers to existing security holders). must" include a description of the method by which full disclosure of material facts will be made to each offeree." Ark. Sec. Rule 8.L. The preorganlzation subscription exemption under Section 67-1248(b) (10) has a long history of confusion as administered in Arkansas. The language purports to exempt "any offer or sale." However, it precludes " ... payment .. by any subscriber" thus necessitating registration or another exemption to complete any sale. See Uniform Securities Act, Official Gode Comment Section 402(b) (10). CCH Blue Sky Law Rep .â&#x20AC;˘ par. 4932. page 734. If offers have been made to more than 25 persons, the Section 671248(b) (g) private placement exemption will be unavailable and the only remaining alternative may be reg istration of the securities. As a result, this exemption is seldom used.
eliminate any legitimacy to such practices under federal law. See 15 U.S.G.A. Section 77b(11) (1970) (Section 2(11) of the 1933 Act) and I Loss, Ch. 3C(e) 2(b) p. 665. Likewise Ark. Sec. Rule 8.K.(2) adopts the SEC position of the meaning of the term "investment intent" and provides that any ... "resale of the securities within two (2) years of the date of purchase, in the absence of an unforeseeable change in circumstances or registration, shall raise an inference that the person did not purchase the securities with investment intent." (emphasis added) Exemptions available to resale situations under Arkansas law (e.g., Ark. Stat. Ann. Section 67-1248(b)(1) (2) (3) and (13) (1973 Supp.) ) further limit planned resales by use of the term .. nonissuer" which is defined as ". not directly or Indirectly lor the benellt 01 the Illuer." Ark. Stat. Ann. Section 671247(h) (1966 Rep!.). A pledge of a security is excluded from "sale" definitions under the Arkansas Securities Act only if it is "bona fide" (Ark. Stat. Ann. Section 671247(j)(6) (1973 Supp.) and exempted from registration only when it is ". executed by a bona fida pledgee without any purpose of evading (the Arkansas Securities Act). Ark. Stat. Ann. Section 67-1248(b)(7) (1973 Supp.). Added Duties Of Securities MaUers â&#x20AC;˘
Counsel
In
An attorney undertaking representation in securities matters (other than litigation) must recognize that unlike his traditional adversary role which presents a relatively clear single-minded sense of zealous responsibility to a client. he is accepting a role which will make conflicting claims on his sense of duty; and, for the benefit of his reputation and self preservation if nothing else, will require that he accept certain quasi-public
responsibilities in such regard. T~is area of law is the subject of much debate as a result of recent court decisions and pressure by the SEC, State Securities Commissioners and others to raise the standards of responsibility of attorneys in securities practice. See Escott v. Barchris Construction Corp. 283 F. Supp. 643 (S.D. N.Y.. 1968); SEC v. National Student Marketing Corp., 360 F. Supp. 284 (D.D.C.. 1973); Garner v. Wolllnbarger, 56 F.R.D. 499 (S.D. Ala.. 19721. CCH Fed. Sec. L. Rep. par. 93.600. heard on remand from the Court of Appeals, 430 F. 2d 1093 (5th Cir.. 1970); SEC v. Frank,388 F. 2d 486 (2nd Cir. 1968); and SEC v. Spectrum, LTD., 489 F. 2d 535 (2d Cir. 1973). The SEG. Securities Commissioners and the securities industry in general depend in large part upon the integrity and degree of professionalism exercised by the attorneys who practice securities law. See SEC Securilies Act ReI. No. 5404 (June 18. 1973). An administrative agency has a right to assume that an attorney is dealing fairly and honestly and in a non-adversary fashion in matters within the agency's administrative role such as the processing of registrations or exemption requests. It is disservice to the legal profession, oneself and to the client to lead the client into situations that invite litigation or administrative reprimand although the transaction may be designed so as to technically afford an opportunity to prevail at trial. The ABA National Institute sponsored by the Section of Corporation, Banking and Business Law held in October. 1974 centered on the topic "Advisors To Management Responsibilities and Liabilities Of Lawyers And Accountants." The proceedings of this Institute, which will be published in The Business Lawyer, should be very helpful to establish standards in this regard. .:1..
Anticipated Resales, Pledges And Other Evasions Of Securities Laws
The simple statutory terms of securities laws may appear to allow easy avoidance of registration and/or exemption requirements by making an initially exempted sale and later effecting resales to multiple persons; by creating pledge situations which anticipated defaults; or by other similar devices. Such practices are readily regarded as fraudulent efforts to evade securities laws by regulatory authorities. The definition of "underwriter" and the concept of "investment intent" clearly
THE ARKANSAS BAR ASSOCIATION January 1975/Arkansas Lawyer/35
Legal Economics -Richard A. Williams
"But I Thought I Told You---" The usual stack of morning mail, piled high on his desk, awaited Anthony Advocate. He carefully slit each envelope and skimmed Its contents When he had completed the task. Anthony tumed toward the door. "Oh, Ms. Jones, he Intoned loudly, "would you mind comIng here for a moment?" No response. A second and somewhat louder request fol-
lowed. Still no response. Aher a short walk down the hall, Anthony located Ms. Jones at the copying machine. "All I need to do IS staple these copies," she said, "and then 1:11 be right there." His phone was ringing as Anthony entered his office. Moments later Ms. Jones arrived. dictation pad in hand. After standing in front of Anthony's desk long enough to ascertain the call would last several minutes more, Ms. Jones returned to her office. "Oh, Ms. Jones, would you mind coming back in here?" The disconnected vOice stopped her In the middle of proofreading a lengthy metes and bounds legal description. "Please send a copy of this to our client," said Anthony as he handed Ms. Jones a letter. "But we need to open a new file on thiS one. Call it 'Jackson v. Welch.' We represent Jackson. Now this Certificate of Amendment needs to be filed With the secretary of State and County Cieri< of Grant County." Another telephone Interruption sent Ms. Jones back to her desk at this point. It was not until twenty minutes later that Anthony had an opportunity to resume hiS daily mail-answering ritual. "This answer In the Smith case needs to be filed In Chan-
cery Court. These letters should be put in the appropriate files. And this just requires a simple affirmative response. We can close this file now and send a bill."
Ms. Jones returned to her desk with her hands full of paper and her head full of instructions. As the day progressed, Ms. Jones faithfully performed her assigned duties Before leaving the office that afternoon, Ms. Jones put the outgoing correspondence on Anthony"s desk for his signature. He glanced qUIckly over each Item. Signed It, and han-
my error In carrying out your instructions," she said. "By the time you locate me and I walt while you are on the phone. half the morning IS gone for both of us," she continued. "Then I am liable to forget or misunderstand some of your oral instructions. It just amazes me that lawyers. who are taught to revere the written word. rely totally on oral messages to office staff:' "But I don't have time to write or dictate every Instruction to
you," Anthony countered. "I know," Ms. Jones replied, "That's not what I meant. Why don't I open your mail and attach thiS to each item?" She handed him a slip of paper about three inches square with the following instructions printed on it:
Our File Today Make File Bnng File To Me Copy to
_
Soon
_ _ _
With Cover Letter No Cover Letter
_ _ _ Call Tell Him Tickler for Drah Reply (cc: Route to Court FIling (Due Date ____ Circuit ____ Chancery _ _ _ _ Probate _ _ _ _ County _ _ _ _ Federal D,stnct ____ secretary of State
_ _ _ _ _
ded It back to Ms. Jones. "You did get the answer flied today In Chancery Court In the Smith case, didn't you?" asked Anthony as an aherthought. "No'" replied Ms. Jones. "I was bUSy on other things and assumed It could be filed tomrrow." "But I thought I told you this morning It had to be filed
today," Anthony Sighed. ''I'm sorry but I really don't recall your telling me It had to be filed today," she inSiSted. The next morning, before Anthony opened the mail. Ms. Jones asked for a word with him. "If I may make a suggestion, there is a way to reduce both
the time you spend on correspondence and the likelihood of 36/January 1975/Arkansas Lawyer
"Most of your Instructions can be handled by checking the appropriate box," she added, "and there IS space at the bottom for a message. The printing cost is nominal:'
"That sounds pretty good to me," Anthony nodded. "Try it; you'll like it," said Ms. Jones with a twinkle in her eye as she returned to her desk, ~,
Leon Jaworski and Leroy Jeffers -Two Legal Giants Of Texas-Will Headline The 77th Annual Meeting Of The Arkansas Bar Association June 4-7, 1975
January 1975/Arkansas Lawyer/'ST
3J n JMemoriam Blessed is the man who endures trial, for when he has stood the test he will receive the crown of life which God has promised to those who love him. -James 1:12
ROBERT L. SEARCY, JR. 1897-1974 Robert Lionel Searcy, Jr., of Lewisville, died recently in a Little Rock hospital. Mr. Searcy held a degree from the University of Arkansas and the University of Virginia, and was of the law firm of Searcy and Searcy. He had been president and chairman of the Board of Directors of the First National Bank of lewisvi lie, past president and director of the Rotary Club of Lewisville. and former vice-president of the Red River Valley Association. He was a Presbyterian. Survivors are two daughters, Miriam Candler Searcy, of Lewisville, and Rosemary Searcy Campbell, of Baton Rouge, Louisiana: four grandchildren and two great-grandchildren. JOHN J. CRAVENS 1923-1974 John J. Cravens, of Ozark, died October 5, 1974, at the age of 51. A native of Logan County, Mr. Cravens attended Hendrix College at Conway. Louisiana State University, and was a graduate of the University of Arkansas Law School. He had practiced law here since his graduation in 1949. He was a deputy prosecuting attorney. Mr. Cravens was a member of the Arkansas and American Bar Associations, and was a Mason and a Shriner. He was a past president of the Ozark Lions Club, and was a member of the First United Methodist Church. Survivors include his wife, Mrs. Maida Kendall Cravens; a daughter, Mrs. Robert E. Freund of New York; his mother, Mrs. Norman J. Cravens of Paris, and a sister, Mrs. Russell C. Faulkner, Jr., of Texas. JOHN L. SULLIVAN 1895-1974 John L. Sullivan, of Little Rock, a former member of the State House of Representatives and Little Rock traffic jUdge for nine years, 'died September 29, 1974. 38/January 1975/Arkansas Lawyer
Judge Sullivan also was a former assistant city attorney and a former Pulaski County deputy prosecuting attorney. Born at Brooklyn, JUdge Sullivan came to Little Rock in 1913 and began work at Peoples National Bank. now First National Bank. Twelve years later, he graduated from the Arkansas Law School at Litlle Rock, and started practicing law in 1929. JUdge Sullivan served two terms in the State House of Representatives from 1941 to 1944. In 1956 he was appointed traffic jUdge to fill the vacancy created when JUdge Murray O. Reed was elected Pulaski County Chancellor, and was re-elected in 1963 and served until 1968. Judge Sullivan was a past state master, Fourth Degree, and a past grand knight, as well as a life member of the Knights of Columbus. He was a member of Our Lady of Holy Souls Catholic Church. He was a member of the American Association of Retired Persons, Chapter 34, the Little Rock Lions Club, and the Arkansas Bar Association, and was a life member of the Benevolent and Protective Order of Elks Lodge 1004. Survivors are his wife, Mrs. Hazel Billings Sullivan; a son, Joseph L. Sullivan of Blountstown, Florida; five grandchildren and five great-grandchildren.
CLIFTON (DEACON) WADE 1910-1974 Former State Senator George Clifton (Deacon) Wade, aged 64, of Fayetteville, died November 1, 1974. Mr. Wade, a former President Pro Tempore of the State Senate, was a lawyer here for more than 40 years. He attended public schools at Bigelow, Ciarksville, Batesville and Fayetteville, and received bachelor and law degrees from the University of Arkansas, which, in 1961, awarded him its distinguished alumnus citation. He was a past member of the Central
United Methodist Church Board of Trustees and a trustee of the church's North Arkansas Conference and Western Assembly. He was an Air Force major in World War II. Senior partner of the Fayetteville law firm of Wade, McAllister, Wade and Burke, he was a former member of the Arkansas Board of Law Examiners, a past president of the Washington County Bar Association and a member of the county, state and national bar associations and the American Judicature Society. Mr. Wade served four terms in the State House of Representatives, beginning in 1947, and four terms in the State Senate, ending in 1970. He served on the Legislative Council and the Joint Budget Committee. He was appointed by Governors Sid McMath, Francis Cherry, Orval Faubus and Winthrop Rockefeller to the Southern Regional Education Board and the Legislative Advisory Council of the Southern Governors' Conference. He was a delegate to the Democratic National Convention four times and was a member of the Board of Trustees of Arkansas A M & N College. He was chairman emeritus of the McIlroy Bank Board of Directors, a member of the Board of Directors of Arkansas Western Gas Company, an organizer of the Fayetteville Industrial Foundation, a three-time president of the Fayetteville Chamber of Commerce, a past United States Commissioner for the Western District of Arkansas, and a member of the Board of Washington General Hospital. Survivors include his wife, Mrs. Vera Drake Wade; a son, Lynn F. Wade of Fayetteville; a daughter, Mrs. Philip Colwell ot Fayetteville; his stepmother, Mrs. Mary Wynn Wade of Augusta; two sisters, Mrs. James Slayden of Texas and Mrs. Jim Thomas of Jonesboro, and five grandchildren.
r-------------------------I I
MEMORIAL GIFTS "I' . t h an to receiVe . "- HQwever, a mem b er t IS more bl esse d to glVt:
POSITION OPEN EXECUTIVE DIRECTOR
prof'Its
I
both ways with a memorial gift to the Arkansas Bar Foundation. One's gilt is a beautiful way of honoring a former colleague. The family must be most appreciative of such remembrance. The gilt is nvted in the Foundation's Memorial Book and, of course, is tax deductible. Memorial gifts may be sent Lo the Arkansas Bar Center. The memorial cards (below) of the Arkansas Bar Foundation are formal and are promptly delivered upon receipt of the memorial gift.
The Legal Aid Bureau of Pulaski County announces an immediate opening for the position of Executive Director. The following information is intended to acquaint
I I
prospective applicants with the general nature of the position and
the Legal Aid Bureau as an organization. The Legal Aid Bureau of Pulaski
I
I I I
County is a county-wide non-profit
law firm funded by the Office of Economic Opportunity to provide free legal services to qualified residents of the county. The pro-
WE ACKNOWLEDGE WITH GRATEFUL ApPRECIATION
THE RECEIPT OF A GENEROUS MEMORIAL GIFT
gram has been in existence since
FROM
1965. Presently there are seven attorney positions and eleven nonattorney positions. Funds for the
f
OF
bUdget are received from OEO Legal Services. Pulaski County Bar Association and United Way. The program receives strong sup-
IN MEMORY
OF
port from the local Bar AssociaTHE LATE
tion. The Executive Director acts as
I
the executive of the agency and the chief attorney and is appointed by and accountable to the Board of Directors for the conduct of the affairs and operations of the program.
LITTLE ROCK. ARKANSAS
The Legal Aid Bureau of Pulaski County has been operating within the general realm of practice that legal services programs engage in. This includes, but is not limited to, a substantial consumer law practice, family law cases, housing, welfare, social security, etc. The program is seeking an aggressive and creative person,
DATE WE ACKNOWLEDGE YOUR GENEROUS MEMORIAL
GIFT IN THE AMOUNT
OF
and we urge you to make this op-
_
portunity known to persons within and without your program. We are
an equal opportunity empioyer.
IN MEMORY OF THE LATE
Please send resume and letter indicating your interest to:
I IL
L. Hobson Mahon. Director Legal Aid Bureau of Pulaski County 1520 Broadway Little Rock, Arkansas 72202
THE FAMIL V Is BEING NOTIFIED
LITTLE ROCK, ARKANSAS
~
January 1975/Arkansas Lawyer/39
Arkansas Bar Association Legislative Package At the House of Delegates' Special Meeting on September 19, 1974, the Delegates voted to have the Arkansas Bar Association sponsor Bills for Acts to be entitled as follows: 1. "An act to permit Circuit Clerks to destroy outdated mortgages, and the records containing abstracts thereof, except for records of Wheelwright Liens; and to declare an emergency." 2. "An act to amend Section 24 of act 136 of 1941, as amended, (Ark. Stats. 63-123), in order to facilitate the filing of Arkansas estate tax returns by amending the Arkansas estate tax procedure so as to conform with Federal law; and for other purposes. " 3. "An act to provide for comparison of fault in actions for damages; and for other purposes." 4."An act to amend Subsection 2b of act 217 of 1913 (Ark. Stats. (1947) Section 71-110); relating to the liability of innkeepers for loss of or damage to personal property of guests; and for other purposes. " 5. "An act to amend prargraph 1. of Subsection C. of Section 1 of act 101 of 1963 (Ark. Stats. Section 27-2502 C.1.) to enlarge the basis for personal jurisdiction based upon conduct; and for other purposes." 6. "An act to amend act 61 of 1965 to enlarge the extent of powers of attorney for the benefit of the infirm; and for other purposes." 7. "An act to amend Section 4 of act 365 of 1953 as amended, (Ark. Stats. Section 22-904) relating to retirement of judges; and for other purposes." 8. "An act to prescribe the annual salaries of the judges of the Arkansas Supreme Court, the judges of the Circuit and Chancery Courts in this state and the executive secretary of the Judicial Department; and for other purposes." 9. "An act to amend various Sections of act 140 of 1949, as amended, the probate code of Arkansas, to provide for administration of estates of minors and incompetents and persons who have disappeared or been confined by a foreign power, to provide for payment of money or distribution of property without necessity of a guardian under certain circumstances, to improve administration of decendent's estates; and for other purposes." 1O. "An act to amend Section 2 of act 9 approved July 13,1868, as amended (Ark. Stats. 29-124) to increase interest on judgments." 11. "An act to amend Arkansas Statutes annotated, Section 27-1160, to provide for the filing of amendments to pleadings to assert counterclaims." 12. "An act to permit judges of the Circuit Courts and Municipal Courts to order issuance of writs of 40/January 1975/Arkansas Lawyer
I
replevin without notice to persons in possession of person property subject to claim of lien, to provide opportunity for hearing after seizure, and establish procedure for application for such writs; and for other purposes." 13. "An act to establish a system of providing counsel for needy persons who cannot afford to furnish their own counsel; and to establish the office of a public defender; and for other purposes." 14. "An appropriation act for the public defender program." J- -.
TAX NOTICE Manager A. Robert Fortney of the Income Tax Section of Arkansas' Department of Finance and Administration advises: "A recent Attorney General's opinion (74-117), quoted in part herein, may be of interest to your members. 'There is nothing in Act 55 of 1972 (codified as Arkansas Statutes Annotated 84-2004.1 and 842004.2) that justifies limiting Subchapter S treatment to domestic corporations. The body of the Act itself makes no mention of domestic or foreign corporations but merely states that Subchapter S of the Federal Internal Revenue Code of 1954, as amended, is hereby adopted under Arkansas Income Tax Law.' As a result of the above ruling the Corporation Income Tax Unit, Income Tax Section, will accept elections by any corporation, domestic or foreign, otherwise qualified as a Subchapter S corporation for Federal Income Tax purposes. These elections must be timely filed (30 days prior to-to 30 days after the beginning of the tax year) with State of Arkansas separate from IRS. Additonal questions can be answered by contacting Corporation Income Tax Unit, P.O. Box 1272 CT, Little Rock, Arkansas 72203 or by phone at 371-1371."
Arkansas Eminent Domain Digest Compiled by the University of Arkansas for the Arkansas State Highway Commission.
207 Pages
Arkansas statutes Annotated
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22 Volumes with Current Supplement. $175.00* in the State of Arkansas.
WORKBOOK FOR ARKANSAS ESTATE PLANNERS MITCHELL D. MOORE. WILLIAM H. BOWEN
A Complete Source for Planning Estates in Arkansas Planned exclusively for Arkansas lawyers, it is based on the statutes, cases, regulations. and tax situations of the state. This workbook serves as a guide to drafting a simple will, testamentary planning for benefit of minor or aged. forms of property ownership. purposes and techniques of making gifts, drafting partnership and business purchase agreementS and many other important topics. The handy loose-leaf format makes this source a unique working tool-an invaluable reference for the Arkansas lawyer.
$35.00*
11 Chapters
REID'S BRANSON INSTRUCTIONS TO JURIES
JONES LEGAL FORMS THREE VOLUMES. 68 CHAPTERS
7 VOLUMES WITH CURRENT SUPPLEMENT
$60.00*
8125.00*
Contact Your Bobbs-Merrill Arkansas Representative, Mr. Joshua E. McHughes 920 West 6TH Street
(501) 376·9131
Little Rock. Ark. 72201
The Babbs-Merrill Company, Inc. 4300 W. 62nd St. / Indianapolis, Indiana 46268 • PII,lS Sfllpplng, flal'\dling and sales tal( wflere ilpphcable.
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