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JANUARY 1977 VOL. 11, NO.1
THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION
Arkansas Lawyer SPECIAL FEATURES
OFFICERS Herschel H. Friday. President Walter R. Niblock. President-Elect Cyril Hollingsworth. Secretary-Treasurer
EXECUTIVE COUNCIL Thomas F. Bull LeRoy Au trey Wayne Boyce Virginia Tackett G. Alan Wooten Joe D. Woodward Randall W. Ishmael Robert D. Ross Charles L. Carpenter Herman L Hamilton Don M. SChnipper John Mac Smith
EX-QFFICIO Herschel H. Friday Walter R. Niblock Cyril Hollingsworth Robert C. Compton George D. Ellis Robert S. Lindsey
EDITOR C. E. Ransick
EDITORIAL COMMITTEE Robert T. Dawson E. Alvin Schay James M. Moody
4 Cover Story - David Pryor .. Don Harrell 10 Keynotas David Pryor Legislative Notes David Pryor 12 Unpublished Opinions in Arkansas George Rose Smith 13 The PolygraphTool or Toy? David P. Henry 27 Developments in Consumer Credit Law .... Arthur G. Murphey, Jr. 22 Environmental Responsibilities of Local Government .... W. Christopher Barrier 14
REGULAR FEATURES President's Report Juris Dictum Legal Economics Law School News Oyez-Oyez In Memoriam Executive Council Notes service Directory Lawyers' Mart Aegis Addenda Ethics W. Context
Herschel H. Friday C. R. Huie Fran Shellenberger . B. Tarkington .
2 18 30 34
Cyril Hollingsworth 16 . IBC . IBC . 11 C. E. Ransick 39 路 . 33 Christopher Barrier 31
Published quarterly by the Arkansas Bar Associatlon, 400 West Markham. lInle 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 rwo 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 19n/Ar1<ansas Lawyer/1
PRESIDENT'S REPORT by Herschel H. Friday
Since my last report, Beth and I have attended the Annual Meeting of The Missouri Bar and the Southern Conference of Bar Presidents. Both were fine meetings and the latter was particularly productive. It afforded an opportunity for 16 Bar presidents to meet and report on activities, exchange ideas and compare notes on current problems of the profession and the administration of justice and possible solutions. In state, I have attended the Tenth Chancery Circuit Memorial Ceremony for recently deceased lawyers in Fort Smith on September 10,1976, a most impressive and worthwhile undertaking which should be considered by lawyers in other areas; addressed meetings of the Sebastian County Bar in Fort Smith and Fifteenth Circuit lawyers in Ozark; and attended the Annual Dinner of the State Judicial Council in Russellville. The next out-of-state trip will be the Oklahoma Bar Annual Meeting on December 1-5. Our plans to revive interest in the Fall Legal Institute were realized to a degree beyond our expectations. It set an attendance record for that institute and was an outstanding success. Henry Woods, Sid McMath and Colonel Ransick, as well as all participants, performed superbly. The comments of those in attendance were uniformly favorable. The Young Lawyers Section under George D. Ellis' leadership and Jerry Jackson's Program Chairmanship presented the Practice Skills Course in Little Rock on October 14 and 15, and it was my privilege to welcome the 50 young lawyers in attendance. We have initiated a Bar Leaders Conference this year. It is scheduled for Little Rock on November 12 and 13 (the Executive Council will also meet at that time). John Gill and Sidney H. McCollum are co-chairmen. This meeting will afford officers of all local bar associations in the state an opportunity to learn from those who have preceded them and from their contemporaries in office ways to make their tenure more productive. We are excited about this program and believe it has great potential. The Midyear Meeting will be in Little Rock on January 20-22, 1977. Glenn Jones is Chairman and we will cover corporate law for the practicing lawyer, including particularly those who are not "specialists." All lawyers ought to attend in order to update and enhance their competence and their ability to properly represent clients. Also, the program will cover necessary pointers on how to avoid malpractice in this field and its adverse professional and economic consequences. Our Economics of Law Practice Committee (under Fines 21Arkansas Lawyer/January 1977
Batchelor, Jr.), with House of Delegates approval, has undertaken the preparation of several practice systems. The Corporation System will be completed first and will be available for the midyear meeting. George Plastiras, Dick Williams and Tom Overbey have assumed this responsibility. I have reviewed the index and discussed the Corporation System with them and I predict that it will be a "must" for every Arkansas lawyer. It will be available to registrants at the midyear meeting in connection with the program and subsequently, at increased cost, wilt be available for general sale. The following is a brief report on some of the matters acted upon by the American Bar Association House of Delegates at the August Annual Meeting: 1. William F. Spann was named president-elect in a contested race with Leroy Jeffers. 2. The Section of Legal Education and Admission to the Bar has been directed to study and report on law school admission policies that may entail reverse discrimination by favoring members of minority groups. 3. The House voted for the imposition of sanctions against the employer of illegal aliens as called for in bills pending before the Congress. 4. Proposed legislation allowing courts and administrative agencies to award attorneys' fees to persons who defend public interests in court was disapproved. I point out, however, that in the final hours of the Congress, a bill allowing attorneys' fees was passed. 5. The House approved recommendations by the American Bar Association Commission on Medical Professional Liability to provide absoiute immunity from civil liability for medical disciplinary board members; that arbitration of medical cases should be voluntary, if done at all; and that joint underwriting associations be established and punitive damages in medical malpractice cases be abolished. 6. The House approved a procedure for courts to use in implementing jurisdictional restrictive (gag) orders 50 as to accommodate free press while guaranteeing a fair trial. 7. Tabled a proposal by the Section of Individual Rights and Responsibilities that legislation be enacted prohibiting discrimination against homosexuals. 8. Approved distribution, without endorsement, of a section of Family Law report on standards for utilizing medical evidence, particularly blood typing, in cases of disputed paternity. 9. Approved a Criminal Justice Section proposal seek-
, , OYEZ ••
by Barbara Tarkington
W. R. Riddell has been named by Mr. William Woodyard, the new state insurance commissioner, as a deputy commissioner and chief counsel. A moot court co-sponsored by the Hastings College of Law and the American Board of Triai Advocates was held in San Frar>cisco during August and Sid McMath was chief counsel for the plaintiff. Henry Woods is chairman, Board of Directors, Hastings College of Advocacy. WIlliam S. Arnold, Crossett, has been elected to membership as a Fellow of the American Bar Foundation. M. Steele Hays, Little Rock, is chairman of the board of directors of the Arkansas region of the National Conference of Christians and Jews. WIlliam Douglas Glover, formerly of New Jersey, has been appointed Vice President for Commercial Loans of Worthen Bank & Trust Company. Jan Cromwell, Fort Smith, has been named "Arkansas Young Career Woman" by the state Federation of Business & Professional Women's Clubs. Dennis L. Shackleford, Douglas 0, smith, Jr., and Reginald A. Ellbot, Jr. have been inducted into membership of the American College of Trial Lawyers. Denver L. Thornton, EI Dorado, has been rE>appointed as the public member of the state Labor Board. Pat Moran, Little
Rock, has resigned from the PSC and will become an administrative assistant to U.S. Senator Dale Bumpers in Washington. Prosecuting Attorney Charles Karr, Fort Smith, has been named to the Criminai Detention Facility Board. Charles A. Banks, Blytheville, has completed the American Trial Lawyers' Nat'l. College of Advocacy for spE>cialized study in civil and criminal trial work. Nell Powell Wright, Mountain Home, gave an interpretation of the probate law in Arkansas at an August meeting of the Baxter County Consumer Affairs League. The Bank of Brinkley building has been bought by its long time tenants, the law firm of Sharp & Sharp, and remodeled for the offices of James B. Sharp and James D. Sprott. Fred C. Kirkpatrick, formerly of Louisiana, is now associated with Tom Ledbetter of Harrison. Howard M. Holtholf, formerly of Benton, has opened his law office in the new Peterson Enterprises Bldg., Dumas. James Bayne, Prosecuting Attorney for 17th Judicial District, has moved his office to 108 East Third St., Stuttgart. Two law firms in Texarkana, AR have merged and formed the law firm of Autrey, Weisenberger, Lingo & Johnson. Theodore C. Skokos has joined the law firm of Spitzberg, Mitchell & Hays.
Charles M. Hinton, Jr. and Don A. Ellbott, Pine Bluff, have joined the law firm of Reinberger, Eilbott & Smith. Bobby E. Shepherd has joined the EI Dorado firm of Spencer & Spencer. G. Robert Hardin, recent graduate of SMU receiving his LL. M. in Taxation, has joined a NLR firm and the name changed to Napper, Bosshart, Hardin & Wood. Gary Eubanks and Philip Wilson have joined John T. Haskins and formed the law firm of Haskins, Eubanks & Wilson. Noel F. Bryant, former assistant City Attorney, has become associated with the Pine Bluff law firm of Brockman, Brockman & Gunti. R. Edward Buice, Eureka Springs, has opened his own law office at 78 1/2 Spring St. Curtis N. CUlver, formerly of Fayetteville, has accepted a position on the legal staff of the Daniel International Corporation in Greenville, S.C. Paul J. Nicholson has opened an office in the First National Bldg., Ste. 1737. Willis D. Cronkhite III, formerly in Eu rope with the U.S. Army, has joined Lanny K. 50110way for the practice of law in the First National Bldg. C. Odall Taylor is now in private practice with his law office located at 14 1/2 E. Center, Fayetteville. Forrest L. Jacobi, formerly of Green Forest, has relocated his law office in Bull continued on page 29
PRESIDENTS REPORT (con't.) ing increased employment of women and revision of policies tending to exclude women from certain jobs held by men. 10. The House approved a recommendation by the Commission on Correctional Facilities and Services calling for an overhaul of the parole procedure. 11. The House approved a recommendation by the Commissions on Correctional Facilities and Services and on the Mentally Disabled urging establishment and implementation of grievance resolving procedures for mental hospital inmates and for mentally retarded persons. 12. The House deferred action on a request by the National Conference of Commissioners on Uniform State Laws for approval of the Uniform Land Transactions Act.
13. The House approved a Section of Litigation proposal asking for an increase in compensation for federal judges. I point out that the legislation did not pass and will have to be re-introduced in the next Congress. 14. The House approved adoption of a bill to create a commission to study federal aid programs. In this regard the Public Contract Law Section said upwards of $60 billion per year is spent by the Federal government with little control or uniformity between programs. 15. The House had on its agenda a proposal to abolish the death penalty, but the proposal was withdrawn by the Section of Individual Rights and Responsibilities for consideration at the August meeting. Finally, we still expect to present the matter of a permanent "CLE" structure to the Arkansas House of Delegates at its meeting in January. 1· _. January 1977/Arkansas Lawyer/3
Cover Story ...
DAVID PRYOR --by Don Harrell
Last year in Hot Springs Governor David Pryor announced to a session of the Arkansas Bar Association that the topic of his speech would be "Famous Cases I Have Tried." His audience broke into hearty laughter. Most of them knew he had never practiced longer than a few months in two separate stretches, and on both occasions he was gearing up for major political campaigns. They also grasped at once a characteristic element in Pryor's sense of humor, and that's a determination not to take himself too seriously. "Didn't you used to be David Pryor?" someone asked him on the street after he lost the 1972 Senate race. He was so impressed with the appropriate irony of the comment that he still repeats it on himself as an example of the vagaries of public office. Pryor is amused at the failure of people to recognize him, as well as their tendency to confuse him with somebody else. One episode involves a quick stop in a neighborhood drug store near the governor's mansion when a clerk asked him, "Don't I know you from somewhere?" Expecting to thrill her, he smiled and said, "Yes, I'm David Pryor." Whereupon she replied, "Hmm. You live around here anywhere?" Last fall on a trip to Europe with the Industrial Development Commission one of the flight stewards thought Pryor was the Governor of Alabama. And even now the governor's office gets mail addressed to both David Bumpers and Dale Pryor. Only a person sure of himself would find these incidents amusing, and certainly Pryor does. He likes the comeuppance of anyone, including himself, who mistakenly becomes inflated with his own importance. A recurring theme in his favorite jokes involves the braggart brought down to size. Pryor may be uncertain what direction he wants his political career to take, and he may not know whether he prefers government service to practicing law, but one fact he has always known is who he is and where he fits in a general scheme of things. His detachment from himself as Young Congressman, or Governor, or Rising Politician, is a steady means of 4/Arkansas Lawyer/January 19n
maintaining his perspective and finding an element of surprise among the routine business of a governor's office. "Keep your sense of humor," he consistently reminds his staff, and he offers a fair example of ways to do it. Yet at the same time his willingness to look on the light side is balanced by a sober determination to succeed at his task and to do the best job he can. DECISION MAKING Before making even a minor decision Pryor informs himself on all the facts available: costs of the project, number of people affected, reasons for and against. the tradition and background of the move, potential results from a financial point of view. He wants to see the information drawn up on a chart and spelled out in every stage of the process. This attention to detail is the procedure he followed in preparing for the Bell-Foley Dam decision last summer. He studied maps and diagrams of the Strawberry River, reports and graphs prepared by the Corps of Engineers. He read all the information supplied by travel and recreation interests, real estate brokers, farmers whose land would be flooded by the project, big wigs and small. He asked a month's ceaseless questions of his staff. When he still felt he didn't know enough to make a decision he chartered a plane and spent a day flying back and forth over the river, looking at the land, surveying the hills and farms, continuing his questions and probings. He had longstanding and serious constitutional reservations already, but the decision not to commit state funds stemmed in part from what he found that one last day. Like most politicians, Pryor often defers a decision until he's forced to make it. If his staff wants to brief him on an issue he may put them off for days or even weeks. Information must come when he's ready for it, and his sense of timing may not be that of anyone else. Eventually he calls in his people and pursues the issues, hounding the facts until he feels comfortable with them. The solution to a knotty problem resu Its from a long and
OR In 1961
tedious, often painful process - something like a cat playing with a chipmunk until he kills it. But the procedure is faultlessly thorough, and when Pryor finishes he knows more about the subject than anyone at the table. It may not be useful to trace the origins of his compulsion to be exact, but a moment of anmchair analysis may shed light on an important side of his nature. Some of his precision lies in his legal training, much of it in his years as a legislator and congressman. One could go further back to the example of both his parents, who together gave him a work ethic calling for a full day's labor, a commitment to responsibility, a conviction that every minute should hold 60 seconds worth of distance run. PARENTAL GUIDANCE
Pryor's father was a self-trained, intelligent, and enterprising farmer who became a county sheriff and Chevrolet dealer in Camden. He gave to his four children a sense of duty and a generally optimistic view of a person's worth. Edgar Pryor couldn't have been as large as I remember him, and he probably didn't move in as grand a manner as I think he did. But to the friends of his children he was always The Big Man, teasing and joking but compassionate and aware of kids who latch onto older people for direction. He gave David his political ambition, his drive to serve in public office, his capacity for work, his touch with people from every conceivable background. He also gave him a strong sense of the fundamental decencies. Pryor drew from his father an awareness of the presence of people. Whether he's in a briefing, a press conference, or at dinner in a restaurant, he seems conscious of everyone in the room, and he's unfailing in his attentions to them. Some people are obsessed with time, but Pryor is obsessed with space. He has been known to cross a room in the middle of a meeting to move a chair, adjust a lamp, straighten a picture, or shift the angle of a rug. He always wants to know exactly where he's going,
who's to be there, what kind of room he can expect to find. He uses up space, and when he's tired of a room or office he moves to another one. A session at the mansion might take place in the breakfast area, the east conference room, the guest house, or the guard shack depending on where he has spent the least amount of recent time. For all the practical and political sense he inherited from his father, Pryor came by a certain grit and determination from his mother. Susie Newton was the first woman in Arkansas to run for public office. She had served as deputy circuit clerk of Ouachita County and when the man in office retired late in the 1920's she sought but lost the job. She was later a member of the school board and in 1957 she spent several months as a missionary in British Guinea She is energetic and competitive, and when she feels that someone has been unfair to her son or misunderstood him she's likely to pick up the telephone or write a crisp letter of disagreement. She believes in doing many things well: she's a cook, a seamstress, a landscape painter, a local historian, a graduate of the Famous Writers' School, for years an alto in the Presbyterian choir. She approaches her projects with a no-nonsense resolution and a brisk absence of fuss. Because of his inherited sense of drive and duty, Pryor is often frustrated when the physical demands of his job force him to take a few days off. Irs hard to justify relaxation with the long arm of John Calvin reaching down to remind him of responsibility, and even on a day's rest he spends much of his time on the telephone. THE LAW
He likes having people around him and prefers a few good friends to being alone. In law school he often worked in the company of other students, meeting them in the library or the lounge and exchanging notes and briefs. Classes were small in 1961, the year Pryor entered, and the attrition rate was high: out of 63 who started only 14 finished their degrees. But he instinctively knew everyone in the school, and he formed in Fayetteville many of the best friendships of his life. "Even then," one classmate says, "people were saying he would be governor before long." Students seemed drawn to him, and when several friends decided to study together for the bar it was natural to meet at Pryor's house for the sessions. Dr. Robert Leflar, who was then dean of the law school, remembers that Pryor brought to his classes a maturity many of the others lacked. Younger students tend to gather around older ones, he said, and Pryor was a few years ahead of most of his classmates. His business experience had exposed him to certain practicalities that made his class discussion useful to those younger people just out of college. In addition, Dr. Leflar recalls, Pryor's experience in the legislature contributed a fresh and valuable perspective on the law as a dynamic and changing institution. He brought that immediacy back to the classroom. Pryor's decision to go to law school was among the wisest of his life. For four years he had struggled with a weekly newspaper in Camden, and though he had been successful and the experience invaluable, his procontinued on page 6
January 1977/Arkansas Lawyer/5
David Pryor, continued from pogo 5
fessional prospects were frankly limited. Law school came at the right time. It gave him both a profession and a solid base for establishing his political future. Even more, it provided a logical frame of reference for thinking and looking at the world. Studying law strained from him a number of confining ideas about government and society and what part he might play in them. In many ways it opened his mind and settled and matured him. The discipline he found in law school came as a new addition to his personality. In his earlier school years Pryor had been more interested in politics than books, more in getting along than in getting ahead. He was an all-district co-captain of his high school football team without having to work particularly hard at the spert. For twelve years he was popular among his classmates and made friends with ease. Honors and grades came to him quickly. Beginning in the second grade he won the race for president of his class every year until his last, when he served as president of the student body. Pryor tells an interesting story about his first election that in some ways foreshadows his later career and defines his pelitical nature. The three students nominated for president of the second grade were asked to leave the room and wait in the hall while the class voted. Sweating under the tensions of the moment, Pryor promised God that if he would win this election he would never again run for political office. The three were called back, David had won, and before he sat down he was already planning what he could run for in the third grade. One interpretation of this episode is that Pryor has calculated every pelitical race of his life and has known in advance the shape he wants his career to take. But it isn't that easy. It's more likely that an incident of this kind shows nothing more than an intensely pelitical nature ready for an election but not always knowing which race to run. Pryor has a genuine dislike for long range plans, a native distrust of any blueprint that locks him into a certain 61Arkansas Lawyer/January 1977
pesition and cuts off his options. He refuses to discuss his future with anyone, not because he knows what he wants and is being coy and difficult, but because he honestly isn't sure what path he plans to follow. After a second term as governor his career falls into what he calls that "iffy" category in which anything can happen and one's only choice is to avoid speculation. He's oddly superstitious about what lies ahead. Somewhere in that vast area between Camden High School and the United States Congress Pryor refined his ability to think clearly and to act decisively. Again the necessary discipline of law school was significant, and the year and a half he spent practicing in Camden completed that period of training by giving it a practical bent Certainly he surprised one of his teachers in law school who remarked out of the corner of his mouth that If David Pryor and Harry Barnes tried to practice law in Camden they'd both starve to death. They didn't starve. In fact they did rather well, but Pryor was lucky that working with the law in Camden required a general practitioner and not a specialist. He and Barnes covered every court and represented every type of case, from wills and titles to divorces, murders, and arson. Their first judgment awarded them $25 for rightfully identifying the owner of a blue-tick hound. The story is long and humorous, and when asked whether any other funny cases came up Barnes said recently that all of them were funny. But he added that Pryor was a dedicated and serious attorney who threw himself and his time and effort into every case he took on.
He also threw himself into pelitics, and by the time he had been in Camden only a few months he was a candidate for Congressman Oren Harris' Fourth District seat. He not only won that race, he was also elected president of his class of freshman Congressmen. Winning that distinction must have brought back memories of the second grade. Congressman Morris Udall of Arizona, a good friend and golf companion during Pryor's six years in Washing路 ton, recalls how quickly Pryor won the friendship and respect of his colleagues in the House. "He came there under the shadow of Wilbur Mills," Udall comments, "but it wasn't any time until he had established his own identity. People on both sides of the aisle - liberal and conservative - came to like and admire him." Pryor's years in Congress are best remembered for the summer of 1971 when he toured a number of nursing homes in the Washington area gathering material for hearings. He passed himself off as a voluntary worker wanting to help out for a day or two. With him once was Dennis Brack, a TIME photographer pretending to be his brother, and when they finished Pryor put together a file of astonishing abuses that made national headlines. The House Committee continued to delay funds for hearings, 50 Pryor moved two house trailers into a parking lot across from the office building and proceeded with his witnesses. It became known as the House Trailer Committee on Aging and two years later it emerged as an official Committee of the House of Representatives. Until that time no one had known the extent of the vicious mistreatments taking place in nursing homes.
of region, age, sex, race, and work or school experience. A computer printout showed the demographics of the state and what combination made up a fair representation. When the names were presented in a formal press conference, the public was given the most accurate possible cross-section of Arkansas citizens. Pryor relished not only the selecting but also the elaborate details of arranging the announcement.
This original series of hearings was paid for by the proceeds from a fish-fry in which 4,000 people took part Pryor planned the occasion and saw to its most minute detail. From these efforts came the first significant package of elderly legislation in the House. It also established for Pryor a national constituency of elderly friends who still write to thank him for his help and concern. Udall also gives Pryor high marks for the way he handled the nursing home situation: "I don't know half a dozen guys in the House today who would go out on a limb the way he did," Udall says, "and he didn't do it for the attention either. He did it out of feeling and compassion for the people needing help. That side of David Pryor is very impressive." The elderly hearings were vintage Pryor, combining several elements that appeal to him most: fending for a group of people unable to fight for themselves, bucking a system dominated by an entrenched and implacable establishment, and solving a problem through surprising and dramatic action. Pryor loves the startling move, the unexpected coup, as defined by several of his decisions as governor. With customary flair he pulled Doug Harp off the mansion security detail and made him director of state police. He put Mrs. Elsiejane Roy on the Supreme Court, the first female to serve in that capacity; this was a shocking move at the time, but it has become one of his most popular appointments. He named David Solomon to the Highway Commission when virtually everyone expected him to go elsewhere for his choice. In each case the appointment was not only surprising to the public but also deliberate and eventually sound. Pryor's procedure for selecting 27 delegates to the 1975 constitutional convention (later ruled unconstitutional) was again thorough and secretive. The selection process took place in the apartment of a staff member and lasted for several days. Nearly 100 possibilities were sifted down in exhausting detail until the best emerged in every category. Names were considered on the basis
A part of the reason he enjoyed this experience is because he likes his job as governor, and each new and different task demanding a fresh response. In the past two years he has been stimulated by discharging responsibilities and the knowledge that decisions are his to make. He has also confronted some tough issues: a burgeoning state government, dwindling resources, pressures for extended services. The speed and ease with which he has become an executive surprises many who know him, especially since his background is almost entirely legislative and for 12 years he functioned so comfortably as a member of a representative body. Pryor's relationship with the General Assembly has been generally good because he served there for six years himself and therefore understands its rules and elaborate but subtle maneuvers and protocols. It was while serving in the legislature, in fact, that Pryor cut his political teeth. His most notable contribution was sponsoring the County Purchase Act of 1965 requiring county officials to take competitive bids on purchases over $1,000. Because of this and other forays into things as they were, he was branded a Young Turk and even today is regarded by many people as liberal. It isn't stretching things to find Pryor on the left of some questions - human rights and social services, for instance - at least when compared to others on the same issues. He has pleased conservatives with his fiscal austerity and his determination to save as much of the state's surplus money as possible. He will always face a built-in core of old-guard opposition, but many of those who fought him for years have come over and told him of their new respect. A few voice grudging admissions that they're going along because he's in and they have little choice, but most confess that he has made a responsible governor nevertheless. Pryor loves a fight and he loves living in Arkansas. The combination of these two important drives accounts for a large part of his success since laking office. At this writing he looks forward to a 1977 session that should be both mean and rewarding, and surely longer than the rather breezy three months of 1975. But Pryor expects to be prepared, and relishes the battle ahead. The memory is an unreliable mechanism, and mine is not especially good, but in recalling David Pryor I find that certain spots of time come back over and over again. One is the last television speech of the '66 campaign, another is the rainy Wednesday morning after the '72 runoff, and the night of the big debate. I remember the day the bill came up to exempt the highway department from the constitutional convention, and the S.B.S. appropriation vote in the Senate, and the Saline County rally two years ago last May. continued on page 8 January 1977/Arkansas Lawyerl7
Keynote Addreâ€˘â€˘ continued from page 10
had long been set in concrete when the Seventh Amendment was ratified, guaranteeing a jury trial "according to the ru les of common law." The rationale underlying all suggestions for reducing the jury size is the supposed reduction of cost and delay such a move would entail. Both are admirable goals, and anyone familiar with the belt-tightening I have tried to take in matters concerning state government will know that I favor this kind of economy. But I object to putting justice in the courts purely on the cost basis. In my opinion the public will not - and should not - tolerate for much longer the period of delay they have had to face in the recent past. in some cases they have been forced, at least in metropolitan areas, to wait for five years for a case to come to trial. I suggest to you that the profession which produced the drafter 8/Ar1<ansas Lawyer/January 1977
When these recollections occur I can only laugh at the misconceptions of Pryor as weak or calculating, or as the tool of labor bosses, or as good sweet David, A more resolute person I've seldom known. He dislikes ticklish problems, but when he knows for instance that an employee is not performing he is relentless in searching out the facts and in dealing with the situation immediately. He is fair in making whatever judgment is required. And he has been known to have a long memory, particularly in cases where he feels a friend or employee has betrayed him. It always helps the truth if you know someone personally and don't have to depend on a flawed popular image to flesh out the public face. This is true of David Pryor. A press secretary is expected to paint a favorable picture of his boss, particularly when he's a longtime friend, but even my most candid view is of a competent and thoughtful, deliberate craftsman who approaches politics as an art and who practices it constantly and well. Without pose or pretense, Pryor may be the most honest person I know. He can be hard to predict or size up, impossible to pin down. He's often restless and impatien~ but he carries with him a strong sense of himself and where he has been and what he's able to do. He's very much his own man. /I.
of the Declaration of Independence - the same profession that produced a substantial number of those who drafted the United States Constitution - can find solutions to these problems. And they can find them without diluting traditional standards of deliberation. The trend toward the mini-jury is only one piece of evidence that indicates antagonism toward the jury system. I doÂˇ not intend to make a Fourth of July speech today, but I can't help remembering in this connection the words of Thomas Jefferson:
There is an apprehension that a majority cannot be induced to adopt the trial by jury; and I consider that as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. We cannot deny that our jury system - in fact, our court system in general - is in need of reform. The old chestnut that "justice delayed is
justice denied" is an undeniable truism. But again I suggest that the organiZed bar the legal profession - can streamline this system without sacrificing the deliberation and concern for individual rights and freedoms. What about court administrators who can vigorously pursue the setting of cases for trial? What about special court to hear a complicated area of bankruptcy and trust? What about a system of specialization, such as the barrister system in England, to insure effective assistance of counsel at trial? What about the vigorous pursuit of disciplinary procedures for lawyers who delay their cases and prejUdice their clients' rights? All of these areas, it seems to me, are those in which you might direct future interests and concerns. We have a fine legal system in Ar1<ansas, but it could be improved, as all of you will no doubt agree. /I.
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January 1en/Arkansas Lawyerl9
KEYNOTE ADDRESS* -from Governor David Pryor's address before the 77th Annual Meeting of the Arkansas Bar Association, June 5, 1975
( I have looked forward to this meeting for some time ... not only as an attending member, but as a keynote speaker as well. I hope the Keynote of this 77th annual meeting will be Learning and Instruction and Dedication to Duty. For I think all of us agree that the future of Arkansas rests in the measure of its citizens' commitment to public service. What better service can any of us perform than our steady application to the practice of law? To the extent that we maintain the high standards traditionally set by the Arkansas Bar, so we shall contribute to the best interests and welfare of the State. Our contribution to the State lies first in our professional conduct and in the standards we are willing to maintain for ourselves. I have seen these qualities of service and dedication since I passed the Bar over a decade ago. And I offer this tradition as an assurance that such dedication will continue in the future. It is in the nature of the Arkansas people to seek the new and innovative way of accomplishment ... to be discontented with the outworn. The legislature, for instance, approved severai measures that put us in the vanguard of state legislatures working in the '70's. We passed Act
378, a Youthful Offender Bill which gives a judge, in certain cases, an alternative in sentencing a youthful offender facing his first charge. This is a new concept, and in passing it Arkansas embarks on a great experiment. We had hoped, until last week, that Arkansas wou Id be the next state in the country to adopt a new constitution. All of us know the disappointment of failing to realize that goal, but we also know that we must continue to work ... that the time spent in this project was not in vain, but provides rather another step in our progress toward constitutional reform. I believe - and I think all of you agree - that a new constitution is more than ever before a goal all of us need and want. The very conditions under which Act 16 was struck down indicate, in themselves, the need for a new document to provide the basis for our set of laws. Reform within the law is a matter requiring time, effort, and patience. It can't be expected overnight ... and the route we must take toward meaningful reform calls for study and research before substantial ends can be realized. This is especially true concerning the law.
I do not profess to be a court reform expert, nor do I offer any panacea. But I am a lawyer, and I call upon each of you as lawyers to pursue desirable reform and solutions to problems all of us face. I have detected for some time a general feeling of antagonism toward the jury system in this country. In saying this I am not talking about the direct attacks by those with special interest in the demise of trial by jury. Rather I refer to old antagonisms - perhaps maners of conscience - by those who in my opinion should know better. As all of you know, the United States Court in 1970 held that the Seventh Amendment, guaranteeing the right to jury trial in a criminal case, does not mean the right to trial by a jury of twelve persons. The Supreme Court held that there is no magic, in other words, in the number twelve - which is probably true, despite the age-old theory that the British held to the number twelve for some ancient reasons going back to the twelve apostles or the twelve tribes of Israel. One point is certain if we speak from a purely technical standpoint having to do with constitutional law. The number twelve continued on page 8
â€˘Editor's Note: Webster defines "keynote address" as one that "presents the essential issues of interest to the assembly". Governor Pryor has pointed up some of the important problems facing the organized Bar.
10/Arkansas Lawyer/Jaouary 1977
Editor's Comment: AEGIS Is e feature of the Arkansas Bar Association's educational program concerning docket control and other areas of hIgh risk experience In professional liability cases.
SAFEGUARDING YOUR PROFESSIONAL FUTURE
The best memory... not so firm as faded ink! the problem
An insured attorney represented a husband and wife who had been injured in an automobile accident. The attorney prepared the complaint and entered the file and pertinent date in his suspense register and in a notebook binder that was referred to daily. As the statute of limitations approached, his assistant notified him of this file and two others that needed action. The attorney acted on the other files but forgot to take steps to assure that the statute would not run on the automobile accident file. The statute ran and the clients brought suit against the attorney for his failure to take proper action.
The attorney was clearly liable for his failure to act before the statute ran. A compromise settlement for damages and expenses was made through the attorney's professional liability insurance carrier.
While there can be no excuse or remedy for forgetting to take action on a particular file, a follOW-Up reminder system for office personnel could have prevented this problem.
January 1977/Ar1<ansas Lawyer/11
LEGISLATIVE NOTES* -from Governor David Pryor's Address before the 78th Annual Meeting of the Arkansas Bar Association, June 3, 1976
It's an honor to stand here as your representative and fellow worker in State Government. We as lawyers often hear ourselves referred to as "Officers of the Court" ... We are contributors to the functions of State administration and partakers in that experiment we've come to call democracy. Our Government, after all, is founded upon legislative laws administered by public servants ... interpreted by the courts ... and argued pro and con by the lawyer. It's therefore our responsibility more and more - to participate in the legislative and administrative processes of government. The Arkansas Bar Association has accepted this responsibility and duty. In the future - the Bar will have to be involved to an even greater degree. Theodore Roosevelt said that "The Government is us ... we are the Government, you and I." And I think he had something of this participation and mutual sharing in mind when he said this. Certainly I have it in mind when I say that I'm looking forward to serving a second
term as Governor of the Great State of Arkansas. I have come to depend every day on the willingness of you - not only as lawyers with the expertise of your profession - but also as citizens, private individuals and taxpayers. A few years ago the Arkansas Bar Association became actively involved in the legislative process. It sponsored a "Bar Package" of bills for consideration by the General Assembly. Some of these items were of particular interest to the lawyer ... professional bills such as statutes concerning service of process and many others. But by the same token some of the legislation endorsed and sponsored by the Arkansas Bar Associatin affected our community as a whole ... the Criminal Code, Bail Reform and Youthful Offenders Act, for instance. Today, if we are to improve the administration of criminal justice which may in turn perpetuate proper enforcement of law and order then it must be incumbent upon the Bar Association to sponsor legisla-
tion that will plug in the gaps left by the Code, and oppose legislation which might weaken or threaten our judicial system. In other words, we need to improve the posture of the Code and to plug in whatever oversights might have occurred in drafting it. Since the Criminal Code Revision Commission no longer exists as a separate body, this is certainly one area the Bar Association could take an active interest in. As lawyers, we're obligated to do more than simply prosecute and defend or represent the plaintiff or the defendant. The measure of our worth as attorneys will finally depend upon our willingness to become involved in the total justice system ... crime prevention, policeand-lawyer relations, the entire sentence procedure, probation, prisons and parole. I hope this is the direction we might take this year both as a Bar Association in general and as individual members, as private citizens, as well..'>
'EDITOR'S NOTE: Since this Is e Leglsletlve Session year,lt Is particularly mt/ng that we review Governor Pryor's attitude towerd Ber participation In legislative matters of Interest. 12/Arkansas Lawyer/January 19n
UNPUBLISHED OPINIONS IN ARKANSAS Two Years of Experience -GEORGE ROSE SMITH Associate Justice Arkansas Supreme Court
In 1974 the Arkansas Supreme Court joined some six or eight other state courts of last resort in restricting the publication of its opinions to those having some value as precedents. Arkansas Supreme Court Rule 21. Now that the rule has been In effect for more than two years an assessment of its desirability and effect can be made. The court's purpose in adopting Rule 21 was twofold. First, and most important, there is not the slightest doubt that the existing system of publishing, digesting, and finding shelf space for appellate judicial opinions will break down unless the staggering number of such opinions, already exceeding 41,000 a year, can be greatly reduced. One simple and obvious step that almost every court can take is to discontinue the publication of opinions having no precedential worth. To that end Ru Ie 21 lists five standards for publication, at least one of which must be met if an opinion is to be designated for publication. A companion principle, also embodied in Rule 21, is that unpublished opinions cannot be cited, quoted, or referred to in any court, except in a iater phase of the same litigation. Experience elsewhere has shown that if the citation of unpublished opinions is permitted, some sort of unofficial collection of those opinions will eventually be offered for sale to members of the bar, defeating a primary purpose of nonpublication. The West Publishing Company appreciates the need for curtailing the publication of appellate opinions and does not publish in its reporter system any opinions that have not been designated for pUblication.
The Arkansas Supreme Court adopted Rule 21 in September of 1974. During the next 24 months the court handed down 940 majority opinions, of which 434 (46%) were not to be published. Those 434 opinions, however, were in fact printed by the privately owned company that puts out the unofficial advance sheets. The printing of the 434 opinions took 1,712 pages. If head notes were added, that amount of printed matter would make two additional volumes of the Arkansas Reports. Thus Rule 21 has pared the officiai reports at the rate of about one volume a year. If the same procedure were adopted by all American appellate courts, the number of their published opinions could easily be cut in two, without the loss of a single opinion worth preserving. The second purpose of nonpublication is to simplify the writing of opinions that have no value as precedents. To that end the members of the Arkansas Supreme Court
tentatively decide in advance, at the decision-making conference, whether a particular opinion is to be published. It is a fairly simple matter to write opinions not designated for pu blication, because the facts need not be narrated in detail for the benefit of the limited number of persons who will read each opinion. The court's two-year experience with Ru Ie 21 has proved beyond question that nonpublication conserves the judges' working time by simplifying the preparation of opinions in routine cases. Even so and this is important - every litigant receives an opinion explaining the court's reasons for its decision. That procedure is certainly superior to the delivery of brief memorandum opinions that often do little more than state the resu It. On balance, Rule 21 is working so well that it is doubtful if the court will ever retu rn to the practice of publishing every one of its opinions.
Season's Greetings To All ... From The Staff, A rkansas Bar Association And A rkansas Bar Foundation January 1977/Arkansas Lawyer/13
ENVIRONMENTAL RESPONSIBILITIES OF LOCAL GOVERNMENT By W. Christopher Barrier
While Washington and presidential politics get the headlines, it is the court houses and city halls that deal most directly with the people in providing governmental services. The demand for these services has increased in recent years, both as a result of the desires of citizens and the requirements of state law. Meeting these demands has meant seeking new sources of funds. In the area of environmental law, cities and counties have faced new responsibilities and stricter standards for meeting existing ones. WATER. Cities have traditionally provided water service and waste water treatment, subject to regulations as to water purity from the State Health Department. Purity of drinking water is not a serious municipal problem in most areas. The critical problems lie within the area of waste water treatment, specifically the effect of discharges from waste water treatment facilities on the water sources which accept them. These standards are set forth generally in Regu lation No.2, as amended, Regulation Establishing Water Quality Standards for Surface Waters of the State of Arkansas (referred to herein as Water Quality Standards), promulgated and adopted by the Commission on Pollution Control and Ecology (the Commission) on September 26, 1975, pursuant to Ark. Stat. Ann. §82-1904. The Water Quality Standards start with the premise that the waters of the state are to remain as clean as 14lAr1<ansas Lawyer/January 1977
possible, without unjustifiable additional pollution (section 2), and seek to effect this goal by establishing specific standards for temperature; color; turbidity; taste and odor; presence of solids; level of petroleum products; acidity; dissolved oxygen; radioactivity; bacteria; toxic substances; mineral quality; and nutrients (section 5). These levels are to be maintained as constants, except in wet-weather streams [Section 4 (c) land "Iowflow" periods, when streams fall below the lowest average seven-day flow which occurs in a given ten year period [Section 4 (d)J. The standards vary for different streams, according to physical characteristics, types of fish anticipated, and related factors (Section 3 (c) and (d); section 5 (a) and (1); Appendix A). The elements of the Water Quality Standards which have attracted the most attention in recent months are the dissolved oxygen requirement [Section 5 (h) 1 and the "low-flow" provision [Section 4 (h)] (see Legislative Council Interim Resolution No. 75-47, June 18, 1976). However, from the standpoint of municipalities operating their own waste water treatment facilities, the basic duties are spelled out in section 2 and Ark. Stat. Ann. §§1902, 1904,1905,1908 and 1983. Municipal waste water systems must, at a minimum, give secondary treatment or its equivalent, consistent with the best practicable current technology, with a treatment facility granted a permit by the Department of Pollu-
W. Christopher Barrier is chairman of the Environmental Law Committee of the Arkansas Bar Association and special counsel to the Air and Solid Waste Division of the Department of Pollution Control and Ecology, State of Arkansas. He is in private practice as a partner in the Little Rock law firm of Spitzberg. Mitchell & Hays.
tion Control and Ecoiogy (Department) and operators licensed by the Department, with a resu Iting effluent calcuiated to preserve and maintain the Water Quality Standards. This has meant generally that new plants and modifications to old plants have had to meet certain technical standards and achieve specific resu Its, as well as satisfying the municipal officials and their constituents. Meeting these responsibilities has required substantial expenditures. Traditional municipal bond revenues, however, have been supplemented with federal grant funds under the Federal Water Pollution Control Act (33 U.S.C.A. §1551 et seq.) and by the proceeds of revenue bonds issued by the Commission; these bonds are retired by the income generated by the systems constructed with the bond proceeds. Ark. Stat. Ann. §§82-19141915.2.
AIR. Cities and counties are rarely directly affected by the requirements of the Air Pollution Control Act (Ark. Stat. Ann. §82-1931) and the Air Pollution Control Code (Air Code), promulgated pursuant to it, unless they operate their own power plants or municipal incinerators. Power plants, incinerators and other equipment and facilities are simply subject to the same general requirements as equivalent private facilities: they must be controlled so that their emissions meet specific standards as to smoke density (Air Code, Section 4) and particulate matter (sections 6 and 7). City and county vehicles must be maintained so as to minimize exhaust fumes (Section 9), and other activities conducted so as to minimize fugitive emissions (section 11). Because a number of cities and counties continue to operate or at least tolerate public dumps (as opposed to landfills) at which fires are common, violations of the Air Codes prohibition of open burning (Section 5) are common, but, like the remainder of the Air Code, this section is not directed specifically at governmental units. In a positive sense, local law enforcement authorities, city and county, may enforce the criminal penalties against pollution. Ark. Stat. Ann. §§82-1908, 1909 and 1938. However, these subdivisions may not set their own air pollution standards. Ark. Stat. Ann. §82-1941. SOLID WASTE. Municipalities do have a positive duty to establish solid waste management systems, for disposal of refuse. Ark. Stat. Ann. §82-2705. In this case, a "system" means not only disposal, but also collection and handling generally. Ark. Stat. Ann. §82-2703. There is substantial flexibility under the law as to how to establish and operate such systems. A city may contract out some or all of the process to private operators or it may conduct a cooperative program with other cities, the county or private parties. Ark. Stat. Ann. 11822704, 2705 (a) and 2723. Under the Solid Waste Disposal Code (Solid Waste Code), cities may choose among sanitary landfilling, incineration and composting for disposal or they may come up with another method meeting the purposes of the state's pollution
laws. (Solid Waste Code, section 4). As a practical matter, composting is virtually unknown and the alternative "original" methods usually involve some variance from the rather detailed requirements imposed on sanitary landfills by the Code (Section 6). Such systems may be initially capitalized with revenue bond proceeds. Ark. Stat. Ann. 1§82-27142722. Operations are paid for through a system of fees and charges (Ark. Stat. Ann. §82-2719), which are frequently collected along with water and waste water charges. However, a small but growing number of cities have found it profitable to recover the heat from their incinerators and sell it to industriai users, thereby expanding the income available. The duty of counties to provide such systems is not automatic, but may be imposed by affirmative action of the Commission, if it finds that such a system is "required to meet the pu rposes of" the Solid Waste Management Act (Ark. Stat. Ann. §§82-2701-2712). Counties have been required in the past to provide disposal sites (Ark. Stat. Ann. §§82-2727-2728), but nothing more. The revenue bond procedures are theoretically applicable to counties as well as cities. However, counties generally lack the leverage provided by combining bills for water, waste water and refuse disposal - they can't cut off a person's water for non-payment of their solid waste charges. As a resu It, the bond procedure has not proved a useful tool in establishing county systems. Voluntary payment of the charges apparently does not generate significant revenue, and litigation to collect a multitude of relatively small charges is time-consuming, expensive and cumbersome. The problem is accentuated by a growing realization that county-wide systems may be the only practical means of providing the service to the small municipalities. Assistance in providing the initial capital investment has come from HUD in some instances, and state assistance is possible. However, a continued source of funds for operation and maintenance is essential. Some counties have attempted to provide the service without charge,
which does not appear feasible on a long-term basis. At least one county "sells" county residents special bags, to be used for refuse, and placed at the curb. Only these bags are collected by the county. Hence, the costs of collection and disposal are built into the price of the bags and those using the service pay for it in accordance with their volume of waste. Universality of use can be encouraged through enforcement of criminal penalties by county law enforcement officials. Ark. Stat. Ann. §82-2710. Capital and operating outlays can be reduced in less densely popu lated areas by having residents carry their refuse to strategically placed containers, which can be emptied into trucks. However, these systems lack a built-in fee collection system, and depend on willingness of residents to use them. Apparently, then, practical and legal means do exist to encourage use of and payment for solid waste disposal, in an operational sense, in cities and, to a lesser extent, counties, and cities have the tools for funding capital outlays. However, these latter tools may not be practically available to counties, even with the greater flexibility provided by Amendment 55, without changes in the law and public attitudes. Proposals for returning revenue sources to local governments do hot directly touch on these related exigencies - first, getting people to use the systems, and, second, getting them to pay for that use. SUMMARY: The laws of the state of Arkansas impose affirmative duties on local governments to protect the environment. These duties may ordinarily be fulfilled by application of established technology. Furthermore, since, in most instances, fulfillment of the duties involves provision of services, revenues are generated to pay for the required systems, supplemented with federal and state resources. Some flexibility is also provided by law in methodology. However, in some instances, financing methods are still in the developmental stages. Counties especially must seek rather than wait for solutions, and methods must be sought to conform the legal structure to experience and necessity.
J--. January 19n/Arkansas Lawyer/15
EXECUTIVE COUNCIL NOTES by Cyril Hollingsworth Secretary-Treasurer
The Executive Council met August 21, 1976 at the Arkansas Law Center. Many items of business were considered, and the following are only the highlights of that meeting. Stet_Ide Lewyer Rele"el Progrem. Chairperson Gene Mazzanti reported an excellent start for the statewide program, with over 300 attorneys participating and Ollef 2,800 referrals for the first year. We do have a WATS line and the program is in the Yellow Pages in every area of the state. There is a need for all attorneys to participate in this program, which is an excellent method of making legal services available to the public. A motion was adopted allotting a budget increase of $50 per month to be paid as a salary increase from $450 to $500 per month for the secretary of the lawyer referral ser~ vice. which is a law student who handles and coordinates this program from the Bar Center. Judlcere Pilot Project. Oscar Fendler reported on efforts ovef several years for a pilot project. A motion was adopted authorizing the legal services committee of the Association to present a formal application to the Legal Services Corporation for a grant to fund a one year experimental jUdicare type legal service program in Northwest Arkansas. If such a plan is funded, it would involve no Association money and would be entirely funded by the grant. Repelr And Replecement R_rve. Gaston Williamson, chairperson of the ad hoc committee between the Association and the Arkansas Bar Foundation, made a presentation on projected monetary needs for replacement and repair of the south wing of the Arkansas Law Center, which is leased by the Foundation to the Association. Following discussion and two motions. a motion was adopted that the sum of $27,500 be set aside from present Association reserves to represent a commitment of our present reserves through the year 1977 in accordance with recommended reserves estimated by the architects. The Council also adopted by motion a policy recommendation to the bUdget commitlee that 16/Arkansas Lawyer/January 1977
the 1977-78 b'Jdget include amounts for a reserve fund for repairs and replacement in keeping with the architects' recommendation. A copy of the architects' estimate was made a part of the official minutes. Lew School Speekero. The Council approved a contribution of $100 to help underwrite the expenses for Judges, prosecutors, and lawyers from around the state to visit with students on an informal basis at the University of Arkansas. The motion also provided that the University of Arkansas at Little Rock be advised that the Association will make the same contribution if such a speakers program is undertaken by it. Recodilicetion Of Arken... Stetute•. Henry Woods, chairperson of an ad hoc committee reported to the Council. Following discussion a motion was adopted that pursuant to the earlier action of the House of Delegates the Executive Council endorses early action to recodify the Arkansas Statutes and offers the good offices of the Executive Council and the Arkansas Bar Association to aid in this effort, including help in drafting a bill so that the legislature can consider this matter. Conelltutlonel Amendment - Medlce. Melprectlce. The Council by motion decided to take no action with respect to the matter of the proposed medical malpractice constitutional amendment, it being' noted that the issue was then before the Arkansas Supreme Court. Report On Amerlcen Ber AlIOCletlon Meeting. President Friday, our delegate to the ABA, highlighted several items from the Association meeting, pointing out that he would make the official summary available for review. President Friday made available copies of proposed amendments to the code of professional responsibility which had been redrafted and presented at the Atlanta meeting. President Friday also made available on request the 40-50 page report presented at the Atlanta meeting regarding medical malpractice, which contains a discussion of possible solutions such as arbitration and possible changes in the
substantive law. Crlmlne' Lew Section. The Council by motion accepted the offer of the Criminal Law Section to be responsible for changes in the criminal code and criminal procedures, subject to submission of proposed changes to the Council and the House of Delegates as is the normal procedure, and subject to any constitutional necessity for coordination with the Jurisprudence and Law Reform Committee on proposed changes. Other Melter. Considered. Space does not permit discussion of various reports given, such as the report by George Ellis on Ihe challenging programs to be undertaken by the young lawyers section this year, the report of John Gillon the Bar Leaders Conference, and other reports. HOUSE OF DELEGATES HIGHLIGHTS The following are some highlights from the House of Delegates meeting on September 16, 1976 at the Fall Legal Institute. Constltutlonel Amendment.. By action of the House of Delegates the Assoeiation endorsed proposed constitutional amendment No. 57 whereby the legislature is to provide for the taxation of intangible property. By action of the House of Delegates the Association also endorsed the referred item on the ballot calling fOf a constitutional convention. Leglsletlve Progrem, The House of Delegates endorsed the Arkansas Legai Insurance Act, which is an act covering insurance for legal services. The House of Delegates aiso endorsed the Simplification Of Land Title Transfers Act, which had been worked on sevefal years by the Association's Real Estate Committee. Production 01 System. lor Perticuler Legel Aree•. The House of Delegates approved the appropriation of funds to proceed with the project of the Economics of Law Practice Commitlee to prepare a system for corporations, hopefully by the mid-year meeting on corporate law; and to undertake a system for probate work.
LegllletlYe Digest. Watch for the Legislative Digest which will be sent to Association members advising of bills to be presented to the Legislature which will be of interest to lawyers. If you know of such legislation, please contact the Bar Center so that a complete digest may be compiled and fumished, most likely on a weekly basis. Medical Malpractice. The House of Delegates deferred any action on proposed constitutional amendment No. 58, which still was before the Supreme Court. The House by motion called for a special committee to be appointed by the President to consider the issue of professional liability as it pertains to all the professions, such study to include members of other professions and to seek possible SOlutions. :I_~
West Announces Third Annual Lawyers' Art Competition The Third Annual Lawyers' Art Competition open to all members of the Bar and to students at accredited law schools has been announced by West Publishing Company.
Theme for the competition is "Partners in Justice," which is also the theme for the American Bar Association Law Day observance in May. Art worl<s submitted in the competition must conform to the theme. which seeks to draw attention to the need for all citizens and institutions to support the courts in strengthening the administration of justice in this country.
Cash prizes total 515,000: S5,OOO for first prize, $2,500 for second prize, 51,500 for third prize, and twelve $500 certificate of merit awards.
West asks that only two-dimensional pictorial art forms be submitted, and no SCUlpture will be accepted. All entries must be accompanied by a suitably ad-
the case of Howard's hamburger and the Food and Drug Act
You know you would find it in USCA. Meet Howard. He concocted a great hamburger -used nothing but the highest quality pure meat. No wonder Howard was upset when he later discovered the hamburger he bought from his local supermarket was adulterated with non-deleterious beef blood. Ugh! It was "misbranded" according to the Food and Drug Act. If this were your case, you may never find it by looking under Title 21 ยง 343-UNLESS you looked in USCA. You see, USCA gives you all the law, including all court constructions of the statute. That means if there are cases in point you know you have them. Get details from your West Publishing Company representative.
WEST PUBlISIIING COMPANY
Annotations are as much a part 01 the law as the law liseII...
P.O. Box 17161 Memphis, TN
dressed return carton or package. and return postage or shipping costs.
Deadline for entries is March 15, 1977. For a copy of the rules or further information, write to Art Competition, West Publishing Company, 50 West Kellogg Blvd., P.O. Box 3526, 51. Paul, Minnesota 55165. ,'k
January 1977/Arl<ansas Lawyer/17
JURIS DICTUM by C. R. Huie Executive Secretary, Judicial Department
We conclude OUf coverage of court statistics for 1975 whh the data on Municipal Courts, City and Pollee Courts, and justice of the Peace Courts. In the last two Issues of The Ark."... Lawyer, we covered the Arkansas Supreme Court, Courts of General Jurisdiction, and some Courts of Umlted Jurisdiction (County Courts, Juvenile Court Refer""s, and Courts of Common Pleas).
MUNICIPAL COURTS Municipal courts constitute the principal courts of limited jurisdiction. The courts are authorized in cities of 2,400 persons or more and a city of less than 2,400 may establish a Municipal Court if it is the county seat or is located in a county that did not have an established Municipal Court prior to March 7, 1973. The court's subject matter jurisdiction is basically the same as that of Justices of the Peace. Territorially, the court has countywide jurisdiction except in those counties having two county seats. It is the only court of limited jurisdiction in which the judge is required to be an attorney. He is required to have practiced law for six years except in cities of less than 15,000 in which any licensed, practicing attorney is eligible. He must be at least 25 years of age, of good moral character, and a resident of ArÂˇ kansas for at least two years. Salaries range from $2,400 to $24,500 per annum and are set by the legislature. In most cases, the court budgets are financed equally by the city and the county. Judges are allowed to practice law with the exception of those in Little Rock and Pine Bluff. Presently, four counties do not have a Municipal Court, These counties are: Calhoun, Little River, Newton, and Yell. These courts handle the bulk of all misdemeanors, ordinance violations, and small claims. Eighty-nine courts
18/Arkansas Lawyer/January 1977
handled 503,725 cases, assessed $8,894,458 in fines and collected $12,294,407 from fines, fees, and costs. As may be seen from the tables below, the workloads of these courts have increased SUbstantially over the past ten years. JUSTICE OF THE PEACE COURTS The Justices of the Peace are both judicial and, through their function on the county court, legislative officers. Their jurisdiction as judicial officers is, basically, to hear misdemeanor cases and civil cases when the amount in co~ troversy does not exceed three hundred dollars. Justices of the Peace have in the past been elected by popular vote on a township basis, one justice for every 200 electors but at least two for each township. Amendment 55 to the Arkansas Constitution, adopted November 5, 1974 and effective except for Sections 1 and 4 on that date, changes the number of Justices of the Peace who may serve on the Quorum Court and their manner of election. Section 2 (a) of that Amendment pro<ides: "No county's Quorum Court shall be comprised of fewer than nine (9) Justices of the Peace, nor comprised of more than fifteen (15) Justices of the Peace. The number of Justices of the Peace that comprise a county's Quorum Court shall be determined by law. The county's Election Commission shall, after each decennial census, divide the county into convenlent and single member districts so that the Quorum Court shall be based upon the inhabitants of the county with each member representing, as nearly as practicable, an equal number thereof." Compensation of justices for their judicial functions has been on a fee basis for the last one hundred years, but this was held unconstitutional in crimin-
at cases where the payment of the fee depended on a conviction. Legislation has been passed authorizing the County Quorum Court to provide compensation in those cases. CITY AND POLICE COURTS Mayors of towns and second class cities are vested with judicial powers of justices of the peace and, at least in second class cities, have exclusive jurisdiction of violations of city ordinances. Formerly called "Mayors' Courts", these courts were designated "City Courts" by Act 153 of 1971. There are no special qualifications for holding City Court other than being mayor and thus, the mayor is given broad powers to allow someone else to hold court for him, or in case of absence or incapacity, the recorder is authorized to perform the functions of magistrate. Unlike justice of the peace courts, there is no right to a jury trial. Judges of City Courts are compensated from the general fund of the city for the trial of criminal cases, but remuneration may not be based upon convictions. Police Courts were first created by Act No. 1 of 1975 for cities of the first class and since 1949 have been permitted for cities of the second class at the option of the city council. These courts serve a similar function and have jurisdictions similar to that of City Courts, but the Police Court Judge is elected as a judge rather than as an administrative officer and ex-officio jUdge. Police Court Judges are not, however, required to have any particular qualifications for the office. As in the case of City Courts, jury trial is prohibited in prosecutions for violations of city ordinances. Police Courts are automatically abolished by the creation of a Municipai Court. Their reports are included in City Court statistics.
TABLE OF CASES ALED IN MUNICIPAL COURTS 1966-1975 CASES YEAR
CHANGE FROM PRECEDiNG YEAR
1966 1967 1968 1969 1970 1971 1972 1973 1974 1975
326,364 388,842 361,036 403,607 342,490 349,576
+107,251 +62,478 -27,806 +42,771 -61,317
+35,060 -28,020 +93,882 +53,227
356,616 450,498 503,725
% CHANGE FROM
PRECEDING YEAR +48.95 +19.14 -7.15 +11.85 -15.18 +2.07 +10.03 -7.28 +20.84 +11.82
NUMERICAL INCREASE, 1966-1975: 177,361 PERCENT INCREASE, 1966-1975: 54.34% TABLE OF FINES ASSESSED, FORFEITURES AND PENALTIES IN MUNICIPAL COURTS 1966-1975 CHANGE FROM TOTAL PRECEDING YEAR 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 'NOT AVAILABLE
$3,818,099 4,462,139 4,781,353 6,525,177 7,607,5fJJ 7,587,248 7,819,394 5,998,284 7,417,830 8,894,458
+5644,040 +319,214 +1,743,824 +1,062,392 路20,321 +232,148 -1,821.394 +1,419,548 +1,476,628
% CHANGE FROM
PRECEDiNG YEAR +16.87 +7.15 +36.47 +16.59 -0.27 +3.06 -23.29
DOLLAR INCREASE, 1966-1975: $5,076,359 PERCENT INCREASE, 1966-1975: 132.96% TABLE OF CASES FILED IN CITY, J,p. POLICE, AND MAYOR'S' COURTS 1969-1975 CASES
ALED 1969 1970 1971 1972 1973 1974 1975
16,836 14,450 26,832 37,445 33,482 33,771 32,097
CHANGE FROM PRECEDING YEAR 路2,386 +12,382 +10,613 -3,963
% CHANGE FROM
PRECEDING YEAR -14.17 +85.69 +39.55 -10.58 +0.86 -4.96
NUMERICAL INCREASE, 1969-1975: 15,261 PERCENT INCREASE, 1969-1975: 90.65% 'ACT 153 of 1971 changed the name of "Mayor's Court" to "City Court"
TABLE OF FINES ASSESSED, FORFEITURES AND PENALTIES IN CITY, J.p. POLICE AND MAYOR'S' COURTS 1969-1975 1969 1970 1971 1972 1973 1974 1975
5333,227 434,581 810,837 1,159,128 1,203,391 1,176,359 1,204,851
+101,354 +376,258 +348,291 +44,263 -27,032 +28,492
+30.42 +86.58 +42.95 +3.82 -2.25 +2.42
DOLLAR INCREASE, 1969-1975: $871,624 PERCENT INCREASE, 1969-1975: 261.57% 'ACT 153 of 1971 changed the name of "Mayor's Court" to "City Court" 'NOT AVAILABLE
January 1977/Ar1<ansas Lawyer/19
ARKANSAS BAR ASSOCIAliON
1 97 7 MIDYEAR MEETING JANUARY 20-22
~ ~~~CAMELOT INN
"BASIC CORPORATE LAW
PRACTICE" "Get Away From It All - Solve Your Problems Too"
r THE ARKANSAS BAR ASSOCIATION HAS A HISTORY OF FINE MIDYEAR MEETINGS, e.g., 1976 - "NEW CRIMINAL .CODE AND RULES" 1975 - "NEW UNIFORM RULES OF EVIDENCE" 1974 - DEDICATION OF NEW ARKANSAS BAR CENTER "NEW DEVELOPMENTS IN THE LAW" THE 1977 MIDYEAR MEETING ON "CORPORATE LAW" WILL BE NO EXCEPTION. THE NEW SYSTEM" ON "CORPORATE LAW" WILL BE AVAILABLE. PLAN TO ATTEND - MARK YOUR CALENDAR: JANUARY 20-22, 1977. "SEE LEGAL ECONOMICS, THIS ISSUE, FOR FURTHER DISCUSSION. Zl/Arkansas Lawyer/January 1977
NATURAL RESOURCES LAW INSTITUTE (FORMERLY OIL & GAS INSTITUTE)
"The Arkansas 011 and Gas Institute has greatly enhanced the professional competence of those Involved In all and gas matters, and has provided outstanding contributions to the continuing education of landmen and lawyers." The Landman
HOT SPRINGS ARKANSAS January 1977/Arkansas Lawyer/21
DEVELOPMENTS IN CONSUMER CREDIT LAW by Arthur G. Murphey, Jr.
Three federal acts concerned with consumer credit are the Fair Credit Reporting Act, the Equal Credit Opportunity Act, and the Fair Credit Billing Act. The first, passed In 1970, Is concerned with credit reports on consumers. The second, passed In 1974 and effective In 1975, concerns the granting of credit to consumers. And the third, aleo passed In 1974 and effective In 1975, concerns the handling of complaints that consumers have concerning billing practices and aleo covers dllClosure of time limits during which consumers may avoid finance charges.
FAIR CREDIT REPORTING ACT The Fair Credit Reporting Act [Public Law 93-495, 84 8ta1.1127, 15 U.S.C. §1681 , C.C.H. Consumer Cr&dit Guide ~10,091-~10,112] is Part V of the Consumer Credit Reporting Acl. It regulates "consumer reporting agencies", defined as "any person Which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties" where interstate commerce is involved. [§603(fn It does not apply to a company which gathers the information solely for its own use. Nor does it apply to a "person" which does not gather the information "regularly". Needless to say, however, it does regulate a great deal of the reporting. "Consumer reports" are defined as "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of liv22/Ar1<ansas Lawyer/January 1977
ing which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in" four situations. [§603(dn Two of the situations are: (1) establishing the consumer's eligibility for credit or insurance to be used primarily for personal, family, or household purposes, and (2) employment pu rposes. [§603(d). Literally it reads "establishing the consumer's eligibility for (1) ... or (2) employment purposes."]. For the other situations, §603(d) refers to §604. This section applies to: (3) use of the information in determining the consumer's eligibility for licenses and benefits granted by a governmental instrumentality for certain purposes, and (4) furnishing the information to persons which the agency has reason to believe has an otherwise "legitimate business need for the information in connection with a business transaction involving the consumer". The act goes further and states that the term "consumer report" does not include: (1) "any report containing information solely as to transactions or experiences between the consumer and the person making the report"; or (2) "any authorization or approval of a specific extension of cr&dit directly or indirectly by the issuer of a credit card or similar device"; or (3) "any report in which a person who has been requested by a third party to make a specific extension of credit directly or
As Indicated In the last paragraph of this artie la, Professor Murphey presented a related paper belore the Pulaski County Bar Association In March, 1976. He graciously consenfed to update the paper lor this publication. He Is Professor of Law
at UALR. B.A., U. Of North Carolina, 1951; J.D., U. of Mississippi, 1953; LL.M., Yale, 1962. He was a Fulbright Scholar, U. of London (LS.E.), 1953-54. He was a law faculty member at Georgia, Emory, and Akron. His current commitments Include membership on the Juvenile Code Revision Commission and the' AdvIsory Commission lor Legal Services lor the Indigent in Arkansas.
indirectly to a consumer conveys his decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made and such person makes the disclosures to the consumer required under §615". Section 604(3) lists five circumstances under which a consumer reporting agency may furnish a consumer report. The first four allow the report to be furnished to a person which the agency has reason to believe intends to use it for credit, insurance, employment, or governmental license or other benefit. The fifth allows it to be furnished to a person it has reason to believe "otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer." The section specifically states that a report may not be furnished under any other circumstances unless the consumer requests it in writing or a court orders it. This has given rise to a question concerning the effect of §603(d). It defines a consumer credit report as one used in or expected to be used in or collected to be used in any of five situations (considering credit and insurance as two; though they are listed together). It is followed by a section which says that such a report may be used only in any of five situations - situations which are identical (with a minor variation in wording) with those in §603. In a recent case it was contended that the sections were not as restrictive as they seemed. The plaintiff claimed that the report was not to be used for one of the five purposes listed and therefore it was in violation of the Act. The defendant contended that if the report was not obtained for any of the five purposes listed in §604(3) it was not within the definition of §603(d). In other words it was not "to be used" or "expected to be used" or "collected to be used" for any of the five purposes, therefore it was not a "consumer report", and therefore it was not regu lated by the Act. Some earlier cases had made it clear that not all reports on consumers were within tne Act. Even
though a report is furnished on an individual (who is a consumer) it is not regulated by the Act if the purpose of the report is to evaluate him as a risk in extending commercial credit rather than consumer credit. [Such as applying for insurance to be carried on him by his company, Fernandez v. Retail Credit Co., 349 F. Supp. 652 (ED. La., 1972); applying for credit to lease a truck in his business. Sizemore v. Bambi leasIng Corp., 360 F. Supp. 252 (N.D. Ga., 1973); applying for credit as the principal of a business whose credit is being reported, Wrigley v. Dun & Bradstreet, 375 F. Supp. 969 (N.D. Ga., 1974). The last may be weakened by the fact that the loss complained of was not of personal (consumer) credit but that of the company.) The court rejected this, however. It pointed out that one purpose of the Act was to protect a consumer's right of privacy. The Act thus could not be interpreted as applying only in those five cases, leaving the agencies "free to continue their clandestine activities in other areas". The court explained that for §604(3) to be meaningfUl the term "consumer report" must be interpreted to mean any report made by a credit reporting agency of any information that could be used for one of the purposes listed in §603. So both §603 and §604 must be interpreted as meaning that there are some purposes for which no consumer report may be furnished.
[Belshaw v. Credit Bureau of Prescott, 392 F. Supp. 1356 (D. Ariz., 1975)1 Section 607(a) requires the consumer reporting agencies to "maintain reasonable procedures designed ... to limit the furnishing of consumer reports to the purposes listed under §604". After the prospective users have identified themselves and certified both the purposes for seeking the information and that it will be used for no other purpose, the agency must" make a reasonable effort" to verify the user and the uses before furnishing the information. This subsection also requires the agencies to "maintain reasonable procedures" to avoid violations of §605, having to do with obsolete material.
Under §605 if adverse information is more than seven years old it is usually obsolete. However, if it concerns bankruptcies the time limit is 14 years. Also, the limits of §605 do not apply to reports furnished concerning (1) life insurance policies for more than $50,000, (2) extensions of credit more than $50,000, and (3) applications for jobs paying more than $20,000, annually. And finally there is a further limitation for investigative consumer reports explained below in Millstone v. 0 'Hanlan Reports, Inc.
A recent case concerning §605 did not involve the construction of "obsolete" but did bring up a point worth mentioning. [Flte v. Retail Credit Co., 386 F. Supp. 1045 (D. Montana, 1975)! The plaintiff had pled guilty to a charge of theft. He was sentenced under the Youth Corrections Act [16 U.S.C. §5005(b) et seq.) and placed on probation. Before the probation period expired, he was unconditionally discharged and his conviction was automatically set aside as provided in the Act [16 U.S.C. §5021(b)1 He later got a job as an insu rance salesman. But when his employer secured a credit report from the defendant showing the arrest, conviction, and the setting aside of the conviction, the plaintiff lost his job. In denying relief for the plaintiff, the court pointed out that §605 did not forbid reporting facts of public record. It pointed out that §605(a)(5) referred specifically to records of "arrest, indictment, or conviction of crime". The cou rt added "a credit reporting agency could lawfu lIy report the record of an arrest or an indictment and a judgment of acquittal". [386 F. Supp. 1045, 1047.] The effect of the decision was that the conviction under the Youth Corrections Act "does not disappear". [Ibid.] In the future youths in similar situations may get beller credit reports. The Juvenile Justice and Delinquency Prevention Act of 1974 [Public Law 93-415, B8 Stat. 1109,42 U.S.C. §5601 et seq.] prohibits disclosure of the offender's record. Section 607(b) requires the agency to "follow reasonable procedures to assure maximum possible accuracy" of the information in its reports. A recent case involving a violation continued on page 24 January 1977/Ar1<anQas Lawyer/23
r---------------------------Credit LIW, continued from page Z3
of subsection (b) was brought in Federal court in Missouri by one Millstone, Assistant Managing Editor of the St. Louis Post-Dispatch, "a local daily newspaper," as the court said. [M1II,tone v. O'Hanlan Report" Inc., 383 F. Supp. 269 (ED. Mo., 1974).J The report to be prepared was an "investigative consumer report." This is defined in §603(e) as one "in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer". Unless it is a matter of public record, adverse information here is, in effect, obsolete after three months, under §614. Under 606 if one of the reports is to be procured, the person who wants it must notify the consumer in a writing which is mailed or delivered no later than three days after the report is requested. The consumer has a right to know the nature and scope of the investigation and this writing must inform him of this right. Millstone applied for insurance and the insurance company complied with §606, telling him the investigation would be in connection with the new policy. Because of the report Millstone was notified that the policy would be cancelled. Millstone's agent then assured the company of his character and reputation and the company changed its mind. Millstone then voluntarily cancelled the policy. The original report on Millstone had been made by an investigator of the defendant as a resu It of a talk with one neighbor in less than onehalf-hour's time. He had made contact with four people, but three were of no help. The defendant's manual stated that when adverse information developed, it should be verified by at least one other source to avoid prejudice; but there was no evidence of an attempt to verify the information on Millstone. The investigator in his report claimed to have spoken to four people. The court held there was a clear violation of §607(b). Not only were the procedures not considered reasonable, the acts of the investigator :ll4/Al1<ansas Lawyer/January 1977
was classified as willful non-compliance with the Act. There were further violations. section 609(a) (1) requires the agency to disclose "clearly and accurately" to the consumer, upon request, the "nature and substance of all information (except medical information) in its files on the consumer at the time". The defendant refused to do so until forced to do so by pre-trial discovery. This was also held to be willful-noncompliance with the Act. Millstone claimed mental anguish and under §616 recovered $2,500 actual damages, $25,000 punitive damages, and $12,500 attorneys fees. The defendant had paid its investigator approximately $1.85 for the report. And, remember, Millstone's cancelled insurance had been reinstated. EQUAL CREDIT OPPORTUNITY ACT The Equal Credit Opportunity Act [Public Law 9~95, 88 Stat. 1521, 15 U.S.C. §1691, C.C.H. Consumer Credit Gu ide ~4O,501- 40,5091 passed October 28, 1974, became effective October 28, 1975. Section 702(a) provides that the Board of Governors of the Federal Reserve System shall provide regulations to carry out the purposes of the Act. These are entitled Regulation Band 12 Code of Federal Regulations 202 [41 F.R. 20576, C.C.H. Consumer Credit Guide ~4O,710-~40,785.J The Act was amended March 23, 1976, effective March 23, 1977. [Public Law 94239, 15 U.S.C. §1691, C.C.H. Consumer Credit Guide 40,501- 40509. ~ Following this the Board issued Proposed Revised Regulation B, proposed amendments that is [12 C.F.R. 202, 41 F.R. 29870, C.C.H. Consumer Credit Guide ~4O,800-~40,815.]They are not complete as of this writing. The first version of the Act prohibited any creditor from discriminating "against any applicant on the basis of sex or marital status with respect to any aspect of a credit transaction." [§701(aH "Discrim inate against any applicant" was not defined in the Act but was in the Regulations. It means "to treat an applicant less favorably than other applicants." [Reg. §202.3(1).J Effective 1977, the prohibition extends to discrimination because:
(1) of race, color, religion, national origin, sex or marital status, or age (provided the applicant has capacity to contract), (2) all or part of the applicant's income is from a public assistance program, or (3) the applicant has in good faith exercised a right under the Consumer Credit Protection Act. [§701 (a) as it appears in the amending Act effective March 23, 1977, the sections of which will be cited hereafter as "New". ~ Under the former version, the Act allowed an inquiry into an applicant's marital status if the inquiry was to ascertain the creditor's rights and remedies applicable to the extension of credit. The inquiry could not be to discriminate in determining creditworthiness, however. [§701(b).] Under the amended version this will still be the law but more is added. A creditor expressly will be allowed to (1) inquire about the applicant's age or if the applicant's income comes from a public assistance program if the inquiry is "for the purpose of determining the amount and probable continuance of income levels, credit history or other pertinent element of credit-worthiness as provided in regu lations of the Board"; (2) to use a system empirically derived which considers age so long as the system is "demonstrably and statistically sound in accordance with regulations of the Board," but the age of elderly applicants may not be assigned a negative factor on value; and (3) to ask for and consider an elderly applicant's age when it is to be used in the applicant's favor. ["New" §701 (b). J It is obvious that to interpret accurately (1) and (2) one must await the new Regu lations. The reader may wish to watch the development of "New" Regs. §202.2(0), (u), (x), and (z), "New" Regs. §202.6, and "New" Regs. §203.13. As to (3) there may be a question as to whether or not it encourages indirectly discrimination
against everybody else but the elderly. The amended Act also allows a creditor to refuse to extend credit offered under; (a) credit assistance programs allowed by law for economically disadvantaged persons, (b) credit assistance programs run by nonprofit organizations for members or disadvantaged persons, and (c) special purpose programs "offered by profit making organizations to meet special social needs which meet standards prescribed in Regulations by the Board ["New" §701 (cll if refusal is required by one of the three types of programs or made pursuant to it. (The Regulations governing this part will probably be "New" Regs. §202.8, when completed.) A creditor has thirty days (or longer if allowed in the Regu lations-but they do not seem to allow it [see Regs. §202.4 and "New" Regs. §202.9 D, after receipt of an application for credit to notify the applicant of its action. If it is adverse the applicant has a right to an explanation. The creditor can supply it in one of three ways. The first is to simply send a form explanation "as a matter of course" to all such applicants. The second is to provide this particular applicant with a written notice of the adverse action. This notice must also state that by so requesting within sixty days, the applicant has a right to a written statement of the reasons, within thirty days after the creditor receives that request. This notice must also give the identity of the person or office to send that request to. The third course is for the creditor to send the written notice which may be followed by an oral statement, if the written notice advises the applicant that he may have the oral statement confirmed in writing on written request. The statement must contain specific reasons. It may be made through a third party, if that party has requested the credit for the applicant, so long as the creditor is identified. There may be regu lations later governing verbal statements by creditors acting on 150 or less applications during the calendar year preceding the application. The term
"adverse action" which triggers the notice means "a denial or revocation of credit, a change in the terms of an existing credit arrangement, or a refusal to grant credit in substantially the amount or on sUbstantially the terms requested." It does not apply to a refusal to extend credit where the borrower is in default or where it would increase a credit limit previously established. ["New" §701 (d). ~ This Act then prohibits discrimination by a creditor at the application state (for a more specific list of prohibitions see Regs. §202.4 and "New" Regs. §202.5) and the evaluation stage (for more specific ru les here, see Regs. §202.5 and "New" Regs. §202.6, §202.7, and §202.8). For violations of the act, the consumer may bring an individual suit or a class action, for actual and punitive damages. The latter may not exceed $10,000; and if it is a class they may not exceed either $500,000 or 1% of the net worth of the creditor whichever is less. [§706(a) and (b).) Suit may be brought in United States District Court or any other court of competent jurisdiction. The statute of limitations is two years. [§706(f).] In 1975 the Arkansas legislature passed Act 566, cited as the Arkansas Equal Consumer Credit Act. Section 2 provides; It shall be unlawful for any creditor or credit card issuer to discriminate between equally qualified individuals solely on the basis of sex or marital status with respect to the approval or denial of terms of credit in connection with any consumer credit sale whether or not under an open end credit plan, consumer loan, or any other extension of consumer credit, or with respect to the issuance, renewal, denial, or terms of any credit card. The Equal Credit Opportunity Act provides that where the same act or omission is a violation of both the federal and the state law a legal action for money damages may be brought either under one law or the other but not both [§705(en The federal law provides for administrative enforcement [§7041 and if this remedy is sought an action may
also be brought under the state law. Under the latter the penalty is recovery of not less than $100 nor more than $500 plus reasonable attorney's fees [Section 3 ~ The statute of limitations is one year [Section 4 ~ It should also be noted that the state law applies to consumer credit only while the federal law applies to commercial credit too [§702(dn
FAIR CREDIT BILLING ACT Have you ever been ignored by a computer? Have you written complaining there was an error only to have the bill come back to you for the same amount and no acknowledgement that you had written? Have you complained over and over only to be continuously ignored, to be continuously sent dunning letters? Well take heart, take courage, in fact take matters into your own hands. On October 28,1975, the Fair Credit Billing Act [Public Law 93495,88 Stat. 1511, 15 U.S.C. §1666, C.C.H. Consumer Credit Guide 113051-3065.) became effective. It requires creditors to follow a procedure in dealing with complaints consumer-debtors have about billing errors and to notify the debtors about the procedure. [§161(a).) A "billing error" consists of (1) showing on a bill (statement) that credit was extended to the consumer when in fact it was not, or was not in that amount (e.g. charged for something not bought), (2) showing an extension of credit for which the consumer wants now a clarification (including documentary clarification), (3) showing charges for goods or service not accepted or not delivered as agreed, (4) showing an incorrect payment or credit and (5) accounting errors. [§06O(b») Creditors must send with their statements the address for consumers to use to make "billing inquiries" (complaints). [§127(b)(11).) Regulation Z 226.7(a)(9) [C.C.H. Consumer Credit Guide 113555] sets out the form creditors must use to notify consumers of their rights and duties under the Act. [see also Regs. §226.7(d)(5).)It must be sent when a consumer opens an account and semiannually after that [§1271 . SectiOlI 161 then setl! out the procedure for complaining. WithiniiO days after a creditor sends a state- continued on page 26 January 1977/Arkansas Lawyer/25
Creel It LIW, continued from paga 25
ment, a consumer sends the creditor a written notice using the address furnished. It must enable the creditor to identify the name and account number of the consumer, show that the consu mer believes there is an error and what it is, and state the reasons for the belief. The notice must not be on the bill (statement) itself if the creditor does not allow it (and the form set out in Regulation Z 227.6(a)(9) assumes that it will not be allowed, but provides alternate wording in case it is) [§161(a)(1), (2), and (3).] After creditors receive complaints, they have thirty days to do one of two things, either simply acknowledge receipt or "take action". If they only acknowledge, they must "take action" no later than two billing cycles (provided it is within ninety days) after receiving the complaints and before trying to collect the amounts in dispute. The "action" to be taken is one of two choices. Either the bills are corrected or a written explanation must be sent stating why, after an investigation, it is believed the accounts are correct. If a creditor corrects the bill this must include crediting any finance charges erroneously billed. The consumer must be notified of the correction and given documentary evidence of the indebtedness where requested. If on the other hand, the creditor notifies the consumer that the account is correct, the explanation must given the reasons. If the consumer requests copies of documentary evidence of the indebtedness, they must be sent. If the complaint concerns goods not properly delivered, the creditor, before concluding the amount is correct, must determine that they were properly delivered and provide the consu mer with a statement of this determination. [§161(a)(A) and (B) ]
In the meantime the creditor may take action to collect from the consumer amounts not in dispute. [§161(cH But the creditor may not, before sending the explanation for disagreement, close an open end account because the disputed amount has not been paid. [§161(d).] Nor may the creditor give 2ll/Arkansas Lawyer/January 1977
an adverse report on the consumer's credit standing until ten days after complying with section 161. [§162(aH If the consumer continues to dispute the matter, the creditor in reporting the amount as delinquent must also report it as disputed. The creditor must also send the consumer the name and address of any third party to whom the report was made. And the subsequent resolution of the dispute must later be reported to any such third party. [§162(b).] A creditor who fails to comply with the Act (whether §161 or §162) forfeits the right to collect the amount in dispute plus the finance charges, but the amount of this forfeiture is limited to $50. [§161(e).] A recent item in the news mentioned possible limitations in the future on "free rides." This refers to avoiding finance charges by paying a bill within a given period of time after receiving it. The news item referred to credit cards, although other creditors give free rides too. The law does not require that they be given. Nor does it state how they
are to be figured or that the rules of different creditors must be alike. However, the Truth in Lending Act does require that if there is a time period within which a bill' may be paid without incurring a finance charge, it must be disclosed. [Regs. §226.7(a)(1 ).] And the Fair Credit Billing Act provides that if there is such a period the statements must be mailed at least 14 days before the date shown on the statement by which payment must be made to avoid the finance charge. If the bills are not mailed this far ahead, the finance charge may not be imposed. [§163(a) and see Regs. §226.7(b)(2).] In conclulion, It might be Idded thot the IIW here II dlyeloplng rlpldty Ind thot III of thll could be oboolete by the time It I. rlld. The mlterlll for thl. WI. orlglnllty preplred for I &pIlCh to the Pullskl County Blr Aaooclltlon In MIlCh, 1976. By the time the luthor exomlned It to get the cltltlona In proper order lor publlcltlon - J..... 1976 - 10 much hod chonged, the entire pIper hod to be r_rltten. ~_
~ Y ER l'
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THE POLYGRAPH TOOL OR TOY?
-David P. Henry For several years, proponents of the polygraph and other similar devices have presented their case for the admissibility of polygraph test resu Its to aid the trier of fact in its search for truth. The polygraph has become widely used as an investigative tool by law enforcement agencies throughout the world, with some placing more significance on its use than others. For instance, the official policy of the United States Justice Department has been to suppress the use of the polygraph. F. Lee Bailey has encouraged the use of polygraph and has advanced the proposition that the science of polygraphy has attained sufficient scientific acceptance to be admissible as evidence just as other forensic evidence such as fingerprints, ballistics, etc. Other proponents include Robert J. Ferguson and Allan Miller who corroborated to write The Polygraph In Court, published by the Charles C. Thomas Publishing Company in 1973. Several schools have sprung up across the country offering courses in the art of polygraphy, giving certificates to their graduates, certifying them as trained polygraph examiners. While some of these schools are accredited, such as Texas A & M, others are not. Also, the polygraph has become widely used in civil matters, particularly in the employment process and in the investigation of missing money and goods after employment. Consequently, the term polygraph or lie detector test has become a very familiar term, and in most cases, accepted by the layman as a reliable method of determining truth or falsity. THE PROBLEM SIMPLY STATED: Added to the more or less lay acceptance of the reliability of the polygraph is the fact that no one other than polygraphers themselves
have really studied the art or examined the basic underlying theory, i.e. physiological stress is capable of measurement and interpretation in terms of truth or falsity. The real complication is presented in this basic theory. The process is medical in nature in that it borrows from the fields of physiology, biology and psychology with scientific instrumentation. The basic employment of the principles borrowed from each of these fields is valid. However, this validity offers little value, for the basic principle is not so valid. The complexity of the knowledge borrowed from medicine and mechanics often buries the basic premise which is unknown under sophisticated terminology and theory that is otherwise accepted. For instance, the measurement of systolic and diastolic blood pressure, galvanic skin response, pneumograph, cardiograph, dicrotic notch, phrenic nerve and so on puzzle the lay observer, while a polygraph examiner uses these words with such repetitiveness that it is apparent that he understands them as well as their application to polygraphy. The application, however, of these terms and their significance does not serve as any underpinning upon which one can support the validity of the premise that psychological stress can be evaluated for the purpose of accurately determining the truthfulness of the responses of any particular examinee. Once having set this rather elaborate stage, we are then faced with the central issue, which is "whether psychological stress can be measured for the purpose of determining truthfu Iness of responses to specific questions." This is the first question which must be determined in considering whether or not the polygraph should be admissible in evidence.
David P. Henry becema acquainted with polygraph during the course of the trial of Phlillpa, 81 al. ya. Waeka, 81 al., LR-72-C-26. The Court spant approximately eight days haarlng evidence concerning polygraph, Its rallablllty and Its admissibility. Defandants opposed the Introduction of polygraph and their objection of same was sustained bY the Court In a Memorandum and Order filed Decamber 10, 1975. Henry received his B.S.B.A. from the University of Arkansas, 1965; LLB. from the University of Arkansas SChool of Law, Utile Rock Division, 1971. Ha has been Assistant City Attorney, Utile Rock, since 1971. He Is a member of the Kemp and Henry law firm of Utile Rock.
LAYING A FOUNDATION: It is a relatively simple and wellknown principle of law that before any expert testimony can be presented to the trier of fact, a proper foundation must be laid. In laying the foundation for the admission of polygraph evidence, one must first qualify the polygrapher as an expert in his field and then qualify the field itself as having such scientific acceptance as to offer validity. The accomplished trial lawyer would have little or no difficulty in qualifying the expert medical witness, for here his field or specialty wou Id already have scientific acceptance and probative value. However, the same trial lawyer might have difficulty in laying continued on page 28
January 19n/Arkansas Lawyer/'ZT
Polygr.ph, continued from page 27
the proper foundation for the admissibility of expert testimony concerning the scientific reliability of the practice of medicine. In most cases, the science about which the expert intends to offer testimony is accepted as a matter of judicial notice leaving only the question of the qualifications of the expert. Such is not the case with the art of polygraphy; one must not only quality his expert, but also qualify the field he represents. The starting point for laying this foundation would logically be the premise upon which it is founded. However, this also is not the case. It appears, at least from the cases I have read, that each time polygraph evidence is offered, other than by stipulation, the party seeking to introduce polygraph evidence has begun with a detailed and complicated explanation of a polygraph machine, the phenomenon it records, the significance of the phenomenon so recorded, the techniques of interpretation and the validity of the process. Nowhere has this writer found a foundation for admissibility which began with a detailed treatment of the underlying premise. Admittedly, the machine can accurately measure psychological responses. These responses can be explained as valid, medical phenomenon, the phenomenon is capable of interpretation and that this process is logically plausible. It is the validity of the interpretation that must be established because it is at this point that you apply the basic premise. THE VALIDITY OF THE PREMISE: There have been several controlled laboratory tests designed to establish the validity of the premise. Most of these have been conducted with college students from middle class backgrounds with similar white middle class mores' and principles. Unusually high degrees of accuracy are attained in these controlled laboratory experiments ranging from 60% to 95% in accuracy. This level of accuracy is comparable to other forensic sciences which do have scientific acceptance and which are regularly admitted into evidence. One controlled laboratory experiment designed to establish the ac-
3I/Arkansas Lawyer/January 1977
curacy of the polygraph was conducted in a reformatory which housed minors with varying ages and backgrounds. However, the members of this group had one common trait, that being that each had Intelligence Quotients of 60 or less. Among these minors the degree of accuracy of the polygraph test was 26%. From this it is readily ascertainable that what one measures in a polygraph test is not truth, but what the su bject being examined thinks is truth. Carrying that premise one step further, one can ascertain that the polygraph also measures one's regard for the truth. In other words, you might feel guilty in lying, but I might not. From this it seems logical to assume that your test would have measured psychological response, while mine would not. Though, while many have endeavored to prove the validity of the basic premise of polygraphy, I know of no objective work designed to disprove the basic premise. Many polygraphers possess other disciplines ranging from psychologists and psychiatrists to private investigators and law enforcement officers. Many of these polygraphers have accepted the basic premise as fact. Others would attempt detailed explanations for its validity. The fact remains, however, that little empirical data exists establishing the basic principle and that this data has been accumulated by those who started out to prove its validity rather than challenge it. Also, much of the empirical data that has been developed was developed, as aforesaid, in laboratory experiments in institutions of higher learning conducted by intelligent men who have mastered other disciplines. Unfortunately, the polygrapher in the field usually has no more knowledge of biology, physiology and psychology than is presented to him at a sixweek school at which he becomes a certified polygrapher. The requirements in most states for attending one of these schools is a high school degree, and after completing the school, the polygrapher is turned loose to verify the truth or falsity of statements of those whom he examines. The skill, experience and integrity of the polygrapher has a significant
bearing on the validity of the test results. Also, there is no uniform technique or procedure. The differences in approach and technique are as different as the number of polygraph schools. Some urge the use of one approach as being the most accurate, while others insist that it is some other technique. The followers of each different technique have about as much regard for the other as the Baptists and Methodists in the Deep South. THE PROBLEMS PRESENTED AT TRIAL: One case in point was tried in California in 1973. In United Stete. YS. Urquidez, 356 F.Supp. 1363 (1973), a young woman was prosecuted for the sale of narcotics. During the trial of this case, the defense proffered polygraph testimony to establish a defense of entrapment. The Defendant's polygraph expert offered testimony as to the truthfu lness of her statements concerning the defense of entrapment, while the government had its own polygraph expert who would testify as to the falsity of her statements. The Court was interested in this rather novel situation and spent three days hearing evidence on the status of the art and the reliability of Defendant's polygraph test. From all of this, the Court noted the following relevant questions: 1) How greatly is the subject concerned about the seriousness of the offense charged and about resulting conviction? 2) How strong is the subject's belief in the ability of the polygraph to catch him if he lies? 3) What is the effect upon his conviction if the subject knows that adverse results of the test could not be used against him in Court? The Urquidez Court also pointed out the significance of the subject's physical and mental condition, noting that his physiological arousal to a question could be affected by 1) fatigue, 2) the use of depressant drugs, 3) uncertainty as to the meaning of a question, 4) sudden surprise, and 5) his ability to intentionally acquire a state of mind of general lack of concern or nonarousal. The Court also focused on the competence, integrity and aptitude of the operator, and the manner in
which questions were phrased, noting that the experts disagreed at length as to whether the questions used in this test cou Id serve as a valuable basis for determining the truthfulness of the responses. In its opinion, the Court made the following conclusion: "However, although the inquiry was far from complete, the experience of this case has amply shown that, as of now, the validity of a polygraphic test is dependent upon a large number of variable factors, many of which would be very difficult, and perhaps impossible, to assess. In a given case, the time required in order to explore and seek to adjudge such factors would be virtually incalculable (we did little more than make a beginning in the present case). Accordingly, this Court is impelled to the conclusion that the administration of justice simply cannot tolerate the burden of litigation inherently involved in such a process .... It is believed appropriate to add that, even if the results of the polygraphic examination here concerned were to be received, the amount of reliance that I would be able to place upon them would not overcome the conclusions reached upon hearing the testimony of the above-described entrapment issue." THE LAW IN ARKANSAS AND THE 8TH CIRCUIT: In recent years, there have been several cases throughout the country dealing with the admissibility of polyg raph evidence. However, they have little significance for our purposes in Arkansas in that the ArkanOyez! Oyez! continued from page 3
Shoals. Ed Bedwell, Fort Smith, held a one-man show of his paintings at the
Fort Smith Art Center in August. Richard L Arnold, formerly with Judge Robert Porter of Dallas, Texas, has moved to Ann Arbor, Michigan. The new officers of the Phillips County Bar Association are: John M. Pillman, Pres.: Wooten Epes, v-pres.: and Jesse E. Porter, Sec.Treas. Texarkana Bar Association has
elected officers: C. Weyne Dowd, Pres.: Howard Waldrop, V-Pres.; Joe Griffin, Sec. and Thomas H. Arnold, Treas. Mr. Leon Teske and Mr. Donald Wood, Jr. with Peat. Marwick, Mitchell & Co. spoke to the Southwest Arkansas Bar Association at their August meeting on
Estate Planning. Phillip H. Shlrron, a
sas General Assembly passed Act 342 of 1975 which is codified as Section 42-901 through 42-904, Arkansas Statutes Annotated (1975 Supp.) providing that the results of polygraph tests are inadmissible in all cou rts of this State. As for the federal system in which we practice, the 8th Circuit in United Statea va. Sockel, 478 F.2d 1134 (C.A. 8th Cir. 1973), considered appellant's claim that error resulted from the lower court's refusal of appellant's offer to take a polygraph examination. In response to this contention, Chief Justice Matthes said: "The Court was eminently correct in its ruling." More recently the 8th Circuit ruled that polygraph testimony must be 路excluded. United Statea Va. Alexander, _ _ F.2d _ _, No. 75-1424 (filed Nov. 1B, 1975). In the United States District Court, Eastern District of Arkansas, Western Division, the Honorable G. Thomas Eisele has ruled in Joaeph Phillips, et al va. Gale Weeka, et ai, LR-72-C路26, a case which is still un路 der advisement, in a Memorandum and Order filed December 10, 1975, sustaining Defendants' objection to the admission of the results of polygraph examinations that further scientific evidence on the underlying premise of the test would be valuable. Though Judge Eisele generally feels that a polygraph is as useful to the Court as other forensic sciences, he agrees that more development of basic background research is needed to bring the test to scientific respectability.
RESULTS OF HOUSE SUBCOMMITTEE INVESTIGAnON: Recently the House Government Operations Committee has studied the use of polygraph by the Federal Government and in its report and recommendation accompanying which was summarized in an article which appeared in the Arkansas Gazette on February 2, 1976, concluded: "There is no lie detector, neither machine nor human. People have been deceived by a myth that a metal box in the hands of an investigator can detect truth or falsehood." Ms. Bella Abzug, Chairman of the Subcommittee, pointed out in a statement accompanying the report that their study dealt with the use of these devices by the Government and called for ail Government agencies to stop using polygraphs and other similar devices known as lie detectors. It is interesting to note that the subcommittee was divided on the issue, with 17 of its 42 members objecting to the ban. Though, for the time being, the issue of the admissibility of the polygraph seems to have been decided negatively, one can rest assured that the issue is not dead. The interest in ascertaining the truth will surely continue the interest in the discovery of a lie detector, and that the Courts and the various legislative bodies will be faced with deciding this question in the future as research and deveiopment continues. In the meanwhile, no one can object to its value as an interesting parlor game. !J--.
1976 9raduate, spoke at Career Day for senior students of Grant County. WIlliam K. Mou..r, '76 graduate, has joined the Pine Bluff law firm of Baim, Baim & Mullis. Lightle, Tedder, Hannah and Beebe have announced the association
of Donald P. Raney to their firm. William M. Cromwell, a recent graduate, has joined the Fort Smith law firm of Rose, Kinsey & Cromwell with his office located in Greenwood. Charles Yeargan, also a 1976 graduate, has become an associate to Philip M. Clay for the practice of law in Glenwood. Richard F. Hatfield, Searcy, will open his own law office in January. Ronald T. LeMay, for-
merly of 5t. Louis, and Scoll T. Vaughn, a 1976 9raduate, have joined the NLR law firm Wallace, Hilburn, Clayton, Wilson & Hankins, LTD. H. Oocar Hlrby,
Pat Moran Little Rock, has been promoted to the position of Executive Secretary of the Arkansas WCC. J ....... January 1977/Arkansas Lawyer/29
LEGAL ECONOMICS by Fran Shellenberger
WHAT IS A SYSTEM? Interest in systems is high in Arkansas since the 1976 Annual Meeting of the Arkansas Bar Association last June where the program entitled "Structuring the Printed Word" by Robert P. Wilkins and the introduction of the book How to Create-A-System tor the Law Office, published by the American Bar Association Section of Economics of Law Practice. was presented.
Due to the response from Arkansas lawyers to this program, the Arkansas Bar Association Committee of Legal Economics is nearing completion of the first of several systems for law practice
in Arkansas, an Arkansas Corporate System, which will be presented at the Mid-year meeting of the association in January 1977. A second system, the Arkansas Probate System, is being dE>veloped, and a third, a system on domestic relations, is being discussed.
These systems will be developed for use with automatic typewriters. Anthony Advoca Ie and Lawrence Law-
yer, partners in a 3-lawyer firm, together with their secretaries, Audrey and Louise, were discussing the development at a system to handle the many divorce complaints which are prepared
in their office. The following is Anthony's presentation to the firm. "What is a system? A system for a law office is the gathering together in one oonvenient place (preferably a thre&-ring loose leaf notebook, so that it can be easily updated), all of the information, forms, (including annotations and instructions for their use) written descriptions and instructions for completing each task or related group of tasks, dE>signed and written in such a way that anyone can complete the forms and do the job with a minimum of instruction
and supervision. II
A law practice system includes:
1. A numbered list of ail the information necessary to describe the client and to complete the necessary forms related
3D/Arkansas Lawyer/January 1977
to the work (the Master Information List or MIL);
2. A checklist including all of the steps, in proper sequence, necessary to oomplete the work, with columns to denote who completes each step, a due date, the date done, initiais and any significant dates (tiling deadlines, etc.), if any; 3. A collection of every form and letter necessary to complete every step of the work - your own forms plus forms furnished by local, state and federal governments. "Variables in forms and letters for use in a law practice system are numbered to refer to corresponding numbers on the Mil, so that their completion can be accomplished by selecting and inserting that information from the MIL and choosing among alternate phrases or paragraphs as necessary to personalize them to your client's needs. "The use of MILs, checklists and forms allows the lawyer to prepare work lor completion by a secretary or typist with little or no dictation, since most of the language already appears on the system's forms. In many cases, the secretary can complete the work with no further information or instructions than already appears on the MIL and checklist. "System forms, when prepared at a standard typewriter, are only as accurate as the typist. Each page must be carE>fully checked and proofread. If at all possible, the system forms and letters should be recorded on automatic typE>writers, using some form of magnetic media, Le., magnetic cards. tapes, cassettes or discs. In this way every part of the system which requires the preparation of a typewritten page or the oompietion of a printed form may be run on the automatic typewriter, with the typist inserting information from the MIL eiectronically. Once the magnetic media oopy is proofread and approved, the
preparation of the system forms can be prepared automatically with no further typing other than that of adding phrases or paragraphs which are not a part of the system, if any. The lawyer may be assured that the typewritten page is correct every time because it was prepared from a magnetic recording prE>pared and approved earlier." "I'll do the MIl," said Anthony. "I bE>lieve that's the best place to begin. Lawrence, you're the expert draftsman in the firm. How about drafting the forms?" he asked. "Yes, I'll do that." he replied. "There are several recent complaints in my files which I can use to get started. However, I'd like to ask that Lyon (A. Young Lyon, the firm's newest associate) prepare law notes and annotations to go along with the forms. I think it would be a good idea to have the legal references and a discussion included as an introduction to each form." "All right. Lawrence, as soon as you have the forms in final draft we'll route them to Lyon," said Anthony. "Once the MIL is complete, I believe I can do the checklist," added Audrey. "Yes, Audrey, that would be a big help. You are the one who makes and rE>oeives calls, drafts correspondence and does the filing. All those communications and transactions should be part of the system. I believe you could develop a workable first-draft of a checklist," said Anthony. "I'll begin with opening the file and I'll try to include every step and communication through the time we close the file," she said. "Also, I'll use columns to show which staff member is responsible for each step, a due date, the date done and the initials of the person doing the job," she added. "Anthony, I'll have to admit that when you first suggested that we adopt a systems approach to the firm's work, I feit It would be a tremendous job and that we continued on page 32
CONTEXT By W. Christopher Barrier Chairman, Public Education Committee Arkansas Bar Foundation
RELATING THE LAWYER TO HIS PUBLICS If you've been to a cocktail party lately with a group of doctors or read "All the President's Men", you are aware that lawyers need to pay attention to their public image. This is especially true at a time when certain practices which lawyers have generally taken for granted, such as minimum fee schedules and prohibitions on advertising, are under strenuous attack. This column will concern itself with an area generally referred to as public relations, but in a su bstantive sense rather than a superficial one. It will seek to deal with problems that come up in everyday practice. While the areas overlap, it will not deal directly with the econom ics of practice or with the law as SUCh, but rather those areas in a transactional sense where the lawyer deals with his publics. The use of the plural is deliberate. The lawyer, as a lawyer, relates to three separate "publics". Primarily, a lawyer must relate to his own clients. How individuals feel about their own lawyer and lawyers generally is obviously primarily based on their experiences with their own lawyer. Of course, a good many people seldom, if ever, use a lawyer themselves. This second "public", the general public, derive their attitudes toward lawyers and the profession from television, dramatized and otherwise, and what they see lawyers doing generally. The third "public", and perhaps the most neglected one, is other lawyers. The transactions here are structured primarily through the organized bar. The manner in which lawyers relate to each other and
work together for their mutual benefit and for the public good significantly influences the general public attitude toward the profession. Some may suggest that public relations is no more appropriate than advertising for lawyers. If we are pursuing our profession properly, should we care what the public thinks? Well, in view of the three publics mentioned, certainly we should. Obviously, if we can smooth out problems or anticipate them with our clients, the practice of law is more pleasant and more rewarding. The same holds true with our relations with other lawyers, and also leads to benefits to the public generally, such as legislative reform and revision. Finally, poor public relations with people who seldom if ever deal with lawyers is probably a major reason that they do not use lawyers. In other words, a great many people do not use lawyers, even when they need them, because they do not know how to get in touch with a lawyer, they do not know how much lawyers' services cost, they do not understand the sort of services that lawyers can provide or they have some feeling of mistrust for lawyers generally. Similarly, when regulatory and legislative bodies promulgate rules which directly affect the profession, such as "no-fault", advertising guidelines and prohibitions against fee schedu les, the profession is much better served when there is a general understanding of the way it operates and of the responsibilities of lawyers generally. For example, in another area, there is no question but that most of
the pressure for national health insurance and related programs stems directly from resentment over what patients consider the unduly high cost of medical care. Without arguing the merits of such programs, it is easy enough to perceive that the doctors' side of the case has, for many years, been presented poorly or not at all. As a result, their input into the final structure is apt to be somewhat minimal. Okay. Assu ming we need to pay attention to public relations, what can we do about it and what sort of questions will this column cover? In terms of "doing something about it", this column will have some suggestions and the Bar Association and the Bar Foundation are working on programs that lawyers can get involved in individually. On the Foundation level, the Public Education Committee has expanded the noon time show for which Channel 11's "Eye on Arkansas" received our Scales of Justice Award to two other stations, one in Fort Smith and one in Jonesboro. This is an exam pie of trying to make the law more understandable and giving the lawyer a role in educating the public. Individual lawyers should never pass up opportunities to talk about their profession or legal questions. People do want to know. The Foundation is also revising its pamphlets which are available to the public to give them basic information on marriage, home purchases and other areas of the law which affect the broad mass of citizens. The Public Education Committee also expects to work with the Youth continued on page 32
January 1977/Arkansas Lawyer/31
Context, continued from paga 31
Education For Citizenship Committee of the Association, hopefu Ily with an end result of getting lawyers into the public schools, talking about the traditions and day-to-day experience of our legal system. On an individual basis, hopefully the column can cover such common Legal Economics, continued from page 30
probably wouldn't have time to do it," said Lawrence. "However, I had not
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THE ARKANSAS LAWYER
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problems as billing (how often shou Id you send repeat statements and can you refer them to a collection agency?); announcements (how much can you say about a new associate?); ethical traps (when can you withdraw for nonpayment of your fee?); and telephone etiquette (shouid you screen your phone calls?). And, while this is not a "Dear Abby" type column, we will
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"'CTUAL NO CO"IES OF S'''OLE ISSVE PUI"'SHED NE ... REST TO F,lINO DATE
C.· E. :Ranslok
CODE Of PROfESSIONAL RESPONSIBILITY CANON 3 A Lawyer Should Assist in Preventing the Unauthorized Practice of Law ETHICAL CONSIDERATIONS ec 3·1 The prohibition against the practice of law by 8 layman Is gounded In the need of the public for Integrity and competence of those who undertake to render legal services. Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system. the public can better be assured of the requisite responsibility and oompetence if the practice of law is confined to those who are subject to the requirements and regulaHons Imposed upon members of the legal profession. EC 3-2 The sensitive vaiations in the oonsiderabons that bear on legal determinations often make it difficult even for a lawyer to exercise appropriate professional judgment, CI'ld it is therefore essential that the personal nature of the relationship of client CW"ld lawyer be preserved. Competent professional judgment is the proouet of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment. EC 3-3 A non-lawyer who undertakes to handle legal matters is not governed as 10 integrity or legal competence by the same rules that govern the conduct of a lawyer. A lawyer is not only subject to that regulation but also is committed to high standards of ethical conduct. The public Interest is best served in legal matters by a regulated profession committed to such standards. The Disciplinary Rules protect the public in that they prohibit a lawyer from seeking emptoyment by Improper overtures, from acting In cases of divided Ioyalbes, and from submitting to the control of others in the exercise of his Judgment Moreover, a person who entrusts legal matters to a lawyer is protected by the attorney-client privilege and by the duty of the lawyer to hold inviolate the confidences and secrets of his client. EC 34 A layman who seeks legal services often is not in a position to judge whether he will receive proper professional attention. The entrustment of a legal matter may well involve the confidences. the reputation, the property, the freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the conftdentiaJ and demanding capacity of a lCtNyer unless he is subject to the regulations of the legal professIOn. EC 3-6 It is neither necessary nor desirable to attempt the formUlation of a single, specific definition of what consUMes the practice of law. Functionally, the practice of law relates to the rendition 01 services for olhers that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to ralate the gooerel body and philosopl1y of law to a specific legal problem 01 a client; and thus. the public Interest will be better served If only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non·lawyers, such as
court clerks, police officers. abstracters, and many governmental em~oyees. may engage in occupations that require a special knowledge of law in certain areas, But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.
A lawyer otten delegates tasks to clerks, secretaries. and other lay persons. Such delegation is proper if the lawyer maintains a direct
retationship with his ctient, supervises the detegated work, CWld has complete professional responsibility for the work product. This delegation enables a lawyer to render ~al service more economically CWld efficiently. EC 3-7 The prohibition against a non·lawyer practicing law does not prevent a layman from representing himself, for then he is ordinarily exposing only himself to possible injury. The purpose of the legal professlon is to make educated legal representation available to the public; but anyone who does not wish to avail himself of such representation is not required to do so. Even so, the legal profession should help mem· bers of the public to recognize legal problems ald to understCWld why it may be unwise for them to act for themselves in matters having legal consequences. EC U Since a lawyer should not aid or encourage a layman to practice law. he should not practice law in association with a laymCWl or otherwise share legal fees with a laymcYl. This does not mean, however, that the pecuniary value of the interest of a deceased lawyer in his firm or practice may not be paid to his estate or specified persons such as his widow or heirs. In like manner, profit-sharing retirement plans of a lawyer or law firm which include non-lawyer office employees are not improper. These limited exceptions to the rule against sharing legal fees with laymen are permissible since they do not aid or encourage laymen to practice law. EC 3-9 Regulation of the practice of law is accomplished principally by the respective states. Authority to engage in the practice of law con· ferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so. HONever, the demands of business and the mobility of our society pose dIstinct problems in the regulation of the practice of law by the states. In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a law· yo< to handle the legal affairs of his client or upon the opportunity ot a client to obtain the services of a lawyer of his choice in all matters ineluding the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice.
DR 3-101 AIding Unauthorized Pnoctlce 01 (A) A Iowyer shall not aid a non~awyer In the unauthorlzod pnoctlce of lew. (8) A lawyer 111811 not practice law In a jurisdiction _ . to do 10 would be In violation 01 regulatlonl 01 the prol_ In that Jurildiction. DR 3-102 DtYldlng Logal F_ wllh a Non-Lawyer. (A) A Iowyer or low flnn 111811 not sh.re legal _ wllh a non-lowyer, except thet: (1) An e9reement by e lewyet' with his firm, pe""", or "lOClete mey prov5de for the peyment 01 money, over a r...oneblB
0' time elter his deeth, to his est... or to one or more
.-Illed _ " .
(2) A lawyer who undertakes to complete unllnl_ legal bullne.. of a deceaoed lawyer may pay to the OIIate of the deceaHd lawyer th8t proportion of the Iota! com_lOtion . . lalrly " " , _ " the MrViceI rendered by the __aoed lawyer. (3) A lawyer or 1_ flnn may Inctude non~awyer employeelln a retirement pie", even though the plen la beNd In whole or In pert on e proflt-shertng errangem.,t. DR 3-103 Forming I partnership wtth a Non-Lawyer. (A) A Iowyer 111811 not lorm a partnership wllh a non~awyer II any 01 the actlvl1ie1 of the partnership 0001111 of the practice of law.
January 1977/Arkansas Lawyer/33
LAW SCHOOL NEWS Assistant Dean James K. Miller Associate Dean David R. Hendrick
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT UTILE ROCK NEWS RELEASES
University of Arkansas at Little Rock News Bureau 568-2200 Jerol Garrison For release August 8, 1976
NEW FACULTY Two new professors and a visiting professor have been appointed 10 the faculty of the University of Arkansas at Little Rock Law School, increasing the full-lime teaching faculty from seven to 10, Robert K. Walsh, dean of the School, announced today. The appointments are effective August 23.
ROBERT R. WRIGHT
Dr. Robert R. Wright III, dean of the College of Law and director of the Law Center at the University of Oklahoma since 1970, will join the UALR Law School as a visiting professor for the 1976-77 academic year. He recently resigned as dean and director, but remains on the OU faculty and will be on leave for 1976-n. The new professors are Fred W. Peel, Jr.. who has been in the private practice of law at Washington for 24 years, specializing in corporate and tax law, and Frederic K. Spies, who is leaving the faCUlty of the UA Law School at Fayetteville atter 20 years to teach at UALR.
FRED W. PEEL, JR.
Wright, 44, was on the faCUlty of the UA Law School at Fayetteville from 1963 to 1970 and was assistant dean in charge of the little Rock Division of the UA Law School in 1965-66, its first year of operation. Wright was reared at Lewisville, where he was graduated as the valedictorian of his high school class. He has a bachelor's degree from the UA at Fayetteville, a master's degree in political science from Duke University, a law degree from the VA and a doctorate in law from the University of Wisconsin. He was a Phi Beta Kappa at the UA and was active in many campus organizations and activities.
FREDERIC K. SPIES
34/Arkansas Lawyer/January 1977
Wright practiced law from 1956 to 1959 at Forrest City and from 1960 to 1963 was assistant general counsel of the Crossett Company and Georgia-Pacific Corpora-
non's Crossett DIvision after these two firms merged. Wright is co-author of a law casebook (textbook) on land use controls. His wife, the former Jacqueline Stucker of Helena, holds a law degree from the University of Oklahoma and practices law in Norman, Okla. They have three children. A nalive of Junction City, Ky., Peel, 58, was a staff member of Congressional tax committees for five years before going into private practice in 1952. He is leaving a senior partnership with the Washington law firm of Miller and Chevalier to enter teaching. Peel is author of "Consolidated Tax Returns," a standard text in the field of corporate taxation. His practice included taxation of the oil and gas mining industries and he was chairman of the Tax Committee of the American Mining Congress from 1964 to 1974. Peel was graduated magna cum laude from Harvard in 1939 and received a law degree from Harvard in 1942. He is married and has one child. Spies,5O, is a recognized authority in the field of law and medicine and has written many articles on this subject for scholarly journals. A native of Pennsylvania, Spies has a law degree from Dickinson College at Carlisle, Pa., and a master of laws degree from New York University. Spies practiced law for four years at Reading, Pa., before joining the faculty of the UA Law School at Fayetteville in 1956. He received a distinguished achievement award for his teaching and research from the UA Alumni Association in 1974. He was a visiting professor at the State University of New York at Buffalo in the 1967-08 school year. He is married and has three children. Spies also will teach at the UA College of Medicine.
For release August 12, 1976 A.B.A. AUTHORIZATION
The American Bar Association has authorized the University of Ar1<ansas at Uttle Rock School of Law to expand its current part-time day program into a fulltime division effective with the 19n fall semester, Robert K. Walsh, dean of the School, announced today. A student in a part-time program is allowed to take 11 hours a semester. while a student in a full-time program may take up to 15 hours a semester. The Law School, formerly the Little Rock Division of the University's Fayetteville Law School, received separate accreditation last December from the ABA. It currently operates a parttime program in day and evening sections. The new ABA authorization will cover all three years of the day program,
Watsh said. The evening part-time program is not affected. The Law School expects a fall enrollment of 340 students, compared to 310 last fall, of which 120 will be day students. The School admitted its first parttime day class last fall. A second day class has been admitted for this fall. Under the ABA resolution, the day program will continue to operate as a part-time program for this coming year. The ABA tied its fall 1977 authorization for a full-time day program to completion of the remodeling of the Old Postoffice Building at Second and Spring Streets for Law School purposes. Walsh said the Law School woo Id move its administrative offices to the Old Postoffice Building this month and that the Building would be fully occupied next summer.
The Law School is currently located in the Ar1<ansas Law Center at 400 West Mar1<ham Street and will use both buildings as it expands its program. The Law Genter will continue to house faculty offices, several classrooms and the UALRPulaski County Law Library. The Old Postoffice Building will house administrative offices, a library annex, classrooms and restored courtrooms. Both the Law School and the Department of Ar1<ansas Natural and Cuttural Heritage will occupy the Old Postoffice Building, which is to be the object of a major restoration. The federal government gave the Building to the State. The ABA action was taken by the Council of the ABA Section of Legal Education and Admissions to the Bar.
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE Professor Morton G itelman is a coauthor of a book entitled "Cases and
Materials on Land Use" which was written by Professor Gitelman, Robert R. Wright, dean of the University of Oklahoma College of Law and a former UAF Law School faculty member, and the late Professor Jacob H. Beuscher of the University of Wisconsin. Publication date for the book was July 15. The book, according to the publisher, was designed to cover the "mainstream issues" of land use law, issues which "the average practicing attorney needs to know." Issues relating to both private and public aspects of land use are presented, and the authors examine material on the planning profession, land development regulation of urban grOYt'th, zoning, and the use of police and taxing powers to accomplish pUblic goals. New faculty members who have been appointed this fall are Robert E. Knowlton, professor; Steve H. Nick les, assistant professor; James R. Cromwell, Rick A Beye and Priscilla K. Pope, lecturers. Professor Knowlton previously taught at Rutgers University School of Law for 25 years and had been a distinguished professor of law in the Newark Division of the Rutgers School of Law since 1967. He practiced law in Iowa before beginning his teaching career. Professor Knowlton teaches courses in Constitutional Law and Criminal Law this semester. Professor Nickles, a graduate of the University of Arkansas-Fayetteville School of Law, received his J.D. degree in 1975. He also has a bachelor of arts and a master of public administration
degree from the University of Ar1<ansas. He is wor1<ing on his J.S.D. degree from Columbia. Professor Nickles served as a special assistant to Governor Pryor when the governor was a member of Congress, and served as the governor's legislative assistant during the 1975 session of the General Assembly. Professor Nickles teaches Commercial Law and Creditor's Rights. Cromwell, Beye and Miss Pope teach legal writing under a new program in the school. All are 1976 law school graduates - Cromwell from the College of William and Mary in Virginia; Beye from the University of Iowa, and Miss Pope from the University of Ar1<ansasFayettevi lie.
Two new assistant deans, David R. Malone and James K. Miller, began duties on the Fayettevi lie campus this summer. Malone is responsible for general administration; student advisement in administrative matters; secretarial staff; administration of the Trial Advocacy Program, and student orientation and graduation. Milldr is in charge of student admissions; scholarships, loans and awards; graduate placement; brochure publication; alumni affairs, and continuing legal education. Both hold B.S.B.A. and J.D. degrees from the Fayetteville campus. Malone has been an Assistant Professor of Accounting at Fayetteville since 1972. Miller was previously engaged in private practice in Danville, Ar1<ansas. Steve Clar1<, former assistant dean, became executive secretary to Governor David Pryor on August 16.
Law Review officers for this semester are: Robert Ross, Editor-in-Chief, Christy Jones, Managing Editor; J. Maurice Rogers, Comments Editor, Beverly Rowlett, Articles Editor; Glenn Parr, Citations Editor, and Charles Nestrud, Business Manager.
The 1975-76 Law Review Awards were given as follows: Best Comment - VOUCHER TO PRODUCTS LIABILITY: THE MECHANICS OF U.C.C. by Donn Mixon-S150-Price Dickson Award Second best Comment UNAVOIDABLY UNSAFE DRUGS AND THE DUTY TO WARN by Ramona Roe-$90Ar1<ansas Bar Foundation Award. Ms. Roe's comment will be reprinted in Matthew Bender's Federal Consumer Product Safety Service Third best Comment - PROCEDURAL DUE PROCESS AND THE TEACHER by Donn Mixon-$60-Arkansas Bar Foundation Award Best Casenote - LABOR LAW - PRESUMPTION OF ARBITRABILITY APPLIES TO SAFETY DISPUTES by Mar1< Grobmyer-$50-Ar1<ansas Bar Foundation Award Second best Casenote BYSTANDER'S RECOVERY FOR NEGLIGENTLY INFLICTED MENTAL DISTRESS by Beverly Rowlett-S30-Arkansas Bar Foundation Award A case note by Bobby E. Shepherd, DOMESTIC RELATIONS CHILD CUSTODY - DEATH OF THE CUSTODIAL PARENT AND JURiSDiCTION TO MODIFY THE DECREE, received honorable mention. ,I
January 19n/Ar1<ansas Lawyer/35
In memoriam Be strong and of good courage, do not fear or be In dread of them; for It Is the Lord your God who goes with you; he will not fall you or forsake you. -Deuteronomy 31:6
U.A. GENTRY U. A. Gentry 01 Little Rock, a former State Legislator who earned a reputation as a lierce watchdog against the abuse 01 state lunds by legislators, died September 30 at the age 01 88. Mr. Gentry's career in the law spanned 64 years. He was admitted to the Bar in 1912 and argued his last case belore the Supreme Court 01 Arkansas September 17. His practice began in Hope, where he moved alter receiving his law license. In 1915 he was elected to the state House 01 Representatives and served two two-year terms. He was elected to the state Senate in 1927 and 1929. In 1933 Mr. Gentry moved to Little Rock to serve in the adminIstration 01 Govemor J. M. Futrell who later that year appointed him to a six-year term as state insurance commissioner. He didn't serve the lull term because the next govemor, Carl Bailey, prevailed on the legislature to abolish the post 01 insurance commissioner and then recreated it as soon as Mr. Gentry was out. Although Mr. Gentry lost a court light to remain in the job, he was reappointed Insurance commissioner under Governor Francis Cherry. He was a member 01 the First United Methodist Church and 01 the Pulaski County, Arkansas and American Bar Association. S/Arkansas Lawyer/January 1977
Mr. Gentry is survived by his wife, Mrs. Mayme Clements Gentry; two sons; one daughter; three stepsons; lour grandchildren; nine step-grandchildren; and eight great-grandchildren. ORIN M. YOUNG, SR. Orin M. Young, Sr., 86, 01 Little Rock, the oldest practicing lawyer in the state, died JUly 28. He was admitted to practice law in 1910. He started a land title business at Little Rock and purchased the Lit路 tie Rock Abstract Company in 1941. In 1942, he was named Vice-Presi. dent of the Kansas City Title Insurance Company and so served until his retirement in 1962. He served 4 terms as president of the Arkansas Land Title Association and had been president 01 the Little Rock and North Little Rock Board of Realtors. He was a 32nd degree Mason, a member of the Epala Club and a deacon 01 the First Christian Church of Little Rock. He Is survived by a son, Orin M. Young, Jr., and two grandchildren. JAY GALBRAmt GOULD J. Galbraith Gould of Little Rock, a retired chiel of the acquisition branch of the real estate division, Army Engineers, died at 71, September 22.
He was a native 01 Pine Bluff belore moving to Little Rock. He received his law degree Irom the University 01 Arkansas Law SChool in 1929. He was a member 01 the Pine Bluff Rotary Club; the Arkansas Consistory; the Society 01 Descendants 01 the Colonial Clergy; the Arkansas Bicentennial Commission; and was a past president 01 the Arkansas Society 01 the Sons 01 the American Revolution. He was also a member 01 the Jefferson County, Pulaski County, and Arkansas Bar Associations; the Quapaw Lodge; the SCimitar Shrine; and the First United Methodist Church. He is survived by his wife, Mrs. Mary Lee Echols Gould; a son; a daughter; and two sisters. JUDGE THEODORE GOLDMAN Judge Theodore Goldman, a lifetime resident of Texarkana, Arkansas, died April 24 at the age of 70. He received his law degree in 1931 from Cumberland University and practiced in Texarkana Irom that time until retirement in 1975. He served as Representative to the Arkansas General Assembly from 1939路1943; was Municipal Judge from 1956-1988. In 1956 he was recipient of American Bar Association's plaque for Improvement in Court Procedure. He was a World
War II veteran having received a Bronze Star, the Silver Star, and a Presidential Citation in 1942. He was a member of the Veterans of Foreign Wars and the American Legion, which awarded him the American Legion National Achievement Award in 1972. In 1975 he was listed in the Dictionary of International Biography and Who's Who in Religion. He was a member of various civic and professional organizations and the College Hill Methodist Church. He is survived by his wife.
JAMES BERRY FLOYD James Berry Floyd, 79, of Little Rock, an attorney for 19 years with the Army Engineers, passed away JUly 22 He practiced law in Yellville from 1923, the date of hiS admission to the Bar. until 1941 when he went to work for the state Highway Department as an accountant. He also worked for the state Insurance Department and as an attorney for the VA From 1946 until retirement In 1967, he worked with the Army Engineers as a closing attorney. He was a member of the Asbury United Methodist Church. He is survived by hiS wife, Mrs. Maude Floyd, two daughters; two grandchildren; and a great-grandchild.
DAVID D. PANICH David 0 Panich of Little Rock, a former member of the old state Commerce Commission, died at age 74 on September 18. He was born at Osceola and In 1925 moved to Little Rock to become a law clerk. He had practiced law for 40 years until his retirement on JUly 1. He was an elder of the First Christian Church; a member of the Western Star Masonic Lodge; a member of the Arkansas Consistory and Scimitar Shrine Temple; an army veteran of World War II. He was a member of the Pulaski County, Arkansas and American Bar Associahons. Survivors are hiS Wife, Mrs. Ester Benton Panich; a son; and two grandchildren. :I.
MEMORIAL GIITS "It is more blessed to give than to receive"-However, a member profits both ways with a memorial gift to the Arkansas Bar Foundation. One's gift is a bPautilul way of honoring a former colleague. The family must be most al'preciative of such remembrance. The gift is n"ted in the Foundation's Memorial Book and, of course, is tax deductible. Memorial gifts may be sent to 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.
I WE ACKNOWLEDGE WITH GRATEFUL ApPRECIATION
THE RECEIPT OF A GENEROUS MEMORIAL GIFT
IN MEMORY OF THE LATE
LITTLE ROCK. ARKANSAS
DATE WE ACKNOWLEDGE YOUR GENEROUS MEMORIAL
GIFT IN THE AMOUNT
IN MEMORY OF THE LATE
:.n. ,J<f...la-ndad .!f8"", [1fo.vndaMn. LITTLE ROCK, ARKANSAS
January 19n/Art<ansas LfNlyerm
Major Legislation of Interest to Lawyers 94th Congress, Second Session - As of October 1 , 1976 No·F.ult. (5354; HR 96501 ESlJbhsh federal
BILL DESCRIPTION Insurance
Commertl wbtommlttee reported 10/29/75
Stoate recommilled bill to Commerce
• ABA POSITION Opposes
Cam millet 3131116
Pracedur. Amendments. IS 796·800: HR 10194·10199) Proposals 10 Improve administrative procedurn.
Addition.1 Judgl'Ships. (S 2861 Create 7 more appell.te JudilMhips; IS 287) 45 mOIl dlllllCI Judgeships; IHR 44211 52 mor, district Judgeships; IHR 4422113 more appellate Judgeships.
HR 12048 delulld 9/21/76;
S800 cleared for President 10/1176
Judiciary Gammillee "port.d S 287
JudIciary Committee repurled S 196 9/17/76; Sena" passed S 800 711176 and S 798 9/21176
Passed S 286 10/2/15 Pissed S 287 411176
Supports addltlOflIl ,ud!Jf3tllp~
Cin:uits. (S 729) ReorgaOlli 9th Circuit and crute additIonal Judgnhlps In thiS ttrCUlt. (S 2752) ReorgaOlIl 5th CirCUit .nd unit! addltlO~ Judgeships.
No bills Introduced
JudiCIary Commlltee reported
N.tion.1 Court of Appells. (S 2762, 3423; HR 11218) Establish 7·member courl to conSider USIS r,ferred bV th, Suprem, Coun or transferred from the US. Coon of ApPeils.
No athon taken
Judlclarv subcommittee begin hearings
5/19176 Signed Into law 8/12176 Pl94·381
Th'H-Judge Courts. (S 537; HR 6150) Ehmmiillt three-judge (ourlS ellcept In certain cases_ Judicial Tenurl. (S 1110; HR 1275) Emblish procedure for retirement or removal of dlsabl,d or unfn Judges.
S 2752 12/5175: .nd S 729.•mended. 919176
No attlon taken
Supports reorgantZlllon In prU'lclple Supports onlv referenulUflSdlCllon $uppons
JudiCiary subcommittee completed heanngs
3/11/76 Signed into law 9/13176 Pl94·409
Open Government. (S 5; HR 116561 ReqUire op,n mettlngs of government agencies; (S Res 9) Open Senate meellngs.
SUPPOf15 in prinCiple
Gun COnlrOI. (Unnumbered Senat' blU; HR 11193) limit manufKture. sal" transfer or receIpt of cerlalO handguns.
JudiCiary Commlltetl reporled 516176
Judlclarv subcommittee reported 12/1175
Supports strengthening gun control att
Fedml Criminll Cod. Revision. IS 1; HR 12504) Revise 18 USC; codlfV. revise and am,nd federal cflmlnallaws.
Pending In JudicllfY subcommltlee
JudtCliry subcommittee reported 10nl175
Supports S 1 1$ blSIS for legislation
AWlfd of Anar"tVs' Ftes. (S 2278; HR 154601 Authoflle award of atlorneys' lees In Clrtaln CIV" flghts castS.
Congt"ess cleared S 2278 for Prtsldent 10/1176
TaJi Treatment of Prtpaid l.1 Smices. ($ecllon 2601 of HR 10612) Ellclude from emplov"'s gross Incom, employer contnbutlons to legal services plans ~nd payment or rllmbunement rec'lved through pllns.
Congressclnred HR 10012 lor PrlSldent9/16176
Workln;' Compensation. IS 2018: HR 156091 Establish mmimum federal standards for 51ale workers' compensation programs.
Special Prosecutor. IS 495, HR 156341 Provide for special prosecutor. gowrnment crimM ollice in Justice Dept., restriction on appointment. of Attornev General.
Education· labor subcommittee approved
labor-Public Welfare subcommittee hearings
HR 15609 9/28/76
Judiciary subcommittee approved HR 15634 9/17176
Passed S 495
lEAA. (S 2212. HR 136361 Elllend Ille of lEAA; emphlSlz, court program funding. Bankruptcy law Reform. (S 235. 236; HR 31. 32) Rt'tlse and rlform 11 USC. federal ~nkruptcy laws.
Supports bills in part
SuppOftS tJllension and adequate court funding
Congress cleared S 2212 lor President 9130176 Judiciary subcommittee completed heanngs
JudICiary subcommittee completed hearings
Antflrulit Lan IS 1284); EIlpand federal premergtr notifiCillOn 1JOwt!i (HR 145801; use of criminal ~ntluu51 nolo pleas In Civil cases; Increase ctfUun lines; strengthen CIVil discovery (HR 13489); authorlz, fU,.ns patON SUtts on behalf of state CitIZens to recover treble damiges
Dppost1 f,deral standards
Signed Into law 9/30176
$upporu bills in part
IHR 85321. lobbying Disclosure. (S 2477, HR 15) Provld. for more elfKtive disclosure of 10bbVIng IctivitiM.
·Amcrican Bar Association 38/Arl<ansas Lawyer/January 1977
Passed HR 15, am,nd.d.
Pissed S 2477
ADDENDA by C. E. Ransick Editor
"CLE" Chairman Henry Woods put on the most successful Fall Legal Institute in recent years -with 278 registrants compared to less than 100 last year. The theme was "Winning Trial Tactics". Chairman Woods included five wellknown out-of-state trial lawyers with some 14 hours of new VIDEO tapes from the Center for Trial and Appellate Advocacy. The speakers were outstanding the tapes, "most effective presentations" in the words of Justice Tom Clark. "The Summation" with Moe Levine is undoubtedly the finest such video presentation ever made. A number of registrants have written Chairman Woods - "With this caliber of program, Arkansas must surely be a front runner in continuing legal education" - "Quite frankly, it's the best barsponsored program I've ever attended" - "It was by far the best legal seminar that I have had the good fortu ne to attend" - et cetera. IN MEMORIAM On Friday, September 11, 1976, the lawyers in the 10th Chancery Circuit paused to honor recently deceased attorneys who practiced in the Circuit. The honorees were Jeta Taylor, Ormand B. Shaw, R. A. Young, Jr., William F. Cravens, John J. Cravens, A. A. McCormick, J. Sam Wood, Jack Yates, J. Clib Barton, Alfred James Hall, Heartsill Ragon, Harold C. Rains, Jr., John P. Woods, Edgar Lee Matlock and G. Byron Dobbs. Chancellor Warren O. Kimbrough, Program Chairman Owen C, Pearce and President Bill Thompson of the sebastian County Bar Association were in charge of the program. Arkansas Bar Association President Herschel H. Friday was a featured speaker. U.S. District Court Judges John Miller and Paul X. Williams were present. The local newspapers in their coverage of the memorial service stated that the Courtroom was "packed" with attendees. Such memorial services are a particularly fitting way for lawyers to honor their
former colleagues at the Bar, Chairman Dean A. Morley of the Arkansas Bar Association's Memorials Committee has been urging all local bar associations to conduct memorial services for deceased lawyers from their areas. The Presidents of all local bar associations are ExOfficio members of the Memorials Committee. WORKER'S COMPENSATION The Association's group insurance ad路 ministrator, Rather, Beyer & Harper, has requested that the following notice be brought to the attention of all concerned: "HOUSE BILL 1167 by Rep. Bryant of Malvern: This is the agreed worke(s compensation bill which was produced by the governor's ad hoc committee last fall. It went through both chambers with only one amendment being added. This wili suspend until September 1, 1976 the coverage of firms with only three employees. The previous minimum was five employees. Weekly benefits will be increased to a 577 maximum (up from $66.50) on March 1, 1976; $84 on March 1, 1977 and $87.50 March 1, 1978. Eighteen changes were made to meet the National Workmen's Compensation Commission's recommendations, The National Council of Compensation Insurance estimates that the average premium increase will be 9.5%," AMICUS CURIAE We take note that the Arkansas Judicial Department now has its own publication, "Amicus Curiae", - a fine service for the judges and lawyers in Arkan路 sas. In the August 1976 issue (Vol. 3 No. 2), the Arkansas Supreme Court's Per Curiam, dated July 19, 1976, is quoted in full. The Court has reached the conclusion that it will now sit in divisions in most cases. A division wllJ consist of four members (the Chief Justice normally sitting with both divisions). The basis for the conclusion and the new procedures are spelled out in the Per Curiam. The security Fund Committee Report Is also printed in the August 1976 issue.
This is an area of concern which lawyers do not like to recognize. The report should be read by members of the Arkansas Bar. ABA DELEGATE
Oscar Fendler, Blytheville attorney, was re-elected an Assembly Delegate to the House of Delegates, American Bar Association, in its Annual Meeting in August 1978 in Atlanta, Georgia. At each such annual meeting, all attorneys who attend may vote for the election of five Assembly Delegates in the 340 member House of Delegates. More than 8,000 lawyers in attendance at Atlanta were eligible to vote in the election, The successful candidate will serve a three-year term in the House. Oscar Fendler has been a member of the American Bar Association since 1933 and has served on numerous committees as well as having been Chairman of the Section of General Practice which has a membership of over 14,000 lawyers, He also served as President of the Arkansas Bar Association in 1962-63 and received in 1974 the Arkansas Bar Association Lawyer-Citizen Award, contlnu60 on page 40 January 1977/Arkansas Lawyer/39
ASSOCIATION "REPS" Representing the Arkansas Bar Association at the August 1976 meeting of the National Conference of Bar Presidents and the National Association of Bar Executives were Colonel C. E. Ransick, Executive Director: and Messrs Herschel H. Friday, Robert C. Compton, and Waiter A. Niblock, Presiden~ Immediate路 Past-President, and President-Elect, reo spectively (L to R).
LETTER TO THE EDITOR
AWARD OF MERIT
August 17, 1916
Colonel 拢. C. Ranslck
Anr..n$ll S.r AssochUon 400 lien "'rkh... litt!a RoKk. AR 12201
Dnr COI_' RanSlck:
I'd like to utend 10' cOIlgr.tulltlons on the uul1ent Profusion.l Lllbl11t)'
~~r~~lt=~l~l~ ~e:de~t~~u1~;~n~~~~I~r~~L:r~ ~:~;t~~et~ 11M! "quiet crhls" Uke" pllee within tile leg.l profusion.
Tlw!se .rtleln, together with the AEGIS stori!s )"Ou hln contfnlled to publish, will lIIldoubtlKlly pnl!vent ""1 of your rudel"S fro- .... peulll9 the s _ costly _!stlkU othe" h.n uperfenct'd. ""'rent'u of the probl. is eS$fnth.1 before lIunlngful p....ventlthe steps eln be In1tllted. VOIiI" efforh to cr'ute this IWll"l!neu. throU1lh articles of this nature, wt11 stgnHlclntly help prf1clpttate
corrective lellon. Our Pf'O'jI'" wlUl the Arklnus 611" Msoc:htion Is fo..-d on elM! prlr'IC1pel of .utlll1 coopention ~rd '-"ting the undl!rlylll9 UUS!!! of Profnslond Lilbl路 lit)' .1Ie9o'tlons. Th.nk you for ..king it work.
J. lIlIr,>er Il. L1ston
4O/Arkansas Lawyer/January 1977
The American Bar Association 1975 Award of Merit for Single Project Excellence was presented to the Sebastian County Bar Association at the ABA's Annual Meeting in August 1976. The plaque was presented by Chesterfield Smith to Robert L. Jones, Jr., a past president of both the County and State Bar Associations. The award was based upon the Sebastian County Bar Association's work with the Vietnamese refugees to introduce them to the American legal system and to provide them legal assistance prior to and following their relocation. The program was described as "a unique and outstanding bar association project". The project was headed by lawyers Robert Claar, Bill Thompson and Allan Wooten. !l-.....
Arkansas Eminent Domain Digest Compiled by the University of Arkansas for the Arkansas State Highway Commission.
Arkansas statutes Annotated 22 Volumes with Current Supplement $225.00. 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 lax 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.
REID'S BRANSON INSTRUCTIONS TO JURIES 7 VOLUMES WITH CUHRENT SUPPLEMENT
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