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January 1985

Vol. 19, No.1

THE

ARKANSAS LAWYER

THE PUBLICATION OF THE ARKANSAS BAR ASSOCIATION

SPECIAL FEATURES

REGULAR FEATURES

OFFICERS William R. Wilson. Ir., President

Don M. Schnipper. President-Elect Annabelle D. Clinton, Sec路Treasurer David M. "Mac" Glover, Council Chair Wm. A. Martin, Executive Director Iudith Gray. Assistant Executive Director

EXECUTIVE COUNCIL

Jack A. McNulty W. Kelvin Wyrick Gary Nutter William Russ Meeks 1II Kaye S. Oberlag Tom Overbey

Robert S. Hargraves Robert Hornberger

Joe Reed David Solomon Stephen M. Reasoner

James A. McLarty

chris barrier/out of context Women of the Law

in Arkansas. 1918 to 1959 by Jacqueline S. Wright Expanded Probation Services Viable Alternative to State's Prisons, by Gory Speed

EX-OFFICIO

William R. Wilson. Jr. Don M. Schnipper Dennis L. Shackleford Annabelle D. Clinton Martha M. Miller

"There You Go Again" Congress Changes the Rules for Low-Market Loans, by Craig Westbrook

David M. "Mac" Glover

EDITOR

Ruth M. Williams

The Arkansas Lawyer (USPS 546-040) is ~--------------------------------j published quarterly by the Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas 72201. Second class postage paid at Little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year included in annual dues. Any opinion expressed herein is that of the author. and not necessarily that of the Arkansas Bar Association. or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 400 West Markham, Little Rock, Arkansas

ON THE COVER: The Arkansas prison system has experienced continuous pressures in the past decade from an ever-growing prison population and spiraling costs. Little Rock attorney Gary Speed looks at the im pact of the Arkansas Adult Probation Commission. created by Act 151 of 1983. in helping to relieve these pressures through expanded use of supervised probation in the state. Speed. a former newspaper photographer. visited the Cummins Prison Unit while compiling his research and. in candid photographs. provides a visual report to accompany his article.

72201.

All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.

Photo by Gary Speed

January 19B5/Arkansas Lawyer/l

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THE PRESIDENT'S REPORT menced the sad singing and slow walking for the Fourth Amendment. The so-called "good faith" exception to the exclusionary rule was predictably adopted in U. S. v. Leon. 104 S. Ct. 3405 (1984). It will take another decision or two by the High Court. but. for all practical purposes. the fat lady has sung and church is out. Our founding fathers were outraged by warrantless. door-todoor searches by the British agents and soldiers. A guarantee against an unreasonable search and seizure was not a technicality

to them. In truth. however. this constitutional guarantee did not

"SAD SINGING AND SLOW WALKING" FOR FOURTH AMENDMENT By William R. Wilson. Jr. Having been "admirably schooled in every grace." I full well realize that it is gauche to quote one's self. Since. however, I am going to tell you. "I told you so," I must deviate from this everyday civility. In the Summer issue of the UALR Law Journal. I reviewed John W. Hall's book. Search and Seizure. and observed that: I hope John Wesley Hall. Jr. has not written a masterpiece on the art of hunting dinosaurs. He in-

dicates in his preface that he does not think so. With characteristic trial lawyer confidence. he chose to ignore predictions that the fourth amendment will be rendered impotent by Court decisions. Given the current philosophy of several Supreme Court Justices. some are not so sanguine about the

future of the exclusionary rule. and none but the most naive

would argue that the fourth amendment is naught but for this evidentiary rule. On July 5. 1984. the Supreme Court of the United States com-

mean much until 1914 when the Supreme Court first held that illegally seized evidence could not be used in federal courts. Weeks v. U. So, 232 U.S. 383. Incidentally. in 1961. in Mapp v. Ohio. 367 U.S. 643. the Supreme Court extended this protection to include illegal

a fear that illegal evidence might be suppressed? Those of us who have li tigated and/or presided in the courts where these issues arise. know

that the excl usionary rule has a definite deterrence value.

With all due respect to the judges who have voiced this point ("lack of empirical data"). they. unfortunately. have had precious little on-the-job training. They have not prosecuted. they have not defended criminal cases. they have not presided over trial courts which hear these cases firsthand. Anyone who has ever looked into the matter at all knows that it is extremely rare for a case to be dismissed because illegally seized evidence is suppressed. It is the threat of having it suppressed that deters governmental agents from stepping over the lines while they are engaged in the competitive business of ferret-

searches and seizures by state authorities.

ing out crime.

A grand experiment. All citizens-regardless of their place in

meaning only as long as the court is willing to give it meaning via the exclusionary rule. If the major-

society-were given protection against unreasonable searches and seizures. Le .. the Supreme

Court of the United States put teeth into the Fourth Amendment via the exclusionary rule.

Although champions of abolition of the exclusionary rule suggested alternative deterrence (such as civil lawsuits against

offending governmental agents). virtually everyone agrees the proposed alternatives were naive.

Each of the justices voting in favor of the "good faith" exception

The Fourth Amendment has

ity of the court are not going to reconsider their unwise course,

then I suggest that. "The right of the people to be secure ... shall not be violated" be changed to. "The right of the people to be secure ... should not be violated;" and the following parenthetical thought should be added at the end of the current Fourth Amendment provision ("but this prohibition is advisory only").

•••

to the exclusionary rule in this case, and on other occasions.

On to a happier note. As most of you know. the Supreme Court of Arkansas approved our Associa-

have suggested that there is no

tion's petition re interest on law-

"empirical data" to demonstrate

yers' trust accounts (lOLTA) on September 17. 1984. Implementation plans are proceeding apace. Soon we will have the opportunity to fund many worthwhile projects in the justice system. Working to-

that the exclusionary rule has a deterrence value. Think about this observation for a moment. What specific data could one gather to support or deny this proposition? What officer would ever testify that he or she has been more careful about entering a private residence or business because of

gether we can now tap a source of

funds heretofore unavailableand. Glory Be. at no cost to the lawyer or the client. Stay tuned. D January 19a5/Arkansas Lawyer/3

POINT OF VIEW/LETTERS

Resolution "Kneejerk, Unthinking"A Foolish Position (The following is an edited version by Congressman Ed Bethune of a letter he sent to President William R. Wilson, Jr., prior to the House vote.) By Congressman Ed Bethune September IS, 1984 Mr. Bill Wilson President. Arkansas Bar Association

Dear Bill: You are on the verge of leading the Bar Association into a foolish position on the question of judicial

The debate continues on the September 21 vote by the House of Delegates to "repudiate and condemn" efforts to screen

candidates for judicial office through in terrogation,

utilizing past, published decisions.

the errors of overzealous Pryor supporters, Arkansas Gazette

editorial distortions, and a myopic view of the separation of powers

problem. This kneejerk. unthinking posi路

tion, initiated by David Pryor partisans, has been publicized and promoted through you, an admitted liberal Democrat and supporter of David Pryor. You have abused your posi tion as President of the Bar Association by permitting the association to be used for political purposes. It is 4/Arkansas LawyerlJanuary 1985

to use the "worst evidence" one

could ever get in a dispute involving a Democrat and Republican, and that is the unrelentingly biased columns of the Arkansas Gazette editorial page. For the record, here are the facts: 1. In June, due to the high level of concern in my district I prepared and circulated a newsletter to my constituents. The lead article was entitled "Federal Judges Power is a Serious Problem." In that newsletter, I set out a threefold test for judicial selection:

(a) Judges should be fair, but tough on criminals. especially on drug offenders; (b) Judges should be committed to the belief that federal district judges should interpret the law, and that they have no business

selection.

I'm not concerned about the image of the few of you who have promoted or acquiesced in this development, but the thousands of lawyers who have had nothing to do with this matter and the association should not be damaged by

now used by the United States Senate. Lawyers have an obligation to get the facts straight before rendering judgement. Had you chosen to use the "best evidence," you would have never gotton yourself and the good membership of the Bar Association out on a limb. Alas, you were suspiciousIy quick

bad enough that you have made the charges you have without fair notice to me, but the real tragedy is that you have led the Bar Association on a witchhunt based on flawed information you received

from the poison pens at the Arkansas Gazette editorial board who have distorted my selection process beyond description. If you had developed the real facts or had relied upon the distillation found in the news, not editorial columns.

you would not be in this predicament.

Your resolution, inspired by the distorted record, would, if possed, undermine the process I used and taint the judge thus selected. Moreover. it would criticize and

call for an end to the very process

making the law: and (c) Selection should be on the basis of ability and qualifications, not on friendship or political party affiliation. 2. On June 29th, the Congress unexpectedly passed a bill which created a judgeship for the Western District of Arkansas. Three years ago, John Paul Hammerschmidt and I had agreed that I would take the lead on fill ing this one. House Judiciary Chairman Peter Rodino and other liberal House Democrats delayed the bill which created 85 judgeships in the United States. Now, Senate Democrats are attempting to block consideration of 40 federal

judgeship nominations by President Reagan. 3. On August 9th, George Wells, Arkansas

Gazette

news

reporter, accurately reported that I would ask each applicant about "certain Constitutional concepts and particular cases路路路 to determine his general view, especially on a judge's authority, without trying to extract pledges on how he will rule in the future." 4. On August 8th, I sent a letter to all individuals who had applied for judgeship wherein I said, "***, please understand that my interest in these and other cases that have already been decided is not to extract a pledge or even predict how you might rule in a particular case. It is solely to determine your general view on the nature and extent of a federal judge's authority." 5. On August 18th after the interviews were over, George

Wells, Arkansas Gazette news reporter, accurately re-

ported that he had contacted the three individuals who were recommended to the White House, and the all said that I was very careful not to ask how they would rule in particular cases.

The documents I have sent and the words I have said, as well as the reaction of those who were interviewed, indisputably show that I asked about the cases, concepts, and classic writings for the very limited purpose of determining what the applicants believe about the authority and responsibility of federal district judges. I direct you to the confirmation hearings of Justice William Rehnquist, Justice Sandra Day O'Connor, and Justice Harry Blackmun. According to transcripts of Senate Judiciary hearings on the nomination of Justice O'Connor,

Teddy Kennedy questioned her on abortion, birth control. and the Miranda rule. He also asked about the issues of judicial activism, supporting, of course, the belief that judges should be able to make the law. Kennedy and Senator Phillip Hart questioned Rehnquist about his judicial philosophy during confirmation hearings in November,

1971. Kennedy again questioned the judicial nominee about the Miranda rule, the Pentagon Papers case and asked Rehnquist if a specific case was brought up before the Supreme Court would he "feel obligated to disqualify" himself. In the confirmation hearings of Justice Blackmun, liberal Senator Birch Bayh questioned him on the cases of Nash V5. Swanson and Young vs, Mayer. lf we stopped here, one would suppose the rule to be that it's permissible for liberal politicians to ask about judicial philosophy, but not for conservatives to do the same. Fortunately, there is more fairness and wisdom in our sys-

tem. I hate to rub it in to you Pryor supporters, but I learned what I know about this process from

Senator John McClellan during the time he selected me to be and was trying to get my nomination as a Federal District Judge through the Senate.

Bethune Overstepped "Bounds of Propriety" By Winslow Drummond I have been asked to submit by October IS, 1984, this summary of my "point of view" relative to the controversial resolution adopted by the House of Delegates on September 21 in Fayetteville. J do so with the understanding that other "points of view" are being submitted independently and simultaneously by Dr. Robert Wright and Congressman Ed Bethune. Perhaps all of us will contribute to a formulation of guidelines for

January 1985/Arkonsos Lowyer/S

the future as requested by the House of Delegates. Mr. Bethune's announced procedure for the selection of designees for a newly created federal judgeship precipitated expressions of "outrage" which led to the preparation of the resolution. In the interim. Mr. Bethune stated that the Executive Council had "taken a dive" on the issue. and he demanded that the House vote approbation or rejec-

tion of his methodology. even requesting and being granted the courtesy of the floor. He got all that he wanted. While political partisanship may indeed have cdfected some votes in the House. those votes

were few. The partisan votes aside, the overwhelming majority of the delegates had to balance apparent involvement of the Association in politics. on the one hand. and taking a stand on Mr. Bethune's method of judicial selection. on the other. If this analysis is accurate, the final vote on the resolution is probably not a true reflection of House sentiment on the latter issue. The resolution. as submitted and ultimately adopted, condemned interrogation of judicial candidates with respect to particular court decisions. In my opinion. the resolution was too broad and. in a sense. missed the basis for the earlier expressions of "outrage." Taken literally, it repudiates what has been done historically by the Senate Judiciary Committee in public hearings. We have since heard from Senators Hatch and Thurmond. each decrying the resolution as adopted but without indication from either as to their knowledge of events which led to the House action. One can hardly argue with either Senator, as, again. the language of the resolution is condemnatory of each of them and of Committee tradition. My personal concern with the text of the resolution prompted a proposal to amend to condemn" ... 6/Arkansas LawyerlJanuary 1985

actions of any candidate for political office who would attempt to deceive the electorate by suggesting that his or her election may result in reversal of decisions. however unpopular. rendered by an independent judiciary." I felt that this language would not single out Mr. Bethune and. moreover. that any political candidate objecting to it would be labeling himself as deserving of condemnation. The chair ruled this proposal to be out of order. The narrow question. perhaps not even yet addressed with sufficient specificity. is this: What was "improper" about the Bethune selection procedure? Hopefully. this can be answered best by spelling out a "proper" approach. A candidate for elective office in Arkansas in 1984 seeks votes. The name of the game! The electorate is fuming about one federal court decision, in particular, and a number of decisions. in general. So. what's new? The candidate announces that his party. including even the President, has granted to him the power to select a federal judge. Wow! He expresses his abhorrence of "liberal activism" and assures us that he will name a "strict constructionist." Attaboy! He promises to conduct private interviews of applicants

with whom he will discuss Federalist Paper No. 78. Exciting! He identifies the applicants and, at the conclusion of the interview process. announces the names of his designees, describing each as o "strict constructionist" with a "judicial philosophy" compatible with his own. Well done! But this was not the complete Bethune scenario. He stepped over the bounds of propriety when he told the electorate on the front end that he would discuss privately with the applicants a number of continually controversial judicial decisions (e.g .• the federal exclusionary rule, school prayer. etc.). There is, of course. nothing wrong with discussing issues. however controversiaL in private with anyone for any reason. Participants in private discussions have the right to disclose all. part. or none of the subject matter. But here the entire subject matter was

publicized in advance. leaving the distinct impression and. in fact, dictating the conclusion that the approved applicants agreed privately with Mr. Bethune's oft stated views on matters such as

the exel usionary rule, school prayer, etc. And these are matters which today are being re-examined by the federal judiciary at all levels-presently pending cases before the courts. Mr. Bethune's hand was called through the expressions of "outrage." Immediately. he and his designees state to the media that the court decisions on the interview agenda were never discuss-

ed at all. Why not, if not improper? Mr. Bethune. in addressing the House of Delegates, repeatedly asserted that his private inter-

views were limited to a discussion of Federalist Paper No. 78. And yet. in a letter to William R. Wilson. Jr., of September 15. 1984. Mr. Bethune writes: "As you might recall. I ... discussed Mapp vs. Ohio with the recent Arkansas judicial applicants." Huh???

Association Has No More Business in Politics Than "Duck Has Making Friends With a Fox"

matter was tainted by the Senate race. then you should have been in Fayetteville. I went to Fayetteville solely for the meeting, and before I left Little Rock I had not talked locally to a single lawyer who favored this resolution. Moreover. to the best of my knowledge. I did not talk to a single lawyer

thing missing was that none of the reporters looked like Jack Lemmon or Walter Matthau in Front Page. Before the matter came up, at the time the agenda was approved, Charles Carpenter questioned whether we could take up a resolution at a special meeting of the House rather than at the annual or

Yer mighty foxy! Les' be friends!!

By Robert R. Wright The most controversial matter to

come before the House of Delegates of this association in many

years was the resolution disap-

proving of interrogation of judicial candidates on subjects on which they might have to rule. More specifically, the resolution was aimed at Congressman Ed Bethune and the process for appointing a federal judge to the bench in the Western District. This was a matter which should not have been brought before the House of Delegates. at least not at this time. It was hopelessly immersed in politics from start to finish, and it became even more so

with Congressman Bethune's appearance with the ever-present

television cameras and reporters. The best thing that could be said for this sorry affair was that we entertained the press royally at Our expense and maybe they will say something nice about us for a change. The Arkansas Bar Association is a voluntary professional association, not a political action committee nor an arm of either political party. It has no more business dabbling in politics than a duck has in making friends with a fox. But if you do not believe that this

who was a Republican. But the atmosphere at the Hilton Convention Center was quite to the

contrary. The resolution obviously had substantial support (although I thought it would fail until it finally passed), and most people did not talk about it except in the context of the campaign. One member of the House whom I taught and whom I respect told me that if it came down to a matter of Ed Bethune versus David Pryor, he would go with the latter because he was a Pryor supporter. Apparently. someone touched his conscience because he did not vote for the resolution when it finally came to a vote.

Let me describe this part of the meeting. Congressman Bethune

showed up just before the meeting with his wife, and he sat down up at the front of the room near the officers. Hovering at the ready were the TV cameras, kleig lights, and a bevy of reporters. The only

mid-year meetings. The rules say that the House can only do what Charlie said, but President Wilson (Bill, not Woodrow) ruled that we could. (I think that the rule should be changed to conform to what Bill Wilson interpreted it to mean.) It would have done no good to challenge this ruling at that point because the majority clearly wanted to air the matter. When the agenda reached the resolutions, Bob Ross, as chairman of the committee, reported that the committee had voted 5-0 against the resolution. The committee, however, did agree with some of the statements in the resolution and asked that a committee be appointed to consider whether guidelines were needed and, if so, to draft proposed guidelines for politicians who are involved with the judicial appointment process. The Resolutions Committee. incidentally, is composed of lawyers from Fort Smith, January 1985/Arkansas Lawyer/7

Paragould. Hot Springs. and Little Rock. and includes me. In order to take up the resolution. it was necessary under the

rules to have two-thirds of the House vote to take it up. The vote was exactly two-thirds. 32-16. At this point. the president gave Jim McLarty of Newport. the author of the resolution. ten minutes to present the resolution and his reasons for it. He did a good job of presenting his viewpoint. and I am persuaded from his presentation that lim was incensed professionally at what Congressman Bethune had done because he viewed it as improper.

Congressman Bethune then spoke for fifteen minutes. which was the time allotted to him. I am told Mr. Bethune's speech dealt in part with the professional aspects of his actions. which he defended largely on the basis that Senators do the same thing when interrogating Supreme Court nominees. and in part with his

Own political views. This latter aspect offended some members of the House who hold differing

"Dinner" being over. the press left. They did not wait long enough to see the House ultimately poss the resolution creatin~ a committee to consider writing

guidelines from judicial appointments-which is about the only affirmative act to come out of this milieu. I proposed the appointment of this committee not only because of the Bethune affair but also because of the situation which arose in David Newbern's campaign. I believe that we should address these issues and develop guidelines in order that these issues will not be immersed in personalities or be tainted by the heat of a particular campaign. As for what Ed Bethune did in fact. as opposed to what his letter said he was going to do while interrogating the judicial candidates. he clearly did not violate any rules of professional conduct. He did not discuss specific cases apparently. However. I question whether he would have violated any of the canons if he had talked about specific cases previously decided by the Supreme Court. My

views.

reasoning is this: Once a Supreme

When Winslow Drummond was then recognized to speak. and began to address the issue. the Congressman sought to engage him in a debate or dialogue. He was obvious I y angry. and Bill Wilson asked him to calm down. I do not think that Mr. Bethune's actions at that point set well with some members of the House. Win offered a separate resolution which Bill Wilson ruled out of order. There then ensued a good many speeches both pro and can. Eventually. I moved to table the resolution and urged the appoint-

Court decision becomes precedent. a district judge must either (a) follow it. (b) try to distinguish it. or (c) refuse to follow it and try to persuade the appellate courts that it should be stricken as precedent. The latter course is highly unlikely. Thus. a judge who does not like Roe v. Wade. for example. must either follow it or try to dis-

ment of the committee recom-

mended by the Resolutions Committee. The motion to table failed by only a few votes. There were then several more speeches, in-

cluding one by me saying about what I have said here. and the resolution passed 25-23. B/Arkansas LawyerlJanuary 1985

tinguish it in a particular lawsuit. Therefore, since these are prece-

dents which a district judge must either follow or try to distinguish. then why not ask him about any case from Marbury v. Madison up

to the present. For example. I do not like Holmes' decision in Pennsylvania Coal v. Mahon decided in 1922. He provided a loose formula for what constitutes a

taking under the police power that is presently giving rise to damage suits that I consider to be improper. Up until recently. most schol-

ars have believed that he did not mean to say that damages could be recovered. but most of the federal circuits (contrary to the state courts) seem to think otherwise. But if I were a district judge in Little Rock. I would have to follow at least the Eighth Circuit's view of what Holmes' meant with his loose language. Consequently. I see no reason to object to discussion of past precedents with lower court judges. It is true. of course. that a potential appointee should not comment on pending litigation or potential new litigation that might come before him. But I see nothing wrong with commenting on past Supreme Court decisions. although I realize that there are substantial arguments to the contrary-which is why we should have the guidelines. When the meeting in Fayetteville was over. I had the feeling that the bar association had been used by both the press and the politicians. No one likes that feeling. and I hope we do not have to go through it again. 0

LEITERS Dear Editor. I've enjoyed reading the recent articles written by local lawyers and non-lawyers. What really prompted me to write this month is the first of three parts. "A Record of the Past" by Frances Ross. I so much enjoyed reading it and so much appreciate seeing it in The Arkansas Lawyer. not only because I am a female. but that no doubt adds to my appreciation. Donna Gay Little Rock P.S. I am also enjoying the "Generations in the Law" series this month. and Chris Barrier's and Victor Fleming's articles. Keep it up! 0

Consider the evidence.

•

,•

,

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Law Literature & Laughter I

A letter received in response to

the October installment 01 this column was conspicuously without signature. In it the writer

shared with me the experience 01 his "first divorce liIe" when he was still a "brand-new" lawyer. The event apparently transpired in a town other than Little Rock, "at a courthouse." says the writer.

Courthouse Chuckles By Vic Fleming

"where the Christmas lights stay up all year, but are turned on only between Halloween and New Year's." The writer represented a housewife against a "religious fanatic"

appliance salesman. At the temporary hearing, over timely objection by counsel and repeated judicial reprimands, the husband and his lawyer-"a white-haired practitioner with a flamboyant style"made allusions to the wile's "alleged paramour." Custody and support were awarded the wile, and she expressed elation and gratitude to her young attorney. Then, the writer goes on, she made a con-

lession to him outside the courthouse: "Mr., there ain't nothing between me and that little so and so they kept talking about in there. But now I have committed a little adultery."

,

•••

\~.i. :?•.:. .•:.•:. •. •.:•. ; :\;\ ::;::::,::::::\::"

1.:: ::..•·.•. . .:. \

.~\ \ \ \..l\ \ \ \

.....:.:::.:-.:.:;:.;.:.: :

;

.

tions visiting courtrooms wherever

he travels. This summer, it seems, he happened into a certain court, the venue 01 which will remain a

A good chuckle in the courtroom is rare. When you get hold 01 one, it

secret. where an expert wi lness

can be a pleasant experience.

was in the final two hours 01 what had been a lull day 01 testimony. T. S. noted that the judge repeatedly asked questions about subject matter that had already been covered thoroughly by the man's erudite dissertation.

Recently in a venue which also

•••

client from the bench, he said that il the lawyers wanted to put specialfindings in the decree for purposes 01 "sending the case down." he would understand. Alter the dust had cleared and we were preparing to leave, I told the judge I liked the way he phrased the appellate concept. Some courts leel that an appeal goes "up." I told him. "Well." he said, without cracking a smile, "the way [ see it. from here it goes down the interstate." Some law suits are like mating elephants. They take place on a high level. They are acted out with a lot of roaring and screaming. And they take about two years to get results. 0

"When the guy finally was allowed to come down lrom the stand," T. S. said, "the judge said to him, 'Mr. Johnson, I am very impressed with your intelligence.' "Mr. Johnson grinned real big and said, 'Why, thank you, your honor. If I wasn't under oath, I'd return the compliment.' "

My Iriend T. S. Day 01 Arkansas Post called to tell me 01 a recent experience 01 his, also. Though, not a lawyer, he loves to watch trials. He olten spends his vaca-

Shortly alter the judge indeed rendered his decision against my

Editor's Note: "Law, Literature, & Laughter" is the brainchild of Victor A. Fleming, a member of the Hoover, Jacobs & Storey firm in Little Rock. Vic has been a member of the Arkansas Bar Foundation Writing Awards Committee since 1981. His legal and nonlegal writ-

ings have appeared in news· papers, magazines, and legal periodicals. Readers are invited to share humorous experiences with Vic for exposition in future issues.

•••

will remain a secret. except to say

that it is north of Pulaski county, my client seemed destined to lose at trial. Both sides freely admitted that the case was going to be appealed, whoever lost. January 1985/Arkansas Lawyer/II

IN MEMORIAM McClellan's successful campaign lor the U.S. Senate. He served in the Navy during World War II as a Lieutenant (Jg) aboard the U.S.S. Wisconsin. In 1948, Gooch was elected president of the U.S. Attorneys Conference, the first Southerner ever to achieve that distinction. He entered law practice in Arkadelphia following his service as U.S. attorney. In 1966, he considered running for governor.

James Thomas Gooch

James Thomas Gooch James Thomas Gooch, aged 70, of Arkadelphia, died Tuesday, October 23, 1984. He was an attorney with the firm of Lookadoo, Gooch and Ashby (formerly Lookadoo, Gooch and Lookadoo) and was a former United States attorney for the Eastern District of Arkansas. Gooch was state senator from Cross and Poinsett Counties from 1940-1944 and U.S. attorney for the Eastern District of Arkansas from 1946-1954. A native of Vanndale, he was the son of the late Samuel A. and Augustus Halk Gooch, and attended Arkansas State University where he was a three-year letter-

man in football and was twice captain of the team. Gooch was admitted to the Bar in 1940 after graduation from the Arkansas Law School in Little Rock. He entered the Navy in 1942 shortly after being the assistant manager of the late John L. 12/Arkansas Lawyer/January 1985

Gooch was a former chair of the Clark County Democratic Committee, served on the War Memorial Stadium Commission, lrom 1946 to 1967, and was a past president of the Arkansas Trial Lawyers Association. He was a vice president and director of the Elk Horn Bank and Trust Company. A member of the Arkansas Bar Association for 44 years, Gooch served three terms on the Legislation Committee and on the Federal Legislation and Procedures

Claude E, Love Judge Claude E. Love, aged 86,

01 EI Dorado, died Saturday, October 27, 1984. He served as chancery judge for the First Division of the 7th District Chancery Court from 1957 to 1969, when he retired. Judge Love was called out of retirement by the Arkanss Supreme Court several times to serve inter-

Constitutional Reform Committee. He was also a member of the American. Southwest Arkansas and Clark County Bar Associations and the American Judicature Society. Gooch was a member of the First United Methodist Church, a former member of the Administrative Board, served on the Little Rock Methodist Conference Finance Committee, was a member 01 the Little Rock Shrine Temple, American Legion and was a World War II

im judgeships for the chancery division and both criminal and civil sections of the circuit division. He retired again in 1972. Born in Dyersburg, Tenn., the son of the late Robert Marion and Lena Phillips Love, Judge Love came to Union County in 1914 to visit relatives and decided to stay permanently. He began working in sawmilling . became foreman of a sawmill in Felsenthal and studied law at night by the light of a coal oil lamp. The grade he received on the state bar examination was a record for 30 years. He was licensed to practice in 1923. In 1926, Judge Love opened a law practice in Norphlet. He moved to EI Dorado in 1931 and became deputy county clerk. In 1934, he was elected county clerk, a position he held in 1939 when he opened a law office. In 1957, he was elected chancery judge. Judge Love was a member and an ordained minister of the First Christian Church and taught the men's class at the church for 37

veteran.

years.

Survivors are his wile, Jean Hille Gooch; two daughters, Johanna Quinn of Jonesboro and Marilyn Kay Peterson of Tulsa; a stepson, Jo Bob Hille of Tulsa; a stepdaughter, Jana Bradley of Pineville, La.; three sisters, Sara Coldren of West Memphis, Elizabeth Coombs and Kate Meroney, both of Memphis; and, nine grandchildren.

He was a 37 year member of the Arkansas Bar Association and was a member of the American Bar Association. He was a Mason and a Shriner. Survivors are his wife, Mattie

Committee. He also served on the

Lou Ramsey Love; two sons, Max

E. Love of North Little Rock and Robert H. Love of Houston, Texas; a daughter, Mrs. Dorothy Love

,

Liner of El Dorado; a sister, Mrs. Dona Reynolds of Dyer County, Tenn.; and seven grandchildren and 11 great-grandchildren.

Robert Dale Hopper

Born in Little Rock, he was the son of the late Albert E. and Mrs. Nellie Willis Townsend. He was a graduate of Little Rock High School. Little Rock Junior College, the University of Arkansas and the University of Arkansas Law SchooL 1938. He was a 37 year member of the

member of the American and Pulaski County Bar Associations. He was a director of the Arkansas Heart Association and a Presbyterian.

He is survived by his wife, Martha Hiser Townsend of Little Rock. and a brother, A. E. Townsend of Little Rock.

o

Arkansas Bar Association and a

Robert Dale Hopper, aged 71, of West Memphis, died Wednesday, October 31, 1984. A native of Forrest City, Hopper was elected to the state House of Representatives from St. Francis County and served in the 1953 session. In 1970, he was appointed Crittenden County Juvenile Court referee and served six years.

While in that capacity, he was named to the executive committee of the Arkansas Association of Juvenile Court Judges and Referees for a three-year term. Hopper was a practicing attorney in West Memphis for 29 years. He was a 35 year member of the Arkansas Bar Association. Hopper attended the University of Arkansas and was a graduate of the Arkansas Law School. He was a World War II veteran, a member of the Veterans of Foreign Wars and the American Legion. He was also a member of the West Memphis Rotary Club, the West Memphis Masonic Lodge and First United Methodist Church. He is survived by his mother, Mrs. Hazel Hopper of West Memphis.

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Willis Townsend, aged 69, of Little Rock, died Monday, November 5, 1984. He was chief investigator for Ford, Bacon and Davis, the chief defense contractor for the Jacksonville Ordnance Plant. In 1945, Townsend was personnel director for the City of Little Rock. He entered law practice in 1946 with his uncle, the late Wallace Townsend, and practiced many years in partnership with his brother, A. E. (Jack) Townsend, Jr.

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14/Arkansas LawyerlJanuary 1985

chris barrier/out of context

Plain Englishfor Lawyers

l

of All People Plain English for Lawyers first appeared in 1978 in Berkeley's law review.' It has been expanded (but not much) by editor Richard C. Wydick. and is available from Carolina Academic Press. 2 It is not as much fun as Zinsser (quoted by Wydick) or even Strunk & White. But, if you're going to read and use one book on legal writing. this is it.

An age-old problem ... Wydick recognizes the problem: We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose.

Our sentences twist on, phrase within clause within clause. glazing the eyes and numbing the minds of readers.' He buttresses his argument with quotes from Thomas Jefferson, Aristotle and Bob Lellar, among others .•

Six principles to guide us ... He sets forth (in plain English worthy of Will Strunk) principles to guide our minds and pens: I. Omit surplus words. 2. Use familiar. concrete words. 3. Use short sentences. 4. Use base verbs and the active voice.

5. Arrange your words with care.

6. Avoid language quirks.' Wydick presents these principles without hammering on rules of grammar and usage.

A few verbal push-ups ... But, he does put you to work. Perhaps. the most valuable feature of this little book is its use of exercises. Wydick vividly illustrates each writing problem, gives his reader a shot at resolving it. and then gives his own suggestions. The exercises are not burdensome, but working them will vastly increase the book's value to you. While direct and to the point, Wydick is not unkind to us law-

lanuary 1985/Arkansas Lawyer/IS

yers. He recognizes that word processing gives us less occasion to review (and perhaps pare down) our prose. Further. computer research systems give us far more information to manage. Hence, our increasing wordiness is not entirely our own fault.

Freo and cler ... He also explains the sources of some of our bad habits. such as the tautology-convey and assign. good and valuable. arbitrary and capricious, etc. Our English legal ancestors frequently had to use at least two languages to make their meaning clear to different groups of readers-Celtic and AngloSaxon. English and Latin. English and Norman French. "For example, free and clear comes from the Old English freo and the Old French der ... ",6 which mean essentially the same thing. We have simply continued the habit long after any practical purpose remains for it. Wydick knows how to distinguish "working words and glue words" and just plain clutter.' The worst clutterers are compound prepositions. How many times do we use in the event that when a simple if would do the job? Or subsequent to when all we mean is after? Some word clusters, according to Wydick,can simply be dropped altogether. such as the fact that and in the case of. In Wydick·s examples. he regularly trims familiar sounding legalisms by 30 to 40"10. Vividness and punch can be achieved by using short sentences, the active voice and concrete words. rather than rambling abstractions. It is no accident that Wydick. like Zinsser. recommends the Old Testament' as a self-teaching tool to polish these skills.

A plague of lawyerisms ... Lawyerisms also drain power from our prose. strangling the life from it and crushing comprehension. Some legal shorthand. such as res ipsa loquitur. is useful and actually saves words, but, as a general rule, a "lawyer's words should not differ without reason from the words used in ordinary English."" Wydick would discard some lawyerisms altogether, imagining tS/Arkansas Lawyer/January

1985

a dining lawyer saying: ··The green beans are excellent; please pass said green beans."" Try the same approach with aforementioned. aforesaid. hereinafter. arouvendo. ratio decidendi. and query. You get the idea. Length can also be deadly. as Mark Twain observed: At times [the writer] may indulge himself with a long [sentence]. but he will make sure that there are no folds in it. no vagueness, no parenthetical interruptions of its view as a whole; when he has done with it. it won't be a sea-serpent with half its arches under the water; it will be a torch-light procession. 11

fering the slings and arrows of journalists and other purists. However, clarity and economy of expression are not hallmarks of the legislative and political processes. Wydick also demonstrates other transgressions to avoid, such as throat-clearing, sexism, noun chain confusion, elegant variation. and unintentional ambiguity.l-4 His ultimate aim is to save us the sort of embarrassment (or its modern equivalent) visited upon a verbose sixteenth century English lawyer by his impatient judge: The chancellor first ordered a hole cut through the center of the document. all 120 pages of it. Then he ordered that [the lawyer] who wrote it should have his head stuffed through the hole, and the unfortunate fellow was led around to be exhibited to all those attending court at Westminster Hall." D

In twenty-five words or less ... Wydick suggests limiting sentences to one main thought; keeping them (as the contests suggest) to twenty-five words or less; and breaking up sentences which are necessarily long and complex by tabulation. 12 However. he has little hope for legislators. not all of whom are lawyers. Section 631(a) of the California Penal Code. dealing with telephone taps. contains at least 18 separate thoughts bound up in 242 words. Section 341(e) (I) of the Internal Revenue Code packs 522 words into the same passage, perhaps an indoor record. 13

Just the true facts. rna'am ... Perhaps. this phenomenon encourages legislators to add unnecessary words, even in ordinary conversation and press conferences. David Pryor will probably avoid future references to "true facts" and ··false facts:' after suf-

.'

FOOTNOTES , 66 Z

3 4

~ 8

Cal. L.

Rev. 727 (19781.

Send $4.50 to P.O. Box 8795, Forest Hills Station, Durham, NC 27707. Wydick. page 3. Wydick, page 4. Wydick, page 65. Wydick, page 18, citing D. Mellinkoff, The Language of the Law, 38-39, 121-22 (1963).

Wydick. page 7. Wydick, page 25, citing Exodus 8:7. I Wydick, page 29. lU Ibid. II Wydick, page 38, Citing quotation in E. Gowers. The Complete Plain Words 183 (Fraser rev. ed. 1973). IZ Wydick. pages 39-40. 13 Wydick, pages 33+34. 14 Wydick, pages 63, 59-60, 59, 57-58 and 49-56, respectively. n Wydick, page 3, citing Mylward V. Welden (Ch. 1596), reprinted in C. Monro, Acts Cancellariae 692 (1847). ?

8

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Women of the Law In Arkansas I

1918 to 1959 By Jacqueline S. Wright Approximately 150 women were admitted to practice law in Arkansas from the time the privilege was granted until 1959. Forty-four are listed in the 1960 edition of Martindale-Hubbell. Twenty-one were in Little Rock or North Little Rock. The others were all over the state: Arkadelphia. Blytheville. Clarksville. Conway. Cotter. Crossett. El Dorado. Fayetteville. Ft. Smith. Harrison. Hot Springs. Jonesboro. Lewisville. Marshall. Morrilton. Mountain Home. Prairie Grove,

Stuttgart, Texarkana. Wilson. and Wynne. Who were these women who chose the law? What skills did they bring to the profession? Why did they choose the law? What were they like? I have spent the last two months searching for the answers to these questions and have found a wealth of material. However. the stories of many of these women are lost through time. Therefore my research is incomplete and my evaluations are thus subject to question. But I will add some literary license, some intuition, and

some educated guesses to the facts at hand and draw some conclusions about the women lawyers of Arkansas. 1918-1959.

Following a Family Tradition A number of them are from law families where the practice is a

tradition. Elsijane Trimble Roy followed in her father's footsteps in the grandest manner. She now presides over the same federal courtroom that he occupied. Nancy Daggett White. of the Eastern Arkansas Daggetts.' studied law but uses her talents teaching high school and college students. Her daughter. Ellen. is a lawyer who is a law clerk for the Arkansas Supreme Court. Two of the earliest law-daughters were Ethel Jacoway Hart. admitted in 1929. and Mariperle Houston Robertson. 1932. Ethel's father was chief justice of the Arkansas Supreme Court. 2 Mari-

perle's brother was also a lawyer. Zonola Longstreth. 1933. and Patricia Robinson. 1951. practiced law with their fathers---Zonola in Little Rock and Patricia in Lewisville. Arkansas. Others whose fathers were lawyers were Gladys Milham Wied. 1941; Erie Chambers. 1920; Mary Burt Nash. 1934; and Frances Holtzendorff. 1940. Ann Arnold Hastings. 1946. Ruth Lindsey. 1940. and Ruth Dexter Vines. 1949. each have a brother who is a lawyer. Bill Arnold. from Crossett. and Bob Lindsey. from Little Rock. hold prominent positions in the Arkansas bar. Ruth Vines' brother chose to use his legal training in the business world. Frances Shaw was admitted to practice in 1933. Her uncle was Chancellor Frank H. Dodge. who January 19S5/Arkansas Lawyer/17

sat in the First Judicial District. Rebecca Norton, 1929, was originally from Forrest City and may have been related to Charles W. Norton, who practiced there with his son, Nathan. The future generation includes

David Orsini. son of Dorothy Orsini Jones, 1938. Dorothy left the state a number of years ago but David practices in Little Rock. Clyde Calliotte's daughter will soon receive her license to practice law in Massachusetts. Judge Roy's son, James Roy, practices in

Springdale, Arkansas. The youngest Daggett has already been mentioned. The list of women who were married to lawyers is almost as

long. Ruth Brunson earned her law degree in 1941 then married and worked while her husband studied law. Dorothy Howard, 1947, and Neva Talley-Morris, 1947, read for the bar in their husbands' law offices. Lily Carmichael received her law degree from the Arkansas Law School in Little Rock, then married the dean, Judge J. H. Carmichael. She was named registrar of the school and continued in that position until Judge Carmichael died and the school was incorporated into the University of Arkansas system. Other women whose spouses

were or are lawyers are Elizabeth

Gregg Young Huckaby, 1931, whose first husband was Federal District Judge Gordon E. Young; Ruth Wassell Gibb, 1937, whose husband was also mayor of Little Rock; Mabel Mahony, 1930, who married Emon Mahony and practiced with him in El Dorado; and Mary Burt Nash, 1934, whose husband, Bill. is a partner in the Rose Firm. Mary Bullion, 1940, is married to Chancellor Bruce Bullion; Bernice Parker Kizer, 1947, was married to a descendant of Ft. Smith's famous Judge Isaac C. Parker; Marian Penix, 1949, practices law with her husband Bill Penix, in Jonesboro. Judge Roy practiced law for several years in Blytheville with her husband, James. So numerous are the family con-

Photograph of the Little Rock Association of Women Lawyers taken about 1950 at the Sam Peck Hotel, Front row: Lavita Gibson, associate member: Effie Combs, Dorothy Orsini Jones, Glendine Hill Greene, Ruby Hurley, Neva Talley-Morris, Back row: Mary Measler, Ruth Hale, Frances Shaw, Lela Bentley, Margarite Wolfe, Lois Morgan Faust, Alma Lowrey, Chancery Clerk Arline Turner, associate member; Assistant Chancery Clerk Ealey Red, associate member; Evalyn Rhodes, Mariperle Houston, Hazel Bob Pearson, Gladys Lucy. This photograph is reprinted with permission of the National Association oj Women Lawyers.

father, son, spouse or brother of a lawyer who happens to be female. Close family connections be-

Assembly invited the Supreme Court to promulgate rules for the admission to practice. 5 The rules

tween lawyers are not unique to

did not provide for any exceptions to examination until they were re-

Arkansas. A study was made of men and women who graduated from 108 accredited law schools during the ten year period from 1956 to 1965. One of the findings was that 28% of the women and 25.6% of the men had a parent, grandparent, uncle or aunt who

was a lawyer. 3

Varied Educational Backgrounds

ansas were again given the

diploma privilege. In 1949 the Supreme Court again revised the rules to require that a candidate for the bar must complete at least two years of pre-law study in a college approved by the Board of Bar Examiners. In addition, they must complete 1250 classroom hours in an approved

Qualifications for the license to practice changed drastically during these decades. When women

law school or study in a law office for four years. The diploma privilege was thus revoked.' The addition of education re-

were first qualified to practice.

quirements may have had more

graduates of the law department at the University of Arkansas were

impact on the men than the

not required to take an examina-

that "most of the women [at the Arkansas Law School in Little Rock] had some college but most of the men did not." The women brought a variety of

nections between male and fe-

tion. All others were "to be exam-

male lawyers that one should be careful what one says. A chauvin-

ined in open court ... "4 But there were no minimum education re-

ist remark could be said to the

quirements. In 1917 the General

IS/Arkansas Lawyer/January 1985

vised in 1927.' At that time law graduates of the University of Ark-

women. Ruth Vines remembers

I

educational backgrounds to the profession. Many were teachers. Some have masters degrees.

Others prepared themselves to be independent by taking business courses. Lois Dale. our first female

judge, had an undergraduate degree from Lindenwood. a women's

college in Missouri. and a law degree from Tulane.' Bessie Florence and Virginia Darden Moose. 1921 admittees, had degrees from Vanderbilt. Ms. Florence also had a masters degree from that school. and a law degree from George Washington Law School.' Other women studied closer to home. Jean Woolfolk, 1947, earned a Bachelor of Science in Business Administration from the University of Arkansas, at Fayetteville." Judge Bernice Kizer and Marian Penix received undergraduate degrees and law degrees in Fayetteville." Neva Talley-Morris earned her B.A. at Ouachita and later a masters from the University of Texas.1:l

Judge Elsijane Trimble Roy and a few other women in addition to Judge Kizer and Marian Penix studied law at the University of Arkansas in Fayetteville; but most of them lived in Little Rock and took advantage of the local institution, the Arkansas Law School.

Choosing Law: The Factor of Economics They are not so different from other women; and what they did was not bizarre. They are responsible, intelligent individuals who for one Teason or another wished to be prepared to earn a living and desired to practice an occupation that would give rewards-monetary and otherwise-as well as a challenge. All of us have been asked this question from time to lime, informally. Aurelle Burnside, 1921, who practiced for many years in El Dorado, answered it in a major address to the Arkansas Bar Association at the 1936 annual meeting. Her summary was eloquent and poetic: "She is lured into the profession by her intellectual curiosity about legal problems and judicial processes, the varied human interest which attaches to the work, its steady opportunity for growth, the wise perspective it offers, the constant men-

Law partners of NAWL member•. distinguished speaker. Henry A. Gait. New York City. left. and Robert D. Hudson. Tulsa. at Arkansas Bar ASSD. midyear meeting. Shown also are Glendine HilL left. Little Rock Assn. Women Lawyers president and Neva Talley. NA WL president.

tal stimulus. training in values. the independent position in society it offers, and the fact that it frequently opens a path to political and judicial honors and the opportunity for high public service. "13 An in-depth examination of anyone's decision to qualify for the law practice would uncover a complex combination of reasons for choosing the law. Numerous factors influence one's career choice. Availability of role models is illustrated by the number of women and men in law whose close relatives were lawyers. Economic conditions will also encourage one to upgrade skills. The number of women admitted to practice during these four decades mirrors the unemployment chart. In the 1930s double digit unemployment coincides with the two years when we had double digit female enrollments. The farm depression of the early 1920s also coincides with a peak in females entering the legal profession." Although a statistician would not consider the variance significant. A study done in 1967 at the University of Michigan Law School confirmed the fact that women enter the profession for economic reasons. The percentage of women who attended law school in order to have a career with good remuneration exceeded that of the males by a statistically significant margin. Other motivations for this career choice were measured but they were not reported." A variety of reasons are given by Arkansas women. At least one decided to be a law-

yer at a very young age. Judge Roy can't remember exactly when, but it was either the first or second grade. She planned her education with that goal in mind. Neva Talley-Morris grew up in an extended family populated by career-oriented boys. and was accustomed to engaging in com-

Author's Note: The span of time covered in this article overlaps some of the years covered by Frances Ross in the first part of this series. However, the subjects are different: therefore repetition is minimal. Much of the material presented in this article was learned from interviews with Judge Elsijane Trimble Roy, Ruth Husky Brunson, Ruth Dexter Vines, Dorothy Howard, Neva Talley-Morris, and Clyde Calliotte. These women graciously opened their files and their memories to assist in this project. Although a few of the facts are within my own memory. I could not have written the paper without their help. To avoid the complexities of endnote references to their statements of facts the author takes all responsibility for error or omission. Editor's Note: Jacqueline S. Wright has been the Arkansas Supreme Court librarian since November J. 1979. She served as a law clerk to Judge Elsijane T. Roy in 1979. Her publications include the Handbook for Appellate Advocacy in the Arkansas Supreme Court and Court of Appeals, 1980 and Supreme Court Rules Manual, 1980.

January 1985/Arkansas Lawyer/19

Women Admitted to the Bar-1918 to 1959 Year

1918 1919 1920 1921 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 1937 1938 1939 1940 1941 1942 1943 1944 1945 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959

No. Women Admitted I

Percent

Unemployed

2 7 5 I

0 4 4 7 8 7 5 5 3 12 8 5 13 0 6 6 1 4 2 2 2 0 1 2 6 3 2 2 6 0 4 0 3 I

0 0 0

1.4 1.4 5.2 11.7 6.7 2.4 5. 3.2 1.8 3.3 4.2 3.2 8.7 15.9 23.6 24.9 21.7 20.1 16.9 14.3 19. 17.2 14.6 9.9 4.7 1.9 1.2 1.9 3.9 3.9 3.8 5.9 5.3 3.3 3.0 2.9 5.5 4.4 4.1 4.3 6.8 5.5

petition. She won the cup in a statewide

geometry

contest.

majored in math in college, then taught school. She advanced her career in education by earning a masters degree in school administration which qualified her to be a public school principal when most who filled these positions were men. A career in law was seriously

considered when she finished

her to do and she wanted to be prepared. And there was. She has built an institution-the U.A.L.R. School of Law Library. Clyde Calliotte wanted to do something more with her life than be a secretary. Law was the best option that was available to her. It

has given her the opportunity to do many interesting things. Ruth Dexter Vines wanted to earn a better living for her children. As a girl she was taught that "every tub sits on its own bottom." so she took business courses before she left home to seek her fortune. But the skills she learned did not allow her to make enough to support her children when she was left alone. She knew she needed an education to get a better paying job so she enrolled in the Arkansas Law School. She never aspired to be a trial lawyer but perceived law to be a discipline that would qualify her for any field of endeavor that she wished to pursue. A false start as a music teacher led Effie Combs first to a number of secretarial positions and some temporary jobs, then to the Attorney General's office where she was the warrant clerk. When Mary Measler, her friend and housemate, and a legal secretary, decided to study law Effie liked the idea and joined her. 16

All of these women are interesting individuals. They are different from the norm because they had the courage and tenacity to enter a

male-dominated profession. Yet they are not unlike others of their educational and intellectual levels. A study of the career plans of a group of college women showed no significant difference between the women who chose careers in

personality variables measured were relationships with parents, dating frequencies, and participation in extra-curricular activities. 17 They were a handsome group. An early chronicler of women's

to Little Rock and married a lawyer. Ruth Husky Brunson learned the law so she could "save the world." It didn't enter her mind that she

careers noticed that "[m]any, many of them are young-and many of them are good-looking, and many, many of them practice with their husbands."" The description fits a photograph of the Little Rock Association of Women Lawyers. Included are sixteen of

tion. She believed that there was something important waiting for

20/Arkansas Lawyer/January 1985

have been outfitted by the writer of Dress for Success.

They were friends as well as colleagues. They banded together as a support group and welcomed new members with an annual din-

ner. Neva Talley-Morris explained: "We were not competitive with each othe:. We helped one another." The beginnings of a "good-old-girl" network was partly responsible for Mary Burt Nash being appointed Pulaski County's first Juvenile Court referee. In conclusion, the woman law-

yer in Arkansas is a member of the law family, is well educated, entered the profession for sound reason and is, all-in-all, someone to be proud of. 0 FOOTNOTES L

Robert R. Wright. "The Daggetts of Eastern Arkansas." The Arkansas Lawyer. 18

(October, 1984), 172. l

3

"Senior Class of 1929," Ark-Law. 1930. James J. White, "Women in the Law." Michigan Law Review 65 (ApriL 1967).

1051. • 1873 Ark. Acts. no. 88; Gantt's Digest.

450-451. Act. March 28.1917. p. 1786 § 1; Crawford & Moses § 596-599 (1921). • Act 199 ot 1927, § p. 673. , Rules of the Supreme Court of the State of Arkansas. September. 1954, p. 5. I "In Memoriam," Proceedings of the Thirty-Eighth Annual Session of the Bar Association of Arkansas. 1935. pp. 283-284. I "Memorial-Bessie Newsom Florence," filed Nov. IS, 1971. Supreme Court Clerk. La "Members Added to UALR Board." Arkansas Democrat. Saturday. May 25. 1974, p. 9A. II "New Chancellor Hopes Win Encourages Other Women." Arkansas Gazette, Sunday. June 23. 1974. p. 22A. II "Neva B. Talley." Who is Who in Arkan5

sas, vol. I, (1959), 223-224. l]

male-dominated professions and the others in the group. Among the

college hut was not pursued until fifteen years later when she moved

could improve her economic posi-

Arkansas' best attorneys and three court clerks who were welcomed as associate members. Each could

U

L5 II

Aurelle Burnside. "The Woman Lawyer-Why?" Proceedings of the Thirtyninth Annual Session of the Bar Association of Arkansas, (936). 141-146. These figures were compiled from the Directory of Women Lawyers in Arkansas. January. 1979. and the United States Census. White. 1069-70. 1118. Thomas Allen Bruce. "Southern Kinswoman: Effie Elizabeth Combs," Pulaski County Historical Review. 29 (Summer.

1981); 35-43. " Elizabeth M. Almquist and Shirley S. Angrist. "Career Salience and Atypicality of Occupational Choice Among College Women." Journal 01 Marriage and the Family. 32 (May. 1970); 242-249. I I Inez Irwin. Angels and Amazons. A Hundred Years of American Women. quoting Alice Ames Winter in The Heritage 01 Women. (Garden City. NY:

Doubleday, 1933), 301-302.

,

Profiles Judge Elsijane Trimble Roy

state's first woman circuit judge. Across the room, another first for women is Governor David Pryor's commission naming her to the

Breaking

Arkansas Supreme Court in 1975. In 1977, she became the first woman Iederal judge in Arkansas when President Jimmy Carter named her to the bench for the Eastern and Western Districts. At that time, she was the sixth

the

woman sitting as a federal district

Barriers A Precedent Setting Career By Ruth Williams

When things get tough for Judge Elsijane Trimble Roy a quick g lance across the courtroom lets

her know she's not alone. On the wall opposite her bench hangs a photograph of her father, the late Judge Thomas C. Trimble, who occupied the same room more than

28 years ago. Perhaps columnist Ernest Dumas, with the Arkansas Gazette, described her background best when writing that "she came from a family steeped in jurisprudence." Judge Roy's father served on the bench from 1937 to 1956, as a district judge and later chief judge for the Eastern District. Her grandfather was active in the Trimble, Robinson & Trimble firm in Lonoke until his late 80's and her mother's father, though not an attorney, was active in law enforcement as

a United States marshal. Her uncle is the late Senator Joe T. Robinson of the Trimble, Robinson & Trimble law firm. "When I was a little girl, up until I was in the fourth grade, I wanted to be an aviatrix. Then, after that. I decided that I wanted to be a law-

yer and I never changed my mind from the fourth grade," Judge Roy, a Lonoke native said. "I just wanted to be a lawyer." In 1939, Judge Roy, now U. S. District judge for the Eastern and Western Districts of Arkansas, achieved her goal and was admilled to the Arkansas bar. She was the only woman in her graduating class.

"My first year, there were three women in my class. The other two dropped out after the first year, but

judge and was strongly backed by Senators Dale Bumpers and John L. McClellan. Judge Roy was born and reared in Lonoke, and, after receiving her law degree, she practiced there a short time. In 1940, she became associated with the firm of Rose, Loughborough, Dobyns & House in Little Rock. After the War, she associated with the firm of Reid, Evrard and Roy in Blytheville and went into practice with her husband in the firm of Roy & Roy in 1954. She was serving as a law clerk to Supreme Court Justice J. Frank Holt when named a circuit court judge by Gov. Faubus. "When Gov. Faubus called me to come to his office, I said, 'Well, aren't you sort of brave? You don't even know me.' I'd never even met

no professor, no individual ever

Gov. Faubus. I had campaigned

told me I couldn't be a lawyer," she said. "If you've got a father. a grandfather, and even further back, a greatgrandfather in law, then you're going to think that way." She recently sat at her desk in her chambers, dressed in red jack-

against him in the Hardin cam-

et. tie and brown slacks, sur-

rounded by mementos of the accomplishments of her life. Family photographs abound, as do plaques commemorating the many barriers she has broken for women in Arkansas.

The items behind her desk include a plaque marking her 1966 appointment

as

circuit

court

judge, of the sixth judicial district. by Governor Orval E. Faubus when she became, at age 50, the

paign. (Joe C. Hardin, of Grady, opposed Faubus in the 1960 Democratic primary.) No one could have been more shocked when Gov. Faubus called me," she said. Judge Roy points out that her appointments are from various

political spectrums. "On the one side, I have an appointment from Orval Faubus and on the other, one from Win Rockefeller and who could have two more divergent governors

appoint you to positions," she said. (Rockefeller named Judge Roy in 1967 to the Constitutional Revision Study Commission.) It took faith, luck, good friends and professional loyalty and dedication for her to succeed, she said,

January 1985/Arkansas Lawyer/21

Photo by John Cary

Surrounded by family photographs and plaques marking the many barriers she has broken for women in Arkansas. Judge EJsijane Trimble Roy sees the federal bench as her 'last plateau." A "born again. deep water. loud-shouting Baptist." she said this is "what the Lord wants me to be."

adding that she had never asked for any of her appointments and in each case had been called "out of the clear bl ue sky," She has never run for public office and has a reputation for "meticulous research and crisp opinions" and. according to Dumas of the Gazelle. her ap22/Arkansas Lawyer/January 1985

pointment to the Supreme Court was "the most uniformly praised in

the legal fraternity, where Mrs, Roy is esteemed for her intellect and her singular background for the job," Prior to being appointed to the Arkansas Supreme Court she was an assistant state attorney general

and. later. was senior law clerk to U.S. District Court Judge Paul X. Williams. She said she thought she had reached her last plateau as Judge Williams' law clerk. "I took two senior law school students to lunch and told them, 'Well. now. you girls, the world's open to you. You're following

along 20 to 30 years after my time in law school and you can just do anything you want. Now, I'm satisfied with my job and Judge Williams wants me to stay with him as long as he's judge and 1am going to stay and don't expect to do any great things. But. I'm expecting you two girls to do great things," she said. The next week she was appointed to the Supreme Court. "It may be more difficult for a woman to succeed." she said, "but the same requisites apply for both men and women." She named en-

thusiasm, enjoyment of your job, hard work and luck. "I think 1 was lucky," she said. Judge Roy considers herself neither a "booster nor detractor" of

the women's liberation movement. She is "certainly for equal opportunity" and thought the Equal Rights Amendment would pass in Arkansas. "I attributed that loss to the women of Arkansas and not to the men. It was defeated by Phyllis Shaney and the women that lobbied against it and 1think that they are misguided. It means exactly what it says-no more, no less. And, all it says is that all citizens shall have equal rights and appropriate laws will be enacted to see that they do," she said. Of her success, Judge Roy said, "The Lord has blessed me richly. 1 just think that I've had the most wonderful opportunities." Roy recalled her confirmation hearing before the U.S. Senate on being appointed to the federal bench. "You know in the campaign, Ed Bethune (Republican senatorial candidate in the 1984 general election) made an issue of the fact that judges should be asked questions and so forth and stated that was the method which Sen. McClellan followed. 1 was talking to one of the other iudges who was named when Sec{: McClellan was in the Senate, and we both agreed that Sen. McClellan never asked either one of us a question. However,

when 1 was in his ollice prior to appearing before the Senate Committee, he said, 'Elsijane, they're going to ask you some questions

and 1 know one question they're going to ask. You want me to tell you what it is?' "I said, 'Yes sir, I'll think of a good answer.'

" 'WelL they're going to ask you if you're a born again Baptist.' and 1 replied, 'Well Senator, 1 have the perfect answer to that. I'll say, 'Yes, indeed. I'm a born again, deep water, loud-shouting Baptist,' " she said. She added, "I think that these doors have opened because this is what the Lord wants me to be," On the issue of judicial selection, Judge Roy said, ''I'm not concerned about any major changes in the manner in which they (federal judges) are selected." This appointment is her "last plateau," she said. "I hope to do as well as 1can right where I am. It's a lifetime appointment. unless Judy Petty and Tommy Robinson get it changed." Her free time is spent collecting music boxes, rooting for the Ark-

crnsos Razorbacks. swimming, and playing kick ball and t-ball with her grandson, Tommy. "He thinks I'm his age and its just a little difficult at 68 to keep up with a seven-year-old," she said. She describes her granddaughter, Allyson, as a "beautifuL lovely, sweet. intelligent lady" of nine years, and her son Jimmy as an "outstanding" Springdale attorney. "About two years ago, they were at my house and Tommy picked up my father's gavel which he used on the bench for 20 years and started waving it around. Jimmy went over

and explained to him what it was. By that time Allyson was holding the gavel and looking at it and 1 said, 'Maybe Allyson will want to be a judge some day,' She said, 'No way, I'm going to be a nurse or a teacher.' Tommy immediately grabbed the gavel and said, 'I'll be the judge.' " "I think one of them will go into law." Judge Roy said.

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Ruth Husky Brunson

Building from a Dream to Accreditation She shelved the first book and now, 20 years later, an institution

stands with 100,000 books and microfilm to her credit. Ruth Husky Brunson sees a dream fulfilledan accredited law school stands on the University of Arkansas at

Little Rock campus. "I begged, I took books from anybody that would give them to us, we bought books from a book dealer. Do you understand what it means for someone to carry your

debt?" she said. A smile crosses her face as she recalls a book dealer who came to visit her one day. "He came when I was shelving books from the Pulaski County Law Library over into the Gay Building and somebody else had made the appointment for me. And, he kept saying, 'I'm so and so and so and so, I have an appointment with you.' "I said, 'I'm sorry, sir, but I have some help today to help me shelve books and they won't be here tomorrow so we've got to go do it.

We've got to go shelve.' "And, he said, 'But, I told you, I'm from so and so.' 24/Arkansas LawyerlJanuary 1985

"And, I said, 'I don't give a hoot in hell who you are, or where you came from. I've got to shelve these books.' "Well, that guy turned out to be one of the best friends we ever had. He sold us books, he sent us invoices that were not dated and when we would get money at the end of a fiscal year, we would date the invoices, send him a copy and pay him," she said. Mrs. Brunson took the job as law librarian at the UALR-Pulaski County Law Library in 1965. She had graduated from law school 24 years earlier, was 49 years old, a widow and the sole support of her mother, Ollie. Her husband, John, also an attorney, had died in Charlottesville, Va.. at the close of nearly 10 years of military service.

"My mother and I decided to come hack to Arkansas because we were two widows. and, that

after all, is home and that's where family is. When I went around trying to get a job, people said, 'What do you want?' I said, 'I want a job where the premises are attractive,

the level of conversation is above

the seventh grade and the people with whom I'm associated have broader horizons than from Lonoke to Benton,' " she said, Personnel people told her she'd never find that job because she was "too old," "I was too educated and I had too much experience," she said, "I almost educated myself out of Arkansas as it was."

Her first struggle was to become a lawyer. a profession she strove

for long before her enrollment in night classes at the Arkansas Law School in Little Rock, A native of Prescott, Mrs, Brunson received an Associate Arts Degree in 1935 from Central College in Conway and sought work, "I did what all ladies did at that time, I taught schooL" she said. She recalls one student by the name of Will Carl. "He came to school one day and said, 'Mrs. Husky, I ain't got my 'rithmetic because I ain't got no pencil to get it with.' And, I decided I could never teach them." she said. Her father was known as "a leader of the community in the farm program," and her mother, selected master farm homemaker one year. acted as county "nurse. visiting the sick with the area's country doctor, 'Td hear her tales that this is old lady so and so's last day, probably. I just couldn't stand the thought of that so I knew I couldn't do anything for humanity that way," she said, "I couldn't stand the sight of blood." However, "I thought if I could go to law school I might could do something for my fellow man," she said. "I thought maybe I would either learn to draft laws to be passed, be influential enough to get them passed or perhaps interpret the law so that we could all do better." Her father "gave me a little lecture that girls don't go to law schooL" she said, Her brother had just come home from the Univer-

-

Photo by John Cary

As one of four women in her entering class at the Arkansas Law SchooL Ruth Husky Brunson was not welcome, but she persevered. "You're hooked if that's where you belong. It's a field that's never ending. And. you're not going to leave it because you're going to stay in there and fight," she said. Alter a 20 year career at the University of Arkansas at Little Rock Law Library. a glance at the Brunson Post. to her left. lets Mrs. Brunson know her light has made a difference.

sity of Arkansas at Fayetteville believing in evolution and "daddy thought that Fayetteville was no place for his daughter." Instead, he encouraged her to attend the Draughons School of Business in Little Rock and she reo ceived a General Business Certificate from there in 1938. "Before I got out of Draughons I had made a deal with Judge Carmichael (dean of Arkansas Law School) to work part-time in his

office for part of my tuition," she said. She was one of four women in her class and not welcome at the law school. "The fellows let me know from the beginning that I

It's a field that's never ending. And, you're not going to leave it because you're going to stay in there and light." she said. She graduated in 1941 with honors. But. she had obtained a

was not welcome."

degree from an unaccredited law

With one fellow student she learned to "stand up flat路 footed and spell out the words for s.o.b. and called him that."

school. Whether she knew it at the time or not, a second struggle was

But, she persevered. "You're

hooked if that's where you belong.

underway.

She married John during World War II. When he got out of the Army and wanted to go to law January t985/Arkansas Lawyer/25

school, she persuaded him to attend the U of A at Fayetteville campus---an accredited school.

"WelL where do you suppose I worked" while he was in school? "I worked as Dean Lenar's secretary because there was no place for a woman lawyer," she said. "I was a good secretary and I loved and admired Dean Lenar." In 1950, she and John set up the Brunson & Brunson law firm in Prescott. Soon after, he was called to the military. John died in 1959 and she returned to Little Rock with Ollie, where she held different jobs unrelated to law. In 1961, she was hired as a law clerk to Arkansas Supreme Court Justice Paul Ward.

will spend our fee money on books.' " she said. More than 100,000 books and microfilm belong to the UALR Law School library. The Pulaski County Law Library Fund pays rent to the Arkansas Bar Foundation for its part. And, between 30,000 to 40,000 books, nearly all the cassette tapes, the library tables, shelving and some office furnishings belong to the Pulaski County Law Library. The Governor's Quality Higher Education Study Committee has proposed that out-of-state experts survey the law school situation in Arkansas to ascertain the need for

"The nicest thing that Judge Ward ever said to me when I

two campuses. The Arkansas Bar Association's Law School Committee is also studying the situation at the request of the U of A Board of

worked for him is. 'Now, you're

Trustees.

thinking like a man.' Not, 'Now you're thinking like a lawyer.' 'Now, you're thinking like a man.' .. she said. She was offered a job to work as the dean's secretary at the U of A night law school campus in Little Rock and turned it down because the salary was low. Then, in 1965, when the law librarian for the Little Rock campus did not show up for work, she was called again. This time with an offer of more money.

"I took it for more money, and, I wanted there to be an accredited law school in Little Rock." she said. "That's why I have worked so hard. As a woman, I still make less money.

joint

have to be better provisions,

money-wise." she said. "I think there is a place for a law school in Little Rock so long as people are going to have to work and go to

night school." A second problem she said, is that appropriations have not kept up with the price of books and she fears "we'll be one of the first libraries to experience bankruptcy."

"We don't know how long the accreditation people will go along with our sad story, 'Arkansas is

Mrs. Brunson began as one of the library's first three employees. Today, there are 12. The library is a

The law school's future is a problem which concerns her. "I just ask everybody, 'Please don't get me into the fight between the law schools. And, I do think there is a place for both. But. there's going to

venture between the

Pulaski County Bar Association and the UALR School of Law. The

poor.' Now, apparently, Arkansas is not poor. Because, I understand

there is a lot of money here. Tall buildings are being built and money is being made. But, it is not

flowing into the law school." she

two operate as one library.

said.

"It's the Pulaski County Law Library that made our school possible," she said. "What the lawyers in Little Rock said, 'If you'll build an accredited law school-let us phase out the Arkansas Law School-then we

She proudly adds, however, that "Nobody (at the UALR School of Law) will have to apologize for their degree."

26/Arkansas Lawyer/lanuary 1985

Mrs. Brunson's law library training came from seminars held by the American Association of Law

Libraries and "I learned as I went." For the seminars, "we read for

months and months, went to

school all week, and studied cataloging, management, acquisitions, legal bibliography, civil law," she said. Between 1965 and 1972, she received four certificates from the AALL. In 1976, she received law librarian certification from the Association.

During the 10 years that Mrs. Brunson taught Legal Bibliography at the UALR School of Law, she kept her eye on the number of females in her classes, watching for female enrollment figures to increase.

"I know when I would teach, my mother would say, 'How many black students do you have?' And, I would say, 'I don't know but I can tell you how many girls I have.' " The number did increase, especially over the last ten years.

"We'd go to women lawyers (meetings) and the women would say, 'How many do we have this year?' and I know we were so excited to have as many as three." she said. (The 1984 entering class at the law school is 52 percent female to 48 percent male.) She recalls one female graduate who told her she would have quit "many a time" but she kept saying to herself. "Mrs. Brunson won't let me."

Standing somewhat regal in the law library is the "Brunson Post." On it are several awards, includ-

ing the John H. Brunson Memorial Award, given each year to the person who has contributed the most lime to the UALR Law Review. Also on the post are a special Award of Merit from the Pulaski County Bar Association to Mrs. Brunson for her exemplary service to the legal profession and the community, an award recognizing her outstanding lawyer-service from the Association and Arkansas Bar Founda-

tion, and an Outstanding Alumnus Award from the UALR School of Law. ''I'm not sure that with all my

efforts I've made any difference. I look at that post and I guess I did," she said. On July I. 1986, she will retire at age 70, with 21 years of service to the law library. She looks back, when asked how the library grew and remembers: "There used to be a cafeteria in the Worthen Bank Building where all the faculty used to eat ... There's a little area out around there that has shrubs built where people sometimes sit on the concrete and we were coming out and there was

the Arkansas Democrat. I looked all around, nobody was there, and I picked it up.' "Dean Walsh said, 'What are you gonna do with that Democrat.' "And, I said, 'I'm gonna take it back and put it in the library.' "He said, 'Ruth, is that the way you've built the library?' "And, I said, 'Yes.' " 0

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Expanded Probation Services:

Viable Alternative to State's Prisons By Gary Speed A motorist traveling a remote highway in Faulkner County passes a string of persons carrying

trash bags, combing the ditches for paper, cans and bottles. The persons range in ages from about 17 to mid-50s. Most are white males, averaging about 25, give or take five years. Several are female. The motorist may appreciate the fact that the highway is cleaner but probably doesn't realize how much tax money is being saved by the crew. The savings come not only because the crew is not paid, but because the state is not having to pay to keep them in prison. They are on probation.

The Arkansas prison system has experienced continuous pressures

in the past decade from an ever-growing prison population and spiraling costs. A study sponsored by the Arkansas Association for Community Improvement. a non-profit

organization, and directed by Linda J. McGarity of Little Rock, convinced the Arkansas General Assembly to pass Act 151 of 1983 [Ark. Stat. Ann. ยง42-l30l et seq (Supp. 1983)j which is helping to relieve these pressures through expanded use of supervised

probation in the state. More importantly, it is hoped that the recidivist rate for offenders will be substantially reduced and that the probationers will return to peaceful. productive lives. Act 151 created the Arkansas Adult Probation Commission to supervise a statewide probation system. The AAPC has consolidated all probation services previously conducted from a variety of sources in the various judicial districts across the state. It has also expanded the availability of probation services into areas where they had not previously been available. It hopes to cover the entire state soon. The AAPC consists of five criminal circuit judges and four private citizens, appointed by the Governor and confirmed by the Senate. Presently, the members are Judge Randall Williams of Pine Bluff, chairman; Judge John Langston of Little Rock; Judge Hugh Lookadoo of Arkadelphia; Gary Speed is an associate with the Rose Law firm. He is a former law clerk for federal Judge William R. Overton and is a former newspaper photographer.

January 1985/Arkansas Lawyer/29

Photo by Gary Speed

Probation "clients" in Conway ride city truck to trash pick up location as part of community service work. 3D/Arkansas LawyerlJanuary 1985

Photo by Gary Speed

Hoe squad cleaning ditch at Cummins Unit, ADC. Judge Cecil Tedder of Searcy; Judge Mahlon Gibson of Fayetteville; Michael O'Brien of Jacksonville, vice chairman; Lucretia McDonald of Blytheville, secretary; James Haddock of Lake Village; and Rev. David Stewart of Mount Nebo. McGarity is now

have their criminal records

for life. They can be rehabilitated and put back on the "right track." If they fail. probation can be revoked by proof of a violation by a preponderance of the evidence and the originally available sentence imposed. He also noted the danger which existed in his district w here parole officers doubled as probation officers. He said probationers and parolees are very dillerent and require very dillerent approaches by their supervisors. Mixing the two around the same location was also undesirable. The ADC ceased all probation services July I, 1984. Persons sen tenced to probation are primarily first offenders of non-violent crimes. Conditions of probation vary among districts and probationers. Generally, the probationer or "client" (the preferred term used by the probation officers) must agree to not violate any law, to not associate with any known felon, to not abuse drugs or alcohol. to not possess any firearm, to support his dependents, to remain employed or to obtain the training or education to become employed, to

expunged without being branded

remain in the area and to

executive director of the commission.

Judge Randall Williams noted recently that probation services in his district and the rest of the state were only "piecemeal" prior to the AAPC assuming responsibility on April I. 1984. The Arkansas Department of Corrections assigned parole officers who performed some probation services in Pine Bluff and Judicial District 11 W, along with a few other areas of the state. The Pine Blull Junior League assisted with its Volunteers in Courts program. In other areas, probation ollicers were hired by the judicial circuits or by the counties. Many areas had none.

Judge Williams explained that probationers may avoid the taint of being a convicted felon. They may

cooperate and communicate

regularly with his probation ollicer. A monthly probation fee may be required, generally ranging 510-15. Restitution to the victim is required. If an attorney was appointed to represent the defendant, the client may be required to pay his fees. Payment of a fine and court costs may also

be required. The term of probation is generally three years. but may vary from one to ten.

Some judges and probation officers require community

service. especially if the probationer is unemployed. Judge Williams said his probationers work for numerous agencies

around Pine Blull-the fire department. civic center. convention center and University

of Arkansas at Pine Bluff. Judge George Hartje of Conway also requires extensive community

service from probationers. Probation officer Nan Barrett of Conway said most probationers

are required to serve 26 to 52 days of community service. The time can be worked off all at once or one day a week. Most participate in the Saturday work crews. lanuary 1985/Arkansas Lawyer/31

Study The Arkansas Association for Community Improvement was created to study probation systems in other states to develop a

proposal for the Arkansas legislature. McGarity. a former probation officer. studied systems in Texas. Illinois. Georgia and Pennsylvania. Some states place probation services under the direct supervision of the local courts. others under the state supreme court and others under the department of corrections. McGarity's proposal to the legislature suggested that the state needed a statewide mechanism for funding and insuring uniform standards. but which gave the courts a high degree of local autonomy. Alter presentations to the Legislative Council by representatives of the four states. the AAPC was modeled alter the Texas probation system.

The stated purposes of Act 151 are "to make probation services available throughout the State. to improve the effectiveness of probation services. to provide alternatives to incarceration by providing financial aid to judicial districts for the establishment and improvement of probation services and community based correctional programs and facilities other than jails and prisons. and to establish uniform probation administration standards." The AAPC is supervising about 5.000 clients presently. Another 10.000 persons are on unsupervised probation or received suspended impositions of sentences. The AAPC is funding salaries for 32 probation officers and supervising another 15 funded by various counties. The Commission began operating with about $700.000. It will spend about $274.000 for probation officer salaries in 1984. The AAPC estimates that 6.980 persons will be on supervised probation by June. 1985. and that this will grow to about 33.200 persons in four years before equalizing. It anticipates 210 probation officers will then be required. Presently. each officer handles about 150 cases. 32/Arkansas LawyerlJanuary 1985

Probation in ArkansasA Comparative Analysis In 1983. 2.171 offenders were received by the Arkansas Department of Corrections. If only 10"10 of the 2.171 offenders had alternatively been sentenced to probation the economic impact would have been significant: Direct Prison Cost 217 offenders at $25.00 per day x 365 days (A very conservative figure which does not reflect inter-agency budget transfers to the D.O.C.) = $1.980.125.00 Direct Probation Cost 217 offenders at $1.00 per day x 365 days = $ 79.205.00 Direct Cost Differential $1. 900. 920.00 If only 20% of these 217 offenders (20"Iox217=43). who were employed and supporting dependents at the time of their incarceration. could have remained in the community. Goods 81 Services Not Purchased 43 breadwinners at $7.000.00 per year = $301.000.00

Entitlements Paid Possibly the most costly consequence of sending an offender with a family to prison is the Public Service entitlements that the family becomes immediately eligible for. Various entitlements totaling $4.000.00 per family per year. at 43 families - $172.000.00 Community Service As a condition of probation. offenders are required to repay the communities they have violated against in the form of community service.

At 20 hours of work per year. a very conservative amount. for the 217 hypothetical offenders. its economic value to the

Income Taxes Not Paid communities, at minimum wage, Income Taxes Not Paid On That would total over = $14.750.00 0 Income at approx. 2% of Total (Sales tax on the expendable portion of this income would also be significant) = $ 6.020.00

Figures accumulated by the AAPC indicate that Arkansas has the highest proportion of property criminals to violent criminals in its prison population of any state. Property offenders exceed violent criminals three to one. The 1981 national average of adults sentenced to probation was 63 percent while in Arkansas only 33.5 percent received probation. Arkansas sent 29.4 percent of its convicted criminals to prison. while the national average was only 18 percent. Economics Economics is a real selling point for expanded probation. McGarity

said probation services cost about $1 per day per clien!. The cost of incarceration estimated by the Arkansas Department of Corrections for fiscal year 1982-83 was$20.86 per day foran inmate in prison. Additional costs to society include the loss of taxes. the cost of welfare and other social programs for dependents. the loss of productivity in the economy and the loss of fines. restitution and legal costs. The AAPC estimates that Arkansas would save$11.5 million a year in direct institutional costs if its probation. parole and incarceration figures matched the

Photo by Go'}' Speed

national averages. Arkansas

would have 3,333 more persons on probation and that many less in prison, jail or on parole. In determining this amount. it computed the cost of probation at $0.95 per day, parole at $ I. prison at $19.86 and jail at $20. Creativity Judges and probation officers have been developing creative ideas lor probation. Community service is a prime example. In Conway, probation officers Greg

Phifer and Nan Barrett have used the probation labor force to assist setting up a local charity fund-raising bazaar, to pick up trash, to cut brush around Lake Beaverfork and to move bleachers for a local rodeo. The trash cleanup crews have worked Highway 64 from Conway to Vilonia and Highway 36 to the White County line. "Everyone is very aware ot the crew and the work we do," said Barrett. "We have gotten a lot of

lavorable publicity." Probation officers confront a

variety of personal problems wi th their clients. They try to help solve the problems by helping them find jobs, get education or counseling.

The Hot Springs Literacy Council is beginning a program to assist

Garland County probation clients with reading skills, according to McGarity. Probation officers help arrange drug and alcohol abuse treatment counseling through local mental health centers. Some January 1985/Arkan.as Lawyer/33

Photo by Gary Speed are taking special efforts to find jobs for clients. For example, Harry Whitted, a probation officer from Osceola, has begun a program to develop employment opportunities for clients in Clay.

Greene, Craighead, Poinsett, Mississippi and Crittenden

ADULTS UNDER CORRECTIONAL SUPERVISION, YEAREND 1981

counties where unemployment is

high. Success The ultimate goal of probation is to make the client a productive, law-abiding citizen. Judge Williams said his recidivism rate with Pine Bluff probationers was only about five percent. Statewide, he estimated it to be about ten percent. "Probation is not for everyone,"

said McGarity, "but it is a way to weed out the ones we can work

with. Supervision minimizes the risks for the judges and makes it easier for them to give someone

probation. If you see the person back on the street. doing what he's always been doing, then you don't like it. It gives probation a bad name. We're trying to change that by doing our job." 0 34/Arkansas LawyerlJanuary 1985

The Nation: federal, Stale and Local Totals

Prison 18%

Arkansas: Slate. Regional and Local Totals

Prison 29.4% Probation

33.5% Probation

63%

Parole 25.S'\,

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_LOCATION OF EXISTING PROBATION OFFICERS 2 CIR 2 CHAN

Having tentatively established that probation will be utilized as a sentencing alternative in the future, the next point is to determine what thIS option will have on the criminal justice system in Arkansas. Biennium 1986/1987: Based upon a recent Arkansas Adult Probation Commission field survey, it has been forecasted that by late June, 1985 there will be approximately 6,980 individuals on circuit level probation caseloads:

ASHur I CIA

I CHAN

I) Old circuit level probation cases which will have yet expired 4. 400 2i New probatIOn cases added since the A.A.P.C."s creation 1_. 700 3) Probation cases transferred to circuit depts_. from OOC BBO Total 6,98Q.

With the 46 circuit level probation officers currently employed in the state, the average caseload will be approximately 150 cases per officer. A figure which is at the higher range of a manageable case load.

O-LOCATION OF NEW AAPC PROBATION OFFICERS .-LOCATION OF AAPC PROJECTS

Given the state's population and the number of felony informations flIed in Arkansas circuit courts each year, it is possible to calculate that approximately 8,300 new cases could be added to the probation caseloads each year. Given an average sentence to probation of four (41 years, the state caseload would eventually reach equilibrium at approximately 33,200 cases. However. until the state reached its probation officer manning ceiling of approximately 210 officers, caseloads will be limited by the number of officers there will be to supervise them.

January 1985/Arkansas Lawyer/35

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36/AIkansas Lawyerflanuary 1985

Generations in the Law: A Series David M. ("Mac") Glover. of the Glover & Glover law firm in Malvern. is chair of the Arkansas Bar Association's Executive Council. What are his "legal antecedents?" Let's go back to the last century. On January 18. 1868. David D. Glover. Mac's grandfather. was born on a farm in Grant County. He was educated in the Arkansas public schools and taught school for the first ten years of his adult life. After that. he became a merchant. but after a short period in this endeavor. he decided to beCorrection: The following passage was omitted from the article by Robert R. Wright on "The Daggetts of Eastern Arkansas"

which appeared in the October. 1984. issue of The Arkansas Lawyer. We apologize for the editing mistake

which resulted in the omission 01 the article's final paragraph. which reads: "To date. there have been no Dog路 gett governors and no evidence of any desire by any of them to be governor.

Thus. Old Stonehill may rest assured.

that the lawyers Daggett are not possessed of 'little ambition.' but indeed are 'famous pleaders' and advocates.

As such. they have-like the mythical lawyer Daggett, the champion of Mattie Ross. in True Grit-faithfully served their clients and the legal profession as they will doubtless continue to do in the years to come."

come the first lawyer ever in the Glover family. After reading the law" intensively at work and at home. he appeared before Judge W. H. Evans and Colonel E. H. Vance in Hot Springs for an oral examination. Near the end of the interview. Colonel Vance said. "There is one final question that I deem important. If we license you and you are in your office and a client states facts which you considered a valid case. what would you do first?" David D. Glover didn't hesitate-he replied. ''I'd ask him about the fee." Colonel Vance exclaimed. "You get 100%'" On Christmas Eve. 1891. Judge Glover married Roberta Quinn. Nine children were born of this marriage: Linnie (Mrs. E. O. Kilpatrick). Olive Glover Kyle. and Marguerite Glover McCoy; Bernard. Quinn. David. William (Bill). Julian and Lawson. Four of the boys became lawyersQuinn. William. Julian and

Judge Glover and his wife were faithful members of the First Baptist Church in Malvern all of their adult lives. The Judge had a consuming interest in Ouachita Baptist University. where he served as

a member of the Board. Lawson Glover's favorite story about his father was told by Circuit Judge Henry Means. Sr. (father of Circuit Judge Henry G. Means. Jr.). Alter Judge Glover had successfully defended a man charged with stealing a hog. Judge Means asked the defendant what he had paid Dave Glover. "Half a hog." the happy man replied. After his "retirement" from public office in 1933. Judge Glover returned to Malvern and practiced law vigorously until his death in 1952. He was 84 years of age at the time of his death.

Quinn Glover

Lawson.

In 1913. Judge Glover was elected prosecuting attorney of his District and served two terms. In

1926 he was elected to Congress from Arkansas' Fourth Congressional District. He served three terms as a congressman-until

he was defeated by one John L. McClellan of Sheridan.

Quinn Glover. eldest of Judge D. D. Glover's lawyer sons. attended the public schools in Malvern and graduated cum laude from Ouachita Baptist University in 1918 (his mother. incidentally. had been one of the first students at Ouachita). In 1927. he graduated from the Arkansas Law

Doing Good in Your Village:

The Glovers of Malvern By William R. Wilson,

JI. January 1985/Arkansas Lawyer/37

In 1977, Mr. Glover was recognized by the Arkansas Bar Association for fifty years of distin-

School in Little Rock. He commenced his law practice in the Glover Building on West Markham, across from the north end of the Pulaski County Courthouse, i.e., if you haven't figured it out.

guished service.

Bill Glover and his wife, Bertha McRae Glover, live in Malvern

it was where the Bar Center now

where they are both active in civic

stands. This building had been constructed by his father when the elder Glover planned to make Little Rock his home (although he later changed his mind and never moved from Malvern to Little Rock). Quinn Glover formed a partnership with the late Carl Langston in 1946 and they expanded the firm later to include Mr. Langston's son, John Langston, who is now a circuit judge in the sixth Judicial Circuit. In 1958, he was elected municipal judge in Little Rock and was re-elected in 1960, '64 and '68. He was held in such high esteem by the public and lawyers that he drew no opponent in any of his

and church affairs.

races.

Judge Quinn Glover was a student of the law and a highly respected judge, but he was probably more widely known for his devotion to Masonry and the Shrine. One of his obituaries referred to him as the "Mr. Mason of Arkansas." A favorite courthouse story about Judge Glover in Little Rock involved a Masonic function in Chicago in 1950 where he reportedly kept then President Harry S. Truman waiting. In her book, "Arkansans of the Years," Ms. Faye Williams described the incident this way: "He (Judge Glover) was handling the imperial potentates' official banquet. which is marked by a lot of protocol. President Truman attended, surrounded by city detectives, FBI agents and Secret Service men. About 150 distinguished guests were to be seated at the head table. As they came in, Quinn gave them seating instructions.

... But early in the evening, the head of the Secret Service informed Quinn that 'the President is ready to come down.' Judge Glover, who was not ready for the President replied, 'I would suggest that you go back to the President and tell him to kill about fifteen minutes more talking with the Chicago politicians.' " 38/Arkansas Lawyernanuary 1985

Robert Julian Glover

Quinn Glover After a distinguished civic and legal career, Judge Quinn Glover died in Little Rock on May 28, 1970.

William H. Glover William H. (Bill) Glover graduated from Malvern High School. Ouachita Baptist University and attended the Arkansas Law School in Little Rock and the University of Chicago Law School. He was admitted to practice in 1927 and joined his father, David D. Glover, in Malvern. During his years of practice, he has served two terms as city attorney of Malvern and two terms as prosecuting

attorney for the Seventh Judicial District. Bill Glover volunteered for military service early in 1942 and served until he was discharged as a major in 1946. In addition to his law practice in Malvern. he became interested in

business ventures and at various times has had an interest in the

ownership and/or management of numerous businesses. including a large sawmill in Louisiana. a

hardwood flooring company in Mississippi. a nursing home and two construction companies in

Arkansas, and three brick plants in Mississippi.

In addition to his other business and legal interests, Bill Glover has served as a member of the

Board of Directors of the Bank of Malvern for over thirty years.

Robert Julian Glover, born April 12, 1909, graduated from Malvern High School and Ouachita Baptist University. He married Loretta Hill in 1934. Julian Glover was admitted to the Bar on July 6, 1936, and entered the practice of law in Hot Springs in that year-he maintained an active practice in Garland County throughout his career except for military service during the Second World War. He was the last Hot Springs lawyer serving the War effort to be released, but returned from Germany in time to work vigorously in the successful effort of the famous "GI ticket" which overthrew the "McLaughlin machine" at Hot Springs. After serving as acting city attorney in Hot Springs, he was elected prosecuting attorney for that District in 1947 and served two terms. In 1953, he returned to private practice and established the law firm which came to be known as Glover. Sanders. Parkerson

and Hargraves. A brass collar Democrat, Julian Glover was chair of the Garland County Democratic Committee for thirty years. He served as president of the Ouachita Area Council Boy Scouts of America, and received the Silver Beaver Award, the highest council award presented to adult Boy Scout leaders. He was also an active Mason and Shriner. And, as one might expect, he was a devout Baptist, serving as a deacon in the First Baptist Church at Hot Springs. Julian Glover died in April of 1982, after a long and distinguished career at the Bar. His widow, Mrs. Loretta Hill Glover, has established a scholarship in his memory at the University of Arkansas School of Law at Little Rock.

David M. "Mac" and Dorsey D. Glover. in Hot Spring County Courthouse. hold a portrait of their grandfather. the late Congressman David D. Glover. which hangs in the courtroom. Seated. from left to right. are Lawson E. Glover. Sr.. and William H. (Bill) Glover.

Lawson E. Glover. Sr. Lawson E. Glover, Sr., is the sixth son and the eighth of nine children born to Congressman and Mrs. David D. Glover. He is married to Maxine McGee Glover and they have two children, Dr. Lawson E. Glover of Little Rock and David M. "Mac" Glover of Malvern. Lawson Glover graduated from Mal vern HighSchool and Ouachita Baptist University. He was admitted to practice law in Arkansas in January of 1938. He was city attorney of Malvern from 1952 to 1958 and was prosecuting attorney in the Seventh Judicial District from 1958 through 1964. Lawson Glover, in keeping with family tradition, has been an active Baptist and served as a Deacon and departmental Sunday School superintendent of his church in Malvern for many years. He also served as a member of the Board of Trustees of the Baptist Memorial Hospital in Memphis, Tennessee. In keeping with another family tradition. he has also received the Silver Beaver Award from the Ouachita Area Council Boy Scouts of America. He has

Robert Julian Glover been extremely active in the Malvern Lion's Club. having served as district governor and also as a board member and president of the Arkansas Enterprises for the Blind in Little Rock. After a distinguished career, Lawson Glover retired from the active practice in 1981. but remains "of counsel" to the Glover law firm in Malvern w here his sons, Mac, and Mark Robert maintain the practice. Lawson and his wife have trav-

Dorsey D. Glover eled extensively since his retirement.

Dorsey D. Glover Dorsey D. Glover, son of Bill Glover. is the "senior" Glover lawyer in the third generation. Dorsey completed undergraduate and law school at the University of Arkansas at Fayetteville, receiving his law degree in 1959. After a stint in the Army. he returned to Malvern to practice law with his father. January 1985/Arkansas Lawyer/39

In addition to practicing law, he, like his father, has acquired extensive business interests in Arkansas and other states, (In pro-

electing him president of the student body, Again following the family tradition, he is an active Baptist, and serves as a departmental Sunday school superintendent in the First Baptist Church of Malvern, Mac served in the House of Delegates of the Arkansas Bar Association from 1978 through 1980 and has been a member of the Executive Council from 1980 to present. And, as stated earlier, is chair of the Executive Council for the 198485 Bar year.

viding a rather extensive resume, reflecting many accomplish-

ments, Dorsey apologized for the length of the document. but noted that, "It's a pore frog that don't praise his own pond. ") There is one area of endeavor where Dorsey Glover has differed materially from his kinsmen. He is an active member of the Presbyterian Church. The other "legal" Glovers have been (and are) rockribbed Baptists. In short. Dorsey D. Glover is an entrepreneur deluxe and attends to his multiple business interests while carrying on the Glover legal tradition.

David M. "'Mac'" Glover Now, back to Mac Glover, the chair of our Executive Council. Mac graduated from Malvern High School. and attended undergraduate school and law school at the University of Arkansas at Fayetteville, receiving his I.D. degree in 1969. He was admitted to practice in 1970, and, after serving for a year as an assistant attorney general. he returned to Malvern to practice wi th his father, Lawson Glover. He was deputy prosecuting attorney from 1974 through 1976 and he was city attorney for Malvern from 1974 to 1980. Mac is married to Michele McCright Glover, and they have two children, David Parker Glover (age twelvel, and Valerie Michele Glover (age nine). (It should be noted parenlhetically-probably to the chagrin of most of the Glover family-that neither Mac nor Dorsey attended Ouachita Baptist University. where all nine of Congressman Glover's children attended.) In the tradition of so many of his kinsmen, he has been extremely active in the Boy Scouts of America from an early age. He reached the Eagle Scout rank in high school and was awarded the District Award of Merit in 1980 and the Silver Beaver Award in 1984. In both high school and college, Mac's classmates honored him by 40/Arkansas Lawyerlianuary 1985

u.•

Congressman Glover preached "doing good in your village" (as the Prophet Micah admonished us), and it is obvious that he has stood at the elbow of his descendents down through the yearsand it appears certain that this family tradition will continue. D

Editor's Note: William R. Wilson. Jr., of Little Rock and president of the Arkansas Bar Association. is a member of the Wilson, Engstrom and Vowell law firm.

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"There You

Go Again" Congress Changes the Rules for Low-Market Loans By Craig Westbrook

One has to be slightly masochistic to attempt to write a tax article as long as the 98th Congress is in office, although I suspect that the 99th Congress may be worse. Changes in the tax law are now coming at intervals too frequent to publish in an article. This is my second attempt to write an article for this edition; the first was aborted by a fickle Congress. My misfortunes are a reflection of the rapidly changing tax environment in which we practice.

current changes so that we may adequately represent our clients. This article will discuss one aspect of the imputed interest rulesthe new interest-free, or more ap-

propriatel y. "below-market" loans. The article will briefly discuss the background of the belowmarket provisions. recent case his-

tory. and more im port an tl y, the new law and some of its ramifications.

Background

Nevertheless. as practitioners. we

In recent years. interest-free

must attempt to stay abreast of

loans have been a popular planning technique, as well as one of the more popular subjects for tax

Editor's Note: Craig Westbrook, a certified public accountant and attorney, is with the Mitchell, Williams, Selig, Jackson & Tucker law firm in Little Rock. He is a 1980 honors graduate of Baylor University in Texas, where he served as the research and topics editor for the Baylor Law Review, This article is the second by the Section of Taxation in its effort to keep the membership informed and up-to-date on tax law.

articles and for tax cases. Interest-

free loans have been used to shift money from a taxpayer to his parents or children, and have been a common technique for funding college education expenses. The taxpayer would loan money interestfree to his children, who would invest the money with little or no tax consequences. The parent could retrieve his money at any time. Thus, a parent in the 50 percent tax bracket could save sub-

stantial tax dollars without the loss of flexibility. The interest-free loan was also used to temporarily take money out of a corporation. The corporation would make an interest-free loan to the shareholder which would be payable upon demand. No interest income was recognized by the borrower or lender in either transaction. I A landmark case concerning the income tax consequences of an interest-free loan was Dean v. Commissioner. 2 In Dean. the Tax Court held that no income would be recognized by the borrower since he would be entitled to an imputed interest deduction anyway. creating a wash. 3 The gift tax consequences of the interest-free loan were discussed in Crown v. Commissioner. 4 The 7th Circuit decided in Crown that there would be no gift involved in an interest-free demand loan, since the amount of the gift could not be determined. Although the Internal Revenue Service non-acquiesced in the Dean decision. it did so twelve years after the decision was January 19B5/Arkansas Lawyer/41

rendered. 5 Thereafter, the tax-

payer's position on both the income and gift tax consequences withstood IRS assaults for many years. Most of the cases decided since Dean have stated that Dean had become law. and that any changes should be legislative in nature. 5 Several years ago, the

Tax Court did state that it might not follow Dean if there was not a "wash,"7 as when the interest-free loan was used to purchase tax-

free securities. The Court of Claims actually reversed the result of Dean, although the decision was reversed on appeal.路

The last judicial development in the interest-free loan area prior to the current legislation was Dickman v. Commissioner.' In Dickman, the II th Circuit ruled that a gift to the borrower did result in a demand note. This result was upheld by the Supreme Court."

Legislation In the Tax Reform Act of 1984, Congress added Internal Revenue Code Section 7872. providing the long-awaited legislative action. II

Section 7872 provides that in the case of any "below-market loan..路 the foregone interest shall be treated as (I) transferred from the lender to the borrower, and (2) retransferred by the borrower to the lender as interest. Therefore, the general rule is that the lender will

be treated as having interest income. This result is worse than that addressed in Dean and other decisions. In those cases, the question was whether the bor-

federal rale," or (2) in the case of a term loan, the amount loaned exceeds the present value of all payments due under the loan. computed using the applicable federal rate." Second, the "applicable federal rate" is to be set by the secretary of the treasury based on the term of the loan. If the term is not over three years, the federal short-term rate applies. If the term is more than three but not over nine years, the federal mid-term rates will apply. Where the term is over nine years. the federal longterm rate will be used. These rates will be determined on March 31 and September 30 of each year based on the average yield (over the last 6 months) on outstanding marketable obligations of the United States with similar remaining periods of maturity. The September 30 rate will be effective for transactions beginning the following January 1. and the March 31 rate will be effective for transaction beginning the following July 1." The rate beginning January I, 1984 is 12.37"10." In the case of a demand loan, the short-term rate always applies. Therefore, on a $100.000 interest-free loan from a parent to his child, the parent will be considered to have made a gift of $12,370 to the child. and have received $12.370 in taxable interest. Unless the spouse joined in such a gift. the parent would be required to use some of his or her unified credit.

Loans to Which the New Law Applies

rower had income. 12 Using the

In general. there are five cate-

inter-family loan as an example, Dean addressed whether the child would have imputed income.

gories of loans to which new Section 7872 applies: (I) Gift loans. (2) Compensation-related loans: (3) Corporation-shareholder loans; (4) Tax-avoidance loans; and (5) Other below-market loans. Gift loans will generally occur in a family situation, although the

Under the new law. the parent is considered to have received inter-

est income and made a gift to the child. In order to understand the effect of the new law. several terms must

be defined. First, a loan is a "below-market loan" if (I) in the case of a demand loan, interest is

payable less than the "applicable 42/Arkansas Lawyer/January 1985

conference report indicates that a

loan between unrelated persons can qualify as a gilt loan. A bona

fide arms-length sale will be treated as for a full and adequate consideration and no gift will be implied. " Compensation-related loans are below-market loans made to an employee or independent contractor in connection with the performance of services. 17 The im-

puted interest amount will be considered to have been received by the employer as interest and paid to the employee as wages. The borrower would have an offsetting interest deduction. Although there is no requirement that taxes be

withheld, the amounts must be reported. II

Any below-market loan made directly or indirectly between a corporation and a shareholder of the corporation will be treated as o corporation-shareholder 10an. 19 In such instance, the transfer from the corporation to the shareholder would be considered a dividend. whereas a loan from the share-

holder to the corporation would be considered a contribution of capital. Thus, the common Deancorporation-to-shareholder loan has been effectively eliminated. A loan is a tax-avoidance loan if "one of the principal purposes of the interest arrangements is the

avoidance of any federal tax."" The conference report indicates

that there must not only be a nontax reason for structuring the loan

as a below-market loan; in addition, tax avoidance must not be a principal factor in the structure. This subjective test will be difficult to meet in most circumstances.

Loans which do not fall into the above categories may still be considered other below-market loans and subject to the new rules if the interest arrangement "has a sig-

nificant effect on the tax liability of the borrower or the lender. "" The conference report clearly indicates that the new rules will apply to many situations which our clients would not consider loans: "It is intended that the term

'loan' be treated broadly in light of the purposes of this provision. Thus any transfer of money that provides the transferor with a right to repayment may be a loan. For example, ad vances or deposi ts of all kinds may be treated as loans. "23 The conference report further indicates that one of the factors for determining that a loan is an other below-market loan is whether it results in conversion of a nondeductible expense into an equivalent of a deductible expense. For example, if a member of a club makes a non-interest bearing re-

fundable deposit to the club as part of his membership fee, a below-market loan has occurred. The member has made a loan to the club and received interest income, thereafter making a similar payment to the club as an addi-

tionaI fee. Since the fee would not be deductible, the member is escaping any tax on the interest income. Therefore, the transaction has a significant effect on the tax liability of the borrower or the lender. The conferees go on to state that in determining whether an effect is "significant," the Treasury will consider: (I) Whether iterns of income and deduction generated by the loan offset each other (for example, a person might make a similar non-interest bearing deposit for membership in a charity); (2) The amount of such items; (3) The cost to the taxpayer of complying with the provision; and (4) Any non-tax reasons for deciding to structure the trans-

action as a below-market loan

rather than a loan with an adequate interest rate. 24 These provisions ale extremely

broad, and may apply to many transactions. For example. there is no provision in the law expressly preventing a non-interest

bearing checking account from being considered a below-market loan. For example, suppose a depositor keeps $10,000 in his checking account which bears no interest. It is possible that under the below-market loan provisions he will be considered to have received interest and paid a checking account fee in that amount to the bank. If the account is not a business account, his fee is nondeductible; the loan could be considered as an "other below-market loan." In addition, if a renter pays a deposit, he may be considered to have received interest income and

paid additional rent of the same

Arkansas Advance Annotation Service As a special service to subscribers to the Arkansas Statutes, The Michie Company publishes the Arkansas Advance Annotation Service. This legal reference service is keyed to the arrangement of the Arkansas Statutes and provides up-to-date annotations to Arkansas and federal court cases which apply Arkansas laws. Cumulative pamphlets are published periodically during the interim between publication of supplements to the Statutes.

3 pamphlets per year

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for customer service contact: ALLIN R. JONES P.O. Box 1306

Conway, Arkansas 72032 (50]) 327-6526 'plus shipping, handling and sales lax where <1pplicable

January t98S/Arkansas Lawyer/43

amount. Since non-business rent

would not be deductible, the transaction could be considered an "other below-market loan." Hopefully, these transactions will be exempted in the regulations because of the cost of complying and other factors to be considered.

exception amounts, all loans between the lender and the borrower, regardless of interest rate,

are included. Furthermore, if a loan exceeds the amount. the imputed interest rules continue to apply even after the outstanding balance is reduced below the amount. u

be practitioners who choose to treat these rules similarly to the generation-skipping tax-so complicated that they are ignored. Nevertheless, practitioners should be aware of potential tax consequences to their borrower and more

significantly, lender-clients under the new rules. 0

Exceptions There are a few exceptions. For example, in the case of a gift loan between individuals, the new rules do not apply to loans which do not exceed $10,000. However, this exception only applies if the loan is not used to purchase or carry income-producing assets.2$

Therefore, in typical educational funding transaction described above, the new rules would apply even though the amount was less than $10,000. Where the proceeds are not used to purchase incomeproducing assets, as where a loan

is made to a relative to start up a business or to make a down payment on a residence, this exception should prevent any amount

Effective Dates These new rules apply to term loans made after June 6, 1984, and to demand loans outstanding after June 6, 1984. Any loan renegotiated, extended or revised after

that date shall be treated as a loan made after that date."

corporate-shareholder types of loans. However, these new rules

quences. In some instances it will

at below-market.

dictate a new method of planning. For example, funds needed for education of a child may be shifted from the parent to the child through the use of a Clifford Trust. a trust under Section 2S03(c), use of the Uniform Gift to Minors Act, or a recently discussed Spousal Re-

In computing

whether

44/Arkansas LawyerlJanuary t985

mainder Trust. Other transactions

will not be restructured, but the parties will merely be required to report the transaction on the basis of the new rules.

the

amount of a loan exceeds the

• 585 F.2d 234 (7th Cir. 1978), affg 67 T.C. 1060 (977). Suttle v. Commissioner, 625 F.2d 1127

Cir. 1982). aU'g 75 T.C. 166 (980); Martin v. Commissioner, 649 F.2d 1133 (5th Cir. 1981); Greenspun v. Commissioner, 670 F.2d 123 (9th Cir. 1982). affg 72 T.C. 931

education expenses and to channel income to parents. as well as

tax reason for structuring the loan

avoidance. 27

I. supra. Dean, note I. supra at 1090.

Baker v. Commissioner, 677 F.2d II (2nd

compensation-related loans and corporation-shareholder loans of $10,000 or less, so long as one of the principal purposes of the loan is not the avoidance of any federal tax." To rely on this exception, there should be a legi timate non-

the year. Even this exception does not apply where one of the principal purposes of the loan is tax

J

The new below-market loan provisions will prohibit the type of interest-free loans used to fund

to another, even to regular checking accounts. As with other recent tax laws, much of the law is to be drafted by the Treasury Department in the form of regulations. Practitioners should remember that the new provisions do not prohibit a below-market loan; they merely change the tax conse-

rower's net investment income for

3t5 Ost Cir. 1981).

(4th Cir. 1980). affg T.C. Memo. 1978-393;

of money from one person or entity

Finally, there is a speciallimitation for gift loans which do not exceed $100,000. In that event, the amount 01 the lender's imputed income will not exceed the bor-

Dean, note

I

there may still be a gift to the borAnother exception exists for

2

Conclusion

rower.

income. Under Dickman, however,

Dean v. Commissioner, 35 T.C. 1083 (1961); Beaton v. Commissioner, 664 F.2d

• 1973-2 C.B. 4.

do not stop at applying to the traditional types of transactions. As currently drafted, these provisions could apply to any advance

from being included in the lender's

FOOTNOTES I

Finally, there will undoubtedly

(979). Green.pun v. Commissioner. 72 T.C. 931 (979) at 943. • Hardee v. Commissioner, 710 F.2d 1391

1

(Fed. Cir. 1983), rev'g Ct. CI. , Dickman v. Commissioner, 690 F.2d 812 (11th Cir. 1982), cert. granted. 103 S.Ct.

1181, affd 104 S.Ct. lOBS (984). III

Dickman v. Commissioner. 104 S. Ct.

1086 (1984), affg 690 F.2d 812 (11th Cir. 1982). The Tax Reform Act of 1984, as Division A of the Deficit Reduction Act of 1984 (ORAl. Section 172. n Several cases had decided that the lender recognized. no income as a result of the interest·free loan. Combs Lumber Co.. 41 B.T.A. 339 (1940); Society Brand II

Cloth••, 18 T.C. 304 (1952). U

14

New Section 7872(eXl). New Section 7872(f)(2); New Section

1274(dXII. as added hy DRA Section 4I(a). l~

This is the short-term rate based on interest paid on an annual basis. I.R. 84-115,

II

Conference Report, H. Rep't. No. 98-861, 98th Cong., 2d Sess. at 1018. New Section 7872(cXIXB).

1984-47 I.R.B. 11

1. Conference Report at 1018. New Section 7872(c)(I)(C). New Section 7872(cXI)(D). ~l Conference Report at 1019. 12 New Section 7872(c)(IXE). 13 Conference Report at 1018. 14 Conference Report at 1019. ~~ New Section 7872(cX2). U New Section 7872{c)(3). 21 New Section 7872(dXI). 21 Conference Report at 1021. n ORA Section 172(c)(l). I'

21

24TH

ANNUAL ARKANSAS

o

Cl <::(

0:

o

Cl -J

~

NATURAL RESOURCES LAW INSTITUTE (FORMERLY OIL & GAS INSTITUTE)

FEBRUARY 28MARCH 2, 1985

ARLINGTON HOTEL

"The Arkansas Oil and Gas Institute has greatly enhanced the prolessional competence of those involved in oil and gas matters, and has provided outstanding contributions to the continuing education of landmen and lawyers." The Landman

HOT SPRINGS ARKANSAS January 1985/Arkansas Lawyer/45

EXECUTIVE DIRECTOR'S REPORT Attorney's Oath Cause for Thoughtful Review By William A. Marlin Recently I had the privilege of attending the fall admission ceremony for new lawyers. As they were repeating the Attorney's Oath. [ was impressed that the obligations. the goals and the standards expressed in the oath are something all lawyers need to review and think about from lime to lime. Too often in the day to day rush. we do not reflect much on the privilege our license gives to us

and the responsibilities that go along with that privilege. Even less often do we review the words

of our oath and think about the promises we made at the lime of our admission in subscribing to that oath. So that you do not have to search it out. we are reprinting it for your

thoughtful review: I DO SOLEMNLY SWEAR: I will support the Constitution of

the United States and the Constitution of the State of Arkansas I will maintain the respect due to Courts of Justice and judicial officers;

I will not counselor maintain any suit or proceding which shall appear to me to be unjust. nor any defense except such as I believe to be honestly debatable under the law of the land; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor. and will never seek to mislead the Judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client. and will accept no compensation in connection with his business except from him or

I will never reject. from any consideration personal to myself. the cause of the defenseless or oppressed. or delay any man's cause for lucre or malice. SO HELP ME GOD.

ANNUAL MEETING DATES No sooner does the October issue of The Arkansas Lawyer get out telling you 01 the June 5-8 dates for the 1985 Annual Meeting and that we hope to move it a week laler in subsequent years to avoid conflicts with graduations and other close of school activities than I have to tell you we discovered another conflict in 1986. The Arkansas Sesquicentennial celebration will be concentrated around Friday. June 13 to Sunday, June 15. 1986. We know many of you will want to attend those with the first full weekend in June for the 1986 annual meeting-June 4-7. We still hope to set it a week later in 1987 and beyond.

SECTION PROGRAMS While it may seem a long time away. the Association staff is busy working with program planners for four of our section programs coming up in a few months. On

Friday. February 1. and Saturday. February 2. 1985, at the Camelot Hotel. the Family Law Section will sponsor a seminar on "The Grow-

ing Federalization of Divorce:' An extensive addition to our present

tion of a party or witness, unless

required by the justice of the cause with which I am charged;

dating a system is. While we on

46/Arkansas Lawyer/lanuary 1985

new writers after some of the first

ones dropped out. Other Section programs you should watch for and plan to attend are the Natural Resources Law Institute at the Arlington Hotel. February 28 to March 2. 1985; the Savings & Loan Seminar. March 15. 1985. at the Camelot Hotel; and the annual Workers' Compensation Institute. April 12, 1985. also at the Camelot Hotel.

events, so we are going to stick

Domestic Relations System will be introduced at that time. Our work with Editor Ben Rowland on this system and with Editor Jake Looney on the Agricultural Law System has shown me what a mas-

with his knowledge and approval; I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputa-

the staff provide administrative help on many details such as ordering the binders and tabs. contracting to get the system printed and then handling the distribution. the editors and a host of writers give very freely of their time and their talents to provide Arkansas lawyers with these very valuable practice aides. Often the writers find they have a bigger job than they originally expected and I know both editors have had to find

sive undertaking creating or up-

LOCAL BAR MEETINGS About the time you get this copy of The Arkansas Lawyer. the Executive Council will be having a joint Friday evening meeting with the Southwest Arkansas Bar Association plus a regular Saturday morning Council meeting in Texarkana on December 7 and 8. President Wm. R. Wilson. Jr. has taken the step of bringing the Executive Council to a regional bar meeting so attorneys around the

state and Association officials can

get better acquainted. We hope other local and regional bars will from time to time permit the Councilto meet with them. We usually have Council meetings in early December. late April and early August-about a month and a half before the House of Delegates meetings. Also. I would like to visit local bar meetings from time to time if you would like to have me come. 0

YOUNG LAWYERS' UPDATE Tradition of Volunteerism Cont.inues

By Martha M. Miller. Chair

Fall is a season of many traditions. including the Young Lawyers' presentation of the Admissions Ceremony for the new admit, tees of the Bar of Arkansas. and the Practice Skills Seminar.

Admissions Ceremony This year's fall Admissions Ceremony was held in the old Supreme Court chambers on September 17. 1984. under the leadership of Chair Sammye L. Taylor of Little Rock. and Co-Chair Edward Boyce of Newport. Included on the program were William R. Wilson. Jr.. president. Arkansas Bar Association; Philip S. Anderson. delegate. American Bar Association; H. William Allen. president. Pulaski County Bar Association; Susie Pointer. president. Arkansas

Ethics and Avoidance of Malpractice: William M. Clark. Jr .. Springdale. and Margaret Bunn. Searcy. on Real Property: Clay P. Farrar. Jr.. Hot Springs. and H. Lawrence Yancey. Little Rock. on Estate Planning and Probate: Bobby R. McDaniel. Jonesboro. and Chris Piazza. Little Rock. on Criminal Practice: Judson C. Kidd. Little Rock. on Workers' Compensation: Harry T. Moore. Paragould. and Collins Kilgore. Jr.. Little Rock. on Domestic Relations: Phillip A. Raley. Pine Bluff. and Mary Davies Scott. Little Rock. on Representation of Creditors and Debtors: Nicholas H. Patton. Texarkana. and John V. Phelps. Jonesboro. on Litigation.

Gene McKissic. president. W. Harold Flowers Law Society; Clay Patty. executive director. AICLE; Mark Lester. chair. VOCALS Board of Directors; Col. William A. Martin. Arkansas Bar Foundation; and myself on behalf of YLS.

The final half day of the Practice Skills Seminar was co-sponsored by the Section of Economics of Law Practice. and James W. Hyden of Pine Bluff. who is chair of that Section presided. During this portion of the program. porticipants heard advice on how to set up and main路 toin a law office from Donald S. Goodner of Waldron; Frank C. Elean. II of Harrison; Nelwyn L. Davis of Little Rock; Robert B. Branch. Sr. of Paragould; and myself.

Practice Skills Seminar

Explorer Post

Elizabeth J. Robben of Little Rock. and Connie Lewis Mayton and Michael R. Mayton of West Memphis. co-chaired the 1984 Practice Skills held October 18-20. Several of the approximately seventy participants were extremely complimentary of the program content and speakers. During the first two days of the program. fifteen speakers covered eight substantive areas of the law: Justice Darrell Hickman. Arkansas Supreme Court. Searcy. and Sidney H. McCollum. Bentonville. on

Also on the fall agenda of YLS was the organizational meeting of the Law and Government Explorer Post. Members of the Post are high school students interested in pur-

Association of Women Lawyers;

suing a career in law enforce路 menl or advocacy, or in local

government. Mike Crawford of Hot Springs. chair of The Ways of the Law Committee. reported that the September 25 meeting was well attended hy about 30 members. Sevveral lawyers and judges have

are needed. If you have an interest

in serving as a volunteer leader,

please contact Mike or Teresa Wineland of El Dorado. co-chair of the Committee. In addition to the Post at Little Rock. the Committee will be establishing other Posts in other areas of the state. Each of the thirty-six people mentioned in the preceding paragraphs deserve a very special thanks. Without their diligence and full cooperation. these three YLS programs would not have been possible. It is this tradition of volunteerism that has and will continue to make all the other traditions of YLS a reality.

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agreed to serve as volunteer lead-

ers of the Post. but more volunteers lanuary 1985/Arkansas Lawyer/47

ARKANSAS BAR FOUNDATION Scholarship~

Awarded to Law Schools Whetstone

By Robert 1. Jones. III

$550.00

Joe C. Barrett Commercial

Law Award The purposes of the Arkansas Bar Foundation include the promotion of educationaL literary,

scientific and charitable causes. In addition. the Foundation strives to improve and facilitate the ad-

$500.00

Joe C. Barrett

Schotarship

.$1.425.00

(When criteria is set)

Judge Thomas Clark Trimbte

$1. toO. 00

(Awarded on alternate years) Judge George Rose

ministration of justice. promote

Smith

study and research in the field of law and encourage the continuing legal education of lawyers. Two basic ongoing programs of the Foundation are scholarships for

(Awarded on alternate years)

law students and awards rec-

ognizing outstanding service to the legal profession. These programs support two of the purposes of the Foundation; promotion of educational causes and improvement of the administration of justice.

Scholarships. The Foundation manages and provides income from funds which have been contributed for scholarships to students at both the University of Arkansas School of Law and the University of Arkansas at Little Rock School of Law. Most of the scholarship funds are the result of specific contributions in memory or recognition of individuals or firms. The following is a list of current scholarships: Arkansas Bar Foundation scholarships for the Foundation year 1984-85: I. School of Law-University of Arkansas at Fayetteville

Friday. Eldredge & Ctark (Jerry T. Light $t75.00. Boyce R. Love $235.00) Sharp-Bogle Harry P. Warner Cecil R. Warner

$410.00 $330.00 $275.00 $275.00

Rather. Beyer & Harper ..$330.00

Edward Lester Judge Henry Woods R. A. Eilbott. Jr.

$275.00 $275.00 $360.00

Arkansas Bar

Foundation

$1.250.00

Arkansas Bar

Foundation Judge John E. Miner

$1.250.00 $660.00

Bud & Bernard

48/Arkansas Lawyer/January 1985

$275.00

Colonel C. E. Ransick ... $550.00 $to.090.00 2. University of Arkansas School of Law at Little Rock

Friday. Eldredge & Clark $410.00 (Jerry T. Light $t 75.00. Boyce R. Love $235.00) Sharp-Bogle. . . . . . . $330.00 $275.00 Harry P. Warner $275.00 Cecil R. Warner Rather. Beyer & Harper ..$330.00 Edward Lester $275.00 Judge Henry Woods $275.00 R. A. Eilbott. Jr $360.00 E. Charles Eichenbaum $2.200.00 Arkansas Bar

Foundation

$1.250.00

Arkansas Bar

Foundation $1.250.00 Rose Law Firm $2.250.00 (Rose Law Firm. $1.500.00. U. M. Rose $750.00) Judge John A. Fogleman .$660.00 (Awarded on alternate years)

Judge). Smith Hentey ... $340.00 (Awarded on alternate years) Bud & Bernard

Whetstone Colonel C. E. Ransick

$550.00 $550.00 $11.580.00

The Foundation encourages contributions to scholarship funds as a meaningful way to support legal education and the legal profession. The Scholarship and Memorials Committee for this Foundation year is chaired by G. Alan Wooten of Fort Smith. Committee members include Mark Lester of Little Rock. Ted Skokos of Little Rock and Keith Arman of Hot Springs. Awards. At the June meeting in Hot Springs the Foundation traditionally recognizes contributions to the administration of justice and the legal profession through the

presentation of awards. This year the Foundation and Association anticipate awarding the Outstanding Lawyer Award. the Outstanding Lawyer-Citizen Award. the C. E. Ransick Award of Excellence. the Outstanding Local Bar Association Award and perhaps several special awards. NOW IS THE TIME FOR EACH LOCAL BAR ASSOCIATION TO CONSIDER SUBMITTING AN ENTRY FOR SUCH AWARDS. Recommendations concerning these awards should be directed to the Arkansas Bar Foundation. 400 West Markham. Little Rock. Arkansas 72201. with attention to the Awards Committee. 0

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IN-HOUSE NEWS Law Schools, AICLE and Executive Council

UNIVERSITY OF

ARKANSAS SCHOOL OF LAW AT FAYETTEVILLE By J. W. Looney National Writing Competition Winner

William David Hardin, now in practice with

Hardin, Jesson and Dawson in Ft. Smith, was the first place winner in the Food and Drug Law Institute's Writing Award Competition. His paper, completed during his third year at the law school, was judged the best among the many papers submitted. His topic was "Poliomylitis Vaccine-History, Regulations and Recommen-

dations." In 1983, David won second place in the national competition for

the Letourneau Award for the Outstanding Paper in Legal Medicine. Class of 1987 The entering class of 1984 consists of 146 (the same as in 1983) students from all the universities

in Arkansas plus graduates of 48 undergraduate institutions in other states. This class is the fourth group to enter under the reduced enrollment policies adopted in 1980. Attorney General Steve Clark

spoke to the entering class during orientation

activities prior to the start of classes. Faculty Publications Howard Brill's book, Arkansas Law of Damages has been released by the Harrison company. John Watkins coauthored article, "Gertz and the Common Law of Defamation: of Fault. Nonmedia Defendants and Conditional Privileges" was published in the Texas Tech Law Review. A second article appeared in the Arkansas Law Review. entitled

"Access to Public Records Under the Arkansas Freedom of Information Act." Other faculty with articles in the Arkansas

Law Review incl ude Mort Gitelman (with Marcia Mcivor) whose article

is

"Domicile.

Residence and Going to School in Arkansas; Joan Chapman, who wrote the first of a three part series, "Fateful Treatment Choices for Critically III Adults, Part I: The Judicial Model;" and Robert Laurence's "An Odd Collection of Topics Relating to Creditor's Remedies Upon Which Various Federal Courts Have Recently Spoke-Rule 69, Rule 13, Federal Tax Liens and the Due Process Rights of Creditors." Robert Laurence also had an article published

"Service of Process and Execution of Judgment on Indian Reservations.

Charles Carnes contributed an article on "Successor路Owner Hir-

ing and Bargaining Responsibilities in California" to the Journal of Agricultural Taxation and Law: Lonnie Beard had an article in the Agricultural Law Update, "New S Corporations: Soil and Water Conservation and Land Clearing Expenditures." Chris Kelley's article, "Black Land Loss and the Law," appeared in Rural America. Student Trial Lawyers Association

The

Student

Lawyers

Trial

Association

sponsored its 85 program Springfield, attorney Tom

first 1984featuring Missouri. Strong on

the use of demonstrative

evidence. The STLA is an affiliate of the Arkansas and American Trial Lawyers Associations.

Agricultural Law Students The law school's unique degree program

in Agricultural Law continues to attract students

in the American Indian

from throughout the country. This year's class includes students from Arkansas, Mississippi. Montana, North Carolina, Ohio, Texas and Vermont. The class will be joined by a law faculty member from Australia in January who will be the first international student in the

Law Review entitled

program.

UNIVERSITY OF

ARKANSAS AT LITTLE

ROCK SCHOOL OF LAW--By John M. Sheffey

Local Bar Participates in Law School Activities The law school is fortunate to be located in close proximity to so many outstanding practitioners who are willing to contribute their time

and efforts to the students. Every semester several local attorneys offer courses at the law school as adjunct professors. During the past fall semester Allan Gates (Environmental Law). Peter Kumpe (Antitrust), and Byron Eiseman (Estate and Gift Tax), all taught courses. In addition, Richard Mays, Philip Kaplan, and John Forster all offered weekly workshops in Trial Advocacy, Judge Henry L. Jones, John Gill and Robert Sarver gave individual lectures to the first year class on such diverse topics as quality legal writing, professional responsibility, personal problems for Januory 1985/Arkansas Lawyer/49

lawyers and their cli-

the College of William and Mary's summer program abroad. Professor Pagan's article, "Civil Rights and 'Personal Injuries': Virginia's Statute

ents, and renewing personal resources.

Timothy Dudley, Lee Muldrow, Janet Pulliam, Ron Heller and James Tilley, all graduates of the law school, addressed the students on their experiences in private practice and offered advice to students who were seeking employ-

was a prominent attor-

Meets Regularly The Law School's Alumni Association has

ansas Legal Services.

Professor Gould and Instructor James R. Cromwell collaborated on the supplement to the

tradition

established last year of holding monthly luncheon meetings in Little Rock. Mr. Leland Duvall, associate edi tor of the Arkansas Gazette, spoke at the initial meeting last fall on the im pact of economic issues on the 1984 General Election. The program

fea-

tured Mr. Vic Fleming, a graduate of the law schooL who addressed the group on humor and the law. Herman Ivester, president of the Association. and Sam Perroni. program chairman. are

making plans for future programs.

Faculty News Professor John Pagan taught Civil Liberties in England last summer at the University of Exeter. His course was offered in

Little Rock in October. Professor Glenn Pasvogel spoke on character

held in the Arkansas Bar Center on October I!. Professor Kenneth S. Gould was re-elected as presiden t of the Board of Directors of Central Ark-

Alumni Association

second

Education Seminar in

Contracts. A reception in their joint honor was

ney in Hot Springs.

continued a

continue to teach in the

spring semester, taught

Review.

New Scholarship Established A substantial new scholarship, the R. Julian Glover Scholarship, was established by Mrs. Glover in the name and honor of her deceased husband. Mr. Glover

Poverty Law Practice

Manual. Professor Cromwell and Professor DiPippa conducted a training program for newly hired Legal Services attorneys in Arkansas. Tennessee

and Mississippi. Professor Crom well also offered social security training seminars for practicing attorneys in

both Jonesboro and West Memphis under the auspices of the Arkansas Legal Services Support Center. Professor Crom-

well's article, "A Substantial Paradox: Attorney's Fees Under the Equal Access to Justice Act in Social Security Appeals," was published in the UALR Law JournaL

50/Arkansas Lawyerllanuary 1985

topic of lawyers public image. He was also one

Dr. Robert A. Leflar and Professor Albert M. Witte, members of the faculty at the law school at the University of Arkansas at Fayetteville, each taught a course at the law school during the past fall semester. Dr. Leflar taught the course in Conflict of Laws and Professor Witte, who will

1983 Suits," will appear in the winter issue of the William and Mary Law

upon graduation.

Bar Association on the

of the principal speakers at the Fall Legal Institute in Fayetteville and addressed the attorneys on val uation of land. Professor W. Den t Gitchel attended the Southern Regional Trial Advocacy program in Dallas, sponsored by the National Institute of Trial Advocacy, in June. Several members of the faculty addressed the Arkansas Judicial Council at its 1984 Annual Meeting and Continuing Judicial

of Limitations for Section

ment or intending to open their own offices

Dean Lawrence Averill spoke to the Texarkana

evidence.

Professor

Ellen Brantley addressed the group on current guardianship problems and trust fundamentals, Professor Richard Burke delivered the program on new de-

tax returns for the Arkansas Tax Institute. In addition, he addressed a monthly meeting of the Arkansas chapter of the American Society of Women

Accountants.

where he discussed the tax treatment of fringe benefits and divorce settlements under the Tax Reform Act of 1984. Professor Eugene Mullins article, "The Creeping Eruption of Mt. Healthy," originally published in the Detroit College of Law Review was reprinted in the 1984 edition of Corporate Counsel's Annual published by Matthew Bender. Professor Susan Webber Wright was on the AALS team which inspected the law school of Northern JIlinois University.

A.I.e.L.E. NEWS--

velopments in criminal

law, Professor W. Dent Gitchel spoke on recent developments in family law, and Professor John DiPippa offered remarks on new developments in

constitutional law. Professor Fred Peel spent the past semester on an off-campus duty assignment. Professor

Peel devoted his semester to development of a proposal designed to eliminate double taxation of corporate divi-

dends by excl uding such dividends from the gross income

of

individual

shareholders. The proposal requires that corporate income be taxed at a flat rate equal to the highest individual in-

By Claibourne W. Patty, Jr. Advising Landowners

and New Agricultural System The 1984 Fall Legal Institute on Advising Landowners was held September 20-21 at the University of Arkansas Conference Center, Fayetteville. The program was chaired by Dean J. W. Jake Looney of the University of Arkansas at Fayetteville School of Law. Dean Looney edited and authored several sections of the new agricultural law system in-

troduced at the Institute. The program was di-

Peel also taught a workshop on recent develop-

vided into four major sections: Interests in Land; Natural Resources Issues; Taxation Issues;

ments on consolidated

and Representing the

come tax rate. Professor

Financially Distressed Owner of Agricultural Land. Interests in land included the following presentations: Legal Issues Associated with Fencing, Boundary and Survey Laws; Easements by Joe M. Rogers; and Installment Land Contracts; Farm Leases by Donald B. Pedersen. Natural resources issues included these presentations: Water Law Panel Discussion, Chuck Banks, Jake Looney and Jodie Mahoney; Farm Land Preservation Law by Professor Linda Malone; Mineral and Royalty Conveyancing in Arkansas by Professor Phillip Norvell; and Timber Transactions by Prolessor Bill Selig. Taxation issues included these presentations: Handling Special Use Evaluation for Agricultural Land by Tom Overbey; Tax Planning for Real Estate Sales and Exchanges by Professor Lonnie Beard; Evaluation of Land by Dean Larry Averill. The topic on Representing The Financially Distressed Owner of Agricultural Land was presented by former bankruptcy Judge Charles Baker. In addition, there was a special update by Larry Yancey, of Little Rock, on federal income tax. University of Arkansas President Ray Thornton addressed the assembly at a Friday luncheon. Approximately 140 registrants and guests attended the sessions. Health Law Committee Sponsors Symposium The Health Law Committee of the Arkansas Bar Association sponsored a Health Law Symposium on October 5 to 6 at the Red Apple Inn, Eden Isle. The program, chaired by Michael W.

Mitchell. was attended by 55 lawyers and hospilal administrators. 25th Annual Practice Skills Course Held The Annual Practice Skills Course, jointly sponsored by the Association's Young Lawyers

Section and AICLE, is one of the longest running programs in the history of Arkansas Continuing Legal Education. The approximately 65 registrants

consisted

mostly of recent admittees to the Bar. The subjects included: Ethics and Avoidance of Malpractice; Real Property; Estate Planning and Probate; Criminal Practice; Workers' Compensation; Domestic Relations; Representation of Creditors and Debtors and Civil Litigation. An additional. optional session, co-sponsored by the Association's Economics of Law Practice

Section, was devoted to the problems of opening a law office. Topics included: LocationWhere to Practice; Setting Up Shop-How to Get Started; and Operations -How to Maintain Practice.

Arkansas-Federal Tax Institute The Arkansas-Federal Tax Institute, jointly sponsored with Arkansas Society of CPA's, was held at the Little Rock Excelsior Hotel on December 6 and 7. Topics included: Mutual Interests of Lawyers and CPA's Concerning State and Federal Tax Issues. Regional Video Replays The 1984 Fall Legal Institute on advising

land owners and agricultural law was replayed on video in Jonesboro, Monticello, Magnolia and Little Rock.

Mid路Year Meeting The Association's Annual Mid-Year Meeting will be held at the Camelot Hotel in Little Rock on January 18 to 19. The CLE portion will be de-

membership statistics

for September, 1984. Delegates were asked to personally contact delinquent members in

their respective districts. Annabelle Clinton,

voted to an intensive,

secretary-treasurer, cer-

one-day review of recent

tified the election of Jane Knight of Little Rock and Donis Hamilton of Paragould to the House. President Wilson ruled that, pursuant to Article XII of the Association's Constitution, the House, by a two-thirds vote of those presen t and

developments in the law, including: Bad Faith; Significant Arkansas Federal Decisions; Legal Advertising; Pitfalls and the Trial of Lawsuits; and Significant Arkansas Appellate Decisions. On Thursday allernoon, January 18, the annual Trial Advocacy Competition between the University of Arkansas School of Law at Fayetteville and UALR School of Law will be held in the South Courtroom of the Old Federal Building. The semiannual meeting of the House of Delegates will be held Saturday, January 19.

voting, may waive the

requirements of Article XII and consider resolutions at a special meet-

ing of the House. The House of Delegates by Q two-thirds majority voted to waive the re-

quirements of Article XII and consider resolutions

ARKANSAS BAR ASSOCIATION HOUSE OF DELEGATES MEETING TUNE 9, 1984 The House of Delegates of the Arkansas Bar Association held ils special meeting at the University of Arkansas Conference Center in Fayetteville, Arkansas, on September 21, 1984. President William R. Wilson, Jr. presided. The House approved the minutes of the last Executive Council meeting, the financial statement as of August 31, 1984, and Association

on (a) selection of federal judges No. 84-2; (b) judicial salaries No. 84-3; and (c) Justice Building Commission No. 84-4. Robert D. Ross, chair of the Resolutions Committee, reported the Committee's recommen-

dations that. (I) consideration of Resolution No. 84-2 be postponed until the Association's regular meeting

in

January,

1985, and that in the interim the president of the Association appoint a committee to study the desirability of this Association proposing guidelines for those engaged in the process of nominating or confirming a

candidate; and (2) that Resolution Nos. 84-3 and 84-4 be adopted by the House of Delegates. Resolution No. 84-2 provided in relevant part as follows: "BE IT RESOLVED BY THE ARKANSAS BAR ASSOCIATION that any effort to screen candidates for judicial office lanuary 1985/Arkansas Lawyer/51

through interrogation utilizing past published decisions be held improper and any such actions are hereby repudiated and condemned by this Association." James A. McLarty. author of the resolution. Winslow Drummond and George Ellis spoke in favor of the resolution. President Wilson ruled that a motion by Drummond to amend the resolution was out of order. Congressman Ed Bethune, Thomas M. Carpenter, Robert R. Wright. Jeff Starling, Stephen M. Reasoner, Charles Carpenter and Herman Hamilton spoke against the resolution. A motion to table the resolution until the January, 1985. meeting was defeated. After extensive discussion, the House passed Resol ution No. 84-2 by a vote of 25 to 23. The House also adopted the following resolutions unanimously: Resolution No. 84-3 supporting a reasonable increase in the pay and

benefits of Arkansas judges and Resolution No. 84-4 supporting the efforts of the Justice Building Commission to find a solution to the space and security problems at the Justice Building. Herschel H. Friday. Association delegate to the American Bar Association, reported on var-

ious actions taken at the annual meeting in August. 1984: (I) Adoption of a resolution that judges refrain from membership in organi路 zations which practice invidious discrimination: (2) adoption of various amendments to the Association's Constitution and By-Laws, in-

creasing the representation of sections and larger states; and (3) adoption of Standard 405 (e) recommending that persons teaching professional skills should have tenure as do other law faculty members. [n other business. the House approved: (I) an amendment to the Law Student Section By-Laws providing for a full set of ollicers from each law school; (2) the retention of an independent consultant to advise the Association on group insurance; (3) the elimination of a transcript of the House of Delegates'

ticipate in the Legislative contact and LAWPAC pledge programs. Bank draw authorizations for LAW-

PAC are available. The meeting was adjourned. Annabelle D. Clinton Secretary-Treasurer

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meetings. and the use of

minutes backed up by a tape recording, with tapes retained for two years; (4) the appointment of lay persons to particular committees where a particular need exists; (5) the appointment of a committee to consider guidelines on judicial appointments; and (6) the appointment of a committee review

the Association's Constitution and By-Laws relative to the designation of regular meetings and the presentation of resolutions. Herman Hamilton. chair of the [aLTA Committee, reported that the Arkansas Supreme Court on September 17. 1984. approved the implementation of 10LTA in Arkansas. President Wilson appointed Larry Yancey to the committee charged with setting up the not-for-profit corporation to be the recipient of 10LTA funds and Norwood Phillips to chair the committee charged with educating lawyers on the 10LTA alternative. Martha M. Miller. Association lobbyist, urged members to par-

52/Arkansas LawyerlJanuary 1985

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JANUARY 1985