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Hastings Center for Trial and Appellate Advocacy's Eleventh Annual COLLEGE OF ADVOCACY

LEARN FROM THE BEST CIVIL COLLEGE: July 26-31 CRIMINAL JUSTICE COLLEGE: August 2-5 The COLLEGE OF ADVOCACY offers a six-day Civil program and a four-day Criminal Justice program which have graduated over 3,000 attorneys since its inauguration in 1971.

SKILLS WORKSHOPS

Small-group Workshops meet daily. Participants conduct examinations of witnesses and present opening statements and closing arguments. Exercises are critiqued by expert faculty.

VIDEOTAPE CRITIQUE

In addition, participants are videotaped performing selected exercises for playback critique.

EXPERT DEMONSTRATIONS

Demonstrations and lectures presented by outstanding trial practitioners are designed to enhance advocacy skills.

TOPIC DIVERSITY

Workshops and faculty presentations cover topics ranging from voir dire through closing arguments.

ClE CREDIT

The COLLEGE OF ADVOCACY is accredited for many state continuing legal education requirements.

SPECIALIZED EDUCATION

Specialization is available in Civil or Criminal Justice practice. Civil College participants choose Business Litigation or Personal Injury sections. Learn specific and general skills.

NATIONAL FACULTY

Prominent legal educators and members of the trial bar from throughout the United States serve as faculty members.

YOUNGER EVIDENCE lECTURES

Videotaped lectures on Evidence & Cross-Examination by Professor Irving Younger of Cornell University are shown daily as part of the College instruction. All programs are held at Hastings College of the Law - San Francisco, California.

Registration fees: Civil College - $400

College of Advocacy Hastings Center for Trial and Appellate Advocacy 198 McAllister Street San Francisco, California 94102 (415) 557-2205 [ J Please send additional Information.

Name

Criminal Justice College - $230

Please register me in: J Civil College - Business Litigation Workshop J Civil College - Personal Injury Workshop J Criminal Justice College J both programs _

Firm Address _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Telephone ( A deposit of S 100 is requlfed with each registration, payable to Hastings College of the Law. The College has been unable to accept a substantial number of registrations in prior years due to full enrollment. Please register and make hotel reservalions early.

_ _


July 1981 Vol. 15, No.3

THE OFFICIAL PUBLICAnON OF THE ARKANSAS BAR ASSOCIA nON

OFFICERS Phillip Carroll, President James Cypert, President-Elect

EXECUTIVE COUNCIL Dennis Shackleford Clint Huey Webster L. Hubbell Gus B. Walton, Jr. David R. Malone Thomas D. Ledbetter Robert G. Serio LeRoy Froman Floyd Thomas, Jr. Charles Carpenter D. Mac Glover Tommy Womack

EX-OFFICIO Phillip Carroll James Cypert E. Harley Cox, Jr. Don M. Schnipper Herschel H. Friday Louis B. Jones

EDITOR C. E. Ransick

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Arkansas Lawyer SPECIAL FEATURES COVER The Lawyer LegislatorRequiem or Resurgence? .....•... , .•.................... 92 How to Handle a Tort Claims Robert Fussell .126 Case in Federal Court Taxation of Life Insurance Proceeds and Premiums Raymond Weber. 114 Bar Related Title Insurance Stanley B. Balbach .. 98 Media in the Courtroom-Its Impact on the Goals of Juvenile Justice Mary Ellen Vandegrift .118 Annual Meeting ,." " 95

REGULAR FEATURES President's Report Phillip Carroll 90 Juris Dictum .............•.•.•.•.•...................... 107 Legal Economics ......•.•...•...•.•...................... 106 Law School News ....•.•.•...•.•.•...•.................. 122 Oyez-Oyez Carol Utley.132 In Memoriam .................•.•.•...•.................. 104 Executive Council Notes W. C. Barrier. 129 Service Directory .............•.......................... IBC Addenda ..............•.•................ C. E. Ransick . 135 W. Christopher Barrier. 102 Context AICLE News Claiboume W. Patty, Jr.. 133 The Arkansas Bar Foundation Sidney H. McCollum. 110 S. Sponte, Esq. 125 To Wit Ethics 117 Lawyer's Mart IBC The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association, 400 West Markham, Unle Rock, Arkansas 72201. Second class

EDITORIAL COMMITTEE Robert T. Dawson E. Alvin Schay Cyril Hollin9sworth

JXlstage paid at little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association, The Arkansas Lawyer, or the Editorial Committee. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent 10 The Arkansas Lawyer. above address.

July 1981/Arkansas Lawyer/89


PRESIDENT'S REPORT by PHILLIP CARROLL

WILL LEGAL SERVICES CORPORATION SURVIVE THE REAGAN BUDGET CUTS? President Reagan's 1982 budget proposal provides zero funding for Legal Services Corporation. If Congress agrees, the delivery of legal services to the poor will be dealt a devastating blow. The Arkansas Bar Association has joined with the American Bar Association and most of the other state bar associations in the United States in an effort to save L.S.C. L.S.C. currently employs more than 6,200 lawyers and 2,800 paralegals in 1,400 offices. In 1980, it handled more than 1.2 million legal problems. Studies indicate that approximately 29 million Americans are eligible for free legal services and that nearly a quarter of these face a civil legal problem annually. L.S.C. can handle only about 20% of this need. The balance must look to the private bar. The subject is not without controversy. An A.B.A. lobbyist is quoted, "Legal Services Corporation is suing the haves on behalf of the have-nots, and some of the haves haven't liked it." Howard Phillips, National Director of the Conservative Caucus has formed the National Defeat Legal Services Committee. According to Phillips, Legal Services Is an "elite corps" of lawyers whose work includes providing "special assistance to transsexuals, sodomites, and others seeking to legitimate perverse behavior." Dan J. Bradley, L.S.C. President, replies, "Howard Phillips would like to take a ladder and climb up the front of the Supreme Court Building and chisel out the words, 'Equal Justice Under Law.''' While no poll has been taken of the membership of the Arkansas Bar Association, there has been continuous support of L.S.C. in the House of Delegates and the Executive Counsel. This is not unanimous. On March 9, I polled the House of Delegates as to whether the Association should ask the Arkansas Congressional Delegation to help save L.S.C. Three negative replies were received from the sixtytwo voting members. Three of the eighteen members of the Executive Counsel voted against sending Chris Barrier, our Secretary-Treasurer, to Washington on April 1, to join A.B.A. President William Reece Smith, Jr. and over forty other bar associations in a concentrated lobbying effort. Chris made the trip, and to him we owe our thanks. On the other hand, 90/Arkansas Lawyer/July 1981

one former president of our association wrote me that he considered L.S.C. another of the programs "devised by large city lawfirms... merely the way they have for not serving the public in order to concentrate on great fee-producing clients." I vigorously disagree with that indictment. In November, 1980, I notified L.S.C. that our Bar Association favored an amendment in the law proposing that substantial amounts of available funding should be used to provide legal assistance to eligible clients by private lawyers. This is the Judicare concept that can be used effectively in many instances. Lonnie Powers, the Director of Legal Services of Arkansas (serving twenty-four counties and being one of the seven projects in Arkansas), told me that in 1980 approximately 55% of all of the cases handled by his agency were on a Judicare basis, and that so far in 1981 the percentage is between 55% and 60%. On the other hand, he points out that in one county which has about twenty lawyers, not a single attorney would agree to participate in the Judicare program. East Arkansas Legal Services (operating in seven counties) is able to assign almost all of its domestic relations cases to private attorneys who are paid $30.00 an hour for their services. Central Arkansas Legal Services (eight counties, including Pulaski) completed 3,295 cases for the poor in 1980 and accepted 3,456 new clients. At a recent meeting of the Pulaski County Bar Association, a resolution favoring the continuation of L.S.C. was adopted unanimously. Only 3% of the total budget for L.S.C. is spent on administrative overhead. A.BA President Smith points out that the program does not require a single page of paper work from state and local government. The outcome of the battle to save L.S.C. is not yet known. It appears certain, however, that the private bar will never be relieved of its obligation to help provide justice for those who cannot pay. Canon II of the Code of Professional Responsibility states that all of us have a duty to make legal counsel available. E.C. 2-25 reads in part: "The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each

,


lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed by the profession, Every lawyer should support all proper efforts to meet this need for legal services." (Emphasis added.) APPELLATE PUBLIC DEFENDER OFFICE TO CLOSE It is with sadness that I report to you that our efforts to obtain state funding to support the Appellate Defender Office were unsuccessful. The office will lose further federal support and close May 1, 1981. Douglas v. California, 372 U.S. 352 (1963) holds that indigents have a constitutional right to appointed counsel on direct appeal. Members of the Bar of Arkansas must once again assume the full load of this responsibility. As of March 30, 175 cases were assigned to the Appellate Defender Office. So far, relief has been granted in 32 (21 reversed, 4 reversed in part, 4 modified, 3 Rule 37 granted). Four cases were not handled for various reasons. Seventythree cases have been affirmed. That gives the office a success ratio of about 30%. Not bad, considering the obstacles. Congratulations should be extended to Director Alvin Schay and the members of his staff for their outstanding contribution.

James A. McLarty of Newport sent me a copy of his letter to some legislators urging support for the Appellate Defender's Office and quoting John Workman as follows: "When community resources are scarce and vigorously fought over, it is the poor, the oppressed, the minorities and the victims of injustice who come out on the short end of things. They are first to suffer. It is sad, but true ... One measure of the greatness of a society is the way it responds to its poor and oppressed and how it handles its unpopular causes... Public servants do well to remember that at such times the powerful always have their spokesman, and that elected officials have a special responsibility to speak for the dispossessed, and to give fair representation for those causes, however unpopular, that represent legitimate and vital issues... " The history of this nation records numerous occasions when a lawyer braved abuse and retribution for defending the rights of an underdog, protecting the rights of a minority, or arguing an unpopular cause. Those opportunities continue to arise, and I am confident that Arkansas lawyers will not shirk their obligations. THANK YOU This will be my last opportunity to write this column as President of the Arkansas Bar Association. What a wonderful year it has been for me! I am so very proud of this Bar Association and the many dedicated people who make it function. Thank you very much for permitting me to serve as President. ..

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July 1981/Arkansas Lawyer/91


COVER STORY.

The Lawyer Leg islator Requiem or Resurgence? In the January-February 1981 issue of the ABA's Bar Leader, the provocative article, "The Lawyer LegislatorRequiem or Resurgence?", raises some interesting questions as its title indicates. Ethical Consideration 8-8 of the Code of Professional Responsibility, in effect in Arkansas, states: "Lawyers of1en serve as legislators or as holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make magnificent contributions to the improvement of the legal system....." The article states, "the reality is that the lawyer membership in America's

state legislatives has diminished drastically in recent years." For example, Delaware has no lawyer legislators; in 11 other states, the percentage stands at 10 percent, and further reduction in lawyer rolls is likely in the future. These are figures for 1979.

It would appear that the lawyer is barely holding his/her own in the Arkansas Legislative.

The chart, Lawyers Represented in State Legislatives, with the article gives the following percentages for Arkansas: 1976

1966

20 1977

20

There is no need here to recount the many obvious problems facing a lawyer legislator or office seeker in Arkansas. However, it is hoped that the cover story in this issue of The Arkansas Lawyer will encourage Arkansas lawyers in this connection. Senator Max Howell and Representative Jim Shaver are shining examples of "the" lawyer legislator.

24 1979 17

1981 ' 18

'added.

MAX HOWELL usually relaxed morning meeting in his office just off the Senate floor at the State Capitol.

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"I've worked for a liVing since I was a youngster. Since my election to the legislature in 1946 I don't know how I've had time to work for a liVing," said State Senator Max Howell in an un92/Arkansas Lawyer/July 1981

The relaxed atmosphere didn't last long. There were telephone calls to receive and to place. Bills needing his attention were pending. One early morning meeting with Senate colleagues was over, and a Joint Budget Committee meeting was minutes away. Max Howell has a lot of things going, and he always has.

upon by many of his acquaintances. He thought it strange that this should be so, because a number of people in leadership positions in his unit were Arkansans. "I decided then that if I ever returned to Arkansas, I would do all I could to help the State progress." He didn't waste any time implementing his decision.

His first position in the legal profession was a law clerk and young lawyer in the Solicitor's Office of the Department of Agriculture. He worked under a regional attorney who was to make a name for himself as a member of Congress-Brooks Hayes.

Back in Little Rock, Howell was associated with the firm of Talley and Owen. They supported him when he ran for the House of Representatives in 1946 and 1948 and when he served in the House from 1947 through 1950. He was first elected to the State Senate in 1950.

In the Army Air Corps for four years (he retired in 1975 as a brigadier general in the Arkansas National Guard), Howell said that while he was proud of Arkansas, the State was looked down

In 1954, Howell lef1Talley and Owen and started his own law firm with Dale Price, Gene Worsham, and his brother F. J. Howell. "They shared my concern for the needs of Arkansas, and encour-


aged me and supported me in my law business," according to the Senator. During his 34-plus years in the legislature, Howell has introduced and passed a large body of legislation dealing with substantive and procedural law. His legislative interests has been wide ranging. Through it all, he has accumulated a lot - a whole lot - of power. Prestige has been there too, and includes having served as president pro-tempore of the Senate and acting governor on occasions in 1963. Few legislators in the nation even approach his tenure in office. Howell takes pride in the University of Arkansas at Little Rock (UALR) and its school of law, the University of Arkansas Medical Sciences Campus, the law on partition, the old Fargo Girl's Training School, the Criminal and Juvenile Codes, the Public Defender system, the Youth Services Division of the Department of Human Services, and the Arkansas Children's Colony. He had a direct hand in getting each enacted and established, and those measures barely scratch the surface of his legislative work. Howell particu larly takes pride in UALR and its law school and in the Arkansas Children's Colony. Both give insights into the variables affecting bill passage. The creation of UALR and, several years later, its school of law is a good case in point. During an extraordinary session of the legislature in 1968, Howell sponsored a bill (SB 67) directing the University of Arkansas to merge with Little Rock University by July 1, 1969, but the President of the Senate ruled that the bill was not within the purview of the Governor's call for the session, and Howell withdrew it. But in 1969, Senate bill 52 was introduced to the regular session of the legislature, and in just 11 days it passed both houses, and Governor Winthrop Rockefeller signed it into law as Act 35. In 1975, Howell and UALR joined forces, and Howell introduced a bill to form the institution's law school. In ushering the bill through to enactment, Howell was, in a way, honoring his alma mater. He had graduated from the old Arkansas Law School. That school eventually became the UALR School of Law.

The Children's Colony was created in 1955 by Act 5. Howell was beginning his third term in the Senate; Act 5 had passed both houses as House Bill 54 by Representative Kenneth Sulcer. What does that have to do with Max Howell? It is not an uncommon occurrence for a legislator who has an idea for a bill to share the idea with another legislator, encouraging the other to introduce the bill. The originator of the idea introduces a companion bill. This maneuver can be especially valuable in Arkansas since history reflects a general reluctance for persons in the state to be on the same side of an issue as persons from Pulaski County.

Howell is a former chairman and vice-chairman of the Legislative Council. In the 1981 legislative session, he was a member of the Senate Insurance and Commerce Committee and the Committee on Committees. In addition, Howell is vice-chairman of the Committee on Rules, Resolutions and Memorials. In his capacity as a committee chairman, he especially gets things done. He is chairman of the Senate Efficiency Committee, seeing after the Senate's day-by-day operation, chairman of the Joint Budget Committee, and chairman of the Senate Judiciary Committee.

The Children's Colony bill had been backed by then-Governor Orval Faubus, and both Howell's and Sulcer's bills passed both houses. It had been agreed that Sulcer's bill would be the one signed. The Act represented one of the most far reaching steps ever taken in Arkansas to train the mentally retarded.

As the Judiciary Committee chairman, Howell has seen much change in the legal profession, and a lot of the change has been initiated by him. Several Chancery and Circuit Court Districts have been reapportioned. (He was a member of the Judicial Appoint路 ment Committee in 1977, and will be a member of the Judicial Appointment Board created by Act 265 of 1981).

Howell has served in the legislature during the tenures of eight elected governors, and is now a few months into the ninth "I've enjoyed excellent relations with each," Howell says of the governors. "We've had no difficulties with each other. They have been as concerned as I am for the good of Arkansas, the needs of her people, and the delivery of services to them. I've enjoyed working with them in developing their programs."

A Constitutional Amendment was approved by the voters to establish a State Court of Appeals. In 1981, he sponsored a resolution to be voted on by the people as a proposed Constitutional Amendment giving the Legislature the authority to reconsider the make-up of the state's Judiciary "hopefUlly to the end that a family court system can be included," he said. (As of this writing the measure has not been finally voted upon).

It has been said that Howell's power stems from three sources- (1) Since the Senate is a small legislative body (35 members), its power tends to be concentrated rather than diffused as in the House of Representatives; (2) Howell's seniority; and (3) his committee chairmanships and memberships.

During Howell's chairmanship of the Joint Interim Committee on the Judiciary, the state insurance laws were modified as were Arkansas' criminallaws and laws of civil procedure. In the 1981 legislative session, the Committee introduced a 25-bill package aimed at improving service to children and young people, juvenile court procedures, youth detention facilities, foster homes, mental health services, ser路 vice to exceptional children and other measures.

The Joint Budget Committee is a high prestige assignment and its members are usually the legislators with the most power in the House and Senate. Members are selected by the individual houses, but it wasn't always like that. In years past, the governor appointed Joint BUdget Committee members. Governor Ben Laney appointed Howell to Joint Budget for pre-session planning in 1946, and he was sworn into office as a freshman representative the following January.

Robert Frost wrote a poem, the final verse of which seems particularly applicable to Max Howell: The woods are snowy, dark and deep; But I have promises to keep. And miles to go before I sleep. And miles to go before I sleep. July 1981/Arkansas Lawyer/93


JIM S H A V E R - - - - - - - - - -

As he was about to become the Speaker of the Arkansas House of Representatives in 1977, someone wrote of Jim Shaver, "His main interests in the legislature have pretty much mirrored his professional interests: He's a lawyer, a general practitioner who seldom ventures into criminal cases and as such he's devoted much of his legislative attention to matters concerning legal procedures and administration." That may have been the ultimate compliment to one of the state's most trusted politicians and successful practicing attorneys. In his 27 years of continuous service in the House, James L. (Jim) Shaver Jr. of Wynne has become one of the most trusted, persuasive and yet inconspicuous members of the Arkansas General Assembly. And as chairman of the House Judiciary Committee, he has been responsible for passing hundreds of measures designed to improve and upgrade the legal profession. Whether it's helping to draft legislation setting up the new Court of Appeals or working up a comprehensive revision and codification of the state's criminal laws, Shaver remains in tune with the ~roble~s in his profession by marntarnrng hiS law partnership of Shaver, Shaver and Smith in Cross County and serving as an elected official. Shaver's exposure to politics can be traced to his father, J. L. (Bex) Shaver of Wynne. The elder Shaver was elected to the Arkansas legislature on the eve of the Depression and served as a member of both the House and Senate before his election as lieutenant governor in 1941. He was lieutenant governor for four years and later served as executive secretary to Governor Orval E. Faubus for two years. Young Jim Shaver made the rounds with his father at the Capitol. He even 94/Arkansas Lawyer/July 1981

remembers flying a kite at age lOon the Capitol lawn while his father at路 tended to legislative duties. "I remember those days with dad at the Capitol but I don't think my early exposure to the legislative process triggered any aspirations to serve in political office," Shaver observed. "My desire to serve came later in life and I hope I have made a positive contribution to not just Cross County but for our entire state." Shaver was born and raised at Wynne and graduated from Wynne High School in 1945. After a tourof duty In the Navy he married his childhood sweetheart, Bonnie Wood (also from an old Wynne family) and went off to the University of Arkansas at Fayetteville to study law. Shaver first ran for the House when he was 26 years old and fresh out of the UA School of Law. He was elected without opposition, a harbinger of things to come as he ran for re-eiection every two years, never experiencing political defeat and encountering opposition only three times. A newspaper columnist once ob路 served that Shaver "came to the Capitol at the same time Orval Faubus did-in 1955-and has quietly outlasted a whole generation of more flamboyant politicians over whose sons and political heirs" Shaver presided over as speaker. Shaver's low-key approach to government and politics was evident throughout his two-year tenure as speaker. One Capitol observer noted in 1977 that Shaver presided over the chamber in a way that a presiding Judge oversees a courtroom. "Certainly serving as Speaker was a highlight of my political career," Shaver said. "But I look back over these 26 years and I find it hard to believe that I've really been in the House that long. Being Speaker is a part of that 26 years but my service to the folks back home and the local bills I've handled mean just as much to me as my position in presiding over the House because those bills directly affected the people I know best, the people I see most every day. "My tenure as Judiciary Committee Chairman in the House means a great deal to me, too, probably more than most people realize. I believe very strongly In our judicial system and I want to be a part in improving our system of Justice because it does have

flaws and needs improvement. That's why I became a spokesman for implementing the Court of Appeals because the members of the committee and every lawyer in Arkansas realized that our Supreme Court was overloaded and needed help. I am proud to have been a part of establishing the new court." Shaver was instrumental in getting the constitutional amendment to create the court on the ballot and he guided through the Legislation to implement the court. He also handled legislation regarding the administration of decedent's estates and our probate code and served on the Judicial Task Force which helped draft the proposed constitutional amendment to be submitted to the voters in 1982 authorizing the legislature to establish the Jurisdiction and venue of the courts. House and Senate members and other public officials have taken note of Shaver's dedication to his job and his devotion to the legal community. Shaver has been honored on many occasions in his home county and he was surprised during a special ceremony recently in the House when he was presented the House Distinguished Service Award for 1981. The award was presented in a ceremony attended by hiS parents, wife and law partner, Tom B. Smith. In giving the award, Representative N. B. (Nap) Murphy acknowledged the many characteristics that have made Shaver one of the most popular members of the General Assembly. "Few people have had the priVilege of serving with a person who has displayed the patience, calmness, understanding and fairness of this man, not only as a committee chainman but in his daily dealings with the legislature and the public," Murphy said. He said Shaver's "dignity and humility" made him a "unique" legislator. On a humorous note, Murphy, a south Arkansas automobile Dealer explained that it was "difficult for u~ non-lawyers to understand the thinking or techniques of some of our lawyer members of the House. In fact, some of us find it difficult to understand a lawyer on any occasion." But, Murphy added. Shaver "continually impresses me that although he is a distinguished and capable iawyer, He has the unique abilIty of relating to us laymen legislators in a manner we can understand and appreciate." Shaver was surprised by the presentation and was not aware that his pa-


rents, wife and law partner were in town for the awards ceremony. In typical Shaver fashion, however, he responded by walking slowly to the "well of the House," accepting the plaque from Murphy and the warm greeting from his family, and told his cheering colleagues, "Thank you very much." End of speech. Shaver now ranks second in seniority among the members of the House. He has served as chairman of the House Judiciary Committee for seven terms and also serves as co-Chairman of the Joint Interim Senate and House Judiciary Committee. He is a member of the powerful Legislative Council, the House Agricultural, Industrial and Economic Development Committee, Rules Committee and Joint Budget Committee. Shaver also serves on the Drafting Committee for Suggested State Legislation of the National Council of State Governments and he is a member of the Interstate Co-operation Committee. He was also a member of the Judicial Re-Apportionment Committee which reapportioned the Circuit and Chancery Court districts of Arkansas in 1977 and 1981. Before receiving unanimous support to become House Speaker in 1977-78, Shaver was voted the outstanding member of the House in 1975. As speaker, Shaver served on the Executive Committee of the Southern Council of State Governments. Shaver is a member of the American Bar Association, a member and former House of Delegates member of the Arkansas Bar Association, member and past president of the East Arkansas Bar Association, member and present secretary-treasurer of the Cross County Bar Association and a member of the American College of Probate Counsel. He serves on the Industrial Development Commission of Cross County, is a member and past president of the Wynne Rotary Club, past president of the Crowley's Ridge Country Ciub, serves on the Board of Directors of the First National Bank of Wynne and is legal counsel for the St. Francis Levee District, the oldest and largest improvement district in Arkansas. Shaver is a former Deacon and Elder of the Wynne Presby1erian Church. He and his wife, Bonnie, have one daughter and two grandsons.

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ANNUAL MEETING (from pages 110-111, this issue.)

You Can't Tell the Players Without a Program!!! Here's the key to a particularly fine program-professionally and sociallyI2J As usual, there will be numerous organizational meetingsHouse of Delegates, Law Review Board, AICLE, Arkansas Bar Foundation Membership and Board, Committees, Sections (especially YLS), etc. The Great Debate-"Has the Jury Trial Outlived Its Usefulness?" with Philip H. Corboy of Chicago vs. Donald J. Zoeller of N.Y. -there may be a second confrontation on structured settlements with Winslow Drummond and R. Keith Arman. If Mr. Corboy, who has written dozens of legal articles including "Structured Injustice:CompUlsory Periodic Payment of Judgements", is available, a real confrontation with our Association President Phillip Carroll will be inevitable. We are delighted with the "telephone" cartoon-it points up so well the need for better teiephone and client communications. All Will be impressed with the fine film, "A Case for Communications", and related comments. Attendees will be able to discuss their individual problems with experts. IT! "Body Language" is a modern art. Dr. Loretta Malandro will put on a 3-hour program on "Nonverbal Communication In Jury Trials". She is the "top" specialist in nonverbal communication-body language-and how to recognize it, read it and use it. This is one program, none will want to miss!! GJ Where is the legal profession going in the 1980's? It may be a cardinal rule to avoid Bar officials as speakers during annual meetings. However, it would be a cardinal sin not to have ABA President Wm. Reese Smith, Jr. point the way in these critical times. His will be the "keynote" address! All will find him articulate, humorous, knowledgeable, and with a message for all lawyers. We are going to have two receptions, two luncheons, and Western Nite with a fine Bar BQ. Western Nite will be better than last year's First Fabulous Foreign Food Festival-with hats, western band, and all. Under 3 above, structured settlements was covered in part. Lawyers need to know the techniques involved in such settlements. The possibility of a debate on this subject adds to the presentation. The YLS will have the sponsorship for the First Annual Poolside Dance with a great band and cash bar. The Western Nite Band will also play for dancing-western disco, a speciality! ITQI We have added a cartoon on the Jury. This institution is under fire-its capability to handle complex cases, its costs, its consist, etc. The Annual Meeting program will add to one's understanding in this connection. [TIl The male Bench and Bar needs to recognize that "Portia" has arrived. Outstanding Chicago lawyer Joan M. Hall will discuss "Portia's Progress" at the Friday luncheon. Hall not only is a partner in a major law firm, but also is the Vice-Chairman of the ABA Section on Litigation-in addition to many other professional and civic activities. @] The 82nd Annual Meeting program has "IMPACT"-structured settlements; "Jury" debate; communications; body language; telephone systems; public relations; "Portia's Progress"; law in the 80's-professional developments. Add to these-a fine social program. The 82nd Annual Meeting is the "best bargain" for similar meetings in the Country. PLAN TO ATTEND-MARK YOUR CALENDAR-REGISTER EARLY-STAY LATE-TAKE THE PRINTED PROGRAMS HOME WITH YOU!!

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July 1981 {Arkansas Lawyer{95


•

Editor's

the Arkansas Bar Association's educational program concerning docket control and other areas of high risk experience in

professional

SAFEGUARDING YOUR PROFESSIONAL FUTURE

Comment:

AEGIS is a feature of

liability

cases.

Don't Put All Your Eggs In One Basket: There Could Be A Bad Break! the problem

In this case the insured attorney represented a couple who had been injured as a result of an automobile accident which occurred in Canada. Since the accident was caused by a rear-end collision, liability on the part of the defendant was undisputed. Rather than refer the case to a local attorney, the insured attorney dealt with the adjusting firm by mail. He was unaware that a year statute of limitations applied in Canada and failed to take the necessary steps to protect his clients.

the result

The insured attorney notified his clients of his failure to file the suit on time. He conducted the negotiations with the clients himself and settlement was made for medical expenses and lost time.

advice

Cases involving a Foreign Country need a much closer review of the points of law. Prompt referral to a local counsel is always a wise decision.

96/Arkansas LawyerlJuly 1981


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First American TitIef'!Insurance Company REGIONAL OFFICE 6051 N BROOKLINE 5T. STe

106. OKLAHOMA CITY, OK 73112 • (405) 840-3258

NATIONAL TOLL-FREE NUMBER: DIAL 1-(800)-854-9171 NATIONAL HEADQUARTERS: 114 E. FIFTH ST" SANTA ANA, CA 92701 • (714) 558·3211

SERVING TITLE INSURANCE NEEDS THROUGHOUT THE UNITED STATES Affiliated with The First American Financial Corporation

July 1981/Arkansas Lawyer/97


BAR RELATED TITLE INSURANCE by Stanley B. Balbach Lawyers have a duty to the public to provide competent, independent advice in real property transactions. This service may be aided if the buyer has access to a bar-related title insurance company. The best protection for a client is his lawyer's opinion of the title plus the indemnifying feature of title insurance. In this article the problem is analyzed and a solution is suggested.

lawyer examination. To the contrary, the evidence would show that lay examiners turn out more examinations for title insurance purposes with less errors and in less time than their lawyer counterpart, and that, I believe, is to the pUblic good and the credit of the corporate agent and direct underwriter branch facilities."

THE ELEMENTS OF TITLE INSURANCE Essentially there are three elements in the production of a title insurance policy: Examination of the record title; analysis of the legal effect of the documents; and insurance of the title. Insurance provides a fund to pay the title holder in the event of the loss of title for any reasons. The examination function (searching the title) has been abandoned by lawyers in much of the country although it is still the exclusive province of lawyers in parts of New England and, in fact, in many nonindustrial areas throughout the United States where the lawyer has any involvement at all in the real property transaction. Many offices conduct their own examination using lay assistants to prepare the abstract or history of title. The subsequent analysis of the legal effect of the documents is acknowledged by almost everyone to be a lawyer's task although an executive of a leading commercial title insurance company doing business in Texas and in practically all other states recently wrote:

and in a Florida city a leading national title insurance company sent a letter to every homeowner which read in part: "Your best sales feature-<Jther than your home itself-would be to close your transaction through our title insurance corporation and give your purchaser the peace of mind that goes with title insurance protection. Our services include: 1. Examination of the title. 2. A written report which you can give to the purchaser showing the condition of the title. 3. The closing of the transaction, including preparation of all necessary papers. 4. Issuance of our policy to the purchaser showing title vested in him. All this for a one-time title insurance premium. Bring us your sales contract and we will take it from there." The third element, the insurance of the title, is conceded by lawyers in almost all parts of the country to be best handled by an insurance company. The classic exception is in the Northeast where some of the very large law firms maintain their own abstacting files and as they issue each title opinion they pay a portion of the fee into an indemnification fund and in the event of a title failure they reimburse the client out of that fund. If this were successfUlly done nation-wide the title insurance companies would be out of the real property practice and so would 95% of the lawyers who had insufficient assets to support an adequate fund. A Judicature Society editorial analyzed the conflict between Title

"With regard to your feelings, and perhaps the feelings of your Committee, that a/l titles should be examined by a lawyer before they can be insured, my company takes strenuous issue . .. There is no evidence to warrant a conclusion that the policy holder or the title underwriter would be well served by the requirement of 98/Arkansas Lawyer/July 1981

STANLEY B. BALBACH

(Note: Stan Balbach is eminently qualified to write about Bar-related title insurance. During World War /I, Stan was a pilot at Newport, Arkansas, and there met and married the former Sarah Troutt Witherspoon of Jonesboro. He has been a frequent visitor to Arkansas, both for family and professional reasons. His professional contacts with Arkansas were intensified when he served as Chairman ofthe Young Lawyers Section of the American Bar Association in 1954. He has been President of the Board of Attorneys of the Title Guaranty Fund, Inc., an Illinois corporation, and is presently a Director. He is President of the National Attorneys Title Assurance Fund, Inc., and has written a plethora of articles on many subjects, prominent among which is title insurance. He practices law with the firm of Balbach and Fehr, P.C. in Urbana, Illinois. -E. Harley Cox, Jr. Immediate Past President Arkansas Bar Association) Insurance companies and lawyers in these words: "As between the legal services and the insurance service in a real estate transaction, and granting that both are useful and desirable, it remains to be asked: Which is the dog, which is the tail, and which is, or ought to be, wagging which?


To ask that question is to answer it. The operation is essentially a legal one, and the title opinion is the purchaser's main reliance with insurance properly being supplied only to cover the contingencies of honest error and the likesimply to make the near perfect protection of a good title opinion complete."

REAL PROPERTY PRACTICE IS PROFITABLE Many lawyers have not participated in the handling of real property practice because they feel that it is unprofitable. This belief has good foundation because many of us have used our real property practice as a loss leader, particular/y the title examination and analysis feature. Commercial title insurance is with most companies a profitable business. In the preparation of a title insurance policy the lawyer function of analysis represents about 80% of the total billing. The survey by the State Bar of Texas showed that more people found their way to a lawyer's office for the first time in connection with a real estate problem than in any other way. The American Bar Association "Survey of the Legal Needs of the Public" showed that 30% of the legal problems of the public in the ensuing year would involve real property. With proper billing, this is profitable practice and the opportunity it affords to do a legal checkup will normally result in other legal work. There are those who say that the use of a lawyer on a transaction increases the cost. A member of the California bar who served on the Council of the Real Property, Probate and Trust Law Section of the American Bar Association, made the statement:

"This system (referring to the system in the state of California where a lawyer never participates in a residential real estate transaction) has resulted in the elimination (of) lawyers from most residential transactions and a corresponding reduction of closing costs. It is a very efficient system and serves the consumer well." This statement is untrue. The HUDFHA survey shows that the highest closing costs in the country for legal services, title insurance, escrow

charges and examination charges are in states where the lawyer is not involved in the transaction while some of the lowest are where no title insurance is used.

THE CONFLICT WITH COMMERCIAL TITLE INSURANCE The separation of the analysis (lawyer function) from examination and indemnification is a fact of life in some states but not in others so confrontation is inescapable. Fifty years ago the chairman of the Title Insurance Section of the American Title Association said:

"We all know the goal which the title insurance Section is trying to reach is to eliminate from the title business all the general practitioners of law. Let's get the money that they are getting and save the public from them. Then hire some good attorneys, pay them by the year, and take the profits which they otherwise would make:' At a meeting in New Orleans, an executive of one of the leading commercial title insurance companies qualified in Texas and Louisiana recent/y said:

"There are varying degrees of requirements. I don't see the need for requiring an attorney in Louisiana any more than in Texas. In the West, examinations are not made by attorneys . .. I believe most title companies would oppose an absolute requirement that each title would be certified by a Louisiana attorney:' The Judicature Society article which is previously cited in this article has another clause which applies to this situation:

"Now if independent legal services and independent commercial title insurance could get along indefinitely side by side this would no doubt be a satisfactory situation. But it simply does not work out that way. The uniform experience has been that the more commercial title insurance flourishes, the more the legal services involved become a

mere appendage of the insurance operation, and the more the independent lawyer tends to disappear from the scene:' The charge might be made that the editorial was several years ago, that the prophetic statement was fifty years ago-what's happening more recently? On Sunday, June 13, 1976, in the Jacksonville, Florida Journal we find this statement:

"According to the spokemen for a few of this city's dozen title companies, plans include the following: ... a shift toward dealing directly with the consumer through in-house staff examinations and closings and away from relying on business referred by attorneys handling closings. . . .Some title companies hope to handle more closings. This, coupled with in-house title reviews, would altogether eliminate attorneys fees, they claim:'

CONFLICT OF INTEREST Some well-intentioned but misguided attorneys challenge the ethics of the lawyer who issues a title insurance policy on the grounds of conflict of interest. There is precisely the same conflict of interest as when a lawyer writes a title opinion and few would argue that this conduct is unethical. Any conflict is lessened by providing the protection of indemnification. As the editorial in Judicature said:

"No matter how sincerely he may try, the title company's lawyer cannot be depended upon to give adequate representation to either the vendor's or the purchaser's interest. He represents the company, and anything beyond that raises serious problems of conflict of interest. There is no substitute for the vendor's and the purchaser's own attorneys in real estate transactions:' In its pamphlet Residential Real Estate Transactions: The Lawyers Role-Services-Compensation Proper Transactions, the American Bar Association Special Committee said at page eleven: continued on page 100 July 1981/Arkansas Lawyer/99


路 ..Title Insurance, continued from page 99

"The fact that the lender and the insurance company deal at arm's length is well understood by both. What is not understood by the buyer is that, by the nature of the contract, his interests are in conflict with those of the insurer. The two can enter into a binding agreement giving protection spelled out and limited by the terms of the contract. But the inherent conflict, however, between the interests of the parties stands in the way of the insurer either advising or representing the insured." There is no legal duty for the insurance company to explain the exceptions in Schedule B, but the lawyer has a fiduciary duty to his client to explain the exceptions. It is true that some commercial title insurance examiners are highly proficient but this is meaningless to the policy purchaser if the examiner owes no duty to the purchaser.

SERVICE A legitimate criticism of the legal profession is in the area of service. If the lawyer is to compete with his commercial competitors then he must be willing to do the work promptly. The search function must and can be expedited. Title analysis takes just a few minutes unless there is a close legal question in which case there is a time lag whether or not commercial title insurance is involved. Upon completion of the title analysis, the policy can be typed in a few minutes so that in many routine !ransactions the necessary title work prior to closing can be completed in an hour and the policy issued. This is competitive with any commercial source. One reason that the lawyer has been dilatory in real property transactions is because he had charged an inadequate fee. Frequently, this is the result of pressure brought by brokers and other individuals who desire to show their clients a nice package of services at a very low cost. If the lawyer receives compensation on the scale of the commercial title insurance companies, the problem of inadequate pay should be solved. 100/Arkansas Lawyer/July 1981

ABA HISTORY The American Bar Association, through its committees and sections, has long been interested in bar-related title insurance. In 1947 the Unauthorized Practice News published by the Comm ittee on the Unauthorized Practice of the Law said:

" .. .it is suggested that the members of the Bar generally study and discuss the (Florida Fund) Plan as one of the steps in preserving to the legal profession a field of activity which is rapidly becoming the object of corporate encroachment." In 1961 the Board of Governors of the American Bar Association authorized the appointment of a Special Committee on Lawyers' Title Guaranty Funds which included representatives of the American Bar Association Committees on Professional Ethics and Economics of Law Practice and of the Section on Real Property, Probate and Trust Law. In 1962 the purposes of the Special Committee were expanded by the House of Delegates of the American Bar Association by the resolution:

"Resolved, that the Special Committee on Lawyers' Title Guaranty Funds, in addition to having authority to make a study of title insurance and title guaranty funds, be authorized to cooperate with state and local bar associations indicating interest in the SUbject." and the same year the Committee on Professional Ethics released Formal Opinion 304 which found, in part, that:

"A lawyer who merely provides

a greater security for his client through the use of a type of insurance or guaranty fund to buttress his opinion or to provide for contingencies beyond his knowledge Is not guilty of unethical conduct." The House of Delegates action in 1967 endorsing the principles of bar-related title insurance organizations was commented on that same year by an editorial in the Journal of the American Judicature Society, the lead line of which was:

"One of the less conspicuous but highly significant actions of the American Bar Association." In t 972 the Special Committee became the Standing Committee on Lawyers" Title Guaranty Funds charged to:

"Study title insurance and title guaranty funds, cooperate with state and local bar associations indicating an interest in lawyers' title guaranty funds, and stimulate efforts among lawyers and laymen to recognize the essential role of the lawyer in real estate transactions."

DUTY OF THE ORGANIZED BAR Why should the organized bar take an interest in bar-related title insurance? Isn't this simply another commercial operation and if a few lawyers are interested in it, why not have them get together without the benefit of organized bar support? In addition to the urging of the ABA committee on Unauthorized Practice we find an American Judicature Society editorial stating:

"Lawyers' professional organizations, when they establish their own title insurance operations, are taking effective steps to maintain their place in the real estate picture by using bar-related title insurance to meet the competition of insurance-related legal services. In so doing, they are acting in accord with the highest concept of the lawyer's service to the client, are protecting the interests of the public, and are promoting the efficient administration of justice." Title insurance is a fact of life that the profession should not ignore. The lawyer who does not furnish his client with indemnification for hidden defects and honest error is inViting his client to take the next deal to a commercial compelilor or to another lawyer.

HOW DOES BAR-RELATED TITLE INSURANCE WORK? The legal form that the bar-related entity takes is almost immaterial in


reaching the objectives. The Florida Fund is a Massachusetts Trust, the Illinois Fund is a profit corporation, the Georgia Fund is a not-for-profit corpcration. Undoubtedly there would be a cooperative entity except that most state insurance laws prevent it. The operation is very simple-a group of lawyers get together, pool their funds, hire an employee to handle supplies, purchase reinsurance to take care of the large loss, and deliver title insurance policy forms to the members. The members can then write title insurance in their office and send enough money to cover the overhead of a central office. A bar-related company operates on eleven principles: 1. The motivating purpose is service to the public. 2. Control must be permanently and exclusively in active practicing lawyers. 3. The operation is essentially cooperative. 4. Title assurance is available only from lawyers. 5. Financial responsibility is essential. 6. Management by Lawyers. 7. Cooperate with the Bar. 8. Inform the public as to lawyers' services. 9. The attorney-client relation must be maintained. 10. Title assurance means professional service and financial indemnity. 11. A broad bar base. Bar-related title assurance companies are formed by practicing lawyers who pay one-time dues in the form of a cash advance to an organization which will battle with the commercial competitors for the real property practice in a way that the bar association is neither financed nor oriented to do. The Board of Directors of the Arkansas State Bar ratified the Articles of Incorporation of Attorneys' Title Guaranty Fund, Inc., a not-for-profit corporation on September 19, 1980 and elected Thomas R. Ledbetter of Harrison as President, James H. McKenzie of Prescott, as VicePresident and James Young of Russellville as Secretary-Treasurer. E. Harley Cox of Pine Bluff has drafted the Offering Circular. On November 1, the Board adopted a bUdget of $50,000 for the first year of operation. Each member firm will pay a membership fee of $250 for the first member and $100 for each additional

member of the firm up to a maximum of $500 with the firm buying an equivalent amount in fund deposit receipts. TITLE INFORMATION A problem that is frequently raised by those opposed to bar-related title insurance is that of title information. They will point out that in a city like Chicago all the title information is with one or two large companies and therefore the lawyers are foreclosed from competing. This is not true. The active bar-related companies have solved the problem of title information in such major cities as Miami, Chicago, Cleveland, Milwaukee, St. Louis, and Kansas City. A professional administrator paid by the company can find sources of title information that are unknown and unavailable to the single firm.

CAPITALIZATION Statutory capitalization problems make it very difficult in some states for the bar to raise sufficient funds to operate as a title insurer. This was true in Georgia where they went ahead with their organization, incorpcrated, and then acted as an agency for a title insurance company. If the bar will raise the money, get the lawyers together, and hire an administrator, then the problems of title information and title insurance can be solved. The third problem of title appraisal can then be handled by the lawyer.

THE FUND AS AN EQUALIZER Many able real property lawyers are agents of one or more commercial title insurance companies. In addition to getting a percentage of the fee which is charged the client for the title insurance the agency lawyer may get a percentage of the title insurance cost charged to others as well as referrals from the company. It is an economic sacrifice for this lawyer to become part of the Fund concept because as soon as the Fund is created he has enabled his fellow lawyers to have a capacity to compete against him which they would not have if he maintained an exclusive agency. The Fund is an equalizer in another way. A firm with 100 lawyers has a capacity to respond in damages which is usually not available for a sole practitioner. The sole practitioner may purchase liability insurance but he cannot match the assets of the large

partnership. The use of a bar-reiated Fund enables the sole practitioner to compete in the market place not only with his commercial competitors, but also with the large law firms. HOW DOES BAR-RELATED TITLE INSURANCE HELP THE PUBLIC TO OBTAIN INDEPENDENT LEGAL ADVICE? First, if title insurance is available to the lawyer at its cost for the pure risk factor then the addition of a legal fee will probably result in his service being competitive with the fee charged by the title insurance company which necessarily includes an examination and analysis fee. Second, it can, through advertising, encourage the public to "see your lawyer" and perhaps the pUblic will get this independent legal advice when it needs it most-at the time of hiring the broker and preparing the purchase contract. Third, it can establish "chairs" for the teaching of real property law to encourage high quality education. Fourth, it conducts courses for law students, lawyers and lay employees of lawyers in real property conveyance procedures. Fifth, it is a center for real estate information exchange in the event of new law or local procedural problems. Sixth, it has the interest, duty and resources to keep alert to the legislative process. When Congress was in an advanced stage of authorizing commercial title insurance companies to practice real property law at the instance of a commercial title insurance company it was the bar-related companies that sounded the alarm to the profession. Seventh, it can send its representatives to bar association meetings just as the commercial title insurance companies do to be alert for actions which may prejudice the bar and hence the public. The impressive voice that commercial title insurance has in bar association activity is due partially to its entertainment of the profession, but also due to the work of its representatives in the sections and committees of the organized bar. The future of real property practice in the United States lies with the informed, independent lawyer. Bar-related lilal insurance is a "tool" to permit the providing of this professional service at a competive price.

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July 1981/Arkansas Lawyer/101


CONTEXT By W.

Christopher Barrier

THE WINDS OF CHANGE Futurists spend their time predicting the results of certain trends, set in motions either deliberately or by chance. However, even the most astute futurists have difficulty dealing with converging, and even contradictory, trends. Even those deliberately sel in motion may have results that were unintended and perhaps even unwanted.

you do and are experienced at, and how much you charge for it. Obviously, listing fees in the yellow pages for a year at a time is apt to be a little risky. HopefUlly, when we finally get around to certifying specialist we can start producing lawyer advertising which may be less entertaining, but which is actually useful to prospective clients.

Up to our ears, . , The legal profession now finds itself at the confluence of emerging trends which will significantly shape the function of the law and our part in it. These trends are only partially within our control. We may find ourselves up to our ears in alligators, and without a stick. At this point, for example, the future of federally funded legal services for the poor is very much in doubt. The status of the law as a leamed profession has been under assault, at least indirectly, by the Federal Trade Commission. Mandatory pro bono is approaching the status of an ethical duty. The work of the Kutak Commission has raised grave questions about the proper role of the lawyer, as has the growing use of advertising by lawyers.

The function of the law... But lawyer advertising in Arkansas to date has tended to obscure rather than illuminate the function of the law and lawyers. The function of the law is to define and protect basic rights and to establish a degree of predictability as to the results of our actions. The function of lawyers is to structure that predictability, as in drafting contracts, and to participate in the resolution of conflicts. In large part because of the unavailability of certification of specialties, current lawyer advertising does little to acquaint the public with these functions. Lawyers and telephones... Interestingly, one of the more insightful comments I have come across on the function of the law, especially in the United States, was made by a socialist non-lawyer. In his book, Tools for Conviviality, Ivan lilich classifies as "convivial tools" those instrumentalities and institutions which are readily controllable by the individual, without being held hostage by other forces. IIlich is suspicious of highly complex technology which is not directly utilizable by the individual, as contrasted with instruments such as the telephone, which can be operated by masses of people (and usually is on Monday momings and right before you try to leave town on vacation). lilich likes the notion that any American can hire a lawyer and get into court and seek redress of a grievance, without permission of any panel or group. (California Governor Jerry Brown is a devotee of IIlich, which shouldn't be held against either of them.) In any event, lIIich has put his finger on two elements which are essential to the proper functioning of our legal system-(1) availability of lawyers, and (2) ready access to our courts.

On the ethical edge... Advertising is perhaps the most tangible trend. I had commented in an earlier column on the yellow page advertising in the Little Rock phone book. The changes in the last year are even more startling. Half-page display ads are common, several with photographs, and a number with slogans, such as "immediate action and reasonable rates", "people you can talk to", and "over 65 years of combined legal experience". A few tread close to promising results-"experienced attorneys with successful track records". Others bump up against the limits of good taste-"it doesn't hurt to call if you have been injured". Still others list credentials, such as degrees, certifications in other professions, and professional memberships. One lawyer even advertises his ranking on the Arkansas bar exam! "For legal action..... My favorite slogan is "For legal action-Cliff Jackson!", although it does make you wonder how Cliff pronounces his last name. For simplicity and directness, it is difficult to beat R. David Lewis, whose small ad advertises "marijuana defense-civil rights." As a matter of fact, lawyer Lewis' ad comes closer to proViding the sort of information a prospective client would need than most of the other ads, which are long on hype and generally short on usable information. Of course, the two most important things for a client to know what sort of work 102/Arkansas Lawyer/July 1981

FTC and you and me... The essence of the FTC investigation was to determine whether lawyer price-fixing was restricting access to lawyers, a bizzarre venture indeed in an era of increasing competitiveness among lawyers. The Kutak Report also demonstrated a curious misapprehension as to the proper function of lawyers. It emphasizes the position of lawyers as officers of the court and their duty to the system and to the public, as contrasted with their duties to their clients. It


overlooks the very elemental truth that a lawyer serves the system best by properly and vigorously pursuing the interests of the clients. Any significant departure from this truth serves neither the client nor the system. Yes, we have no pro bono... Mandatory pro bono requirements raise additional questions, particularly in a time when lawyer competence is in grave question and when increasing specialization is a hard reality. In 1975, the House of Delegates of the American Bar Association strongly endorsed pro bono work as a "basic professional responsibility of each lawyer engaged in the practice of law... "The resolution cited the areas of poverty law, civil rights law, public rights law, charitable organization representation and the administration of justice as needing particular attention. However, matching the lawyers with the cases presents some problems. Fifteen years ago, every young lawyer could expect to get appointed periodically to defend a stolen car case in federal court, whether he or she was interested in that type of case, or even genuinely qualified to handle it. Similarly, a poor person with a landlord problem is not going to find a bond lawyer very useful, nor is the average drafter of pension and profit sharing plans going to be on top of the law of civil liberties. In such cases, the client is plainly better off and better served by a lawyer who wants to handle such cases and is paid (albeit modestly) to handle such cases. Some distortions•.. Obviously, being provided a lawyer free of charge causes some distortion in the lawyer-client relationship and the way cases are handled. For instance, a paying client may have to decide whether pursuing a certain course of action is costeffective or worthwhile. When the client does not have to make that decision, cases which have an importance to the client far beyond their actual merit may be pursued beyond reasonable limits. However, as lilich suggests, how much greater would the distortion be if permission had to be gained from some board or commission by litigants before proceeding, whether paying or otherwise? Further, the distortion in the system is also evident in instances where a client without funds must forfeit his rights unless he can find a lawyer who is both qualified to handle his case and also willing to do so on a pro bono basis. Access to legal services needs to be maintained and improved, both for those who can pay and those who cannot pay. For those who can pay, we need to overcome reluctance to approach lawyers by providing more information about fees and services which can be rendered. Improved delivery•.• The delivery of legal services also needs to be improved by matching up client needs with lawyer abilities, both through certification of specialities and through a system whereby the bulk of legal services to the poor are provided by lawyers with a special interest and training in the problems of these clients. Financial barriers to lawyer access can be reduced (for better or worse) by competition, and also by devices such as pre-paid legal services. Again, for certain clients, only the elimination of fees will permit access. Finally, equality of access to our legal system must be meaningful. This does not have to mean guaranteed quality or consistency of results, nor does it mean guaranteed access to the lawyer of a client's choice. After all, even paying clients are not guaranteed that any lawyer will accept an engagement. However, it is no less important to the integrity of our legal system for an aggrieved tenant to have this

dispute with his landlord properly resolved than it is for an accused person to have his rights protected before a criminal tribunal. Rights established by law, whether criminal or civil, are meaningless if they cannot be properly vindicated. but unanswered questions... The need is plainly there and a number of mechanisms for meeting that need have been tried. However, these very mechanism5---ijovernment funded legal services, voluntary pro bono, mandatory pro bono-raise basic questions about the function of the law and the duty of lawyers. Specifically, whose responsibility it is to see that legal services are provided to the poor, that civil liberties issues are fully litigated, that charities stand on an equal footing with government and business in the courts, and that justice is properly administered? Is it the responsibility of the legal profession? Or the public? Or of both? I would strongly suggest it is the latter. At present, legal services organizations of Arkansas apparently provide a substantial portion of the legal representation received by poor persons in the state. However, by their own admission, without the assistance of the private bar, they would be overwhelmed. If the activities of these agencies are significantly curtailed, how will the ethical responsibility of lawyers to meet such needs be fulfilled? ... and unwanted answers•.• The cases can be spread among the bar generally, perhaps on a mandatory basis, but the result will be representation in a good many instances by lawyers not genuinely qualified to handle the cases. The legal services agencies could continue to function, financed perhaps in large part by an assessment on lawyers. Quite candidly, I am not at all sure that this is not the appropriate way to handle it. However, even beyond the financial burdens on the private bar, this has serious limitations, particularly with reference to the independence of the agencies. In any event,lawyers must face the prospect of having the responsibility for representation of the poor (and the unpopular) thrust back upon them. At a time when they are grappling with questions as to the appropriate role of advertising, their duties to the pUblic as opposed to their clients, and at a time when their very status as a profession is under attack, they may find that some very basic decisions as to the function of the law and the way they enhance that function as lawyers are being made in a context wholly divorced from the issues and principles which they hold dear.

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july 1981/Arkansas Lawyer/103


In jrflemoriam THE LABOUR OF THE RIGHTEOUS TENDETH TO UFE. Proverbs 10:16

Col. Van H. Albertson Retired Col. Van H. Albertson, 71, of Huntsville, died in OCtober. He was born in 1909 in Beggs, Okla. and had practiced law for 42 years before retir· ing in Huntsville. He was a member of the American Legion, Washington County and the Fayetteville Country Club. He served 30 years in the Air Force including combat in Southeast Asia and was a Judge Advocate of General Ryan's staff from 1956-1965. He is survived by his wife, Mrs. Chloe Dean Parker A1berston of the home; two daughters, Sherry Elaine AI· bertson and Patti Jane Albertson of Calif; two sons, Robert D. Albertson and John Richard Albertson, both of Fayetteville; a brother, Joe Albertson; and a sister, Marguerite Albertson of Venice, Fla.

Lily Mae Bryan carmichael Mrs. Lily Mae Bryan Carmichael, aged 89, of Little Rock, a lawyer and former executive secretary, director and trustee of the Arkansas Law School in Little Rock, died February 16, 1981. She was the widow of JUdge J. H. Carmichael, a former dean of the Law School. l04/Arkansas Lawyer/July 1981

She was born in Gainesville (Greene County) and studied at Arkansas Col· lege at Batesville before receiving her law degree from the Arkansas Law School (now UALR School of Law). Mrs. Carmichael was the author of two books of poetry, "Hilltop Reveries" and "Across the Years." She was listed in "Arkansas Lives," "Who's Who of American Women" and "Two Thousand Women of Achievement:' She is survived by a sister, Mrs. Helene McMurtry of Little Rock. Memorial may be made to the Judge J. H. Carmichael Scholarship Fund at the University of Arkansas School of Law.

Stanlay Ellington Coleman Stanley Ellington Coleman, aged 75, of Batesville, died January 30 in a Little Rock hospital. Born in Batesville, he was a former owner of the Amoco Oil Distributorship in Batesville. He was a graduate of the University of Arkansas Law School and a member of the Arkansas Bar Association and the Independence County Bar Associ· ation.

He was the son of the late Judge Dean H. Coleman and Mrs. Norma Landers Coleman. He is survived by his wife, Mrs. Kathryn Berry Coleman; a daughter, Mrs. Linda Payne of Pine Bluff; two sisters, Mrs. Nancy Warren of Mesa, Ariz., and Mrs. Mary C. Inman of Pine Bluff; two grandchildren, Stan· ley Payne and Andrea Payne also of Pine Bluff.

.Falon A. Fraley Falon A. Fraley, lawyer and former legislator, died January 14, 1981, in Las Vegas, Nev., after a long illness. In 1955, he moved to Las Vegas from Arkansas where he had been a practicing attorney and a real estate broker. He had served in the Arkansas Legislature under three govemors. He is survived by his wife, Norma; a sister, Lorene Ogilvie of Las Vegas; and a brother, John L. Fraley of Jacksonville, Ark.

Eugene Sloan Eugene Sloan, 88, a prominent Jonesboro attorney and landowner, died saturday, February 14, 1981, at 51. Bernard's Regional Medical center. A native of Powhatan, he moved to Jonesboro in 1915 to establish a law practice and continued to conduct per-


sonal business until a few weeks before his death. During his extensive business career, Sloan was president of E. Sloan Farms, Inc., and of the B&G land Co., managing family-owned farms and related properties. He was vice-president of People's First National Bank, a predecessor to First Bank and Trust, and served on a number of bank boards in Craighead County. He was a past president of the board of directors of the Federal land Bank Association of Jonesboro. He is survived by a daughter, Patricia Sloan Chambers of Danville; 18 grandchildren; and nine great-grandchildren.

Grover Cleveland Carter Grover Cleveland Carter, aged 96, of Ozark, who practiced law in Franklin County for 45 years, died in October 1980. A former mayor of Ozark, he was on the Selective Service Board in World War I, World War II, and the Korean War. He was a member of the Ozark School Board and served four years on the state Alcohol Beverage Control Board. He was a member of the Ozark First Christian Church. Survivors are his wife, Mrs. lela Carter; four sons, Wayne and Glenn Carter of Ozark, Roger Carter of little Rock, and Harold Carter of St. Joseph, Missouri; two daughters, Mrs. Nellie Melton of DeRidder, la., and Mrs. Ruth Wacaster of Fort Smith, 11 grandchildren and 28 great-grandchildren.

Percy laFayette Copeland Percy laFayette Copeland, aged 76, of Newport, a prominent local businessman, died November 4, 1980, after a long illness. In 1946, Mr. Copeland helped organize the Merchants and Planters Bank of Newport, and was one of its original stockholders. He was presi路 dent of the Arkansas Banker's Association in 1963 and 1964. He was also one of the organizers of the Industrial Development Commission in Arkansas and served on its first board. He is survived by his wife, Mrs. Aida Garland Slayden Copeland of New-

port; three brothers, Gerald Copeland of Branson, Mo., Kermit Copeland of Dayton, Ohio, and leland Copeland of Cleveland, Ohio.

Frank Wynne Frank Wynne, aged 56, of Fordyce, former prosecuting attorney and former Fordyce city attomey, died in December 23, 1980. He was an active member of the First United Methodist Church of Fordyce, where he was a lay speaker and a member of the official Board of the Church. Wynne served as Fordyce City Attomey from 1952 to 1960 and was prosecuting attomey from 1961 until 1978. He was graduate of the Fordyce School System, the University ofTexas at Austin and the University of Arkansas law School at Fayetteville. He was a member of the Arkansas and American Bar Associations. He is survived by his wife, Sue Attwood Wynne of Fordyce; a son, Frank Wynne, Jr., of Fordyce; three daughters, Mrs. Mary Still of Columbia, Mo., Mrs. Susan Woodson of New York, and Miss Martha Wynne of Fayetteville; his mother, Mrs. Agnes Wynne Coffee of Fordyce; four brothers, T. D. Wynne, Jr., of Fordyce, Hal Wynne of New Orleans, and Dr. George F. Wynne; two sisters, Mrs. Annett Shipman of Scottsdale, Ariz., and Mrs. Agnes Phillips of little Rock; and a grandchild.

John E. Miller John E. Miller, 92 of Fort Smith, a former U.S. senator who retired as a federal judge in 1979 at the age of 91, died Friday, January 30, 1981, at a Fort Smith nursing home. Miller was appointed to the bench in 1941 by President Franklin D. Roosevelt and served until arthritis forced him to step down in November 1976. He was bom near Aid, Mo., on May 15, 1888. He attended Cape Girardeau Teachers' College in Missouri and Valparaiso University in Indiana. He received his law degree from what was then the University of Kentucky law Department at lexington in June 1912 before moving to Searcy, Ark. There,

he was elected city attorney, marking the start of a political career that never knew an election defeat. It was reporled that Miller was six miles out in Chesapeake Bay when word reached him in August 1937 that rank-and-file Democrats wanted him to oppose Arkansas Gov. Carl E. Bailey in a special election for the Senate seat vacated by the death of Sen. Joe T. Robinson of little Rock. His election to the Senate marked the first time since 1860 that an Independent defeated a Democratic candidate in Arkansas. He is survived by his wife, Mrs. Ethel Skinner Miller; a son, Judge John Miller, Jr., of little Rock; a daughter, Mrs. B. C. Goodlow of Virginia; five grandchildren; and a great-grandchild. Memorials may be made to First United Methodist Church, Old Fort Museum in Fort Smith, or Judge John Miller Scholarship Fund clo Arkansas Bar Foundation.

Pat Mahaffy JUdge Pat Mehaffy, aged 76, of Westriver Tower, retired chief judge of the U.S. Eighth Circuit Court of Appeals, died Saturday, January 31, 1981. Judge Mehaffy was appointed to the appellate court by the late President John F. Kennedy in 1963 after a 36year career in private law practice at little Rock, where he had been senior partner in the firm of Mahaffy, Smith and Williams. Judge Mahaffy was sworn in as a member of the Eighth Circuit Court August 26, 1963. He became the third Arkansan to be named to the appellate court since it was created in the 1880's. He was a fellow of the American College of Trial lawyers and a member of the Pulaski Heights United Mathodist Church. Survivors include his wife, Kathryn Kurtz Mehaffy of the home; a son, Thomas Michael Mehaffy of little Rock; a daughter, Mrs. Kathryn Beaird of Shreveport; a brother, Carl P. Mehaffy of Fort Worth; a sister, Mrs. Mary Mehaffy Black of Cheyenne, Wyo., and five grandchildren. Memorials may be made to the Pat Mehaffy Scholarship Fund at the University of Arkansas School of law at little Rock.

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July 198I/Art<ansas lawyer/lOS


LEGAL ECONOMICS By: Frank Arentowicz, Jr. ALTMAN & WElL, INC. Management Consultants Ardmore, PA

USE OF WORD PROCESSING EQUIPMENT FOR FINANCIAL ACCOUNTING IN SMALL LAW OFFICESIS IT PRACTICAL? Several word processing vendors are developing add-on system capabilities to enable processing offinancial records (timekeeping, billing, accounts receivable, general ledger, etc.) on word processing equipment. New capabilities include mathematical computation (add, subtract, multiply and divide), boolean logic (equal to, less than, compare, etc.) and sort programs (numeric and alphabetic). Many of these offerings have disappointed law offices who have attempted to automate financial accounting functions on word processing equipment. Why? ON-LINE STORAGE Most word processing systems do not have sufficient storage capacity to perform financial applications. Most stand-alone word processing units in small law offices (1 to 10 lawyers) utilize mag cards or floppy diskettes for on-line storage. Mag cards hold 5,000 characters of information, while standard floppy diskettes (about the size of 45 RPM records) hold approximately 250,000 characters of information. While some word processing units operate with dual floppy diskettes, even 500,000 characters of "on-line" storage capacity is often insufficient to store all of an office's unbilled time or work in process inventory. A solution to the on-line storage problem often suggested by vendors is to split the unbilled time data file. For example, clients with last names beginning with the letters A to D are keyed on one floppy diskette, E to H on another, etc. With this approach time slips or time entries from a sheet must be manually sorted or segregated before being keyed to multiple diskettes. 10B/Arkansas Lawyer/July 1981

The operator of the word processing unit then must manually retrieve, insert to the machine and refile mUltiple diskettes. As more and more time entries and client files are added to the unbilled time computer file, more manual activity is required, resulting in at best a "semi-automatic" accounting system. A second method often recommended by vendors to reduce the size of the unbilled time fiie is to eliminate keying of narrative detail onto the diskette. Narrative descriptions of services occupy the most number of characters on the floppy diskette. With this approach, only client/matter numbers, date worked, attorneys' initials and hours worked are keyed to the system. The word processing unit will then sort unbilled time entries by client/matter number, add the unbilled hours and, in certain cases, multiply unbilled hours by appropriate attorney's hourly billing rate. Thus, the word processing equipment is the only performing functions a desk calculator can perform (adding and multiplying), but at a more expensive price. Time slips must still be sorted manually and matched with unbilled time summaries produced by the word processing unit before a lawyer can draft a bill. Statements requiring descriptions of services must be dictated or drafted from the time slips. Drafts of final bills cannot be automatically produced by the system. The awkward manual procedures discussed above can be avoided if the equipment performing financial accounting has sufficient on-line storage capacity. Computer equipment with "hard disk" storage offers such a solution. Hard disks are about the size of 33 RPM records and hold millions of characters of information.

SOFTWARE Another limitation of word processing units utilized for financial accounting is inadequate software (programs). Many word processing units are "hard-wired" and cannot be programmed. Additional equipment capabilities can only be added by rewiring the word processing equipment. All mag card equipment and many older floppy diskette-based units (Vydec models 1146 and 1400, for example) are hard-wired. Newer diskette-based word processing units are classified as "softwired," if they are programmable. This means that the word processing unit is designed similar to data processing equipment. A programmer can use computer language to instruct the equipment what functions to perform. The difficulty law firms experience in this area is that the programming languages utilized by the word processing manufacturers are often not identical to programming languages utilized by data processing (DP) programmers and manufacturers. The programming language problem has restricted software development of financial accounting application programs. Word processing vendors must train their own programmers. Law firms often cannot find programmers trained in appropriate languages on the labor market. MANAGEMENT REPORTS Timekeeping should form the foundation for two important functions in a law firm: (1) billing, and (2) provision of meaningful management information. A combination of limited software, slow sort programs and limited on-line storcontinued on page 108


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JURIS DICTUM by Robert L. Lowery Executive Secretary, Judicial Department

FEDERAL HABEAS CORPUS: CHANGE SOUGHT The Seventy-third General Assembly of the State of Arkansas has requested a modification of the Habeas Corpus provisions of 2B USC, Section 2254. The proposed changes, which would restrict the availability of federal habeas corpus to state prisoners, are apparently directed at speeding up the time in which decisions on cases are made final. This request is contained in Senate Concurrent Resolution 4, set out below. [The omitted provisions are in brackets]; the new language is in bold type: SENATE CONCURRENT RESOLUTION PETITIONING THE UNITED STATES CONGRESS TO AMEND 2B USC Sec. 2254 TO MAKE VARIOUS MODIFICATIONS OF THE FEDERAL HABEAS CORPUS RELIEF AVAILABLE TO STATE PRISONERS. BE IT RESOLVED BY THE SENATE OF THE SEVENTYTHIRD GENERAL ASSEMBLY OF THE STATE OF ARKANSAS, THE HOUSE OF REPRESENTATIVES CONCURRING THEREIN: That the United States Congress is hereby respectfully requested to amend 2B USC, Section 2254 (d) to read as follows: "(d) In any proceedings instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent

jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, [shall be presumed to be correct], shall not be redetermined or relitigated by a jUdge or a court of the United States, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit: (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure empioyed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts could not be developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding; [6] [that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or] [7] [that the applicant was otherwise denied due process of law in the State court proceeding;] [B] (6) or unless that part of the record of the State court proceeding in which the determination of such fac-

tual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes [such factuai determination is not fairly supported by the record] that there is no evidence to support such finding. No evidentiary hearing may be conducted in the Federal court when the state court records demonstrate the factual issue was litigated and determined, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (6), inclusive, is shown by the applicant." [And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (B) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.] BE IT FURTHER RESOLVED that the United States Congress is hereby respectfully requested to amend 2B USC, Sec. 2254 by inserting new subsections (g) and (h) immediately following the present subsection (f) to read as follows: continued on page 1DB july 1981 /Arkansas Lawyer/107


Legal Economics, continued from page 106 age restricts provision of meaningful management information, even when billing is assisted by timely time record turn-in. Meaningful management information includes aging of unbilled time; aging of accounts receivable; hourly yield by client, working attorney and area of practice; and billing realization. Firms using their word processing units only as a billing aid have discovered only the tip of the iceberg. Much more can be achieved with the proper selection of hardware (equipment) and software. Law firms evaluating their alternatives should talk to reference of word processing vendors performing financial accounting on their equipment.

Juris Dictum, continued from page 107

"(g) In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a state court, if the federal question presented was not properly presented under state law in the state court proceedings both at trial and on direct appeal, the claim may not be considered or determined by a jUdge or a court of the United States, unless the petitioner establishes: (a) the federal right asserted did not exist at the time of the trial and that right has been determined to be retroactive in its application; or (b) the state court procedures precluded the petitioner from asserting the right sought to be litigated; or (c) the prosecutorial authorities or a judicial officer suppressed evidence from the petitioner or his attorney which prevented the claim from being raised and disposed of; or (d) material and controlling facts upon which the claim is predicated were not known to petitioner or his attorney and 108/Arkansas Lawyer/July 1981

Quite often lawyers have installed financial packages based on the appearance of sample reports provided to the firm. This is not enough to evaluate a system thoroughly. TIME REQUIREMENTS The time it will take to key in time records, disbursements, cash receipts, accounts receivable and adjustments is often underestimated. The time it takes to process reports is usually long, due to poorly written programs and/or a slow sorting process. Slow sorting may be a programming problem and/or an equipment limitation. The relatively slow rotational speed and access time of diskettes result in slow sorting and retrieval of information. Hard disks alleviate the problem, since their rotational speed and access time are ten or more times faster than diskettes, and

could not have been ascertained by the exercise of reasonable diligence. (h) No petition filed in behalf of a person in custody pursuant to the judgment of a state court shall be considered or determined by a jUdge or court of the United States if it is not filed within one year from the date of the state court judgment and sentence became final under slate law, unless the federal right asserted did not exist and that right has been determined to be retroactive, in which case the petition may be entertained within three years from the date said right was determined to exist" BE IT FURTHER RESOLVED that upon adoption of this Resolution the Secretary of the Senate shall transmit to each member of the Arkansas Congressional Delegation an appropriate copy hereof.

One major effect of the changes would be to close the door on litigation of written state court decisions unless one of the enumerated conditions is met. Under the new provisions the allegations could not be made that the applicant did not receive a full, fair, and adequate hearing in the state court proceeding, or that the applicant was otherwise denied due process of law in

sort programs utilized with hard disk units are usually more sophisticated. THE FUTURE Some word processing vendors now offer hard disks with multiple terminal shared and distributive logic word processing systems. As 1) the cost of hardware declines, 2) programming languages utilized by word processing vendors become identical or similar to data processing programming languages, and 3) software for financial accounting improves, word processing units for both text and data processing will become more practical. Until that time, law offices considering utilization of diskette-based word processing units for financial accounting should carefully evaluate this approach before a decision is made.

f....

the state court proceeding. Unless the applicant could show the existence of one or more of the enumerated circumstances, no federal evidentiary hearing could be had if the state court records demonstrated the factual issue was litigated and determined. The proposed new subsection (g) 28 USC, Section 2254 would require the federal question to have been properly presented under state law in the state court both at trial and on direct appeal. The proposed subsection (h) to 28 USC, Section 2254 would require a petition for habeas corpus to be filed within one year from the date the state court judgment and sentence became final. If the petitioner could show that the federal right asserted did not exist and that it is retroactive, then the habeas corpus petition could be filed within three years from the date the right was determined to exist. Whether the Congress will adopt any or all of the changes requested by the Arkansas General Assembly, is of course speculative. If the politically conservative trend shown by the 1980 elections continues, the desire for "law and order" and the widespread frustration with what is perceived by many as an inability of the courts to deal with crime, may lead to the adoption of some of the changes requested by the Arkansas General Assembly.

I.....


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ARKANSAS BAR fOUNDA TION By: Sidney H. McCollum Chairman

------------.....------It doesn't seem possible but I realized as I sat down to prepare this report that it was the final report of the Foundation year. It seems as though we have just begun with several of our projects and with our goal to try to raise the level of professionalism among the members of the Bar. But perhaps the fact that we are not finished, haven't reached all of our goals, and have not completed all of our projects is a good thing. Certainly we want these projects and goals to continue and the Foundation to continue to work toward the betterment of the profession and of our system of justice, and maybe the fact that we have projects or goals only partially attained will keep us working in the years to come. Herman Hamilton will become Chairman of the Foundation in June by virtue of the automatic elevation provision of our bylaws. I know Herman has been very interested in our projects for the year and has been very helpful in suggestions and perhaps in holding back on my reins a little bit to keep our programs practical and in the "real world". I know Herman has many good ideas for projects for the next year especially changing the emphasis of our scholarship program to include financial need as a major consideration in granting the scholarships along with scholastic ability or achievement. I also know that he has a real interest in our public service television program which we have just begun and I expect to see that grow and blossom during the coming year. You must remember that I am writing this article during the last week in March and many of the projects that we have set up and which are on the drawing board, or else in committee, may be completed by the time you are reading this. As a whole I should say that I think it has been a good year for the Foundation and much has been accomplished even though I feel that we have fallen short of our goals. In the fall we conducted a free symposium at the Law School in Fayetteville concerning the avoidance of malpractice. This was well received and the Malpractice Education Committee of the Arkansas Bar Association adopted our format and program and proceeded with an excellent project of taking the program throughout the State so that it could be more available to members all over the State. The Foundation was happy to cooperate with the Malpractice Education Committee of the Association by participating on the panels and assisting in setting up the program throughout the State. I believe the programs were well received and were worthwhile in defining the perimeters of the problem of malpractice. 110/Arkansas Lawyer/July 1981

The Foundation has been extremely active in publishing pamphlets and booklets to assist each of us in our practice and our clients with specific problems that they may have. For instance, I'm sure you all know the excellent work that Bob Fussell has done with develping a program to provide legal services for the deaf and hearing impaired. The Foundation was pleased to assist in the program this year by providing pamphlets and publication of notices for the mock court trial held in April as well as providing funds for preparing a booklet on interpreting for the deaf in court and administrative settings. This booklet was provided for judges, attorneys, law enforcement agents and administrators in pointing out the need for assistance for the deaf and hearing impaired and also providing needed information where further assistance could be obtained. Bob Fussell had plenty of help from the Arkansas Association of the Deaf, Inc. in providing information for the booklet but the Bar Foundation provided the funds for printing the booklet and distributing it throughout the State. Also the Handbook for Personal Representatives in Arkansas was completed by the Probate Law section of the Association. This handbook was then published and distributed as a public service by the Foundation. The Foundation also published a list of Legal Service Programs available in the State along with some information for the public about Legal Services and how they can become available to them. Perhaps the largest pUblishing project undertaken this year was a project that was actually funded last year. It was completed this year to be distributed in connection with Law Day, that is the Arkansas Senior Citizen's Handbook: A Legal Guide. This booklet was prepared by the young lawyers section of the Arkansas Bar Association and again published through funds made available by the Foundation. So you can see from this partial list of projects that were undertaken by the Foundation, publications letting the people know about information prepared by others, was substantial this year and there is the possibility that two other pamphlets may be available before the end of this Foundation year. Perhaps the biggest undertaking of the Foundation this year was the assistance in the effort of bringing the Magna Carta to Little Rock for public display. The Foundation contributed not only financially to this project in their effort to help get it off the ground and get people in the area in-


terested, but also assigned Mr. Bob Brown, the head of our Public Education Committee, to serve on the committee bringing it to the State and to provide as much help as necessary from the Foundation to see that the project was successful. This project was an excellent beginning for our Law Week or Law Month activities for this year and provided a unique opportunity for the citizens and the school children of the State to view one of the documents actually signed in 1215 which is the basis of our Declaration of Independence and Constitution. The Foundation assisted in making this document available to all the association members in the State at a special reception in the old state house in Little Rock as well as making it available to the public in the Capital for four days in April. I can't think of a more meaningful way for the Foundation to spend its funds than to make this sort of information available to the public and to our profession. HopefUlly this will help to instill a feeling of pride in our profession, in our country and in our legal system which will aid each and every one of us to take pride in being legal professionals.

as sponsoring or responsible organization for the study. A distinguished group of experts in the field of juvenile advocacy and juvenile court procedure as well as enforcement officers and judicial officers who deal with the problem daily were placed on the Task Force and were very successful in getting their proposals passed by legislature. Their work will be invaluable for years to come as we continue to work to better our Juvenile System. This program was headed up by Mr. Tom Carpenter of North Little Rock and we certainly thank him for his efforts in bringing the group together and coming up with a fine finished product just as we thank the entire task force and its support staff for its hard work.

The Board also embarked upon a rather broad public service television program. This program has been developed and is being chaired by Mr. David Malone, Assistant Dean at the Law School in Fayetteville. The purpose of these programs will be to provide video tapes for educational television and other television stations which will explain to the lay pUblic, and I'm sure to some lawyers, just what should be expected in a visit to a lawyer, and how courts operate, and various other things which will assist laymen in understanding the profession. The proposal at this time is that ten separate programs would be produced at a total cost of more than $7,500.00. The Foundation approved the sum of $750.00 for a pilot program to be produced so that the Foundation could then look at the product and determine how far to go and whether or not to proceed with the program. This certainly has the potential of being very important to the entire Bar as well as the citizens of the State. It is anticipated that these programs could be used in schools for seminars and many other uses separate and apart from being shown on public television.

It is gratifying to report that our Trust Fund now totals over $400,000.00, including more than $90,000.00 in our scholarship funds. However, this means that we will only have about $12,000.00 in scholarship money actually given to the scholarship recipients. This fund needs to grow much larger, for indeed it is one of the main purposes for our Foundation. Only the income from the fund is used. We have also committed some of the Foundation's funds for the funding of the Law Review, certain monies needed for Law Week at both Law Schools, as well as funding the projects of our various committees.

The Foundation also served as the sponsoring body for an extensive study into the Juvenile System in the State and proposals for changes in the Statutes pertaining to Juveniles and Juvenile Court procedures. This was a study that was funded through an LEAA Grant with the Foundation serving

WHAT do YOU

about the. .. ARKANSAS BAR FOUNDATION)

Again this year we are rewarding excellence in legal writing in both the Law School and in writing for the Arkansas Lawyer. We will also recognize excellence in our profession by naming the outstanding lawyer and outstanding lawyer citizen at the upcoming annual meeting at Hot Springs in June.

From the above you can see that it certainly has been an active and productive year. However, I believe that there is still much to be done. You have heard often that our Foundation has been recognized as the leading Bar Foundation in the United States. After being involved with Foundation work for the last four years I have no doubt that this is true. I also have no doubt that in order to maintain this level we must continue to grow and to be active, we must set our goals high and then reach them. We must continue to strive to increase the amount of scholarships we can give, to otherwise better the legal education offered in our State; to support and encourage continuing legal education among the members of our Bar, and to sponsor, support and fund as many programs or projects that are necessary to keep each of our members ever mindful of their obligation as legal professionals. This may mean sponsoring programs that would not be economically successful for the Continuing Legal Education Program or for the Association to sponsor. It means spending money for programs or projects which might affect only a small portion of the Bar which are vitally important. And most of all it means commitment of our resources, talents and funds toward educating the public to the problems of the profession, problems of the jUdicial system and more importantly to how we are going about solving those problems. It has been a very good year, an educational year for me and I thank you very much for allOWing me to serve as your Chairman. I look forward to bigger and better things in the future for the Foundation. ~ July 1981/Arkansas Lawyer/111


ARKANSAS BAR ASSOCIATION

JUNE 3-6, 1981 ARLINGTON HOTEL

83rdANNUAL MEETING ED

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TAXATION OF LIFE INSURANCE PROCEEDS AND PREMIUMS by Raymond Weber

Raymond Weber is practicing law with R. L. Walloch in Little Rock. He is a certified Public Accountant; and member of the Taxation, Trust & Es-

For the general practitioner, the aspects of the taxation of life insurance proceeds and premiums have little bearing on his day to day practice. In most instances, the proceeds do not represent taxable income to the beneficiary. And the payment of premiums are not deductible from taxable income. There are, however, certain exceptions to this generalization which will be the subject of this article. Policy Proceeds Life insurance proceeds payable by reason of death are generally exempt from income tax under Internal Revenue Code Section 101 (a) whether the beneficiary is an individual, a corporation, a trust or the insured's estate. Since the exclusion is stated in terms of amounts received under life insurance contracts by reason of the insured's death, consideration must be given to what constitutes "life insurance." Briefly, a contract constitutes life insurance if it provides protection against the risk of early death. However, proceeds of a contract which is clearly life insurance may be taxable as ordinary income if the owner-beneficiary does not have an insurable interest in the insured. Generally, an insurable interest is one arising from the relationship between the insured and the party owning and paying for insurance on another's life, either as creditor, business associate or relative by blood or marriage. One with an insurable interest presumably has more to gain by the insured's continued life than from his death. Where the requisite interest is lacking, life insurance is viewed as a wagering contract, entered for profit, and the exclusion from gross income is not available.' 114/Arkansas Lawyer/July 1981

tate Planning Section of the Arkan-

sas Bar Association. His article is another in the current series furnished by the section.

Typical insurable interests are the interest a corporation has in a "key" man, the interest of a partnership or its partners in other partners, and the interest an individual has in a relative. Insurance is often held or taken out by a trustee of an insurance trust, which is also named as beneficiary under the policy. In such cases, the presence of an insurable interest is determined at the beneficiary level, rather than the trustee level. Since the beneficiaries of such trust are typically the spouse and descendants of the insured, the requisite interest is generally present and the income tax exclusion is available. The requirement of an insurable interest is met if the interest is present at the inception of the policy. Thus, if the owner-beneficiary has an insurable interest in the insured when the policy is taken out, but not when the policy matures as a death claim, the proceeds will nonetheless qualify for the Section 101 (a) exclusion. Generally insurance proceeds payable to a corporation which has insured the life a key man are excluded from the corporation's income, however if proceeds of a policy paid for the corporation find their way to a shareholder, the proceeds may be taxed as corporate dividends or compensation.' This treatment probably cannot be avoided by naming the shareholder directly as a beneficiary under a policy, if the premiums are in fact paid by the corporation. If a corporation pays the premiums on life insurance on any of its employees, the corporation should generally own the policy and be the beneficiary. While it may be possible to avoid dividend treatment on the proceeds if the corporation has no ownership rights in the policy, the service has

ruled that premium payments made by a corporation on such policies payable to shareholders are nonetheless taxable as dividends.' The Tax Court in Estate of Horne' fashioned an important exception to the dividend treatment of proceeds of a corporate-owned policy which are distributed to a shareholder. That case held that such treatment would not apply where, for estate tax purposes, Treas. Reg.ยง20.2042-1 (c)(6) attributes to a corporation's sole or controlling shareholder a corporation's incidence of ownership in a policy on the shareholder's life, rendering the proceeds includable in the decedent's estate. The Court reasoned that the IRS could not have it both ways by treating the same transaction as a transfer from the decedent for estate tax purposes and a distribution from the corporation for income tax purposes. The I.R.C. Section 101(a) exclusion of life insurance proceeds from income is limited to the lump sum amount payable at death. Death benefits paid in installments are prorated to determine what portion of any given payment is excludable. If the death proceeds are left on deposit with the insurance company under an interest only option, however, the interest is taxable income to the beneficiary under Section 101 (c), regardless of whether the owner or the beneficiary elected the option. Where proceeds are payable under a "life income" or "installment" option, the lump sum is prorated over the payment period and the prorated portion of each payment is excluded


from income. Amounts in excess of the prorated amount are taxable interest. However, under Section 101 (d)(1 )(B), a surviving spouse is entitled to exclude up to $1,000.00 of such interest each year in addition to the prorated principal. This special break is available only for the interest element in installment or life income payments, not an interest only option; there must be a substantial diminution in principal over the period for which the interest is paid. Otherwise, even the $1,000.00 surviving spouse annual exclusion is unavailable. Policy Premium The payment of premiums on a life insurance policy, whether by the owner of the policy or others, is not a transaction which can be deducted from an individual's taxable income. There are, however, certain tax considerations when these payments are made with business related purposes in mind. If an employer simply pays premiums on insurance owned by an employee or by a person or entity designated by the employee, the payments would constitute income taxable to the employee and would, if reasonable, be deductible by the employer under I.R.C. Section 162 as compensation. More often, however, an employer, generally a corporation, will pay premiums on a policy covering the life of an employee in connection with key man coverage, a group term policy or a split dollar arrangement. Key man insurance is designed to compensate a business for the loss to it of the services of a valuable employee caused by his death. The employer is normally the owner and beneficiary of the policy. Under I.R.C. Section 264(a)(1), the premium payments are not deductible, since the employer is "directly or indirectly a beneficiary" under the policy. No deduction would be available if the proceeds are to be used in payment for stock that is to be surrendered to the corporation, since the amounts would be capital expenditures for the purchase of a corporate asset and not an ordinary and necessary business expense.' Where a key man policy is owned by and payable to the corporation, premiums paid by the corporation are not taxable to the insured employee. I.R.C. Section 264(a)(1) requires the same nondeductibility and nonincludability for premiums paid by a partnership for insurance on the life of a partner or by one partner on the life of another. Employee group term insurance of-

fers definite tax advantages to the employee, within limits. I.R.C. Section 79 provides that up to $50,000.00 of group insurance may be provided to an employee without an income tax effect to the employee. The cost of carrying the insurance is a deductible business expense of the employer under I.R.C. Section 162(a). It the group term insurance coverage exceeds $50,000.00, the employee is taxed on the cost of the excess protection, calculated on a monthly basis, according to the protection provided to the employee during his taxable year, regardless of when the employer pays the premiums. The determination is made in accordance with Table 1 of Treas. Reg. §1.793(d)(2). It the employee contributes towards the cost of the insurance, his contribution is allocable to coverage in excess of $50,000.00 and, thus, is subtracted from the amount which would otherwise be taxable to him. If an employee assigns all of his interest in a group term policy, employer paid premiums for coverage in excess of $50,000.00 are nonetheless includable in the employee's income. However, if a member of the insured's family to whom the policy has been assigned pays for the excess coverage, those

payments are not includable in the employee's income.' The $50,000.00 exemption is available only if the coverage is on the life of an employee as compensation for his services as such. Thus, under Treas. Reg. §1.79-1(b)(1), the cost of coverage on a self-employed person, such as a partner or sole proprietor, is not exempt to him even though he is included in the coverage for his employees. Coverage of an individual in his capacity as owner or as a director also does not qualify. In addition, to qualify, the coverage must constitute group term life insurance under the regulations, which set forth detailed requirements for qualification as a "Section 79 plan." The Table 1 premium amounts are relatively low as compared to the P.S. 58 rate, which impute economic benefits of permanent insurance to employees. However, unless it be thought that group term would therefore necessarily be preferrable to a split dollar arrangement with respect to permanent insurance, the practical difficulties of continuing coverage after the employee reaches age 65 must be taken into account. Although such concontinued on page 116

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· . .Life Insurance. .., continued from page 115 tinuation of coverage under a group term policy is rare, the Table 1 cost for ages 65 and over stays the same as for ages 60 to 64. Further, under I.R.C. Section 79(b)(1), the payment of any amount of premium (not just on the first $50,000.00 of coverage) is exempt from tax after an employee has terminated his employment and has reached retirement or is disabled. A split dollar arrangement may be an important alternative to group term life insurance, where the desired benefit level substantially exceeds $50,000.00 and coverage under the group term plan expires at age 65 or where it is desired to limit coverage more narrowly than allowed by Section 79. Conversion of a group policy to an individual policy is often too expensive for the retiree. Simply stated, split dollar insurance is an arrangement whereby one party who can afford to pay the premiums (usually an employer) pays part of the annual premium on insurance. The insurance is on the life of an individual who cannot afford the full premium (the employee), but who can pay the balance of the premium. The employer owns, or has a security interest in, the policy to the extent of its contribution and the insured or his assignee owns the "at risk" portion. The arrangement provides that at the employee's death, the funds advanced by the employer are repaid to it and the balance is paid to the employee's beneficiaries. Generally, such plans are set up in one of two different ways: "Endorsement," or "collateral assignment." Under the endorsement method,the employer owns the policy and the benefits split is achieved by policy endorsement. In a collateral assignment, the employee owns the policy and the employer's interest is secured by a collateral assignment of the policy. The income tax effects of both approaches are the same and are set forth in Rev. Rul. 64-328,' which provides that the employee is taxed on the economic benefit he derives from his employer's participation in the split dollar arrangement. This benefit is the pure insurance protection under the basic policy, calculated by the P.S. 58 rates. The employee is thus taxed on the P.S. 58 cost of the pure insurance protection, reduced by the amount, if any, which he pays toward the premium in any year. If the insurer issues public rates for individual one year term 116/Arkansas Lawyer/July 1981

policies and these rates are lower than the P.S. 58 rates, under Rev. Rul. 66110,' the lower rates may be used. Under this ruling, policy dividends constitute an additional economic benefit to the employee, taxable to him in their actual dollar amount, if they are either received in cash, used to purchase one year term insurance, or applied to purchase paid-up additions in which the employee has a nonforfeitable interest. If the employee assigns his interest in the policy to a third party such as an irrevocable life insurance trust, the employee, and not the assignee, is nonetheless taxed under the P.S. 58 table. Under Rev. Rul. 64-328, the corporation's share of the annual premium is not deductible because the employer is a beneficiary under the policy within the meaning of I.R.C. Section 264(a)(1). Further, it is generally thought that the employer also may not deduct the P.S. 58 value of the benefit which is taxable to the employee, even though it is arguable that it constitutes compensation and a deduction should be available. Thus, it might be preferrable to pay the employee a bonus (which is deductible as compensation). with which the

employee could then pay his share of premiums. Conclusion Other aspects of a life insurance contract can be of concern to the attorney in income and estate tax planning. Some of these areas include dividends and cash value increases, transfers for value, and loans against the cash value of the policy and its related interest. While the scope of this article was necessarily too narrow to cover these areas, the practitioner should have a familiarity with these aspects of the life insurance contract and their relationship to the tax code. Footnotes:

'See Atlantic Oil. 331 F.2d 516, 64-1 U.S.T.C. paragraph 9425. 13 A.F.T.R. 2d 1267 (CA-5,

1964). 'Rev. Ru!. 71·79. 1971-1 CB 112: Rev. Ru!. 61-134.1961-2 CB 250 'See Rev. Ru!. 59-184, 1959-1 CB 65. '64 T.C. 1020 (1975). 'See Rev. Ru!. 70-117,1970-1 CB 30. 'See Rev. Ru!. 73-174, 1973-1 CB 43. and Rev. Ru!. 71-587, 1971·2 CB 89. '1964·2 CB 11, amplified by Rev. Au!. 66-110,

1966-1 CB 12.

·Supra.

f...-. u·._

-_

.... ,-.~ .... ':==-... -:?:

"CHrISTIan Lawyers have unique responsibilities and opportunities

CHRISTIAN LEGAL SOCIETY P.O. Box 2069 Oak Park, Illinois 60303 (31 2) 848-6335

State Chairman; Jay Dickey, Jr., P.O. Box 6038, 208 East Fifth Street, Pine Bluff, Arkansas 71601. 5011534-6302


'"

CODE Of PROfESSIONAL RESPONSIBILITY

-cs DON'T LEAVE HOME WITHOUT THEM 'c:

-<

'"'"

.::: (This series is re-printed, with permission, ~ from the booklet of the same title, published ill by the Pennsylvania Bar Association.)

COMMUNICATION

SOMEONE'S WAITING TO HEAR FROM YOU. While most legal matters seem routine to you, your clients are probably inexperienced and apprehensive about their cases. A conscientious attorney should keep in regular contact with his clients, informing them of the status of their affairs.

'"

"A lawyer shall not neglect a legal matter entrusted to him."

~

Disciplinary Rule 6路101(A)3, Canon 6. Code of Professional Responsibility

~

j

"

One of the most common complaints brought by clients against attorneys is that of a lack of communication. Often a lawyer will become encumbered with other business and will forget that each client is anxious to hear how his case is progressing. Everyone wants some attention paid to them, especially if they are paying for it. While constant communication may not be feasible, an attorney should make periodic reports to his clients. This is a courtesy that is much appreciated by the client. Although there is no specific Disciplinary Rule on this subject, DR 6-101 (Aj (3) does provide that "a lawyer shall not neglect a matter entrusted to him." Effective attorney/client communication will help to prevent such neglect.


MEDIA IN THE COURTROOM: ITS IMPACT ON THE GOALS OF JUVENILE JUSTICE by Mary Ellen Vandergrift

Picture 14-year old Johnny arraigned before the juvenile judge for supposedly having shot and killed a fellow student. Millions of Americans, horrified by the circumstances of this outrage, are pasted before their television sets to see what will become of Johnny. It is this week's prime-time Friday night courtroom drama. An impossible futuristic myth? Maybe not. For television is definitely moving into the American courtroom.' Despite the known risk of prejudice, the certainty of endless litigation and a vote by the American Bar Association to uphold its advisory ban on cameras in the courtroom,' the Supreme Court has found a First Amendment right of the electronic media to attend criminal trials.' In Richmond Newspaper's, Inc., the Court held unconstitutional a trial to the public and press and found an implicit First Amendment right of the press to attend criminal trials. The Court, per Burger, J., reasons first that the history of Anglo-American justice presumes open trials, second that public trials provide a catharsis for the community in that "lhe open processes of justice serve an important prophylactic purpose providing an outlet for community concern, hostility, and emotion",' and third that people will acquire understanding of the justice system through the print and electronic media which "validates the media claim of functioning as surrogates for the public. "5 The Court further described the right of access to criminal trials as a public right "to hear, see and communicate observations concerning [trials].'" In short, television has made its claim on behalf of the public's right to know and has won.' We have entered the age of the electronic courtroom. 118/Arkansas Lawyer/July 1981

Granted a "juvenile court proceeding has not yet been held to be a criminal prosecution,'" Yet this year the United States Supreme Court denied certiorari for a petition seeking review of a New York Court of Appeals decision upholding closure of a pre-trial suppression hearing in the murder prosecution of a 13-year-old defendant.' Had the Court reviewed the controversy, '0 it would then have had to wrestle with the issue of whether the press has a constitutional protected right of access to juvenile proceedings. What, then, would be the impact of the media in the courtroom on the juvenile justice system? No one, of course, can know for sure. Television has had an enormous impact on American institutions, reshaping politics, changing the nature of sports and business, and transforming family life," but no one has yet investigated the far-reaching social ad institutional consequences of plugging the administration of justice into a system oriented to profit and entertainment." One thing, however, is certain. Confidentiality of proceeding for the juvenile defendant would be annihilated.

I. Confidentiality Confidentiality of juvenile proceedings has been fundamental to the goals of juvenile justice from 1899, when an Illinois legislature created a juvenile court system distinct from the adult adversary system." Soon provided for in all jurisdictions, these separate juvenile courts embraced the philosophy that the child has a right to treat-

Mary Ellen Vandergrith is a law student at the University of Arkansas at LiN/e Rock where she is the recipient of the Wright, Lindsey and Jennings scholarship. She is chairman of the Honor Council and a member of Phi Delta Phi Legal Fraternity. She holds a B.A. Degree from Duke University and the M.A. from the University of Arkansas, Fayetteville, where she also taught as a graduate assistant. She has taught English in Aix-en-Provence, France; at Southwestern at Memphis, and at the University of Mississippi. At the latter, her teaching included a writing course for law students. Mrs. Vandergrift is librarian for the Garland County Law Libraray in Hot Springs. She is divorced and the mother of two children. Because her younger daughter has a severe impairment, Mrs. Vandergrift is proficient in sign language and is interested in the legal problems of the deaf.

ment and can be rehabilitated and that the State has a compelling interest in promoting that rehabilitation. ,. Juvenile court hearings emerged as closed proceedings dominated by social workers and a judge with wide discretionary powers. All records were to be kept strictly confidential to pave the way for rehabilitation since the child branded as a criminal by his peers and by those in charge of guiding him could scarcely be expected to overcome that label. Unfortunately, abuses proliferated. Children were denied fundamen-


tal rights of due process; records were not kept strictly confidential; and the rehabilitative process envisioned was not a success. l $

But to jettison entirely the philosophical goal of treatment on favor of the adult adversary system would be to ignore the fact that children after all are not yet grown up. Much work, then, focused on establishing goals for a process which would accord children more rights while maintaining the philosophy of rehabilitation. Two major works, the Task Force Report" and the IJA/ABA Standards" encompass this effort, and both deem confidentiality essential to the goals of juvenile justice. The Task Force Report simply assumes that the system cannot work unless confidentiality is maintained and, without further ado, dismisses the matter in two pages with the statement that "all States should enact legislation to make identitying information about juvenile law violators inaccessible to the news media.""

trial if he so desires," the Standards further recommend that legislature enact statutes making it a misdemeanor for persons to disclose information in a juvenile record and a tort "to improperly collect, retain or disseminate information pertaining to juveniles."22 Both works view the confidentiality of juvenile proceedings as imperative. Further buttressing these recommendations are modern studies of child behavior which indicate that giving a child attention for aberrant behavior will have the effect of positively reinforcing that behavior, resulting in a repetition on the anti-social act," Focus a T.V. camera on Johnny, provide him with the ego satisfaction of basking in the spotlights, and, bingo, off he will go to repeat whatever offense he committed. Even should he be incarcerated, with hopefUlly no chance of repetition, this sort of public labeling can only have severe negative repercussions on the child's self-image" seriously impairing his attempt to create a positive selfimage, the very injury that Warren and Brandeis, in the famous 1890 essay, The Right to Privacy, were concerned about."

In contrast, the IJA/ABA Standards devote one whole volume to the concern for confidentiality of juvenile records so that privacy interests of juveniles will be safeguarded." The IJA/ABA Standards maintain that juvenile privacy committees should be established (Standard 2.1) for the purpose of institutionalizing "a special concern for juveniles and their right of privacy and to make information and privacy issues more visible." 20 And although the IJA/ABA Standards state that the respondent in a juvenile proceeding should have a right to a public

II. First Amendment Right of the Press As imperative as confidentiality may be in accomplishing the State's goal of rehabilitating the juvenile, it may well be a moot issue when juxtaposed to the First Amendment right of the press. In Cox Broadcasting Corp. v. Corp," where a Georgia statute making it a

(EDITOR'S NOTE: This is the winning paper by a law student at the UALR School of Law in the 1980 competition sponsored by the Arkansas Bar Foundation. Professors Norman H. Stein and Steve H. Goldberg, in evaluating the article, found that it is well-written and contains a good discussion of the relevent issues involved in the subject. The Executive Committee of the Arkansas Bar Foundation made the final decision. It is interesting that the Arkansas Supreme Court, in its Per Curiam No. 79路307 issued on December 8, 1980 after Ms. Vandergrift had written her paper, has permitted so-called "cameras in the courtroom" in

Arkansas-with the notable exception of the "juvenile court for obvious reasons". It is also noteworthy that the 1981 Arkansas Legislature passed a number of bills pertaining to juvenile justice, which were signed into law by Governor White. These laws are based on the work of the appointed by the Governor, Legislative Council, President of the Senate, Speaker of the House, and the Foundation's Chairman. The Task Force had received an LEAA grant for the juvenile justice study and law revision project. Finally, the 1981 Arkansas Legislature passed a proposed amendment to the Arkansas Constitution that would

misdemeanor to publish a rape victim's name was under consideration, the United States Supreme Court held that information becomes privileged when on public record and may be published without liability for invasion of privacy. Then, in Smith v. Daily Mail," a case involving a real-life Johnny who shot and killed a student, newspaper reports obtained the name of the juvenile by routine reporting techniques, i.e., listening to the police radio band, and publishing the name in violation of a State statute. The United States Supreme Court held the statute invalid on constitutional grounds, reasoning that the newspaper's First Amendment right prevailed over the State interest in protecting the juvenile. Only Rehnquist, in a concurring opinion, considered the State's interest in the goals of juvenile justice or the potential harmful impact of publicity." Add to these two cases the Richmond Newspaper's, Inc." case, where a First Amendment right of the press to attend a criminal trial was guaranteed, and a very recent case, Pennsylvania v. Hayes," where the United States Supreme Court upheld a Pennsylvania Supreme Court ruling that a trial judge erred in excluding the press from a pre-trial suppression hearing involving an elected state official charged with sexually assaulting and supplying drugs to a male 17-year-old, and a trend emerges. Media rights are expanding. The media now has a First Amendment right to publish the names of juveniles brought before juvenile court. Additionally the media now apparantly has a First Amendment right of continued on page 120

transfer juvenile court jurisdiction from the county judge to the Arkansas court system. The amendment will be voted upon by Arkansas voters in due course. Obviously, juvenile justice is of great concern to Arkansas legislators and the organized bar. It is to the credit of all that have contributed to these new developments. Perhaps, Ms. Vandergrift's obvious concerns may be "put to rest"-the Arkansas Supreme Court, the Arkansas Legislators and Governor, and the organized bar are working in concert on the juvenile justice standards.)

July 1981/Arkansas Lawyer/119


Media. .., continued from page 119 access to suppression hearings, a right previously denied in Gannett v. Pasquale" where the Court held that access to transcripts of such hearings would sufficiently uphold constitutional free press guarantees." The interesting point about the Pennsylvania Supreme Court decision in Pennsylvania v. Hayes" is that two justices would hold, as an absolute rule, that all criminal proceedings should be open to the public and press. Very little balancing, either of the defendant's rights or of the State interest in the orderly administration of justice, occurs. The same myoptic reasoning dominates an Oregon Supreme Court decision directly confronting the issue of the media in the juvenile courtroom. In Oregonian Publishing v. Deiz," where a 13-year-old girl was in custody for the drowning of a younger child, the Oregon Supreme Court held a lower court order barring a newspaper from juvenile court invalid as contrary to the Oregon Constitution. The Court enumerates reasons for maintaining confidentiality of juvenile proceedings, but summarily dismisses them in favor of construing the constitutional provision for open courts to mean a right of access for the public and press. Thus, in Oregon the constitutional right of the media supercedes the need for confidentiality in rehabilitating the juvenile. And the goals of the juvenile justice system are effectively effaced.

if the media may not go so far as to pander to the morbid, the prurient, and the sensation seeking, trials may yet be picked and edited and televised to fit the dramatic ritual." I am concerned that the press may be as interested in economic gain as it is in the "prophylactic aspects of the administration of justice,"" and I would leave to the judicial process its effort to adjudicate the law and to the mass media its eternal romance with popular entertainment and news reportage, with the hope that never the two would meet. As far as the impact of the media in the courtroom on the juvenile justice system, it seems obvious that once confidentiality is gone, the goals of juvenile justice are gutted. It must be remembered, too, that whereas the voice of the press is loud and powerful, the voice of the juvenile is weak and small. There is a need to carefully balance the First Amendment right of the press against the State interest in the protection and rehabilitation of juveniles. The issues should not be framed as competing, unalterable principles, extolling the superiority of one right over another. Rather, the issues should be approached with flexibility and objectivity, towards the end of harmonizing and balancing the fundamental goals of juvenile justice with the First Amendment right of freedom of the press. Mary Ellen Vandergrift

'OThree justices, Brennan, J., Marshall, J., ahd Blackman, J. noted they would have granted review. "Gerbner, supra, note 1, quoting Comstock, The Impact of Television on American Institutions, 28 J. of Com. 12 (1978). "Gerbner, supra, note 1. "Schultz, The Cycle of Juvenile Court History, 19 Crime and Delinquency 457 (1973). "Kondak, Juvenile Justice: a Bibliographic Essay, 72 Law Library J. 21 (1979). "Fox, Juvenile Justice Reform: An Historical Perspective, 22 Stanford L.Rev. 1187 (1970). "National Advisory Cornmittee on Criminal Justice Standards and Goals, Juvenile Justice and Delinquency Prevention, Report of the Task Force on Juvenile Justice and Delinquency Prevention (1976) [hereinafter cited as Task Force Report). "Institute of Judicial Administration and American Bar Association, Juvenile Justice Standards Project (1977) [hereinafter cited as IJA/ABA Standards). "Task Force Report, supra, note 16 at 223-24. "IJA/ABA Standards, supra, note 17. Juvenile Records and Information Systems.

FOOTNOTES 'Gerbner, Trial by Television: Are We at the Point of No Return?, 63 Judicature 416 (1980).

III. Conclusion The First Amendment right of the press is powerful indeed. No one would presume to question the fact that a free society is dependent upon freedom of speech and especially freedom of the press. No one would presume to question the landable efforts of the press "to shine light into the dark recesses of governmental decision-making."" But with every freedom there is a concomitant responsibility and obligation." And I am concerned about the Johnnys of today and tomorrow who may have their day in Court but who may not have the opportunity to be let alone long enough to grow into responsible citizens. I am concerned that even 120/Arkansas Lawyer/July 1981

_ _U.S._ _(1980).

'Id. at 417. 'Richmond Newspaper's, Inc. v. Virginia, _ _U.S._ _, 65 L.Ed. 973 (1980). 'Id. at 985-86 'Id. at 987. 'Id. at 989.

,oIJA/ABA Standards, supra, note 17. Juvenile Records and Information Systems at 45. "IJA/ABA Standards, supra, note 17. Adjudication 6.1 quoted by McLaughlin and Whisenand, Jury Trials, Public Trial and Free Press in Juvenile Proceedings, 46 Brooklyn L.Rev. 1 (1979). "IJA/ABA Standards, supra, note 17. Juvenile Records and Information System at 48.

'McKeiver v. Pennsylvania, 403 U.S. 528, 658 (1971).

"Blackwell and Budde, the JUdevine Developmental System, Parent Training Program II, Module 14 Behavior Management Principles (1973) at 10, 12, 14.

'Merola v. Bell, 393, N.E.2d 1038 denied, (N.Y. 1979) cert.

"IJA/ABA Standards, supra, note 17, citing E. Schur, Labeling Deviant

'Gerbner, supra, note 1.


Behavior (1971), 'Juvenile Records and Information Systems at 71. "Dionisopoulas and Ducat, The Right to Privacy (1976) at 20, discussing Warren and Brandeis The Right to Privacy, 4 Harvard L.Rev. 193 (1890).

"Gerbner, supra, note 1. "Richmond Newspaper's Inc. v.

Virginia, _ _U.S._ _, 65 L.Ed. 973, 985-86 (1980). â&#x20AC;˘

r....

"420 U.S. 469 (1975). "443 U.S. 97 (1979). "Id. at 407. 20_ _

U.S._ _, 65 L.Ed., 973

(1980). '°414 A.2d aff'd., _ _U.S.

318

(Penn.). (1980).

"443 U.S. 368 (1979). "Id. at 393. "414 A.2d 318 (Penn.), afl'd., _ _ _ _ _ _U.S._ _(1980). "613 P.2d 23 (Or. 1980). "Bird, The Role of the Press in a First Amendment Society, 20 Santa Clara L.Rev. 11 (1980). "Weisberger, The Supreme Court and the Press, 19 Judges Journal 14 (1980).

POSITION AVAILABLE San Antonio, AV rated 12 attorney firm, has immediate need for a civil trial lawyer with 5 to 10 years litigation experience. Practice covers all fields of civil law, including complex litigation. Compensation and benefits commensurate with qualifications and experience.

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Dean Robert K. Walsh, UALR School of Law, presenting the Arkansas Bar Foundation Award to Ms. Vandergrift, with Professor Steve H. Goldberg looking on.

OYEZ, OYEZ!! As this issue of The Arkansas Lawyer "goes to press", the Arkansas Bar Association has announced that J. L. "Jim" Shaver, Jr. has been elected the Association's President-Elect for 1981-82. He will succeed on June 11, 1982 to the Association's presidency for 1982-83. President-Elect Shaver was elected without opposition from the Association's Northeastern District.

POSITION AVAILABLE Major U.S.-based, international general contractor seeks attorney possessing 5-10 years experience with an engineering or construction company. Background should include the review of prebid contracts, the preparation of non-standard contracts, and the resolution of claims arising subsequent to project start-up. An Equal Opportunity Employer M/F/H. Send replies in confidence to:

The Arkansas Lawyer The Arkansas Lawyer

JUly 1981/Arkansas Lawyer/121


LAW SCHOOL NEWS Dean David G. Epstein Assistant Dean Ellen Brantley

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE FACULTV ACTIVITIES

The faculty takes its obligations of pUblication and public service seriously. One acknowledged measure of the accomplishments of a law faculty is authorship or co-authorship of texts and treatises. At the University of Arkansas School of Law, we have seven faculty members who have published such works. And, Wylie Davis, Mort Gitelman, Neil Hamilton, Steve Nickles, Dick Richards, and I are now working on books under contracts with publishers. Faculty public service activities include Howard Brill working on the Ethics and Grievance Committee of the Arkansas Bar Association, Wylie Davis chairing the Committee on Contracts for the Multistate Bar Examination; Jake Looney serving as Secretary-Treasurer of the American Agricultural Law Association; Phil Norvell contributing to the Oil and Gas Reporter as a memberof its Board of Editors; Tom Robinson presenting programs on tax law for accountants and attorneys in Fort Smith, Tulsa, Springfield, and Minneapolis; George Skinner traveling to University, Mississippi to offer suggestions on improving the University of Mississippi School of Law Library.

CLIENT COUNSELING COMPETITION

Happily, the student client counseling team was much more successful than the faculty basketball team. On March 7, the University of Arkansas School of Law's client counseling team competed in Lawrence, Kansas, against nine schools from the Midwest and West. The morning interview concerned a stewardess who had been suspended from her job while pregnant, and later fired. These actions were allegedly prompted by economic necessity. Our team won the morning round, defeating Washburn University and the University of New Mexico. Washburn won the regional competition last year, and New Mexico its regional two years ago, so the team took special pride in its performance against schools with established client counseling programs.

While the faculty takes its work seriously, it does not, as the following photograph illustrates, take itself too seriously. Notwithstanding Milt Copeland's willingness to "take the charge," Tom Robinson's willingness "to battle the boards" and my willingness to "throw up bricks," the Dean's Machine finished the intramural basketball season 0-5.

For the finals, the field of ten was narrowed to the three morning winners: Arkansas, Denver and Wyoming. The afternoon problem involved a corporate president who wished to promote a young, female Harvard MBA over the heads of several corporate competitiors. He wanted the student attorneys (who were members of a law firm which derived fifty percent of its billings from the corporation) to advise him what impact affirmative action policies had on his plans, and whether he could bypass ordinary corporate channels in promoting the young woman. He also wanted the problem kept away from other corporate officers and the board of directors. Our team performed very well in this interview, treating the conflict of interest problem as of paramount concern. The judges were complimentary of our team's effort in the afternoon, but felt that Wyoming (previously a national champion 122/Arkansas Lawyer/July 1981


MOOT COURT COMPETITION Each spring, the University of Arkansas School of Law holds an intra-school moot court competition, with the winners of the competition representing the law school in the American Bar Association National Appellate Advocacy Competition. This year ten teams entered the competition. Teams argued at least twice. The arguments were heard and evaluated by jUdges and practicing attorneys. The final arguments were judged by JUdge Robert Dudley of the Arkansas Supreme Court, Judge J. Dickson Phillips of the United States Court of Appeals for the Fourth Circuit, and Professor Robert Knowlton.

David Nix, Steve Taylor, Dave Thomas, and Richard Watts were selected to represent the law school. A large number of students attended the final arguments and the beer party at my house after the arguments. in the competition) had performed marginally better than we had. Wyoming was therefore awarded first place, with Arkansas and Denver in effect tying for second. Our success in this competition reflects the hard work of team members Sharon Flippin and Kirby Lockhart, team altemate Murray Tabb, and faculty advisers Bill Bost and Dave VanderZwaag.

CONTINUING LEGAL EDUCATION The Law School is co-sponsoring a program with the Arkansas College Personnel Association on legal problems in higher education in Fayettevile on April 23rd and 24th. On May 1st and 2nd, the Law School is co-sponsoring a national program on agricultural law problems in Kansas City. On Saturday, July 25th, the Law School will offer a one-day "workshop" on bankruptcy law for attorneys with some bankruptcy law experience in Little Rock. For more information about any of these programs, please write or call (501575-5601) me at the Law School.

SCHOOL OF LAW,UNIVERSITY OF ARKANSAS AT LITTLE ROCK FACULTV NEWS Dean Robert K. Walsh served as a judge in the finals of the Regional Moot Court Competition for the Law Student Division of the American Bar Association. The competition was held in Fayetteville on March 28. On Wednesday, March 18 he addressed the Crittenden County Bar Association. Visiting Professor of Law Morris S. (Buzz) Arnold delivered a lecture, "Is Jury Trial Obsolescent?" as part of a lecture series, "The Here and Now: 1981" sponsored by UALR's distinguished professors. His lecture, delivered on April 22, was the last of the six in the series which was cohosted by the First National Bank. Professor Arnold was introduced by Dohaghey Distinguished Professor Robert R. Wright III, one of the sponsors of the series. An article by Professor Wright entitled "Zoning Law in Arkansas" has been published in the Fall 1980 edition of the UALR Law Journal. Another of his articles has recently been published in the Hastings Constitutional Law Quarterly. The article deals with constitutional issues in zoning. Professor Wright served as moderator of a panel on land use controls and the environment at Henderson State University and addressed the Arkansas Bar Association Annual Mineral Law Institute held in Hot Springs in February. Also appearing in the current issues of the Law Journal is an article by Assistant Dean Ellen Brantley and Professor Richard W. Effland, "Inheritance, the Share of the Surviving Spouse," and "Wills: Arkansas Law and the Uniform Probate Code Compared." Professor Effland is on the faculty of the College of Law at Arizona State University and served as Visiting Professor of Law at UALR in the summers of 1979 and 1980. An article by Professor Steven Goldberg, "Harmless Error: Constitutional Sneak Thief" appeared recently in Northwestern University's Journal of Criminal Law and

Criminology. Professor Goldberg will be teaching at the Kentucky Advocacy College from June 1 to 10. Professor Glenn Pasvogel appeared on AETN as a panelist discussing a film, "A Place Called Rohwer," which dealt with Japanese internment in Arkansas during World War II. ProfessorO. Fred Harris, Jr. served as moderator of a discussion on "Current Developments in Equal Opportunity Law," at the Fourth Annual Labor Law Institute at DeGray Lodge on April 2, 1981. Professors Kenneth Gould and Norman Stein attended a conference in Washington on new regulations under Title IX of the Higher Education Act which funds clinical legal education. Professors Gould and Stein and Paula Casey, Adjunct Clinical Supervisor, served as drafters for the Bar's Task Force on Revisions to the Juvenile Code. The proposed revisions were enacted by the General Assembly and signed by the Governor. ALTHEIMER DISTINGUISHED PROFESSOR ESTABLISHED The Board of Trustees of the University system has approved the creation of a Ben J. Altheimer Distinguished Professorship at the UALR Law School. The Ben J. Altheimer Foundation trustees voted recently to offer $5,000 a year to the Law School to support the professorship. The support for the Ben J. Altheimer Distinguished Professorship is the third Law School project supported by the Foundation. It also provided funds to complete restoration of the courtroom in the Old Federal Building, and since 1978 has supported the Ben J. Altheimer Lecture Series, in which legal scholars of national reputation have visited the Law School to present lectures. Ben Altheimer was a Pine Bluff native who practiced law in Chicago for several years and owned farming interests in Arkansas. continued on page 124 July 1981/Arkansas Lawyer/123


DEAN WALSH TO JOIN FRIDAY FIRM Dean Robert K. Walsh of the University of Arkansas at Little Rock School of Law will leave his university position June 30 to become a member of the Friday, Eldredge and Clark law firm in Little Rock. Walsh has served as dean since June 15, 1976, the first to hold the post after the school was established as an independent unit separate from the University of Arkansas at Fayetteville School of Law. Prior to mid-1975 the school was a division of the Fayetteville school, offering night classes. "I will always be extremely proud of what has been accomplished in the past five years with the great support of our faculty, students, staff, university officials, and members of the legal community," Walsh commented. "It is a strong law school with an outstanding faculty. Its future is bright," he added. When Walsh became dean, day classes had been initiated only a short time earlier and the school had only 273 students, seven full-time faculty members and four part-time faculty members. There are now approximately 400 students, 25 full-time faculty members and 10 part-time faculty members. Under Walsh's leadership the UALR School of Law earned American Bar Association accreditattion for the day program in 1977, renovated the Old Federal Building at Second and Center Streets in 1978 for school use, and in 1979 won membership in the American Association of Law Schools. The UALR School of Law participated with the Arkansas Bar Association and the Fayetteville law school in establishing the Arkansas Institute for Continuing Legal Education, and joined with the UALR College of Business Administration degree program. UALR Chancellor G. Robert Ross commented on Walsh, "From both my personal experience with Bob Walsh and reports I receive nationally as well as from the Arkansas bar and the faculty, he is one of the outstanding young deans in the United States. This definitely causes us concern, to lose him. He has a bright future in whatever he chooses to do, and we wish him well. We are confident we can count on him for support and involvement in legal education in Arkansas." 124{Arkansas Lawyer/July 1981

Dr. James Fribourgh, vice chancellor for academic affairs, said "It has been a pleasure, both personally and professionally, to work with Dean Walsh. His leadership in the university and in the legal community is deeply appreciated by all of us." Walsh, 38, came to UALR from Villanova Law School in Pennsylvania. He is a native of Nebraska, graduated first in his class at Murphy High School in Los Angeles, earned a bachelor's degree summa cum laude from Providence College in Rhode Island, and

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graduated from the Harvard Law School, where he edited the Harvard Journal on Legislation. He was affiliated with a Los Angeles law firm prior to joining the Villanova Law School faculty, where his teaching areas were federal courts, administrative law, conflict of laws and constitutional law. Walsh said, "I do look forward to returning to practice with a fine group of lawyers, and my family and I are extremely happy that we can permanently remain in Arkansas...........

UNIVERSITY OF ARKANSAS AT LITTLE ROCK

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March 31, 1981

P.onorable Phillip Carroll President Arkansas Bar Association (CO West Markham Little Rock, AR 72201

rear Phil: AS you know, I am leaving my position as ~ean of the University of Arkansas at Little Rock School of Law on June ]0 after a five year tenure. These past five years have been both productive and enjoyable. The law school is strong with an outstanding faculty and a bright future. It has developed to this position because of t~e

outstanding support of legal education by the practicing lawyers o~ Irkansas. I want to thank you, the other bar leaders with whom I have worked during my term as dean, and the many members of the lrkansas Bar Association who have contributed to the development of the school. As dean, I have found ~y associations with the lawyers of ~rYansas extremely rewarding. I believe that the state is blessed with an outstanding bar. I am proud that in returning to the practice o~ law, I will be a practicing member of the bar of this state. Kathie and I are extremely pleased that we will be remaining in Arkansas with our many good friends in the bar association. Again, thanks. With best regards,

Robert K. Walsh Dean RKW/km


TO WIT By S. Sponte, Esq. "S. Sponte is the nom de plume of a lawyer who practices and is generally bewildered in Westmoreland County, Pennsylvania."

VILLAGE OF THE DARNED Not long ago, I was encamped in the local Courthouse, hour beyond hour, in wait of a verdict. With much else to do, but little stomach for any of it, I left my client defend for himself and wandered off alone down a dusty basement hallway and into an unlocked side room. There I found old boxes upon old boxes, full of documents long abandoned, no doubt awaiting some precipitious and fUlly unwarranted heave-ho. Though not born a lawyer, I am by now bred one, and like others of my bred, I have a healthy regard for messages from the past. Accordingly, I rooted there awhile, and in the midst of old deeds adustin' and old writs erodin', I found a most curious and seemingly misplaced thing. A poem of sorts, It had apparently been written by a brother of another time, a fellow long since gone, and as best I could make it out, it was this: Listen my colleagues, and you shall hear, Of the small town lawyer's greatest fear. Though a colleague long hated at last be dead, Not an unkind word must escape your head. For it shall come to pass, as sure as morn, And you'll rue the day you were ever born, If you stand for judgment on that heavenly shore, With his yea or nay to pass before. "Of me, thou didst not speak too well." Anon, thou finds thyself in Hell. And though thou roasts and beefs about, Alas, alas, there's no way out. A sad end to a lawyer's story, Confined for time ad purgatore. A. V. Malcanew

Unlike lesser lights, this author signed his work, and some time later, I found his picture in an old group Bar daguerreotype. He looked, for his time, just the lawyer's part, slicked hair and walrused moustache, high starched collar and lips oh so tightly pursed. There is much truth contained in Malcanew's little gem, as any small town lawyer with intellect, sensitivity, insight and wisdom can readily attest. I picked up on it right away. All lawyers, regardless of their demographic persuasion, by and large treat their colleages with dignity, courtesy, and respect, despite the cool rage of an adversary proceeding. It is conduct expected of well-educated professionals, codified by the Canons of Ethics, and absolutely mandated by the laws of libel and slander. In addition to those abstract intellectual restraints, however, the village lawyer is further governed by a much more meaningful and practical consideration: fear. As Malcanew well knew, there is precious little place in a small town to hide from an estranged colleague who is bound and determined to settle old hash. At the local Bar, legend still lingers of the two lawyers long ago who waged unrelenting war with each other to settle a personal vendetta so old, no one could recall its origin. Whenever they dealt with one another, the clients' cause became less important than their own. In one final ill-considered effort to gain the ultimate, though thoroughly unconscionable upper hand, one of them ran for judge and was elected. His foe, recognizing defeat, simply stopped handling litigation cases, taking solace instead from the alternate professional life style of mak-

ing money and enjoying long life. The judge, now with no one upon which to vent his hash-laden spleen, became unduly venomous, and soon took to spitting upon himself, a condition which his colleagues sadly mistook as the premature onset of judicial temperament. So it is that, though I often pray for fresh invectives and the wherewithal to fling them, I HAVE LEARNED TO LASH MY TONGUE IN TIMES OF STRESS. At this stage of my career, as I am much against my will propelled nearer my God to Thee, I might as well stand fast before Malcanew and his earthly refrains, the better by which to insure my own ultimate reward. I may go to my grave with unrequited spleen, but if in fact that state of final grace is sparsely colleagued, that will be Heaven enough for me. ' "

Copyright 1981, S. Sponte, Esq.

(Editor's Note: Law generally is a rather somber profession. True, once in awhile, there is a pleading or decision couched in a humorous vein. However, we lawyers must admit that there are few wits in the legal profession. So, it is with the especial pleasure that we introduce a new Regular Feature in The Arkansas Lawyer, appropriately entitled "To Wit" and authored by S. Sponte, Esq. All lawyers should be able to identify with him.) July 1981/Arkansas Lawyer/125


UP-DATE: How To Handle A Tort Claims Case In Federal Court by Robert Fussell (Editor's Note: We were fortunate to publish, in the first issue of The Arkansas Lawyer under our aegis, May 1969, Robert Fussell's first article, "Handling Tort Claim Cases in Federal Court". His" Up-Date" should be a part of every practicing lawyer's library. Robert Fussell is a sole practitioner in Little Rock. He has been an attomey for NLRB, 1965-66; Assistant US Attorney, 1968-75; Chief Assistant US Attorney, 1973-75; and Lecturer on Trial Advocacy, UALR School of Law. He has been appointed a Special Master in the US District Court for the Eastern District of Arkansas. To our knowledge, Robert Fussell devotes more pro bono time to veterans and the deaf than any iawyer in the United States. For his work, he was awarded in 1978the only Arkansas Bar Foundation-Arkansas Bar Association Special Lawyer-Humanitarian Award ever given.)

INTRODUCTION With the continuation of growth in size by the federal government and the congressional trend to broaden the scope of liability of the United States Government, undoubtedly practice in federal courts will become even more lucrative in the future for attorneys. The purpose of this article is to point out some of the common pitfalls which occur in handling cases filed under the Federal Tort Claims Act (originally enacted at Title IV of the Legislative Reorganization Act of 1946, 60 Sta. 842), and to suggest some procedures to be followed which will save you time and hopefully result in a more successful determination of your client's claim. Congressional confusion is best illustrated by the Federal Tort Claims Act which is scattered throughout Title 28, U.S.C.A. The technical procedures to be followed under the Act are 126/Arkansas Lawyer/July 1981

enough to make an unwary attorney: scream, get an ulcer and pray for forgiveness on Sunday. A COMMON CASE WITH COMMON PITFALLS The most common case under the Tort Claims Act is a vehicle collision. On April 1, 1981, Johnnie Postman while driving a government vehicle delivering mail, ran a stop light at the intersection of VanBuren and Lee Streets, Little Rock, Arkansas; and coilided with a vehicie being driven by Bud Fudge, a law student at the University of Arkansas at Little Rock. Bud Fudge's lawyer, Climbing Izard, proceeded to file a civil suit in Circuit Court against Johnnie Postman and the United States Postal Service. Assistant United States Barrister "Bear" Jackson immediately removed the case to Federal Court and moved to Dismiss because Johnnie Postman was acting within the scope of his employment at the time of the accident and the United States of America should be the proper party defendant not the United States Postal Service. Attorney Climbing Izard then proceeded to file a new case in Federal Court naming the United States of America as the party defendant. AUSA Barrister "Bear" Jackson, following Department of Justice instructions, filed another motion to Dismiss because the plaintiff Bud Fudge failed to exhaust his administrative remedies. Federal Judge "Wild-Bill" Overstreet granted the motion to Dismiss the day after it was filed. The plaintiff then filed a claim for $10,000.00 with the United States Postal Service. The Postal Service sat on the case for a year and a half; and then denied the claim. Izard subsequently found out he could have filed the suit six months after the date he originally filed the claim. Attorney Izard then filed a suit in federal Court for $60,000.00 and de-

manded a jury trial. AUSA "Bear" Jackson then filed a motion to limit the plaintiff's claim to $1 0,000.00 as stated in the plaintiff's administrative claim. Then Judge Overstreet advised the plaintiff's attorney that the Federal Tort Claims Act had no provision for trial by jury. To the attorney's amazement, Judge Overstreet set the case for trial within three months from the filing of the Complaint. The case was tried. The Judge found damages in the amount of $27,000.00 but reluctantly reduced Judgement to $10,000.00, the amount of the administrative claim. Attorney Izard under his contract with the plaintiff, was entitled to 33-1{3% of FUdge's recovery. To Izard's dismay and distress, he learned that under the Act his fee was limited to 25% of the recovery. Furthermore the United States Attorney advised him it was a criminal misdemeanor to charge over 25%. Later, his client, who had graduated from law school by then, filed a malpractice suit for $17,000.00 against him because he failed to state on the administrative claim sufficient damages. After Attorney Izard finished the case, he thoughl... ..."Good Riddance" and to hell with the Federal Torts Claim Court. ADMINISTRATIVE PROCESS Section 2675, Title 28 USC provides that: ยง 2675.

Disposition by federal agency as prerequisite; evidence


(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. (b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim. The Eighth Circuit Court of Appeals has held that before a complaint may properly be filed in federal court on a tort claim, the claimant must file a written claim with the offending agency. Davis v. U.S. (1971, 8th CiL) 439 F.2d 1118. If you are employed before the injured person files a claim, you should prepare the Claim' and include all conventional personal injury items and the total amount of damages you intend to sue the United States for recovery. If your client has already filed a claim, you should go over it very carefUlly and if it is defective you should amend the claim at once. It has been my experience that the federal agency wiil not have finished the investigation of the claim, much less get anyone to take the responsibility to act on the claim within six months; so I wouid recommend immediately filing a complaint in United States District Court after the six months waiting period.

FORM OF THE COMPLAINT AND PROCESS If the federal agency denies the administrative claim or after six months has elapsed from the date of the filing of the claim with the agency, then a suit should be instituted either in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred. 28 U.s.C. 1402(b). The following is a suggested form of a complaint to be used in a Federal Tort Claims Act case involving an automobile collision where the negligency of a governmental employee is an issue. COMPLAINT

vehicle in the following particulars, towit: a. DriVing at an excessive rate of speed under the conditions then existing. b. Failure to keep a proper lookout c. Failure to keep his vehicle under proper control. d. Following too closely. The aforementioned acts of negligence are contrary to the laws of of the State of Arkansas. 8. As a result of said negligence and carelessness, as set out above, plaintiff was seriously, painfully and permenently injured in the following particulars, to-wit:

Comes the plaintiff, Bud Fudge, and for his complaint against the defendant, United States of America, alleges and states:

a. Severe sprain of the cervical and lumbar spine.

1. This action arises under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671, et seq.

c. Bruises, contusions, and abrasions over and about his entire body.

2. Plaintiff has exhausted his administrative remedies in accordance with 28 U.S.C. 2675(a). Attached as Exhibit "A" is a letter from the United States Post Office Department denying administrative relief.

9. At the time of the collision, the plaintiff was a healthy and gainfully employed person. As a result of said collision, he has sustained injuries which have caused him to lose considerable time from his work and he will continue in the future to lose additional time from his employment He has been caused to spend money for hospitalization, doctors, medical bills, drugs, and other kindred expenses and in the future will continue to spend additional money for such purposes. He has suffered constant bodily pain and mental anguish, and in the future will continue to suffer the same. The plaintiff will be damaged in the sum of One Hundred Thousand Dollars. ($100,000.00) WHEREFORE, plaintiff demands judgement against the defendant in the sum of One Hundred Thousand Dollars ($100,000.00). Counsel for Plaintiff

3. The plaintiff, Bud FUdge, resides at 66 Honeybell Lane, Star City, Lincoin County, Arkansas, within the jurisdiction of this court. 4. At approximately 6:15 a.m. on June 1, 1968, plaintiff while operating a vehicle owned by him, stopped on State Highway No. 114 to make a lefthand turn on to a county road known as County Line Road, located approximately 2 miles west of Star City, Arkansas, when John Smith, while delivering United States mail, negligently and wrongfully drove his car against the rear of plaintiff's vehicle. 5. At such time and place, John Smith was an employee of the United States Post Office Department, an agency of the United States of America, and was acting within the scope of his employment 6. If the defendant were a private person, it would be liable to the plaintiff in accordance with the laws of Arkansas. 7. At the time of said accident, John Smith was guilty of negligence and carelessness in the operation of his

b. Fracture of the right elbow.

SERVICE Rule 4(a), of the Federal rules of Civil Procedure provides that upon the filing of the complaint in federal court, the Clerk of the court shall issue a summons and deliver it for service to the Marshall or to a person specifically appointed to serve it. Rule 4(d) (4) then provides that service shall be made upon the United States by delivering a continued on page 128 July 1981/Arkansas Lawyer/127


Tort Claims Case continued from page 127 copy of the summons and complaint to the U.S. Attorney for the district in which the action is brought, and by sending a copy of the summons and complaint, by registered or certified mail, to the Attorney General of the United States at Washington, D.C. Rule 12(a) of the Federal Rules of Civil Procedures provides that the United States shall serve an answer within 60 days after the service upon the U.S. Attorney of the pleading in which the claim is asserted. However, it should be noted that Rule 56 of the Federal Rules of Civil Procedure further provides that no jUdgement by default shall be entered against the United States unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. SPECIAL FEATURES OF THE ACT The Federal Tort Claims Act, 28 U.S.C. 1346(b), et seq. has certain provisions which differ from the procedural requirements under state law in personal injury cases. 1. Trial by the Court. Section 2402 of Title 28, U.S. C., provides that any action against the United States under Section 1346(b) (Federal Tort Claims Act) shall be tried by the Court without a jury. 2. Statute of Limitations. A tort claim against the United States shall be forever barred unless (1) it is presented in writing to the appropriate federal agency within two years after such claim accrues, or (2) unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial olthe claim by the agency to which it was presented. A cause of action does not accrue under the Federal Tort Claims Act until the injury is discovered, or by the exercise of ordinary care should have been discovered, and the time of the cause of action accrues is determined by federal law. Kington v. United States, 265 F. Supp. 699 (D.C. Tenn. 1967), affirmed 396 F. 2d 9 (6th Cir. 1968). 3. Conduct not covered by the Act. The Tort Claims Act, under Section 2680(d), of Title 28, U.S.C., specifically excludes from coverage the following types of conduct of governmental employees: a. Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecu128/Arkansas Lawyer/July 1981

tion, absue of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

the "operational level." Ingham v. Eastern Air Lines, Inc., 373 F. 2d 227 (C.A. N.Y. 1967), cert. denied 389 U.S. 931.

b. Any claim arising outofthe loss, miscarriage. or negligent transmission of letters or postal matter.

4. Attorneys' Fees. Section 2678 provides that attorneys' fees for administrative claims may not exceed 20% of the agency award. Attorneys' fees for litigated claims may not exceed 25% of a Court award or settlement after filing of a complaint in court. Any attorney who demands or collects a greater amount than the Act permits may be fined not more than $2,000 or imprisoned not more than one year, or both. 28 U.S.C. 2678. With a 25% limitation on litigated cases, one can hardly afford a fine of $2,000 or imprisonment for any length of time.

c. Any claims or suits involving an admiralty jurisdiction against the United States. d. Any claim based upon an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion be advised. Probably this exception has given the courts the most trouble. It is not within the purview of this article to discuss that problem, or indeed, other problems, in depth. It may probably be safely said, though, that the discretionary function exception is limited to exercises of executive discretion at the "policy level" rather than at

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CONCLUSION It is, or should be, evident that the successful prosecution of a tort claim against the United States requires the exercise of more than the ordinary care usually employed in a tort action against a private defendant. An attorney who is not accustomed to federal practice or to litigation involving federal agencies may do well to familiarize himself in more detail with the various provisions of the Act prior to the initiation of a federal tort claim. " ....

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UTILE ROCK, ARKANSAS 72205

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EXECUTIVE COUNCIL NOTES by W. Christopher Barrier Secretary-Treasurer

HOUSE OF DELEGATES HIGHLIGHTS TheHousemetonJanuary17,1981, at the mid-year meeting and heard up-beat updates on Law Day, systems, ethics and insurance. A substantial amount of heat was generated by the continuing press of the Federal Trade Commission to regulate the legal profession, and a proposed new judicial article for the Arkansas Constitution. "Take it and...": On the FTC issue, President Phil Carroll recommended that the Association take a moderate course as it had "no skeletons in the closet". He recommended that the FTC's rather hefty questionnaire be answered without waiving the jurisdictional question and without conceding that the Association was the correct party to be questioned. However, those in attendance were in no mood to be conciliatory. Former President Wayne Boyce stated that practicing lawyers had been "abandoned" by the American Bar Association and that it was up to local lawyers to combat the FTC's aggressiveness. The consensus, with few dissents, was that the FTC should be told to take their questionnaire "and shove it".

"Kutak" cold feet: Frank Mackey did report that the "Kutak" commission had decided that it did not want that sort of confrontation over its controversial revision of the Code of Professional Responsibility. The Commission will now present two drafts-<lne a simple revision of the present code, the other its much more comprehensive and far-reaching revision. Judicial Article: Clay Robinson of Fort Smith presented an impassioned plea for a revised judicial article, patterned largely on the article contained in the ill-fated Constitution of 1980. Tom Carpenter thought the revision was worth having, just because of its favorable impact on juvenile justice. However, their passion

was matched by that of former president Wayne Boyce whose Resolutions Committee recommended against its adoption, and that of former Chief Justice Fogleman. In the final analysis, the proposed article was soundly rejected by the House. ERA?: Some final refinements and additions were made to the legislative package. With very little discussion, the all-male House of Delegates voted overwhelmingly to recommend statutory revisions that would mandate equality between the sexes on issues of inheritence, allowances for surviving spouses, and property rights generally. No one even mentioned the Equal Rights Amendment. .. ~

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It could be a big one! It's not uncommon for attorneys to be hit with suits by clients who feel badly sel'Ved. Whether the grievance is real or imaginary, the jury may be generous ... to the plaintiff. [n view of the growing number of claims and the vast amounts paid in settlement, the time may come when the only practicing attorney will be a well-protected attorney. CNA and the Arkansas Bar Association have worked together to come up with a comprehensive program of professional liability insurance for its members that can help protect both your financial and professional future. First, it helps to minimize the causes of liability suits through loss prevention programs. Then, it provides financial protection to help guard you against professional and business liability with a maximum of$l00,OOO per claim ($300,000 annually) after a deductible. Think you need more? Supplemental protection of$l,OOO,OOO for business and professional coverage is also available.

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OYEZ 路 OYEZ II By: Carol Utley Publications Assistant

The Arkansas Chapter of the March of Dimes presented their prestigious "Citizen of the Year" award to Little Rock attorney HERSCHEL FRIDAY at an awards dinner held February 18th. Guest speaker for the event was Leon Jaworski, special prosecutor during the Watergate scandal during the Nixon administration. B.J. McCOY of Little Rock, former director of the state Local Services Department under former Governor Bill Clinton, has opened his law office at 903 Donaghey Building. Attorney BOB SANDERS of Arkadelphia, is serving as 1981 president of the Arkadelphia Chamber of Commerce. Sanders is a Clark County Municipal Judge and has served as secretary and president of the Clark County Bar Association. At its February stockholders' meeting, GREG B. BROWN was elected to the board of directors of The Union Bank of Benton. JIM KENNEDY of Danville, has been appointed by the city council as city attorney. Kennedy is a 1979 graduate of the University of Arkansas Law School. Newport attorney ROBERT B. LAMB announced the opening of his law office for the private practice of law during February. Since 1972, Lamb served as director for the local Legal Services program. SAM T. HEUER opened his law office in Batesville during February. Before moving to Batesville, Heuer was associated with the firm of Davis, Bracey and Heuer in Springdale. SANDRA WILSON CHERRY of Little Rock, who has served as assistant United States attorney for the Eastern District of Arkansas for five years, was appointed by Gov. Frank White to a seat on the Public Service Commission. She is the first woman to serve on the PSC. CARAN CURRY was appointed prosecutor coordinator by the Arkansas Prosecuting Attorneys' Association in February. She had been the acting coordinator since November 1980 succeeding Dail Stiles who was reappointed to the Worker's Compensation 132/Arkansas Lawyer/July 1981

Commission. She is a graduate of the University of Arkansas at Little Rock School of Law. WILLIAM NASH of little Rock, a lawyer with the Rose, Nash Williamson, Carroll, Ciay and Giroir firm, became the second Arkansan to receive the Distinguished Eagle Scout Award. He is a longtime scout worker and a former president of the Quawpaw Area Council of the Boy Scouts of America. DANIEL R. ELROD has joined the law firm of Elrod & Lee in Siloam Springs which was established in the early 1930's by his father, Russell Elrod. Others in the firm are his brother, John Elrod, his sister-in-law, Georgia Elrod, and John Terry Lee. Danny was graduated from the University of Arkansas Law School in May 1980. MIKE HULEN AND PHILLIP P. CUFFMAN announce the formation of a partnership for the practice of law under the name of HULEN & CUFFMAN. Their offices are located at suite 2124 First National Building, Liltle Rock. CAROLYN CLEGG of Magnolia was named 1980 Outstanding Young Woman of the Year by the Magnolia Jaycees. She was graduated from the University of Arkansas School of Law and has a private practice in Magnolia. H. WILLIAM ALLEN, ROBERT D. CABE and MARKHAM LESTER announce the formation of a partnership for the practice of law under the firm name of ALLEN, CABE & LESTER, with offices located at 1290 Worthen Bank Building in Little Rock. CAROL RODDY, former deputy prosecutor for the 19th Judicial District, has joined the law firm of EVANS, LUDWIG & EVANS at 529 S. Holcomb Street, Springdale. B. FRANK MACKEY, JR. and ECTOR R. JOHNSON, III announce the addition of Mr. Johnson's name to the name of the firm which is now MACKEY & JOHNSON, P.A. at 1970 Union National Plaza, Little Rock. PHILLIP A. RALEY, RICHARD L. RAMSEY and SPENCER F. ROBINSON recently became partners in the

law firm of Coleman, Gantt, Ramsey, and Cox in Pine Bluff. ALICE ANN BURNS and LESLIE POWELL were sworn in as assistant attorneys general during one of former Chief Justice John A. Fogleman's last official acts before retiring. Both Burns and Powell are graduates of the University of Arkansas School of Law. W. H. "SONNY" DILLAHUNTY, United States Attorney for the Eastern District of Arkansas from 1968 to 1979, has opened his office for the private practice of law at suite 720, University Tower Building, Little Rock. JACK HOLT, SR. retired as Little Rock Municipal Judge in January at the age of 77. His career began in Harrison in 1928 when he became prosecuting attorney. Since that time, he has served as municipal and circuit judge and as attorney general for three terms. He was elected municipal judge in 1970 and served until January 31, 1980. RICHARD H. MAYS, a Little Rock lawyer who has been enforcement branch attomey for the state Department of Pollution Control and Ecology, has joined the federal EPA in Washington, D.C. Attorney JOHN PITTMAN was honored by the Phillips County Bar Association for his service as president of the organization from 1976-78. STEPHEN LANE RIGGS of North Little Rock, has been promoted to general counsel and assistant secretary of Arkansas Power and Light Company. McPHERSON D. MOORE has become a partner in the firm of Rogers, Eilers, & Howell in St. Louis. THOMAS L. OVERBEY, EDWARD O. MOODY and JOHN B. PEACE are pleased to announce a partnership under the name of Overbey, Moody, and Peace. Their offices are now in suite 402, First Federal Plaza, Capitol and Spring Streets, Little Rock. LEE THALHEIMER, Little Rock attorney, was appointed in February as State Securities Commissioner by Governor Frank White. TED STRICKER has opened a law office in


AICLE NEWS by Claibourne W. Patty, Jr. Executive Director Arkansas Institute of Continuing Legal Education

FOURTH ANNUAL LABOR LAW INSTITUTE ATTENDANCE DOUBLES The Fourth Annual Labor Law Institute, jointly sponsored with the Labor Law Section of the Arkansas Bar Association, the National Labor Relations Board, and the University of Arkansas-Labor Education Program of the Industrial Research and Extention Center, was conducted April 2-3, 1981, at DeGray Lodge, Arkadelphia. This year's institute, like those held previously, was conducted on a workshop format which has proved to be successful in the past. The paid registration consisting of labor law attorneys, paralegals, personnel managers, business agents, and officers of labor union locals totaled 125; which is the best turnout we have ever had considering the tiighly specialized nature of the subject matter. The program con-

centrated on such diverse topics as complaint hearing process before the NLRB, current developments in EEOC, pitfalls of private sector bargaining (union perspective), Arkansas worker compensation-the appeals process, organizing-protective activity, Equal Access to Justice Act, arbitration and the duty of fair representation. As predicted in the past the reputation of this fine presentation on current developments in the vast area of labor law is attracting more and more registrants which are made up of general practitioners whose clients find themselves involved in a multitude of cases arising in this area as well as business agents and presidents of local labor unions in addition to the labor law specialists and personnel managers who have regularly attended the Labor Law Institutes in the past. The overall purpose of this institute as presented

OYEZ-OYEZ

CLINTON, formerly Governor of Arkansas, has joined the firm at 2200 Worthen Bank Building, Little Rock. JUDITH ANN DESIMONE of Pine Bluff, a 1981 graduate of the University of Arkansas School of Law at Little Rock, has joined the firm of Baim, Baim, Gunti, Mouser and Bryant in Pine Bluff.

Gentry on Highway 59 in the Gentry Professional BUilding. He is a former resident of Denver, Colorado, where he was a broker and president of Medallion Real Estate and Investment Company. WRIGHT, LINDSEY AND JENNINGS announce that BILL

f.....

NEW BAR OFFICERS NAMED NORTH PULASKI BAR President William S. Robinson

Vice路President John Biscoe Bingham Secretary Charles E. Smith Treasurer Mackie M. Pierce

STUDENT BAR ASSOCIATION FAYETTEVILE LAW SCHOOL President Mary Ann Gunn, Bentonville 1st Vice路President Jim Garrison, Fort Smith 2nd Vice路President John L. Popilek, Fayetteville 3rd Yr. Representative Steve Tabor, Fort Smith 2nd Yr. Representative Jerome Paddock, Lead Hill

by the Labor Law Section is to expose the registrants to all sides of the issues and not merely present a"pro-management", "pro-union" or "pro-claimant" bias. LANDLORD/TENANT FIRST FOR ARKANSAS A program entitled "Landlord-Tenant, Law and Practice" jointly sponsored by AICLE and the Real Estate Committee of the Arkansas Bar Association will have already been presented in Little Rock on April 10, by the time the Arkansas Lawyer reaches the membership. Tom A. Buford, chairman of the Real Estate Law Committee, will have presided over the following topics: "Landlord-Tenant Law, An Overview" by Professor David S. Hill of Colorado School of Law and author of Landlord and Tenant law in a Nutshell (West, 1979); "Representing the Private Landlord" by S. Graham Catlett, Esq. of Little Rock; "Representing the Public Landlord" by Richard D. Taylor, Esq. of Little Rock; "LandlordTenant Law, Recent Developments" including legislation in Arkansas, by Professor Morris Sheppard Arnold, visiting professor at UALR School of Law; "Representing the Private Tenant" by Mary Ann Spencer, Esq. of little Rock and" Representing the' Public' Tenant" by William F. Rahn, Esq. of Little Rock. Due to the increase interest in the rights of landlords and tenants, and in consideration of the Model Landlord/Tenants Act which was introduced in the Arkansas legislature (but not passed) it was deemed to be a timely topic by your program committee. As it developed without a comprehensive package of legislation concerning landlord-tenant relationships, it is all the more important that Arkansas lawyers have a feel of what the rights and responsibilities of each party are under what is now the existing law which continued on page 134 July 1981/Arkansas Lawyer/133


A/eLE News, continued from page 133 never has been crystal clear. I will report on the attendance and the outcome of this timely seminar in a subsequent issue of the Arkansas Lawyer. THIRD ARKANSAS COLLEGE OF TRIAL ADVOCACY The Third Annual Arkansas College of Trial Advocacy, jointly sponsored by AICLE, the UALR School of Law, and the Arkansas Trial Lawyer's Association will be conducted in Little Rock at the Old Federal Building for five days beginning May 11 and ending May 15, 1981. This program will be limited to 24 registrants, and it is designed primarily for practicing attorneys with zero to five years of trial practice experience. This trial advocacy program will stress techniques and information designed to enhance the practical knowledge and to sharpen the courtroom skills of those attorneys who attend. Lectures, demonstrations and workshops will be conducted by highly qualified teams of experienced trial practitioners and law professors. The topics covered will include, but not be limited to, direct and cross examination of witnesses (expert and lay), adverse examination, opening statement and closing argument, use of demonstrative evidence and foundations-impeachment. There will be two concurrent workshops, each consisting of a leader, two assistant leaders and a judge (either a real judge, active or retired, or a seasoned practitioner) with twelve participants in each. Each attorney registered will sharpen his or her trial skills by actually performing each of the above areas, and their individual performances will be videotaped and critiqued by the workshop leaders. By the time this issue of the Arkansas Lawyer has been published the general Bar membership will have already received an initial flyer along with a more complete follow-up brochure announcing the details of the Arkansas College of Trial Advocacy programs of 1981 including the key demonstrators and workshop leaders. THIRD ANNUAL TAX AWARENESS INSTITUTE A Tax Awareness Institute, jointly sponsored by AICLE, the Taxation, Trusts and Estate Planning Section and the Securities Law Committee of the Arkansas Bar Associatiorr will be presented in Little Rock on May 1st at 134/Arkansas Lawyer/July 1981

the Camelot Inn. The program, which billed as a "nuts and bolts workshop" will be concerned with basic tax and securities problems connected with corporations, partnerships and other business entities. It is the purpose of these nuts and bolts workshops to provide "awareness" of basic tax and securities aspects of those areas of the general law practice which are affected by tax and securities law in some way. The objective is to give the participants in this program an idea of the securities and tax aspects involved, some of the general theory behind the applicable law and points to consider in representing their clients without trying to make specialists out of them. PROGRAMS IN PROGRESS Please mark your calendars for videotape replays of the Midyear Meeting highlighting the Arkansas Creditors'/Debtors' Rights Law and System which will be held at the following dates and locations: Friday, May 22, Waterman Hall, FayetteVille; Friday, June 12 at the Audiovisual Center, Arkansas State University in Jonesboro; Friday, June 19, Community Room, Union Bank and Trust Company, Monticello; and Friday, July 10, Media Center, Southern Arkansas University, Magnolia. The topics presented will include the following: Truth in Lending, Equal

Credit-Fair Credit Reporting, What an Arkansas Lawyer Should Do Before Obtaining Judgment, Survey of Post Judgment Creditors' Remedies in Arkansas, Problems to Watch for in Closing on Real Estate, Agricultural Credit: Collecting from Farmers, Collecting by Farmers (videotape in Fayetteville, live at other locations), and Deciding when to put a Debtor in Bankruptcy. John R. Eldridge, III, Esq. will act as moderator and provide live commentary at the Fayetteville location and Professor J. W. "Jake" Looney will speak on the agricultural credit topic live and prOVide commentary at the other three locations. The videotape replays of the selected topics of the Fall Legal Institute concerning Arkansas Domestic Relations Law and System enjoyed a total attendance in five locations of approximately 150 registrants, and the combination of videotape and live commentary were well received by those attending generally. These videotape replays allow attorneys an opportunity to attend at least a substantial part of a major program which they were not able to see live in Little Rock. These programs which offer the new Arkansas Bar Association's systems at a discount price also permit those attending to take advantage of the same seminar rates as were those attending the main event.

ANNUAL MEETING Arlington Hotel, Hot Springs June 3-6, 1981

FALL LEGAL INSTITUTE Hilton Hotel-CE Center Fayetteville September 10-12,1981

MID-YEAR MEETING Camelot Inn, Little Rock January 14-16, 1982


ADDENDA by C. E. Ransick Editor

Former Judge Indicted; Becomes 18th Named On Kickback Charges The above headline appeared in The Gazette on March 18, 1981. The following letter appeared earlier in The Gazette under From the People on the editorial page. The Gazette's editor deleted the portions of the letter in heavy print. The letter below is as was sent in by Attorney-at-Law Erwin L. Davis of Fayetteville. Dear Editor: Couldn't help but cringe at the black-robed caricatures at the top of your Section B Page 1, on February 5, 1981. Readers will recall that these "Judges" were taking money out of (presumably not putting money into) the pockets of lay persons and vice versa, depicting the ultimate insult to the public trust, bribery. This cartoon illustrated the very well written article on certain corrupt past County Judges in Arkansas, which article listed a ghastly number of them who had pled guilty or were otherwise convicted of felonious behavior.

It is regrettable that the public image of County Judges must suffer even if it was from their ranks that these rotten apples fell. Most County Judges are mighty good men. However it is doubly regrettable, if not patently unforgiveable, that the image of the real Judges of this State must also suffer. Yes, unforgiveable because those lowbrow crooks listed in the article, who happen to have been called "JUdges", has Virtually nothing to do with the system of justice in Arkansas. County Judges in Arkansas are not JUdges. They are just called Judges. And that nomenclature is a wrong to the Bench and Bar of this State.

For two years now, I have read a veritable flood of articles on these "JUdges", headlined "JUdge Pleads Guilty" or "Judge Convicted of Bribery" and the like. Upon every such reading I was a little relieved, as a lawyer, that the wrongdoer was a person outside our profession. And every time I saw such an article, I knew that while I understood the distinction and knew that these men were neither lawyers nor judges, I also knew that the public did not know. The image of our Bench and Bar (Judges and lawyers) has been unfairly tarnished by this confusion. The answer to this travesty lies in a change of name for County Judges. It is true that historically the County "Judges" heard a very few select kinds of cases such as those involving juveniles, illegitimate offspring and certain roadways of necessity. There is even a little spillover today though most County "Judges" no longer hear these matters, and, by law, these cases are heard by trained lawyers called Juvenile Judges or Referees. In reality, a County Judge in Arkansas is the chief administrative officer of the County, the chief executive of the County, like the Governor of the State or the President. As such, he presides over the County Legislative body and administers to most County employees. He makes purchases for the County with increasing guidance from the County Legislators and rides herd on the County's roads and bridges. He is asked to do a lot, and he may in fact be overworked. But he is not a JUdge. He is not even a lawyer. He never took a course in law, not even one, and probably never set foot in college. He couldn't define "public trust" or "fiduciary duty" and he never was told about ethics in school. If he wasn't taught honesty at home in his youth, then his education was left to County purchasing agents and corporate reps. And he wears overalls, not black robes as shown in your cartoon. All of the above is of course unimportant overstatement, except it does show a distinction. He is County JUdge for only a while before going back to whatever it was he was doing before he became County Judge. He is not a member of any professional organization, unless by chance, and he may feel no responsibility toward any highly professional group of persons of which he is a member. This overstatement serves only to illustrate a point: County Judges are not Judges.

The real Judges in this State are the Chancellors, the Circuit Judges, and Probate Judges, the Judges of the SuJUly 1981/Arkansas Lawyer/135


preme Court and of the Court of Appeals, the many Federal District Judges and Judges of other Courts of record. These are the men and women (hereafter called men) responsible for administering justice. They are all lawyers. They are all educated men who were trained in the law, who are aware of their role in the administration of justice, and who are responsible to themselves, their families and to the legal profession of which they are life-time members. Perhaps their highest trust is owed to the public who put them there. Most of these Judges are thrifty and hard working men, some are very sophisticated and capable of grasping in one sitting very complex fact patterns, and not a one of them has been convicted of such a low rent thing as bribery or any other felony. These are the men in the black robes who decide all legal and equitable issues before the Courts in Arkansas. These are the men who constitute the judiciary in Arkansas, the men who devote their lives to a noble cause and worthwhile profession, the men who receive as compensation therefor a fraction of what most could earn in the private practice of law. No, these men wouldn't take a bribe- and folks would be well advised not to try one on for size. Attempted public servant bribery is a crime, and the real Judges of this State are sure to blow the whistle. Those corporate agents convicted of bribing a few dull and gutless County "Judges" wouldn't even know where to find a real Judge, and if their paths crossed, wouldn't have anything to say.

Gazette could have followed up with a change in its March 18th headline, as follows: "Former County Official Indicted". Fortunately, Arkansas has not had scandals involving its jUdiciary. Every effort should be made to preserve the judiciary's well-deserved reputation. The media and the members of the Arkansas Bar should join in this effort.

" MEMORIAL GIFfS "It is more blessed to (,rive than to receive"I-Iowc\'cr, 8 member profits both ,",'uys with a memorial gift to the Arkansas Bar Foundation. One's gift is a beautiful way of honoring a former colleague. The family lUust be most apl)recialive of such relllcm· bronee. The gift is noted ill the FOlUnlation's Memorial Book 8nd, of cuur8C, is tax ded1lf·lihle. Memorial gifts may be sent to the Arkansas Bar Center. TIle memorial card (below) of the Arkansas Bar Fowldalion is formal and is prompLly delivered upon reeeipi of the memorial gifl.

The legal profession keeps its own house pretty clean, tho' it may have a few justly deserved crosses to bear. The profession can hardly afford to tote around the miserable images of greedy and crooked Judges falsely created in the public mind by bad elements outside our profession. WE ACKNOWLEDGE WITH GRATEFUL APPRECIATION

I would strongly urge the Arkansas Legislature (or the people) to change the name of the office of County Judge, maybe to "County Administrator" or "County Coordinator" or "Supervisor" or anything but Judge. This is necessary to preserve the image of the legal profession, the real judiciary, our system of justice, and even our whole State. I can just imagine a Texan or an Easterner blowing through town seeing your article (which was accurate) and your cartoon (which was not) and thinking "Gee, the Judges in Arkansas are sure a bunch of crooks" or "Golly, what a rotten system of justice here in Arkansas". Neither could be further from the truth. We people of Arkansas have a right to be proud of our legal system and the people in it, but a necessary step is to make the word"Judge" mean Judge. Yours truly, Erwin L. Davis

THE RECEIPT OF A GENEROUS MEMORIAL GIFT

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Mr. Davis had two purposes in taking the time to write the letter to The Gazette, viz., (1) The attempt to get The Gazette properly to identify the individuals involved in these criminal proceedings; and (2) Informing the general public as to the proper identification of such individuals. In its column, From the People, The Gazette made a commendable effort with its headline before Mr. Davis' letter, "Protect Good Names of Real Judges". Perhaps, The 136/Arkansas Lawyer/July 1981

THE ARKANSAS BAR FOUNDATIO 400 WEST MARKHAM LITTLE ROCK, ARKANSAS 72201


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YOUNGER EVIDENCE lECTURES Hastings Center for Trial and Appellate Advocacy's Eleventh Annual COLLEGE OF ADVOCACY SKILLS WORKSHOPS Please reg...

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