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July 1988

Vol. 22, No. 3 OFFICERS John F. Stroud. Jr.. President Philip E. Dixon. President-Elect Sandra Wilson Cherry. Sec.-Treaswer Vincent W. Foster. Jr.. Council Chair Wm. A. Martin, Executive Director

Judith Gray. Assistant Executive Director




A Conversation with Philip E. Dixon, by Ruth M. Williams

EXECUTIVE COUNCIL Madison P. Aydeloll. III H. Murray Claycomb John D. Eldridge. III Donald K. Harp Ronald D. Harrison Robert L. Jones. III R. Gary Nuller Robert G. Serio Bobby E. Shepherd James M. Simpson. Jr. Carolyn B. Witherspoon Robert R. Wright. 1II EX-OFFICIO John F. Stroud. Jr. Philip E. Dixon Richard F. Hatfield Sandra Wilson Cherry Vincent W. Foster. Jr.

Michael H. Crawford EDITOR Ruth M. Williams. Director of Communications The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. 400 West Markham. Little Rock. Arkansas 72201. Second class postage poid at Lillie Rock. Arkansas. In all counts. POSTMASTER: send address changes to Arkansas Bar Association. 400 West Markham. Little Rock. Arkansas 72201. Subscription price to non-members of the Arkansas

Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author. and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer

are welcome and should be sent in two copies to the Arkansas Bar Center. 400

1987 Membership Survey: A Peek at Arkansas Lawyers, by William A. Martin


138 141

The President's Report

145 148

Point of ViewlLetters Law, Literature & Laughter

149 156 160

Getting to the Heart of Things: A Social Security Cardiovascular Primer, by H. Mayo Smith Tax Update: Marginal Rates in 1988. by James E. McClain, Jr.

Federal Update: Congress Overrides President's Civil Rights Veto Disciplinary Actions

162 168 The Developing Law: Decisions Affect Financial Institutions, Real Estate

171 180 In Memoriam 182 Judicial Department Report 183 Arkansas lOLTA Program 184 Executive Director's Page 185 Young Lawyers' Update 186 In-House News

ON THE COVER: Philip E. Dixon. of Little Rock. assumed the position of Arkansas Bar

Association president at the close of the Association's 90th Annual Meeting on June II. Dixon heads an association with more than 3400 members and an annual budget of $460.000. With a history of support and service to bar associations. Dixon looks to-

West Markham. lillie Rock. Arkansas 72201.

ward bettering the relationship be-

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

pictured in his office at the House.

tween the Association and the state's local bar associations. Dixon is

Wallace and Jewell law firm. where he is a senior partner.

July 1988/Arkansas Lawyer/137


AYear As First FamiIy By John F. Stroud, Jr.

now history and I feel that communications between the bench and bar have continued to improve as a result. Bob Walsh did an outstanding job of putting together a program filled with enough choices to meet the varied needs and desires of the lawyers and judges allending. My greatest hope is that the

It's amazing how quickly a busy year can pass! In such a short time, we have completed some projects and programs carried from prior years, we have started projects for completion by those who follow and. on fare occasions. we have seen projects reach fruition.

joint meeting was sufficiently suc-

• Under the leadership of John P. Gill, the Bicentennial of the U.S. Constitution culminated in a fabulous celebration; • Updated and new systems were

completed. including the Corporation Law System under the guidance of

Greg Graham, the Debtor-Creditor System under the guidance of Jim Buttry, the Agri Law System under the guidance of Bill Haught and the Arkansas Form Book under the guidance of Bob Wright; • Two new committees. the Lawyers for Literacy Committee and the Com-

puterized Legal Research Committee, were created;

• A study of the incorporation of the bar association was completed; • A successful Interview Consor-

tium of law students during the MidYear Meeting in Little Rock for law

firms seeking law clerks was chaired

by Bruce Cross. Look for this program to be expanded to the Fayetteville campus during the Fall Legal Institute; • IOLTA (Interest on Lawyers' Trust Accounts) continues to


and man-

datory CLE is finally at our finger tips. The countless hours given by the chairs and members of editorial boards and by contributors of materials and texts for systems are the main reason our Association dues have not been increased in several years. When you read this article in the July issue of The Arkansas Lawyer, the baton will have passed and the Association will be enjoying the able leadership of Philip Dixon. I'm privileged that Phil and Susan have been friends of mine since we were classmates in high schooL at Hendrix College and in law school. Phil's participation in the Associa138/Arkansas Lawyer/july 1988

tion this past year was monumental. As chair of the Membership Commillee for a second consecutive year, he surpassed an ambitious membership goal. He also chaired one of the most successful

and well-allended Mid-Year Meetings ever held. You can expect an exciting and dynamic year from Phil and I urge you to give him your time and support. The first general Long-Range Planning Conference in several years was held at DeGray Lodge in April under the leadership of Bob Jones III and his hand-picked commillee. Our thoughts were arduously pulled and stretched by professional facilitators meeting with the allendees in three separate groups. Many excellent ideas were fostered in the final reports and I'm confident they will be evaluated, prioritized and, many, implemented by the Executive Council and House of Delegates. When I assumed this office in June 1987, my primary goal was to work toward improved bench-bar relations, principally through a joint meeting of the Association and the Arkansas Judicial Council. That meeting, held in June 1988, is

cessful to become an annual event. I regret that an effort initiated by then-President Dennis 1. Shackleford in 1984 to establish a Judicial Compensation Commission will not be successfully completed this year. Our efforts to obtain sufficient signatures to place a constitutional amendment on the November ballot fell short. However, the need continues and your Association will continue working toward that objective. Perhaps a new judicial article in the Arkansas Constitution addressing this and other needs will prove the ultimate vehicle to realize our goal. My special thanks to Vince Foster who so ably chaired the Executive Council and Legislative Policy Committee, to all the members of the Executive Council and House of Delegates and to the Association's officers and committee and section chairs. The Association cannot survive without this massive voluntary participation, but neither could we survive without the extraordinary support of our most capable staff - Bill Martin, Judith Gray, Ruth Williams, Virginia Hardgrave, Barbara Tarkington and Joyce Bobbitt. Marietta and I have truly enjoyed our day in the sun. Thank you for allowing us to serve this year as your first family. We will long remember the opportunities afforded to us to make new friendships and strengthen others throughout Arkansas and with the bar leaders of our neighboring states. 0


AMAJOR SOURCE OF ENERGY IN ARKANSAS' DEVELOPMENT. "For a half-century your electric cooperatives have played a major role in the development of Arkansas. "That role has never been more active or important than today. With significant power Carl S. Whillock President, Arkansas capacity in coal and Electric Cooperative hydro generating plants, Corporation the cooperatives offer tremendous incentives to new or expanding business and industry. "Arkansas' work ethic, natural beauty, Mid-America location and excellent water and highway transportation make our state more attractive than ever. "Today the 62% of the Arkansas land area served by the electric cooperatives can attract major industry due to long-term power supply rates. Rural electric power creates jobs and keeps families together. Now and in the future.

"Just as you are committed to building your community through professional leadership, we support your local efforts through an active economic development department. "By working together we pledge to make the next 50 years the greatest in our history. We know the power of cooperation. Because a cooperative is what we are."

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hilip E. Dixon's yearning to practice law goes back to the 10th grade, while a student at Little Rock High School. His parents had instilled in him quite early on that they wanted him to be a professional man. "I was very poor in math, very poor in science and 1 didn't get the calling to be a minister. There wasn't much demand for Indian chiefs," Dixon said. His interest in politics in high school and in speech and debate in college cemented his desire for law. After finishing his undergraduate degree in social studies at Hendrix College in 1954. Dixon went directly into the Navy for active duty and then straight to law school. obtaining a law degree from the University of Arkansas School of Law. Fayetteville. Now he stands ready to head an association with more than 3400 members and an annual budget of $460,000. With a history of support and service to bar associations. Dixon looks toward bettering the relationship between the Arkansas Bar Association and the state's local bar associations.


What will be the thrust of your year as president of the Arkansas Bar Association? One of my goals as president is to develop an even stronger relationship between the state bar and local bar associations. I think we're very blessed in Arkansas to have local bars which complement and supplement the state bar just as the state bar does those local bar associations. In New York. the Brooklyn local bar has 3500 members. They're sort of an association within themselves. They have their own programs, their own officers and so forth. To some extent. they may feel that they're competitive with the state bar association.

By Ruth Williams

That's not true in Arkansas. I think we work very nicely together. Each of us has our own place while being of assistance to the other. So, I ] absolutely want to have a ~ close relationship between ~ the state bar and the local ., bars and to let them know § what services we may have A that will be helpful to them ~ on the local level. .t What plans are in store for â&#x20AC;˘ improving the relationship f between the state bar association and local bar associations? We are planning this bar year, since 1988-89 is not a long-range planning year, a one-day seminar in Little Rock and we'll ask or invite an officer from each local bar association in the state to attend. We're going to provide some good information on those services which are available through the state bar association. We also hope to include in that meeting the committee chairs of the state bar association. There are 51 special committees of the state bar and 61 local and specialty bar associations listed in our "Organizational Directory." We simply want to let them know what we have available to help them in carrying out their tasks. I hope we'll have a handbook on bar services for those attending. I think it will be a

fine day and very educational. Do politics interest you? I was president of the student body and president of the Freshman Class at Hendrix and served as president of the student body and 10th grade representative at what was then Little Rock High School (now Central High School). In law school. I served on the student Senate. I've not been involved as a candidate since then. I've been sort of a backer. [ served as director of the Constitutional Convention in 196970, which was a great experience. Dr. Leflar was president of the Convention. It was hard work, but it was very rewarding, even though the proposed constitution did not pass. I think the provisions restructuring the judicial system were close to my heart. I felt some changes needed to be made. But, it is difficult to change the whole Constitution at one time. It looks like we're going to obtain constitutional reform the way other states have, an article at a time. "The Best Lawyers in America" named you a top attorney in the field of domestic relations law, Did you enter the law profession with domestic relations in mind? No, I didn't think of practicing in domestic relations at that time. As a matter of fact. I probably thought of being a corporate attorney and of trial practice - just being in the courtroom and trying lawsuits, which is what [ primarily do. At one time I found myse If handling 1()() to ISO divorces a year. They are draining emotionally so I've cut my domestic relations practice back. When they published "The Best Lawyers in America," one of the five categories in the book happened to be domestic relations and I was fortunate to be included in that section. I'm still active in domestic relations and very interested in it. I think it's an important legal area and [ still, of course, belong to the Family Law Section of the state bar. I attend the Section's meetings and will be participating, hopefully, in the testing process (or specialization. Do you think specialization in family law has broad appeal? If you practice as a sole practitioner, there are going to be times you simply must accommodate a client by handling domestic relations. Basically, I am a litigation lawyer and [ do try lawsuits in a 1421Arkansas Lawyer/July 1988

number of areas - products liability, medical malpractice, general defense work, etc. I still do a goodly amount of domestic relations work, just not as much as before. How would you sum up what it is lawyers do? Lawyers basically attempt to lake care of the legal problems for clients. I think lawyers have a lot of other obligations though - civic, church, etc. - beyond practicing law in the courtroom everyday. There was a time that the lawyer was looked to as a community leader. I think we need to return to that by doing a lot of things other than just serving the client in the courtroom. I think mandatory continuing legal education will improve the image of the attorney. Certified public accountants and many physicians groups around the United States have had continuing education requirements for a long while. The CPAs in Tennessee have a 40-hour mandatory education process. I know a number of CPAs that self-impose 80 hours of continuing education on themselves. In any malpractice suit, no matter the profession, one of the things looked at is how you've maintained your education. I think a lot of lawyers now are attending many seminars yearly simply to keep their education at a high level. There are some that may not. If you must have a law degree and pass a bar exam to obtain a license to practice law in the first place, I don't think it's unreasonable to require 15 hours a year of continuing legal education to maintain that license. The law changes. There's no doubt about that. Historically it has always changed, though probably much more often today than in the past. In addition, specialization is here, just like it is in the medical field. I think we're obligated to keep up with the changing law. The seminars we go to and the continuing legal education offered are perhaps the best way to do it. I'm not saying it's the only way. What other goals have you set for this bar year? The immediate past leadership of the bar has instituted so many great programs. I'm speaking of continuing legal education, of IOLTA, etc. All of these have been in the planning stages a long time but have now come to fruition. These programs are going to need following

through and our support, particularly continuing legal education. Mandatory continuing legal education is going to be a new thing when it's implemented and we're going to work hard to make it a success. I've just returned from an American Bar Association meeting in Chicago and I'm elated to know that we are carrying out programs similar to and even beyond those of many of the other bar associations. That did not surprise me, but it really pleases me. Our Long-Range Planning Committee's theme this year is "Relationships Between Lawyers and Lawyers, Lawyers and the Public and Lawyers and the Judicial System." I think that our efforts to help improve the public image of the attorney - an ongoing effort that we all need to be concerned about and work toward - will continue. John Stroud this year included in our annual meeting the state judiciary, which was excellent. They participated in our program and we participated in their program. I certainly hope that will be a long-lasting situation as for as the bar is concerned. I've just completed committee appointments. We sent out a questionnaire and got a very fine response to it. I know there's going to be great leadership and a lot of activity from the people that are on committees. And, we will have a legislative year this bar year which will necessitate a great deal of time and effort. It's going to be a very time-consuming year but overall. with the leadership we're going to have in our committees plus the fine assistance from our outstanding staff, I'm looking forward to a great 12 months. What issues will the bor association address during the upcoming legislative session? It may be that the sales tax issue will surface again. Florida has had an absolutely terrible experience with it. Maybe that will do something toward heading it off in Arkansas. Florida held a long, long extended special session and their governor absolutely did a 180 de路

gree turn on the issue. If you look at it realistically, a sales tax [on legal services] is not a sales tax on the lawyer, it's a sales tax on the client and on members of the public who use attorneys. The position has been that if you tax professions, where do you stop. Your hairdresser

is a professional. Do you tax the court reporter, do you add a tax to transcripts? From here to there, at what point in the judicial process will it end? I'm very grateful to Richard Hatfield who presided over the bar during the last legislative session and who took the time and energy following last year's annual meeting to meet with the new bar leadership and let us know what problems he had encountered. He made some excellent suggestions. Who will be assisting you on legislation? In addition to Martha Miller, who does an outstanding job, I'm blessed that Jack McNulty is going to chair the Executive Council. and, by virtue of that position, head our legislative effort. He's very good in that area. He works well with the legislature and he works well with other lawyers, so that's going to be an absolute plus for us. An important thing that developed out of our meeting with Dick Hatfield was the establishment of a legislative network of lawyers. Legislators like to hear from lawyers in their districts. They don't particularly want a call from the president of the bar association saying, "Hey, ...." The lawyers on the network are scattered throughout the state. Now, when we have a matter that we feel is important to practicing attorneys in Arkansas, we'll have an opportunity and a means for letting legislators hear directly from us about it. That's going to be very helpful. Under your leadership as chair, the Association's Membership Committee brought in a record number of members last year_ Whom have you chosen to continue the effort? I'm happy to report to you that Walter Niblock of Fayetteville, who is a former president of the state bar, has agreed to chair the Membership Committee for us this year. He does a good job in anything he agrees to take on. I think we have sort of zeroed in on those areas needing our work. I would love to see us at 100 percent, but about 79 percent of the active, practicing lawyers are members of our association, which is very good. Basically, every professional person ought to have an association he can belong to and be a part of. In our bar association, I think the camaraderie of it is excellent. Benefits include the annual meeting with all it provides,

"I absolutely want to have a close relationship between the state bar and the local bars."

including the opportunity to see people from around the state you haven't seen in awhile, the UALR Law Review, which is something members receive by virtue of their membership, The Arkansas Lawyer magazine, the NewsBulletin, our legislative program and the "Legislative Summary" and group insurance, both life and health, and professional liability insurance. There are so many benefits members receive for the $100 or $120 in dues they pay each year. What are you planning for the 1989 Annual Meeting? Bill Bowen's going to be our chair. We're basically going to look at Arkansas - Arkansas citizens and Arkansas industry. For the first time, the facilities at the Arlington Hotel include an exhibition hall. I want Arkansas to be represented at the

annual meeting in a big way. It ought to be a fine affair. We'll look toward having an outstanding person who is an Arkansan as our featured speaker and hopefully an outstanding Arkansan in the entertainment field to entertain us. 0 Editor's Note: Philip E. Dixon is a senior partner in the House, Wallace and Jewell law firm of Little Rock. He is a former secretary-treasurer of the Arkansas Bar Association and a former chair of the Association's Executive Council. He is a former president of the Pulaski County Bar Association and a former member of the state Board of Law Examiners. Dixon spoke with Ruth Williams, the Association's director of Communications and Public Relations, in early April. July 1988/Arkansas Lawyer/143



HELPING ARKANSAS PROTECT ITS HERITAGE By Joseph K. Mahony IT and Ellen Fennell In 1987, Arkansas joined the ranks of a handful of states leading the nation in instituting a source of funding to help insure protection of its irreplaceable natural and cultural heritage. The vehicle was the real estate transfer tax, which was doubled, and the subsequent creation of the Natural and Cultural Resources Council (NCRC) to award grants derived from the tax. The NCRC funds will, for the first time, provide stable funding for acquisition, maintenance and stewardship of state lands. Historic preservation and the popular program for downtown revitalization Main Street - will also benefit by receiving 10 percent of the funds. An additional 10 percent is committed to outdoor recreation grants to cities and counties. The movement to insure protection of our heritage through a funding source is a shining demonstration of the power that citizens can wield in shaping public policy and priorities. Private citizens' groups across the state delivered a clear mandate to their representatives who responded, as did Governor Bill Clinton, with a show of great public spirit. The worsening of the funding malaise of the last 10 years precipitated the movement to earmark the tax for the preservation of our natural lands and cuftural heritage. According to the 1985 State Comprehensive Ou tdoor Recreation Plan published by the Arkansas Department of Parks and Tourism, inadequate funding was the biggest

problem facing the state's outdoor recreation system. The traditional source of financial assistance for city, county and state recreation projects - the federal Land and Water Conservation Fund - had been steadily dwindling for the last several years and was scheduled to expire in 1989. In addition, the Department of Parks and Tourism suffered from sporadic infusions of insufficient capital. The Natural Heritage Commission of the Department of Arkansas Heritage, charged with acquiring the last and best natural areas of the state, was unable to fuUill its mandate. By the early 1980s, appropriations for land acquisition dropped drastically as the economy worsened and collections diminished. The Arkansas Historic Preservation Program and the Main Street program were threatened with extinction altogether. By 1986, the Department of Parks and Tourism, the Natural Heritage Commission and other affected groups met to begin looking for a stable base of support. The real estate transfer tax looked like the best source of funding. There is, in fact, a long-range benefit to real estate from the preservation of natural resources and the establishment of recreational areas. Also, there was a precedent. When the transfer tax was established in 1971, 50 percent of the revenues had been designated for use by the Department of Parks and Tourism. (Within a few months, though, they were diverted to the general lund.) Other states, such as Maryland and Florida, had tremendous success designating a percentage of their transfer taxes to

open space" and historic preservation. Thirteen House members, including mysell, Richard Barclay and Ted Mullinex, introduced legislation in 1987 providing for the levying of the transfer tax and the establishment of the NCRC. Amid cries of "an idea before its time:' the constituents of the Department of Parks and Tourism, the Natural Heritage Commission, the Historic Preservation Program and private organizations (including The Nature Conservancy, the Conservation Coalition, the Arkansas Wildlife Federation, the Audubon Society, the Ozark Society, the Historic Preservation Alliance, the League of Women Voters and the Arkansas Municipal League) began seeking their legislators' support. The movement was bolstered early on by the commitment of one of the state's largest home builders (at that time a Nature Conservancy board member) to increasing the tax. In the House, the effort was helped by a subcommittee of the Agriculture Committee chaired by Ted Mullinex. During the 1985-87 biennium, its 17 members had toured the facilities in the state parks and had been horrified by the conditions they found. Their support was critical. On March 6, the bill passed the House by a vote of 65-18. In the Senate, Jay Bradford, Bud Canada and lim Scott sponsored the legislation. Numerous other senators, including the president pro tem, Nick Wilson, were instrumental in getting the bill out of committee and up for a vote. It passed in the Senate by a margin of 20 to 10. Governor Clinton, who was and is very July ISS8/Arkansas Lawyer/l45

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Phone (713) 666-.099



146/Arkansas Lawyer/July 1988

HOUlton, Texaa 77054-2603 (713) 000-1025

supportive of the concept, signed H.B. 1475 into law on April 8, 1987. The passage of the bill has already had an impact on our state. In November 1987, Governor Clinton announced the imminent creation of the Cossatot River State Park and Natural Area. Quoting from Will Rogers, the Governor said, "Buy land, they ain't making any more of it." The fate of the 4,230-acre river corridor that will make up the new park had hung in the balance for the last 10 years as the Natural Heritage Commission and Department of Parks and Tourism sought a means to purchase it from the Weyerhaeuser Company and bring it into public ownership. At stake was an II-mile stretch of one of the wildest, most pristine streams of the Ouachita Mountains river system famous regionally for its superb whitewater, smallmouth bass fishing and beautiful scenery, The Nature Conservancy. a private. nonprofit conservation group that often facilitates land sales to the state, purchased the tract for $2.9 million, knowing that funds would be available through the NCRC. (The tract appraised for $3,7 million. The difference represents a gift from Weyerhaeuser to the state.) The Nature Conservancy's involvement was critical because of Weyerhaeuser's need to close the deal in 1987. And, the Conservancy's constituents and volunteer board were a strong element in the creation of the Natural and Cultural Resources CounciL It is almost certain that without the NCRC, the Cossatot, one of our state's great natural treasures, would still be at risk. The Cossatot is one of many projects. When the NCRC met in May, it reviewed grants ranging from the Cossatot River State Park to money for purchasing much-needed saws and equipment and a proposal to draft a comprehensive design for conservation in eastern Arkansas. Perhaps the most exciting opportunity of the NCRC funds is the position the state is in to take advantage of federal funds as they come down the pike. The President's Commission for American Outdoors has recommended that a national trust fund be established to generate $1 billion a year for the acquisition and stewardship of land, outdoor and recreational opportunities and historic preservation. The NCRC funds will be able to match these

federal dollars. The proposed North American Waterfowl Management Plan (NAWMP) offers new opportunities for Arkansas as well. The NAWMP seeks to substantially resolve the protection of the remaining wetlands on the North American continent. Arkansas would be a crown jewel in the plan. The availability of matching funds through the NCRC will provide Arkansas a means to safeguard such critical areas as the Cache River and the lower White. The natural and cultural heritage of our state is of the most vital importance; its protection will not be accomplished without the real estate transfer tax.

Editor's Note: Joseph K. Mahony II, of El Dorado, is a partner in the Mahony and Yocum law firm and a member of the state House of Representatives. He is the recent recipient of the President's Public Service Award from The Nature Conservancy. Ellen Fennell is manager of Communications! Administration for The Arkansas Nature Conservancy.



Photo by A.C. HarolSQn, Ar.l:anS(lli Dep(Jllrnenl of Parks ond ToulJsm

The new Cossatot River State Park and Natural Area, the only river park in the state system, would not have been possible without the Natural and Cultural Resources Council. The Nature Conservancy purchased the 4,230-acre area in 1987 for eventual acquisition by the state.

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(i ~E~~C;:,( Downtown Little Rock's Unconventional Hotel

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July 19BB/Arkansas Lawyerll47

LAW, LITERATURE & LAUGHTER (cited hereinafter as "LLL"j

April 15 being the deadline for the "LLL" installment published on or about July I, this column was written while heavily under the influence of Tax Simplification Syndrome. When the Tax Reform Act of 1986 was first passed, we all saw varying versions of "simplified" forms, most of which called for an individual to calculate his income, add whatever other money he had and send it all off to Washington. I don't think anyone - even the CPAs and board certified tax attorneys - anticipated the "To Be Revised Telephone Book" doctrine. This phrase refers to the thick set of forms and instructions we received in January. Little did we realize that, when we read them in April, they would tell us that further laws and regulations mayor may not have been enacted or promulgated, varying from or countermanding the instructions and other contents thereo!. As logical as it seems, though, I guess we should have expected something like that. Speaking of logic, consider these other gems of wisdom from this year's tax forms and instructions: From Form 8582 and Instructions therefor: "Before completing Parts II and m, see page 4 of the instructions for how to treat numbers as if they were all positive ... When a line instruction asks for the 'smaller of:

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148/Arkansas Lawyerlluly 1988

"Modified adjusted gross income" (is MAGI an ironic acronym?) "for purposes of line 6 is computed without regard to taxable social security and railroad retirement benefits, without regard to the allowable deduction under section 219 for qualified retirement contributions for the taxable year, and without regard to any passive activity loss." Without regard to apparently does not mean with contempt for. Hey, yo! Enough already. MEDICAL MALPRACTITIONERS TAKE NOTE: In April, New York Times reporter Gina Kolata reported that 36 people developed botulism as a result of eating chopped garlic at a restaurant in Vancouver. All 36 survived, but only three were correctly diagnosed - a mother and her two teenagers, who collapsed in partial paralysis alter reaching a Montreal hospital. The correct diagnosis came some two months after the initial "outbreak." The misdiagnoses ran the gamut from

By Vic Fleming treat the line entries as if they were positive numbers when taking into consideration which is the smaller number." Is that scary or what? From Form 8606: "Note: You ccmnot take a deduction for any part of the deductible contributions you are treating as nondeductible." Thank you very much. From Form 1040's Instructions: "If you are married filing a separate return and your spouse itemizes deductions, or if you are a dualstatus alien, you cannot take the standard deduction even if you were 65 or over or legally blind." Even if I was over what, a barrel? From Form 8582 Instructions:

stroke to psychiatric disorder to myasthenia gravis. JURORS TAKE NOTE: Last April in Ft. Worth, Kevin Baeird refused to take off his cowboy hat in a jury assembly room. A judge declared him in contempt. Three days in jail later, Baeird apologized to lhe court and was released. ADVERTISING LAWYERS TAKE NOTE: In ApriL I read that a Wisconsin attorney was forced to withdraw advertisements in which he stated that if he did not win DWI cases he would give clients lO-speed bicycles. Another out-of-state colleague, specializing in divorce practice, was told to cancel TV ads showing a chain saw at work on the "family sofa" and later hovering over the family dog. For this cautionary informalion, you don't owe mea dime! 0 Copyright 1988 by Vic Fleming

1987 MEMBERSHIP SURVEY A Peek at Arkansas Lawyers By

W ill i a


Assignment: Conjure up a picture of the average lawyer in Arkansas. If you imagine a man practicing in civil litigation in a firm with five or fewer members and earning $45,000 per year, you pass! According to the results of a membership survey by the Arkansas Bar Association last September, 85 percent of Arkansas lawyers are male, their earnings - midpoint - are $40,000 to $50,000 per year and a majority are partners in a firm with three to five lawyers and are involved in civil litigation and the general practice of law. In addition, 1972 to 1976 were the median admission years for the survey respondents, with the median age 36 to 40 years. Do you want to know more? How similar or different are you from your peers? Are you older or younger? Have you been practicing longer? Do you practice in a smaller city? Do you earn more? Is your firm larger or smaller? These and numerous other questions are answered in the following data. Read on! PRACTICE SETTING The overwhelming majority of lawyers in Arkansas are in private practice (81 percent) and in small law firms. Twenty-eight percent are solo practitioners and 45 percent are partners. Slightly more lawyers practice in three to five-member law firms (29 percent) than practice alone. Sixteen percent practice in two-member firms. A total of 73 percent practice in firms of five or fewer lawyers. Arkansas' solo practice percentage nearly matches the findings of last year's survey of Texas lawyers by the State Bar


Mar tin

of Texas. Seventy percent of their bar is in private practice, most likely in a law firm with two to five members. Alabama's private practice percentage is 72. (Both of these states have unified bars. A disproportionate number of government and corporate attorneys in Arkansas probably do not join our voluntary association, explaining our higher percentage of lawyers in private practice.) AGE Most attorneys in Arkansas are relatively young - with a median of 36 to 40 years of age - and in their early years of practice. Thirty-nine percent are over 40. Thirty-five percent are under 36 years of age. For comparison, our records indicate that 25 percent of Association members were born after 1953 and 25 percent were born before 1939. The median age of Association members is 40. LENGTH OF PRACTICE The median time lawyers have practiced law in Arkansas is II to 15 years. Our Association records show the median length of practice to be II years, with 27 percent of members having been admitted to the bar during and after 1982. Twenty-five percent were admitted before 1968. Sixty-eight percent of the survey respondents were admitted during or after 1971. CITIES Nearly three-fourths of the survey respondents practice in cities with a population of 25,000 or more. The median falls in the 50,000 to 100,000 range. Our records show that half our members practice in Pine Bluff, North Little Rock. Fort July 1988/Arkansas Lawyer/149

Smith or Little Rock. New members seem to be gravitating to Little Rock. Of the 49 percent of members admitted to the bar since 1976, almost 55 percent practice in Little Rock. In contrast. 37 percent of those admitted to the bar prior to 1977 practice in Little Rock. OveralL 43 percent of the men and 68 percent of the women surveyed carne from Little Rock. GENDER Fifteen percent of the respondents were female and 85 percent were male. The Arkansas Bar Association's membership records do not reveal the gender of our members. A survey in the April 1985 issue of The Arkansas Lawyer showed 380 women lawyers in the active practice of law in the state. Of those, 264 had been admitted to the bar between 1980 and 1984. All but 37 were located in Pulaski County. Of the 25

median fell in the range of $40,000 to $50,000. The Texas survey asked for income from all sources. lis median income is $60,000. Thirty percent of the respondents reported income of more than $75,000. Twenty-four percent reo' ported income below $30,000. The remaining 46 percent earned between $30,000 and $75,000. The median income for the 22 women respondents was $30,000 to $35,000. Texas reports the median income for women to be just under $40,000 and for men to be $65,000. According to the Texas report. "A substantial proportion of the income discrepancy [between men and women] appears attributable to age (i.e., females are, on the average, younger and less experienced than males) and choice of primary occupation." A nearly equal percentage of males and females in Arkansas who were admitted to the bar from 1971 to 1976 reported incomes over $75,000. Of those attorneys admitted between 1977 and 1981. 18 percent of the males and 25 percent of the females earned more than $75,000. Of the lawyers admitted after 1982, only one reported income over $75,000. Seventy-one percent of the males and 67 percent of the females admitted from 1972 to 1977 earned above $40,000. For those admitted between

women responding to the survey,

eight were admitted to the bar from 1977 to 1981. seven were admitted from 1983 to 1984 and six were admitted from 1983 to 1987. (The survey questionnaire was mailed prior to the September 1987 Admissions Ceremony.) A majority of the female respondents were younger than 35 years of age. Fifty-seven percent of the males were 40 or younger. INCOME The membership survey asked members for their 1986 taxable income from the practice of law. The


1978 and 1981. 58 percent of the males and 38 percent of the females earned above $40,000. For those admilled after 1983, three percent of the males and 15 percent of the females earned above $40,000. No female respondent earned above $\00,000 and 10 percent of the male respondents admitted since 1972 reported income above $100,000. PRACTICE AREAS Survey respondents were asked to check those areas of legal practice in which they spend 20 percent or more of !heir time and to specify the approximate percentage of time spent. Many specified percentages less than 20 percent. Civil litigation was reported by 100 of the 174 lawyers responding as the area of legal practice occupying the majority of their time. Civil litigation was followed by general practice (83), family law (64), real estate (63), estate planning, probate and trust (51). OrnCE MANAGEMENT Word processing is the most popular computerized equipment in use in attorneys' law offices in Arkansas. Seventy of the 156 lawyers responding use the equipment along with their support staffs. Ten attorneys responded that they alone use the equipment. Computerized legal research apparently is slower in gaining acceptance in the state. Twenty-four percent of Arkansas lawyers use computeri2ed legal re-


Questions calling for comments and narrative responses have been deleted, accounting for breaks in numerical continuity. I. THE ARKANSAS LAWYER (Quarterly Magazine) Mean

5 Articles About People Law School & AlCLE News

Presldenl's Column Young Lawyers' Column Ex. Director's Column Bar Foundation Column



3.34 2.94



8 4 7

2.66 2.77

Unlm路 . .<tant 4 3 2 I Number of Responses

Ve.." Important


54 38

31 33 26 20


65 71 67 55 71

17 23 27 36 51 13

8 8 18 12 16 13

No Mean


0 9 10 15 17 20 19

Unim. .<tant 4 3 2 I 5 Number of Responses


Tax Articles Other Legal Articles Point of View Photos and Art Work Disciplinary Actions Law, LiL & Laughter


3.11 2.79

3.78 3.47

4. THE NEWSBULLETIN (Bi路rtwnthly Tabloid) Please indicate importance to you. No Mean

Very important









4 5 3

14 20 14

Number of Response!>

News Stories Oyez-Qyez Calendar of Events

4.01 3.60 4.14

59 42 73

56 36 47

35 52 31

5 18 5

Please tell us the importance ofthefollowing to you by circling the appropriate number.

ISO/Arkansas Lawyer/July 1988

Ve.." Important

31 69 14 8 49 27

65 73 33 30

55 48

46 20 70 62 43 64


2 24 33 15 15

No Opinion


6 0



23 19 7 13

21 4 6


search compared to 42 percent in Alabama. Thirty-six percent of the respondents reported their firms employ legal assistants or paralegals. Fifty-nine firms responded that they employ law students. The median pay those responding would be willing to pay a new lawyer with no experience is $20,000. The mean is $21,959. A similar question posed to Alabama attorneys produced an answer of $21,000. IAWYER ADVERTISING Those responding do not like unregulated lawyer advertising. Only nine percent said they favored it without reservation. Thirty-two percent said they favor lawyer advertising if properly policed and 46 percent said they oppose lawyer advertising. A similar question in Alabama recorded 11 percent in favor, 13 percent in favor if properly policed and 71 percent opposed to lawyer advertising, SERVICES The most popular services provided by the Arkansas Bar Association are those which help lawyers keep up with changes in the law and improve their practices, The most important service is The Arkansas Form Book, Other services, by order of importance, are:

What Size Firms Do Lawyers Practice In? 29"10




0% 2


Debtor/Crediwr The ArkAnsas Fonn Book Probate Law Rules of Civil Procedures

3.29 3.72 2.97


4.28 3.78 4.16






17 46 37

46 54 36 54

31 35 91 62 82

3 2 I Number of Resl> 28




14 14 21 14

8 15 18 10 27


35 34

42 24

31 31




17 37




31 36


13 5


8 7 12 4


19 32

Group Insurance Pamphlets


23 33

Gold MasterCard Car Rental Disrount

1.92 1.20

78 74 41 7 8 8


Organizational Directory Mem bel"'!lhip Directory

3.54 3.96 2.93 2.81

49 68 25 22

LaW)'er Referral Service Use of Law Center (e.g., ConIerence Room (or Depositions)


No Opinion


48 52

28 28 19



70 69 76











Very Important






20 28

39 34

37 47 26 15

37 25 40 21

18 12



33 29

0 2

16 15

25 20


70 63

12 6 21 26

4 31 32 21 16 29




No Opinion




4 4 4

14 14 '5

4.01 3.95 4.01

43 42 45

36 38 38

24 19 17

6 7 6

2 5 5

63 63 63












19 36

6 15

5 4



3.97 3.79

42 31

32 32

24 22

6 3

3 &

67 77



3 4 25 31




Number or Responses

Number of Responses

4.09 4.04

No Opinion

Success of Program



44 47 25 26

4.19 4.12 3.17

UALR Law Jou.mal

18 21 22




Arkansas Law Review


3 2 1 Number or Responses


50 23

Importance To You



Ve", Mean 1mportan t




Ve", Mean Important

Bar Sponsored Legislative BiUs lobbying EfTort Supporting Bills lobbying Effort Opposing BiUs (e.g., Tax on Services) 8IUs Mailed Upon Members' Request lAlglslative Newsletter Seminar on New lAlgislation

Over 25


Ve", Mean Important

2.40 3.72 3.65


Number of Lawyers in Firm

• Legal articles in The Arkansas Lawyer • "Legislative Summary"

AgrieulluraJ Law Corporations Domestic Relations Workers' Compensation Loeal Court Rules Criminal Law




July 1988/Arkansas Lawyerll51

• Arkansas Law Review

• Rules of Civil Procedure

• "NewsBulietin" • UALR Law Journal Members want a balanced emphasis on continuing legal education at the Association's annual meeting. in addition to well-known or inspirational speakers and social activities. Sixty-four percent want to satisfy their mandatory continuing legal education requirements at the annual meeting. Respondents prefer full-day CLE programs on Friday or Saturday. All elements of the Association's legislative program received high scores. Car rental discounts and the Gold MasterCard program were rated the least important services to members. Other information garnered includes: • Monday is the least popular day

How Much Do Lawyers Earn From Their Law Firms? 20"10



for attending a CLE program;

• CLE programs on federal practice, civil trial practice and recent case law are the most desired;

• The most important parts of The Arkansas Lawyer are legal articles, disciplinary actions and articles on tax law. The least important part 01 the magazine is the executive director's column.

0"10 ~8




00 00 00

00 00 00

00 00 00



00 00 00

00 00 00

00 00 00

cio ci\J'i lJ'ic:5 OLF> via cici cici "'''' ZlM ~M ~.,. ;1;'" \2'"






88 88 88 au-) ~






>0" ~ci cio 0",




SURVEY PROCEDURES Many Arkansas Bar Association leaders felt a need in 1987 to know more about members' wants. needs. likes and dislikes. As a result. a

10. How do you feel about your Legislative Program? - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 I J. Are you willing to financially support the Legislative Program? ~Yes ~ o ~ o Answer If your answer to question 11 is yes, how much financial support are you willing to give? $ Median $50, based on 35 Responses

Meetings And Continuing Legal Education (CLE) Your answer to the following questions will help determine thefonnat and content offuture programs. 12_ How many CLE programs have you attended in the last five years? (AJI providers including Arkansas Bar Association, AICLE and others.) ~one _6_ 1_3 __~~A·6 ~7-10 ~ore than 10 13. What length program do you pl-erer? (check one) ~.Two rull days ~uU day ~aU day 4 Series of sessions over several days _l__Other (Please describe)


14. Please rate each week day to indicate convenience to you for attending programs. (Use scale 5 = Very convenient to I = never convenient) 3.53 Saturday 2.29 Tuesday 3.23 Thursday 2.60 Wednesday ~riday ~onday

152/Arkansas Lawyerljuly 1988

SURVEY? As was mentioned earlier, 25 percent of the surveys were returned. While a 25 percent response rate on a mailed, self-administered survey is not bad, it does leave room for distortion as to how representative it is. Our survey fell far short of Texas' response rate (46 percent in 1987) and Illinois' response rate (65 percent in 1982). The Association's records of each member's age, date of admission and location give us a means for comparison, however. Forty-one percent of the members are 31 to 40 years of age. Forty-nine percent of the respondents are from this age group. Forty-eight percent of our members were admitted to practice from 1967 to 1981. Fifty-six percent of the responses came from this group. Forty-six percent of the respondents came from Little Rock. Our membership records show that 38 percent of the members have Little Rock addresses. Cities with between 50,000 and 100,000 populations (Fort Smith, North Little Rock and Pine Bluff) are somewhat under-represented in the survey, as are those with populations below 25,000. Cities with 25,000 to 50,000 populations are a bit over-represented. A combination of the data, the Association's records and our intui-

four-page survey was developed containing questions designed by bar leaders, staff, the American Bar Association and other state bar associations. The staff relied heavily on the ABA's Model Surveys for Bar Associations: A Handbook of Questions and Practical Guidelines in preparing the survey. Following a review and revision of the survey by the Executive Council, 675 forms were mailed in August - one to every fifth lawyer on the Association's mailing list in order to insure geographical distribution. Twentyfive percent - 174 forms - were returned, representing about five percent of the membership. Many of the questions used a rating scale of one to five or "unimportant to very importan!." For the demographic questions, the ranges were, for example, "age 36 to 40:' "size of city 25,000 to 50,000." Other questions rated the various services and programs provided by the Association and the Arkansas Institute for Continuing Legaf Education. Still others sought attitudes and indications of interes!. The data which could be reduced to numbers was entered into the Association's computer in early January. The staff is still analyzing the narrative answers to the questions and comments. HOW REPRESENTATIVE IS THE

Attitudes Toward Advertising 50"10


15. Please tell us which subjects you are most interested in having presented at programs during the next two years by circling appropriate numbers. Ve", Mean Important





po""'" 2 I


Ve", Mean Important.



Number of responses Economics of Law Practice Selecting Computers Criminal Trial Practice Workers' Compensation Law Recent Legislation PersonaJlf\jwy Law

Corporations & Business Law Natural Resources Law Social Security Law Taxation WIll.s and Probate Bankruptcy

3.01 3.73 3.62

30 26 16 19 40 45

38 17 23 35 43 39

33 42 34 42 52 28

3.73 2.36 2.76 3.16 3.37 3.30

42 4 15 26 28 30

47 16 27 37 48 37

3.25 2.95


19 26 21 24 9 17

22 25 42 24 3 12

32 38 38 30 27 33

Federal Practice Using Computers Civil Trial Practice Family Law Recent Case Law Products Liability



40 39 32 29 37

31 27 32 20 21

6 38 32 22 16 17

31 45

Securities Law AppeUate Practice Labor Law Estate Planning Real Estate Ethics


34 33 32

4.01 3.38

46 28 52 31 56 28

2.56 3.70 2.37 3.17 3.50 3.56

15 24 9 25 35 36

4.15 3.14 4.11 3.41

49 26



po""'" 5 4 3 2 I Number of responses



46 53 43

32 41 25 29 24 35

12 24 3 25 12 25

3 19 3 12 2 10

31 36 27 31 27 33

14 42 13 39 43 43

37 44 38 31 34 36

31 18

36 12 41 22 12

41 33 40 35 32





22 18 4

16. Your suggestions for program topics' 17. How many Annual Meetings have you attended during the past 5 years?

50 None; 23 One; 24 Two; 18 Three; 16 Four; 24 Five;

i9 No Answer

18. lf you have not attended any meetings in the past 5 years, please tell us why not. 19. What sort of emphasis should the Annual Meeting Have? (Use the scale of 5 = Very important to I = Unimportant) 4.46 CLE .J!:!!.....Well Known or Inspirational Speakers 3.10 Social 4.27 Balance of the three _ _Other (spe(;ij"y) 20. Would it be helpful to you if you could satisfy all 15 hours of your mandatory CLE requirements at the Annual Meeting"? ~Yes ~o ~o Answer July 1988/Arkansas Lawyer/153

tion tell us that the responses are skewed on the side of the more active members. For example, our records show that: • Only 12V, percent of the members

Position in Firm

actually participate in the Statewide Lawyer Referral Service. but 27 percent

of the survey respondents said they were members of the service; • The highest number of registrants

at an annual meeting has been 481.

Many of the same people attend the meeting year after year. We doubt that more than one-third of the members have heen to a recent annual meeting.

On the survey, anly 32 percent of the respondents said they had not attended an annual meeting in the past five years. Fifteen percent said they

had attended all five meetings and 10 percent said they had attended four; • Approximately sao members (about 14 percent) have volunteered to serve on an Association committee for

the 1988-89 bar year. Forty-one percent of the survey respondents claimed to be members of a committee.


• • •



Sole Practitioner Salaried Associate Other Managing Partner Partner

Despite these contradictions, we believe this data provides a good picture of what is important to the membership. We recognize that some of the sub-groups detailed in the results are so small that their answers will not always be representative. You, the reader, must bear in mind the potential for distortion. D


Editor's Note: William A. Martin is executive director of the Arkansas Bar Association.

Demographics We hope that you will answer all questions to provide a valid base for statistical evaluations. The itifonnation requested will be used to compare various types of law practice, office locations, size of law fums and income levels. Strict anonymity and corifidentiality of all responses will be maintained. 21. Please check your employment. setting. ~rivate Practice ----.!.-..Judiciary __8_Government Attorney __9_Corporate Counsel 1 J aw School Faculty -LNon·Profit Organization Attorney __ 7_0 t her (specify) 2 No Answer 22. If in a firm, please indicate position.

~ Sole practitioner ~artner 3 Staff Attorney er'--_9__0 t her (specijy),_..;2"'9'--'-Nc:0 ..;An=s=-wc..=c

~anaging Partner

18 Salaried Associate


23. Please check the area of legal practice in which you spend more than 20% of your time and teU us the approximate percentage devoted to each area you mark. Mean Median

Mean Median ~GeneraI Practice 37.7" J!Q...Bankruptcy Law ~

30% 20%

~Criminal Law ~ ~amUy Law ~

~ppeUate !QQ...ClviJ Utigation

10% 25%



20% 15% 20%

~eal Estate



~ ~

_Other (Specify)

IS4/Arkansas Lawyer/July 1988



Mean Median

_4Oil & Gas Law ---.!!L% 20% ~Workel"8t Comp....ill..% 20% ~Corporale Law --1..J...abor Mgt. _Other (Specify),


20% 36.4 % 20%

Mean Median ---.!..Labor/Employee

37.5 % 20% ~btor/Creditor ~% 10% ~state Planning, Probate & Trusts ~% 15% _


Attorneys In firm


1 2 3-5 ...!!: 6-10 --!.i11-15 -.l91 16-25 Over 25 ~ 17 No Answer


Year of Bar Admission 5

----"_1_1 ~ ~

A. 33· 41 22



Pre 1937 1937-1946 1947-1956 1957-1961 1962-1966 1967-1971 1972-1976 1977-1981 1982-1984 1985·1987 No Answer

Size of City in Which you Practice

1986 Taxable Income From Law Practice

_4 7


-1l~ ~ ~

77 7

Below 3,000 3,000 - 5,000 5.000 - 10,000 10,000 • 25,000 25,000 - 50,000 50,000 - 100,000 Over 100,000 No Answer

• Median

--!Q.. --!Q.. 15

~ 15

.11t ~ ~

...!.'L A.



Your Age _2

Below $10,000 $10,000-$20,000 $20,000·$25,000 $25,000-$30,000 $30,000·$35,000 $35,000-$40,000 $40,000-$50,000 $50,000-$60,000 160,000-$75,000 $75,000-100,000 $100,000-150,000 Over $150,000 No Answer


~ ~ '

A. -1l11


----"----"-1 ----"-


21-25 .!!! Male 26-30 ..1§J'emale 31-35 ~ No Answer 36-40 41-45 46·50 51-55 56-60 61-65 66-75 Over 75 No Answer

25. If you were to hire a young lawyer with no experience in the practice of law, what would you be willing to pay as a flrst Median $20.000 Mean $21,959 Based on 110 responses year's salary? $ .....!.QLWord Processing 26. Please check the following computer equipment used in you.r office. -2LComputerized Time Accounting --.1.LComputerized Legal Research 18 &anner (Optical Character Reader) ~ComputerizedBiUing 70 Both 10 lawyer _7_1_0thers ~oAnswer 27. Who uses the computer equipment in your office? 28. Please check how many Law Students are normally employed by your firm. 7 3-4 __3_over 7. --lQ.......5·7 ----l!L..No Answer ~1-2 ~O 29. Please check how many Legal Assistants (Paralegals) are employed by your fIrm. 8 3-5 _6_6-10 _5_0 ver 10 ~1-2 ~oAnswer ~O 30. Please check all levels of training or experience which you require when hiring Legal Assistants. __1_6_1-3 Years Experience _9__4 Year Degree ~sociate Degree ----.JL....NALA certification __ 3_Vocational Training Program _1_O_Over 3 years Experience ~erican Bar Certified Programs _9_0ther (Please Specify) 31. Uyour fITm employs Legal Assistants, please check in which areas of law they work. 42 J ,itigation 13 Bankruptcy _l__Corporate --.!Q.......Real Estate ~ecurities ...11-.J'robate _1_3_0ther (Please Describe) lLYes 2LNo .JL....No Answer 33 Are you actively involved with the Arkansas Bar Association? 134 Yes ~o .JL.No Answer 34. Do you feel you have enough opportunities to become involved? .§LYes R..No .....l-No Answer 35. Do you belong to a Section? .Q!LYes ~o 36. Are you a member of a Committee? .....l-No Answer ~Yes WLNo l!LNo Answer 38. Are you a member of the Lawyer Referral Service? -'!LYes !.E..No .JL..No Answer 39. Have you ever served as a member of the House of Delegates? fl....Yes ~o .JL..No Answer 40. Have you ever been a Speaker or Instructor in a CLE Program? !..Q.LYes ...!!L.No .JL..No Answer 41. Are you a member of your Local Bar Association? 135 Yes .M...No 42. Are you covered by Professional Liability Insurance? .JL..No Answer 43. Do you currently participate in an organized pro bono program in your community, J!i....Yes ~o ..l....No Answer such as VOCALS, AVLE, etc.? 44. Please check one of the following to indicate how you feel about advertising by lawyers. --±-..No Answer ~avor ~Oppose --.1!LUndecided -illLFavor (if properly policed) 45. Do you feel you are generally familiar with the Arkansas Bar Association's staff and functions? l~Yes .£INo ...Q..No Answer 46. If yes, do you feel that the staff is generally (check all that apply): 2 Discourteous and unhelpful __2_Unorganized ..J.gLCourteous and helpful .....§LWeli organized 47. Here's your chance to help us seroe you better. If you have experienced a problem with Arkansas Bar Association seroices or stoJf, please explain. The bar is skewed toward those in private practice, almost to the exclusion of those in public service. We need to polish our image by active programs in our communities. We have an excellent association. I am critical only of the high charge for CLE programs. Use of the Bar Center for any reasonable purpose should be encouraged, not discouraged, as in the past. The Inns of the Court promotion used to sell the concept (of a bar center) has never been followed. Check the original literature. I was on a committee for years. It did not meet or provide an opportunity for suggestions or input.

July 1988/Arkansas Lawyer!l55




espite a massive Moral Major-

ity lobbying campaign which deluged Congressional offices with letters and phone calls, both the House and Senate voted on March 22 to override the President's veto of landmark civil rights legislation designed to overturn the 1984 Supreme Court decision in Grove City College v, Bell.I The vote to override in the Senate was 73-24, and in the House 292-133.' The measure became Pub. L. No. 100-259.' In the Grove City case, a 6-3 majority of the Court surprised civil rights advocates by ruling that when an entity receives federal dollars, only the "program or activity" which actually gets the aid, not the entire institution, is barred from discrimination. Although the case dealt only with

Editor's Note: Bill Massey, a native of Malvern and chief counsel to Senator Dale Bumpers, received a J.D. from the University of Arkansas School of Law at Fayetteville in 1973, and a L.L.M. from Georgetown University Law Center in 1985. Readers are invited to write to Bill or phone him at Sen. Dale Bumpers, % Bill Massey. 229 Dirksen, Senate Office Building. Washington, D.C. 20510. 202-224-4844. The American Bar Association is on record in support of legislation mandating non-discrimination throughout any institution receiving federal

financial assistance. IS6/Arkansas Lawyerlluly 1988

Title IX of the 1972 Education Act Amendments,' a law which bars educational programs from discriminating on grounds of sex, three other civil rights statutes barring discrimination in federally-assisted programs also contain the "program or activity" language and were restricted by implication. They are Section 504 of the Rehabilitation Act of 1973,' which bars discrimination on grounds of handicap; the Age Discrimination Act of 1975,' which prohibits discrimination on grounds of age; and Title VI of the 1964 Civil Rights Act.' which prohibits all federally-assisted programs from discriminating because of race, color or national origin. Thus, the new law, known as the Civil Rights Restoration Act of 1987, amends these four civil rights

statutes to make it clear that even if only part of an institution receives federal aid, the entire institution is prohibited from discrimination. Supporters believe the Act will do nothing more than restore legislatively the weight of precedent existing before the Supreme Court's decision. Opponents argue that it will promote government interference in private activities, including the activities of churches. The legislation "would vastly and unjustifiably expand the power of the federal government over the decisions and affairs of private organizations, such as churches and synagogues, farms, businesses.

and state and local governments:' said President Reagan in his March 16 veto message. In an effort to put pressure on legislators to sustain

By Bill Massey

the President's veto, Rev. Jerry Falwell of the Moral Majority sent letters to pastors all over the nation characterizing the bill as "the greatest threat to religious freedom and traditional moral values ever passed" and arguing that "churches and religious leaders could be forced to hire a practicing active homosexual drug addict with AIDS to be a teacher or youth pastor.'" Legislators who voted for the new law were shocked by the claims of opponents. Senator George Mitchell. a Democrat from Maine, said that the Moral Majority and other groups "are spreading outrageous untruths in order to pursue their own goals.'" Congressman Tommy Robinson was clearly angered by Falwell's tactics. ''He has deceived his supporters with misrepresentations and lies:' said Robinson. 'Tm outraged at his conduct and plan on telling him so. I wasn't about to succumb to his scare tactics. "10

"There's no way in 100 years I would vote for a bill that did any of the things Falwell claimed:' said Senator Dale Bumpers." "People have been led to believe that this bill will do a lot of things that simply aren't in the legislation. There is no way the federal government will be able to tell a church who to hire or fire," said Senator David Pryor. I' In addition to the Leadership Conference on Civil Rights, which spearheaded the override effor!. mainline Protestan!. Catholic and Jewish organizations were virtually unanimous in their support for the legislation and sent letters to legislators urging them to override the veto. IJ

Summary of the New Law

Program or Activity


The new law does not change the definition of "federal financial assistance," the term that triggers the prohibitions on discrimination. The four civil rights statutes mentioned above prohibit discrimination on grounds of race, color, national origin, sex, age or handicap. These laws are amended in the following ways to redefine the meaning of "program or activity"" receiving federal funds: • For educational institutions, if federal aid goes to any part of a college, university or system of higher education, then the entire college, university or system is covered and barred from discriminating. If any part of an elementary or secondary school system gets federal funds, then the entire system is covered. • Only the department or agency that receives federal aid within a state or local government is covered, but when an entity of state or local government receives federal aid and distributes it to another department or agency, both are covered. • With respect to private corporations, if federal funds are extended to only one plant or geographically separate facility, only that plant or facility is covered. But if federal aid is extended to the corporation as a whole, or if the corporation is principally engaged in providing social services, health care, education, housing or parks and recreation activities, then the entire corporation is covered. The new law makes clear that

"ultimate beneficiaries" of federal aid not covered before enactment for example, food stamp recipients, farmers receiving crop subsidies, recipients of Aid to Families with Dependent Children (AFDC) or Social Security recipients - are still not covered." In other words, the government or a private party could not charge one of these ultimate beneficiaries with discrimination under the four civil rights statutes amended by this new law.

Religious Organizations The extent to which the legislation would affect a church, synagogue, diocese or other religious organization was vigorously debated in both the House and Senate. Religious organizations which receive no federal assistance (the vast majority) would not be affected in any way. Even organizations that received some federal assistance would not be affected with respect to issues of religious preference, because the legislation does not deal in any way with discrimination on grounds of religion. • A religious organization receiving federal aid for a particular program would be prohibited from discriminating with respect to its operation of that program." If a church operated a soup kitchen for the homeless, for example, and the kitchen operated with some federal funds, then the soup kitchen but not the entire church would be barred from discriminating. • Any federally-assisted organization that is principally engaged in providing education, health care, housing, social services or parks and recreation would be covered in

its entirety." There will be nonprofit organizations with religious affiliations that fall within this category, but the principal purpose of a church, diocese or synagogue is by definition religious. Thus, such an entity will not be covered in its entirety even if it also conducts a social service or other program mentioned above. • This legislation and clear legislative history reaffirm the scope of the "religious tenets exemption."" Title IX of the 1972 Education Act Amendments provides for an exemption from coverage where a nondiscrimination requirement is inconsistent with the religious tenets of an educational institution controlled by a religious organization. In the 16 years since the passage of that act. no institution that has submitted a completed application to the Department of Education for such an exemption has been denied. Roughly ISO institutions have been granted exemptions. For example, a college that received federal funds was granted an exemption to allow it to forbid men and women to swim together because of its religious stand on "modest attire." Abortion The legislation clearly and simply sets out that nothing in this act "shall be construed to force or require any individual or hospital or any other institution, program, or activity receiving Federal Funds to perform or pay for any abortion."" And to ease fears that this language was not broad enough to protect hospitals from being forced by previously-enacted provisions of Title IX to provide services or faciliJuly 19S5/Arkansas Lawyerll57

ties related to abortion. similar language was added to Title IX.'"

Handicap In the 1987 decision of School Board of Nassau County v. Arline," the U.S. Supreme Court clarified the scope of the protection afforded to a person with a contagious disease under the Rehabilitation Act of 1973 (one of the statutory schemes amended by this legislation), which prohibits discrimination on grounds of handicap. The Court held that a contagious disease could be a handicap, but that the plaintiff had to prove that she was "otherwise quafified" for the job from which she was discharged. In Arline, the dis-

charged school teacher with a contagious disease had to show that she did not pose a significant health threat to her students. The new law basically reaffirms the Arline decision. The language in the legislation is modeled after a 1978 amendment to the Rehabilitation Act that dealt with alcoholics and drug addicts. If no reasonable accommodation can be made to remove the threat or enable the performance of the job, an employer may refuse to hire or may fire any person with a contagious disease who poses a threat to the health or safety of others or who cannot perform the functions of the job." This is a general reaffirmation of existing law.


Sexual Preference The new law makes no changes in the law with respect to discrimination on grounds of sexual preference. None of the statutes amended has ever been interpreted by the courts to provide such protection for individuals, and there are no regulations which do so. Thus. the bill does not preclude any entity from discriminating on grounds of homosexuality. Conclusion The legislative history of the Civil Rights Restoration Act leaves no doubt that Congress intended to do no more than restore the law that existed before the 1984 Grove City decision. The philosophical underpinning of the bill is that the federal tax dollars should not be used directly or indirectly to discriminate. As eloquently stated by Congressman Beryl Anthony of the Fourth District, "I feel strongly that programs funded by taxes collected from all the people should not be used in ways that discriminate against some."" 0



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IS8/Arkansas Lawyer/July 1988


'465 U.S. 555. 104 S.C!. 1211 (1984). The House of Representatives first passed legislation to overturn Grove City in 1984

(H.R. 700. 98th Cong.), but because of aborlion and other issues the effort to pass a bill stalled in the Senate in both the 98th and 99th Congresses. In the lOOth Congress. although legislation was introduced in the House (H.R. 1214), strategists decided that the Senate, with its new Democratic majority, should be the first to act. Thus, the Senate took up and on January 28, 1988, passed. S. 557 by a vote of 75-14. The text of the bill was ae路

ceptable to civil rights activists and members of both Houses who championed the effort. Supporters of the legislation in the House persuaded the leadership to adopt a fast track procedure that would avoid any committee consideration of the Senate-passed bill. and only one floor amendment. a substitute sponsored by Republicans. was allowed. After voting down the Republican substitute. the House by a vote of 315-98 agreed to the Senate-passed bill without change on March 2, clearing the measure for the White House and avoiding a protracted House-Senate conference. 2Under Art. I, Sec. 7 of the Constitution, a two·thirds vote of both the House of Representatives and the Senate is neces· sary to override a veto. '102 Stat. 28 (1988). ·Pub. L. No. 92-318. 20 U.S.C. §1681 (19821. 'Pub. L. No. 93-112. 29 U.S.C. §794 (1982). On the same day as the Grove City decision. the Supreme Court applied the same narrow interpretation 01 the phrase "program or activity" in a case arising under Section 504. Consolidated Rail Corporation v. Darrone, 465 U.S. 624. 104 S.Ct. 1248 (1984). 'Pub. L. No. 94-135. 42 U.S.C. §6101 (1982). 'Pub. L. No. 88-352. 42 U.S.C. §200Od 1-4 (1982). sWillen. Congress Overrides Reagan's Grove City Veto. 1988Cong. Q. 776 {quoting from the Moral Majority letter to pastors). gld. 'ONelson. Congress Kills Reagan's Veto of Rights Bill. Arkansas Democrat. March 23, 1988. at IA. lild. 121d. uFor example. The United Methodist Church issued a statement expressing "regret that President Reagan has so misunderstood the intent and substance of the bill that he vetoed it" and characterizing the Moral Majority's effort as a "disservice to both their congregations and the nation:' The American Baptist Churches, USA, issued a statement saying that the "egregiously irresponsible misrepresentations made about this legislation by representatives of the conservative religious community should not be allowed to deter the Congress Irom pursuing the course of justice for all who live in this country. For from jeopardizing religious

liberties. this legislation would do much to restore liberties of people threatened by the present climate of intolerance lor those who differ from the majority." l4pub. L. No. l(x)·259. §§3·6. The same delini· lion of "program or activity" is added by these sections to each of the four statutory schemes. 1~ld. §7. l'ln §4, for example, see the newly-added subparagraph 504(bX3XA) to the Rehabili-

tation Act of 1973. "Id. §S04lbX3XAXiiI. IBpub. L. No. 100·259, §3 sets out the newlyadded §908 of Title IX of the Education Amendments of 1972. 191d. §8. mId. §3(b). " _ _ U.S. _ _. 107 S.C!. 1123.94L.Ed.2d 307 (1987). "Pub. L. No. 100-259. §9. 'l3Nelson. supra note 10.

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DISCIPLINARY ACTIONS January to April The Arkansas Supreme Court Committee on Professional Conduct from January to April 1988, issued three letters of reprimand, five letters of caution and accepted the surrender of license from Wali Muhammed of Little Rock. The Committee took no action of a disciplinary nature on 133 informal complaints against attorneys and voted "no action warranted" on 28 formal complaints. The Committee issued eight letters of warning. The Arkansas Supreme Court on March 28 reinstated the law license of Sam Sexton, Jr., of Fort Smith, reversing a decision by the Committee on Professional Conduct to suspend Sexton's license for one year. The Committee suspended Sexton's license on August 29, 1987, for improperly entering into a business arrangement with a client. a violation of Rule 1.8(a) of the Model Rules of Professional Conduct. Sexton said the complaint against him resulted from a 1983 case, before the Model Rules were in effect. (The Model Rules of Professional Conduct were adopted by the Court in December 1985 and became effective on January I. 1986.) He said the Rules should not be retroactive. In other actions: • Prosecuting Attorney Chris Piazza in January notified the Committee on Professional Conduct and the state Judicial Ethics Committee that Municipal Judge Allan Dishongh of Little Rock pleaded guilty on January 6 to tampering with a public document. Dishongh was fined $500 and costs and assessed a lO-day suspended jait sentence;

• Sam Weems of Hazen, a former prosecuting attorney who was disbarred in 1973, lost his latest effort in March to have his law license reinstated by the state Board of Law Examiners;

• Jewell Brown, a former Little Rock lawyer who lives at Des tSO/Arkansas Lawyerljuly 1988

Moines, withdrew an application in January for reinstatement of his Arkansas law license; • Grant County Deputy Prosecuting Attorney William Arthur Murphy of Sheridan resigned in February following a reprimand from the Committee on Professional Conduct (see April 1988 issue, The Arkansas Lawyer).

WALl MUHAMMED Surrender of License Wali Muhammed, of Little Rock, voluntarily surrendered his license in April. His license was accepted by the Court on April 27. Muhammed's action came about eight months after the Committee filed suit in Pulaski County Circuit Court seeking his disbarment. The Committee's lawsuit listed five formal complaints by Muhammed's clients which it said were examples of a "history of misconduct ... so (complete) that it suggests a conscious design." Muhammed, who was suspended by the Committee in May 1986 from practicing law for one year, conceded in the petition that he "may not be able to successfully defend himself against the allegations brought against him by the Committee." A circuit court jury in March convicted Muhammed of theft by deception for falsely reporting his 1975 Mercedes Benz as stolen in 1985. He was sentenced to five years in prison and fined $10,000. He is scheduled for trial in July on four theft charges involving alleged insurance fraud. Muhammed was arrested in April on theft and forgery charges involving the alleged misuse of a federal bankruptcy court order.

EDWIN A. KEATON Two Letters of Reprimand Edwin A. Keaton, of Camden, was issued two letters of reprimand in April for violations of Rules 1.4 and 8.4 of the Model Rules of Profes-

sional Conduct involving communication and misconduct. In the first matter, the complainant said she hired Keaton in July 1986 to represent her in a hearing concerning the will of her late brother. Two persons claiming to be step-brothers had filed an application in Dallas County Chancery Court concerning the estate. She asked Keaton to appeal the decision after the Court decided against her and paid him $4,500 of his $5,000 fee. The complainant said Keaton never returned her telephone calls. He did inform her of a settlement. but never gave her an explanation as to the status of her case. In the second matter, the complainant said he paid Keaton $500 in May 1986 to represent him in a racial discrimination case. Keaton never

filed the lawsuit or responded to the complainant's letters of inquiry. In addition, Keaton did not return the complainant's retainer fee as requested. At a hearing, the comptainant asked the Committee to dismiss the complaint. He said Keaton had contacted him within the past few days and had returned his money.

JOHN W. UNGER. JR. Letter of Reprimand John W. Unger, Jr.. of El Dorado, was issued a letter of reprimand in February for violation of Rules I.l. 1.2, 1.3, 1.4, 1.15 and 8.4 of the Model Rules of Professional Conduct. The Rules involve competence, scope of representation, diligence, communication, the safekeeping of property and misconduct. The complainant said he hired Unger to handle various legal matters, including an action on behalf of his mother against his uncle in a partition case; a counterclaim concerning a dispute over jointly-owned oil producing properties; and the probate of his mother's estate. He claimed Unger misled him concern-

ing the three cases; that he signed his name to numerous documents without his knowledge or authorization; that he made numerous withdrawals from the checking account of his mother's estate without his authorization; that he deposited income generated by the estate in his personal account; that he let the statute of limitations run in two cases; that he appeared in court on his behalf without his knowledge; and that he agreed to drop pending litigation and made deals concerning these cases without consulting him.

MARSHALL CARLISLE Letter of Caution Marshall Carlisle, of Fayetteville, was issued of letter of caution in February for violations of Rules 1.3 and 3.2 of the Model Rules of Professional Conduct involving diligence and the expediting of litigation. The complainant had not received child support payments from her exhusband for 18 months and hired Carlisle to obtain a court order for the payments. In October 1985, the ex-husband agreed to pay $200 per month in child support and Carlisle prepared an order which her exhusband signed. Carlisle never presented the signed order to the court. In June 1987, she learned Carlisle had never obtained a judge's signature on the proposed order.

G. B. COLVIN III Letter of Caution G. B. Colvin III, of Dermott, was issued a letter of caution in January for violation of Rule 1.3 of the Model Rules of Professional Conduct involving diligence. The complainant hired Colvin in 1984 to represent her in a malpractice suit. Colvin wrote two letters to a doctor advising him of his intention to sue in the matter. The complainant gave Colvin $40.25 for filing fees. In August 1987, Colvin returned the filing fees and gave the complainant a copy of her file which indicated that nothing had been done other than the notification to the doctor. Colvin said he did not file the suit because the complainant could not prevail. He said it is his duty not to file a frivolous claim.


letter of caution in January for violation of Rule 1.3 of the Model Rules of Professional Conduct involving diligence. In a per curiam order, the Arkansas Supreme Court said that Gibson had filed a Motion for Rule, contending his belated appeal was due to a miscalculation of time by a court reporter. The motion was denied. Gibson filed a second motion, again blaming the court reporter. The appellant then filed a pro se motion, which was granted. The Court said it would not require him to continue representing the appellant since he is a prosecuting attorney. It said he was clearly at fault and remiss in abandoning his appeal.

upcoming discrimination suit.

SAM WHITFIELD. JR. Letter of Caution Sam Whitfield, Jr., of Helena, was issued a letter of caution in February for violation of Rule 3.3 of the Model Rules of Professional Conduct involving candor toward the tribunal. Judge John Pittman of West Helena filed a complaint with the Committee on Professional Conduct holding Whitfield in contempt of court for assisting with the removal of a minor child from the jurisdiction of his court in violation of the court's standing order. 0

LESLY MATTINGLY Letter of Caution Lesly Mattingly, of Jacksonville, was issued a letter of caution in January for violation of Rule 1.15 of the Model Rules of Professional Conduct involving the safekeeping of property. The complainant hired Mattingly following an automobile accident. The case was settled for $15,000, and Mattingly gave the complainant a check for approximately $3,000. Mattingly told the complainant he would hold the additional amount for 90 days in order to determine if the complainant's employer, who had paid his medical bills, had made a claim for the money. Following the 90 days, the complainant went to Mattingly and asked for the money. Mattingly told him he had spent the money but would pay him when he settled an

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GETTING TO THE HEART OF THINGS 162/Arkansas Lawyer/July 1988

A Social Security Cardiovascular Primer By


M a y o







Heart attack! Devastating. Disabling. Since cardiovascular problems are the most frequent cause of disability under the Social Security Act. there is a good chance that you will soon be faced with handling a Social Security heart case. At first glance. you might assume that producing a medical report declaring your clio ent disabled and the client's testimony at the hearing will be sullicient proof to win the case. This conventional legal wisdom usually results in disaster. Consistent winning under Social Security law requires the lawyer to be familiar with the elements of heart disease. the accompanying symptoms and various "magic medi· cal terms:'

Basic types of cardiovascular disease for Social Security purposes. most cardiovascular problems break down into four categories: I) ischemic dis· ease caused by blockage of the coronary arteries; 2) congestive heart fail· ure or CHf; 3) cardiac arrhythmia; and 4) peripheral vascular disease. Probably the most common category is ischemic disease. With ischemic disease the coronary arteries narrow

or become clogged and the flow of blood to the heart is reduced or locally eliminated. Since the heart muscle. like other tissues in the body. requires nutrients. ischemia results. The fact

that the heart is screaming for nutri· ents. particularly oxygen. is made clear by the presence of chest pain. The client who has suffered a heart attack or coronary artery by-pass sur· gery very likely has ischemic disease. The second quite common cause of heart disability is congestive heart failure or CHf. With this condition the heart pump simply fails. The heart is a muscular pump which forces nutrientladen blood through the body. When the pump begins to fail. it becomes less efficient. Loss of efficiency allows blood to pool in the chambers of the heart. particularly the ventricles. A July 19BB/Arkansas Lawyerll63

less elficient heart must work harder to pump the same volume of blood as a healthy heart. Like other muscles. the heart muscle enlarges in response to increased work. Muscle enlargement and the pooling effect produce the characteristic enlargement which can be demonstrated clinically as well as by xray. echo-cardiography or radionuclide studies. Clients who attribute their work inability to weakness, shortness of breath, a big

lenge because of the technical complexities of proof you must master if you are to adequately represent your client. The type of proof and techniques of advocacy you need will vary depending on the condition of the client. First. determine the type of condition which is present. Second. decide what type of evidence you need to document the impairment. Third. enlist your client's help in determining whether the needed evidence is available.

can be presumed. Other data will also be helpful. particularly if you will be "equalling" a Listing using the substitution technique.' Turn to your client for additional information on his clinical experience. Some or all of the technical data you need may already be available. The claimant may not know a Doppler from a ventriculogram, but he is a gold mine of information concerning the tests which have been done. If your description of a procedure in

heart or swelling of their feet and legs may be disahled due to CHF. Cardiac arrhythmias, the third type of cardiovascular disease, are less common but porticularly devastating. These irregularities of heartbeat produce weakness. dizziness and blackouts. Depending upon his understanding of the dis-

Finally, work with physicians and hospitals to obtain the precise information needed. Data essential for proof and evaluation of one type of heart disease may be useless for another. By helping you pinpoint their particular problems, your clients can help narrow your search and avoid extraneous and irrelevant inlormation. Their descriptions of symptoms will often reveal the nature of the problem. Does the client describe chest pain. heart attack or replacement of heart arteries? Marshal the data which focuses on ischemic disease. ff the client complains of shortness of breath. weakness, lungs filling up with fluid or swelling in the legs. consider CHF. Open sores on the legs with varicosities suggests chronic venous insufficiency while the characteristic cramping of claudication points to peripheral arterial disease. Once the focus is narrowed to the type of cardiovascular problem involved. refer to the "Listings of Impairments" found in the Code of Federal Regulations.' The Listings will provide an introduction to some of the types of evidence required and describe clinical and laboratory findings associated with severe illness and injury. If an insured person is not working and has a condition which meets the criteria of a Listing, the existence of disability

which the doctor cut into the inside of the elbow or groin so dye could be put in the heart is familiar to the client. arteriography has been done. The word electrocardiogram may be hard for your clients to pronounce but they will remember being hooked up to a machine with wires attached to their chest with paste. Whether this was done lying down or while walking or riding a bicycle determines whether exercise testing was done. If the wires were attached to a radio which was carried around for 24 hours, then the results of a Holter monitor are probobly available. Your success here in locating evidence is directly related to your knowledge of diagnostic procedures and your ability to describe them to your client. Having assessed the availability of the necessary data, you must now obtain it. Working with your client's treating physician is essential. The doctor's facts. clinical and laboratory findings are more important in Social Security disability cases than most physicians realize. Asking a treating physician, particularly a cardiologist. to describe the five cardinal characteristics of angina can easily be taken as an insult. Yet. the case may be decided on this precise clinical information. Tact and an ability to educate the physician as to the need and






these symptoms as being seizures. The fourth category of cardiovascular conditions which produce disability for Social Security purposes is peripheral vascular diseases, These diseases interfere with circulation through the body. The evidence necessary to evaluate the severity of the problem depends on whether the condition primarily affects the veins, which transport the blood to the heart, or the arteries. which carry blood away from the heart. Obstruction of the deep venous return (veins) produces varicosities (varicose veins). brawny edema (excessive accumulation of fluid in the tissues). stasis dermatitis and ulcerations. Arterial disease produces claudication (a characteristic cramping). Like the chest pain of angina pectoris, claudication is a painful symptom produced by tissues starving for oxygen. Focusing on the evidence As common as cardiovascular

disabilities are, they present a chal164/Arkansas Lawyer/July 1988

As common as cardiovascular disabilities are. they present a challenge because of the technical complexities of proof you must master to represent a client.

reasons for your requests will go a long way toward producing the needed data. Some of the tests Social Security adjudicators prefer in evaluating disabilities are not necessary to either diagnose or treat a patient and their absence may not reflect on the treating physician at all. While you may not have the time or inclination to learn to read EKGs or other tests. time spent learning a few pointers will reap dividends. To aid in proving ischemic disease learn to locate and measure the S-T segment of the EKG. Find out how to locate and measure Q-waves to prove an infarction (death of heart tissue). Sit down with a schematic of the coronary vessels and learn the location of the proximal and distal vessels as defined in the Social Security regulations. 3 The payoff is twofold. First, Social Security adjudicators sometimes make mistakes in measuring S-T depression (not particularly surprising since the requisite finding is sometimes less than a millimeter). Second, you can work more closely with the treating physician by focusing his attention on the findings which Social Security considers important. EKG exercise testing Familiarity with the tests will also reveal hidden pitfalls with their use. For example, Social Security regulations have an extremely strong preference for evaluating ischemic disease with exercise testing, commonly through a treadmill stress test. However, before your client climbs on a treadmill or ergometer be absolutely certain you aren't possibly throwing away solid angiographic or resting EKG proof of disability. Once a ,treadmill stress test has been performed, that test usually takes precedence over all other forms of documentation. Treadmill stress tests are laboratory procedures performed under optimum conditions - temperature, humidity and medical supervision. At the urging of the medical examiner, the patient is exercised to "only" 85 percent of his maximum heart rate, but as your clients can testify, the procedure is exhausting. It is a onetime, all out effort. If your client has a heart attack that meets the criteria for disability under the Listings, a negative treadmill stress test will take precedence, in effect wiping out the proof July 19BB/Arkansas Lawyer/i6S

of disability. Since it is a one-time, all out effort under highly controlled conditions, the treadmill stress test is not a particularly good way of determining what level of work a person can sustain all day or all week. Personnel from the Social Security Disability Determination Service routinely use the results of stress tests to make just that determination. For example, they assume nine minutes of exercise on the treadmill equals the ability to lift a maximum of 50 pounds and frequently lift 25 pounds all day. Such descriptions of the level of work a person can do are called Residual Functional Capocities (RFCs). An adverse RFC can destroy your case. These considerations are certainly cause for caution. In addition, while taking these tests at the insistence of the Social Security Disability Determination Service, some Arkansans have suffered heart attacks. Despite Social Security Administration policy that exercise tests should not be purchased when the claim can be adjudicated on some other basis, treadmill stress tests are frequently purchased by the Social Security Disability Determination Service in ischemic cases. Evaluate the data before a treadmill stress test renders it useless. There are 14 separate contraindications to exercise testing. Each may be used to your client's advantage. Medications, especially digitalis (cardiac stimulant) preparations, can alfect the resufts. Your client's own physician may have additional reservations about such testing. Social Security regulatory criteria for "acceptable" exercise tests are fairly precise.' If your client has already been subjected to such tests before he contacts you, all is not lost. Even the treadmill stress tests purchased by Social Security adjudicators may not meet the technical criteria. In particular, the tracing must be appropriately labeled, the standardization must be inscribed on the tracings and test control tracings in the upright position must be taken. Labeling of the strips must include the time recorded. The treating physician can be invaluable in helping you locate errors. Older negative treadmill stress tests may not be harmful at all if you can demonstrate significant inter-

vening cardiac events like a worsening condition or a sufficient lapse of time to render them invalid. 166/Arkansas Lawyerlluly 1988

Theory into practice One of the easiest grounds for denial at the lower adjudicative levels is to concede present disability but deny the claim for lack of duration. This is particularly the case when a claim is filed in the early months following cessation of work due to a myocardial infarction or coronary bypass graft. Early filing is frequently instigated by well-meaning but ill-advised social workers, friends, family and occasionally even district office claims representatives. Most cases will simply be held to await stabilization for three to five months after the infarction or bypass. Couple the duration requirement' with the retroactive payment provisions' and the waiting period' and most clients are better off filing later rather than earlier. Of course, filing more than 17 months alter onset could lead to lost benefits. The res judicata effect of denials which are not pursued makes consideration of the timing of an application essential. With ischemic disease, Social Security regulations place great emphasis on the clinical description of chest pain. Social Security adjudicators are looking for a description of classic angina. They are particularly watchful that the clinical description of this experience includes character, location, precipitating factors, mode of relief. duration until relief and associated symptoms such as radiation. It's a good bet your clients haven't read the description; they are just describing how it feels to them. If Social Security adjudicators say the pain is atypical and therefore not angina, the opinion of the treating physician who can explain why the pain is angina is tremendously helpful. Hospital records may be invaluable, particularly if atypical pain was similarly described at the time of a documented injury like a myocardial infarction (proven by serial isoenzymes or EKGs). The question isn't so much "is it typical" as "is it reasonably of cardiac origin." With cases of congestive heart failure, Social Security regulations specifically require evidence of vascular congestion such as fluid build-up in the lungs, liver or extremities. The Social Security Administration's persistent application of a policy of tacit nonacquiescence to decisional law largely eliminates the impact of

case law at the lower two levels of adjudication. However, the case law is helpful in cardiovascular cases. Because of the strong preference toward the use of treadmill stress tests, Social Security adjudicators may use them even when they are technically unacceptable by Social Security regulatory criteria.' Even lack of chest pain during a treadmill exercise test is not determinative when undisputed evidence in the record shows frequent chest pain.' From time to time you may run into a description of remaining abilities which is far too high for the degree of disability which has been proven. Some examples of the maximum level of work for disability due to ischemic and congestive heart disease are found in Social Security Ruling 82-5 I. These are assessments of function which are uni-

formly unrealistic but which were promulgated to promote consistency over accuracy. They are, however, useful as a limi ting factor since the Social Security Administration will have a hard time justifying a heavier assessment of the level of work possible if your client's case matches one of the examples given. As is the case with other impairments, the opinion of the treating physician as to disability is important since use by the secretary of Health and Human Services of contrary opinions of consulting physicians is not substantial evidence. 10 You may also run into improper reliance upon the Medical-Vocational Rules" to shoulder the Social Security Administration's burden of coming forward with evidence to prove the existence of work within the client's capabilities. Chest pains supported by clinical findings of the treating physician are a nonexertional impairment sufficient to preclude the use of the Medical-Vocational Rules." Those sorts of symptoms require full evaluation of the subjective experience. 1J

Also be aware that lay evidence as to the description, frequency and aftereffects of episodes of cardiac syncope (loss of consciousness due to irregular heartbeat) will probably be necessary because the events will likely not have been observed by the treating physician." Many arrhythmias are episodic and, since the EKG tracing commonly only covers a few heartbeats, even a

reasonably frequent arrhythmia may be missed without the benefit of a Holter monitor. Conclusion Tenacity and persistence are as necessary in heart cases as with any other Social Security disability claim. Intentional or not. the harsh reality is that the protracted administrative process is ultimately a war of attrition. The ability and means to pursue judicial appeals when necessary should be a prerequisite to taking the Social Security disability cases of the cardiovascularly disabled. You will be asked about disability due to cardiovascular problems. It's just a matter of when. The question may come tomorrow from a client. during your next curbstone consultation with a neighbor or even from

a member of your family. Your ability to evaluate, document and prove cardiovascular disability depends on your knowledge, skill and persistence. Whether or not the truly deserving applicant gets Social Security disability benefits may depend on you. 0

'20 C.F.H., §404. t509 '20 C.F.R., §404.3tS 7Id.

"Ba,tletl v. Heckte" 777 F.2d 13t8, 1320 (8th Ci,. 1985) 9]'ackson v. 5<:hweiker. 696 F.2d 630. 632 (8th

Ci,. 19831 'GLanning v. Heckler. 777 F.2d 1316, 1318 (8th

Ci,. 1985) "20 C.F.R., §404, Subpl. P. Reg. No.4. Appendix 2 12Pettijohn v. Heckler. 759 F.2d 669 (8th Cir.



'20 C.F.H., §404, Subpt. p, Reg. No.4.

lJPolaski v. Heckler. 751 F.2d 943 (8th Cir.

Appendix 1

1984) "20 C.F.R.. §404. Subpl. p, Reg. No.4. Appendix I. Listing 4.00 ff

'20 C.F.R., §404.IS26 '20 C.F.R., §404, Subpt. p, Reg. No.4,

G.A. Tomlinson P.E. 8425 So. 73rd East Ave.


Tulsa, OK 74133 (918) 252-1905 Born

Editor's Note: H. Mayo Smith, of Little Rock, heads the Social Security Department at the Whetstone and Whetstone Law Firm. He holds a master's degree in Disability Determination from the University of Tennessee and has more than 15 years experience in the field.

Appendix 1. Listing 4.00 if 4Id.




U.S. Navy, 1943·1946; Oklahoma

Sl:tlc University. 1946-1949. B.S. Mcch. Engineenng; Unit Rig &

Equipment Co.. Tulsa. 1949-19lS2; RC1>ponsiblc




functions 1957·1975: FomlCd Company for Unit Rig In Bra7.11 1976: General Manager, Canadian Operations. 1977: In ch:lrgc of Unit Rig

GRADUATE MECHANICAL ENGINEER 32 years eKPOOence in design. lestlng. manufactUring. superVIsion and operation o! equipment. Also extenSive e~ecullve experience. Oualilled as an e~pert In many helds. inchJdlng: • FOfklltl & HOISls · Matenal Handling Eqpl • ConStruetlOO EqUipment · Trudcs ot all types · Heavy Vehi<;les • Airline Ground Handling Eqpl. · Electnc Vehldes • DitchIng Machines · Manufactunng Machinery 9 YEARS COURTROOM EXPERIENCE

Product Litigation 1977-1982.

July 1988/Arkansas Lawyer/167







29.750 71.900 171.090

$ 29.750 71.900 171.090

0+ 4.462.50 + 16.264.50 + 48.997.20 +


28"10 33%




Of Excess Over

But not over



0 29.750 71.900 171.090


But not over


$ 29.750

29.750 71.900 192.930

71.900 192.930

Of Excess Over 0+ 4.462.50 + 16.264.50 + 56.204.40 +


28"10 33%



0 29.750 71.900 192.930

The basics of the changing marginal tax rates ore illustrated above.

One must understand a taxpayer's marginal tax rate in order to weigh the tax implications of a business or investment decision. ince the beginning of our indi-


vidual income tax system, we have taken for granted the concept that it is (or has been) progressive. That is, the percentage of each dollar of taxable income that is paid in taxes increases as taxable income increases. Beginning this year, we have the unusual situation that income at certain higher levels will be taxed at a lower "marginal" rate than income at certain lower

Editor's Note: fames E. McClain, fr .. of Memphis, Tenn., is a partner in Deloitte Haskins & Sells, an international accounting and consulting firm. He holds an M.B.A. degree from the University of Arkansas, Fayetteville and a rD. degree from Southern Methodist University. He is a former partner of the Mitchell Law Firm and the Overbey Law Firm (formerly Overbey, Peace & McClain), both of Little Rock. 168/Arkansas Lawyerlluly 1988

levels, (The "marginal" income tax rate is the rate at which the next dollar of income will be taxed. This is distinguished from the average rate which is simply total taxes divided by total income,) The determination of a particular taxpayer's marginal tax rate is important because it tells one the tax cost incurred by an additional dollar of income. Conversely, it tells one the tax to be saved by an additional dollar of deduction. The basics of the changing marginal rates illustrated above details the rate brackets for a married couple with no children filing a joint return.' However, the rate brackets change when the same married couple has two children. The above tables do not actually appear in the Internal Revenue Code. They are the computational result of phasing out the 15 percent rate bracket.' This can lead to some interesting results.

GENERAL ILLUSTRATION For example, if a married couple with two children. filing a joint

By James E. McClain, Jr.

return. has taxable income of $100.000 and adds an additional $1.000 to their income, the $1,000 will be taxed at a 33 percent rate. However, if an identical couple has $200,000 of taxable income and adds an additional $1.000, this additional $1.000 will only be taxed at 28 percent. The reverse would be true if both couples have the opportunity to generate an additional $1.000 of deductions. In the case of the couple with taxahle income of $100,000, the additional $1.000 of deductions would save them $330 of income taxes. The couple with $200.000 of taxable income would save $280 by using the additional $1.000 of deductions.

INDIVIDUAL RETIREMENT ACCOUNTS The deduction for a contribution to an Individual Retirement Account is phased out between adjusted gross income of $40.000 and $SO.OOO for married persons filing a joint return who are covered by a qualified plan.' This affects the marginal rate for such taxpayers. For example. a married couple claiming a total of four exemptions. filing a joint return and covered under a qualified plan has adjusted

gross income before their IRA deduction of $49,000. They claim the standard deduction. Their 1M contributions for 1988 total $4,000. Due to the effect of the phase out of the deduction for their IRA contributions, an additional $1,000 of income would cause an increase in their tax of $392. Thus, their marginal rate is 39.2 percent ($392 .;- $1,000).

PASSIVE LOSSES In 1988, a percentage of the amount of net losses from passive investments (generally real estate and limited partnerships) is allowed if the investment was acquired prior to October 22, 1986.' The percentage of allowance for 1988 is 40 percent.' However, passive losses are 100 percent allowed as a deduction against passive income. A question concerning the marginal rates of tax paid on additional passive income arises for planning purposes. The conclusion (see sample) is that for taxpayers otherwise in a marginal bracket of 33 percent with disallowed passive losses, the marginal rate for passive income is 13.2 percent. If the taxpayer is otherwise in a 28 percent marginal bracket, then the marginal rate for the additional passive income is 11.2 percent. For example, a married couple claiming a total of four exemptions, filing a joint return, has adjusted gross income of $100,000 before considering passive income and losses. They have net passive losses of $20,000 and claim the standard deduction. They are considering purchasing an investment projected to generate $1,000 of passive income. There is a marginal rate of tax on the additional $1,000 of passive income of 13.2 percent (l32 .;- $1,000).

Individual Retirement Accounts

Wages. salaries. etc.

IRA deduction allowed 50,000-49,000 x 4,000 10,000

Without Additional S1.OO0 of income

With Additional $1,000 of Income

$ 49,000

$ 50,000


50,000-50,000 x 4,000 10,000


Adjusted gross income

$ 48,600

$ 50,000

Standard deduction

5,000 43,600 7,800 $ 35,800 $ 6,157

5,000 45,000 7,800 $ 37,200 $ 6,549

Exemptions (4 x 1950) Taxable income

Tax Difference


A married couple claiming a total of four exemptions, fjJing a joint return and covered under a qualified plan has adjusted gross income before their IRA deduction of $49.000. Theye/aim the standard deduction. Their IRA contributions lor 1988 total S4,000. Due to the elJect 01 the phase out 01 the deduction lor their IRA contributions, an additional $1,000 of income would cause an increase in their tax of 5392. Thus. their marginal rate is 39.2 peTcent (S392 .;. SI,OOO).

Consider the same facts except that adjusted gross income before considering passive income and losses is $400,000. In this example, there is a marginal rate on the additional $1,000 of passive income of 11.2 percent (l12 .;- $1,000). If taxpayers with passive losses being phased out already know their marginal rate for ordinary income, the process of determining the marginal rate for passive income can be shortened. They simply multiply their marginal rate times the percentage of passive loss allowed for a given year. In 1988, this would be: 15% x 40"10 = 6% 28% x 40"10 = II. 2% 33% x 40"10 = 13.2%

This, of course, is consistent with

the preceding, more detailed, examples. In considering investments to generate passive income to utilize passive losses, it is important to remember the unused portion of the passive losses is suspended, not lost. Therefore, even if a passive loss is not used in a current year it can be used in a subsequent year when there is passive income or when a sale or other disposition of the investment generating the passive loss is made.

FAMILY PLANNING One of the time-honored traditions of our country's tax system the personal exemption for ourselves and each of our children long July 1988/Arkansas Lawyer/169

Passive Losses

WITH GROSS INCOME OF $100.000 Without Additional With Additional $1.000 of Income $1.000 of Income Wages. salaries. etc. Passive losses 20,000 x 411'10 (20,000-1.000) x 411'10 Adjusted gross income Standard deduction Subtotal Exemptions (4 x 1950) Taxable income


92,000 5,000 87,000 7.800 $ 79,200

7.600 92,400 5.000 87,400 7,800 $ 79.600


$ 18,674

$ 18.806

$100.000 8,000




A married couple claiming a total of four exemptions, filing a joint return, has adjusted gross income of S100,000 before considering passive income and losses. They have net

passive losses of $20,000 and claim the standard deduction. They are considering purchasing an investment projected to generate Sl,OOO of passive income. There is a marginal rate of tax on the additional Sl,OOO of passive income of 13.2 percent (132 -'-- Sl,OOO).

WITH GROSS INCOME OF $400.000 Without Additional With Additional $1.000 of Income $1.000 of Income Wages, salaries. etc. Possive losses 20,000 x 411'10 (20.000-1.000) x 411'10 Standard deduction Subtotal Exemptions (4 x 1950) Taxable Income Tax Difference



8.000 7.600 392,400 5.000 387,400 7,800 $379,600 $108,473

392,000 5.000 387,000 7,800 $379.200 $108.361 $112

In this example, thereisa marginal rate on the additional $1 ,DODo! passive income of 11.2 percent (J 12 ..,.. S1,OOO).

l70/Arkansas Lawyer/july 1988

considered one of our inalienable rights - is gone for certain taxpayers. Consider the married couple with two children who would normally claim four exemptions on a joint income tax return. If their taxable income exceeds $192.930. they have made it past the 33 percent marginal rate bracket back to a 28 percent marginal bracket. However, if they add an additional child (or new dependent), their 33 percent bracket extends to $203.850. Stated another way, if the couple already had taxable income in excess of $203,850, then they would receive no tax benefit from the addition of another child. The amount of tax savings caused by the additional exemption is exactly offset by the extension of the 33 percent bracket. For each additional exemption, the 33 percent rate bracket is extended $10,920. This raises $546 in additional tax ((33% ~ 28%) x $10.920). The amount of tax saved by the additional exemption is also $546 ($1.950 x 28%).'

CONCLUSION The basics of tax planning were changed by the Tax Reform Act of 1986. To be able to properly weigh the tax implications of a particular business or investment decision one must understand at what marginal rate the taxpayer is currently operating. Otherwise. the tax benefits or detriments of a given transaction or course of action could be incorrectly interpreted. 0 FOOTNOTES

'LR.C. Section 1 2LR.C. Section 1(g) 3I.R.C. Section 219(g) ~I.R.C. Section 4690) 'I.R.C. Section 469(1)(2) 6I.R.C. Section 1(g)


Significant Decisions Affect Financial Institutions, Real Estate By Lance R. Miller Financial Institutions

Law Section The Arkansas appellate courts have, over the past 12 to 18 months, decided several cases affecting the status of the law with regard to financial institutions. A recent decision addresses the commercial reasonableness of a sale after repossession of collateral by a secured party and establishes that if a secured party does not give a debtor notice of resale, the secured party is barred from a deficiency. Addi tionall y the courts have addressed the liability of a financial institution for not properly stopping payment on a check, the assessment of punitive damages against a financial institution under the theory of malicious prosecution and the ability of a financial institution to set aside a transfer of real property as a fraudulent conveyance. First State Bank of Morrilton v. Hallett. 291 Ark, 37. 722 S.W.2d 555 (1986).

Hallett financed a 1983 pickup truck with the First State Bank of Morrilton and delivered her promissory note in the amount of $11.342.90. Hallett defaulted under the terms of the promissory note and the bank repossessed and sold the truck, without giving Hallett written

notice of the sale as required by Ark. Stat, Ann. ยง 85-9-504(3) [now Ark. Code Ann, ยง 4-9-504]. After sale of the truck, there remained a deficiency in the amount of $4,057.40, and the bank sued Hallett to recover the amount due. The Conway County Circuit Court. relying on Rhodes v, Oaklawn Bank. 279 Ark. 51. 648 S. W.2d 470 (1983), held that First State Bank was not entitled to a deficiency judgment. The Arkansas Supreme Court affirmed the decision of the trial court, and clearly established

that a creditor who does not provide notice of sale has waived any rights to collect a deficiency unless it has obtained a signed statement from the debtor after default renouncing or modifying hislher right to notification. Prior Arkansas law held that failure to give proper notice did not bar the deficiency, but instead created a presumption that the collateral was worth at least the amount of the debt. thereby shilling to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law. II the creditor could prove that the sale conducted without notice realized as much as a lawful sale with all proper notice would have, the secured party was entitled to a deficiency. The Supreme Court decision does away with the presumption. A creditor who fails to give notice of sale is barred from a deficiency judgment. The Court dismissed First State Bank's argument that the debtor's creditors were limited to the right to recover from the secured party any loss caused by the bank's failure to comply with the Uniform Commercial Code, as provided by Ark. Stat. Ann. ยง 85-9-507 (Supp. 1985) [now July 1988/Arkonsos Lowyeril71

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Ark. Code Ann. § 4-9-507]. The Court stated that the debtor could use the bank's failure to give notice as a defense to a deficiency judgment in addition to its right to affirmative relief under § 9-507. First State Bank of Warren v. Dixon. 21 Ark. App. 17.728 S.W.2d 192 (1987). On April 15.·1980. Dixon called First State Bank of Warren to stop payment on a check he had written earlier that day. Dixon alleged that he provided the bank with the correct account number. the correct check number. the date and the pay. ee of the check. First State Bank al· leged that Dixon misstated the amount of the check as $1.828.73 in· stead of $1.868.15. It failed to stop payment on the check and Dixon demanded that the bank reimburse his account. The bank refused to reimburse his account and Dixon sued to recover the amount of the check. The trial court granted judgment in favor of Dixon concluding that First State Bank had failed to stop pay. ment on the check after proper noti· fication. Ark. Stat. Ann. § 85-4-403 (1961). [now Ark. Code Ann. § 4.4.403]. allows a customer to direct hislher bank to stop payment on a check when the customer gives the bank a reasonable opportunity to act on the stop payment order. An oral stop payment order is binding on the bank for only 14 calendar days unless conlinned in writing within that period. A written order is effective for six months unless renewed in writing. First State Bank alleged on ap· peal that the stop payment order was insufficient because the amount was incorrectly given. An employee of the bank testified that the bank had a computerized sys· tem that searched for exact amounts and the incorrect amount given by Dixon caused its failure to stop payment on the check. The Arkansas Supreme Court concluded that the intent of the General Assembly in enacting this section of the Uniform Commercial Code was to protect the customer from loss and place the burden on the bank in the event of a loss as a result of its error. The Court concluded that Dixon had supplied sufficient information in a reasonable time to the bank so that pay. ment on the check could be stopped. As a result of First State Bank's failure to stop payment on the check.

the bank was required to reimburse Dixon's account for the amount wrongful1y paid. Ward v. First National Bank of Searcy. Arkansas. 292 Ark. 21. 728 S.W.2d 149 (1987). The First National Bank of Searcy brought suit against Bennett based upon a March 5. 1984. promissory note and security agreement. The security agreement listed as collatera all equipment of the debtor presently owned or after-acquired. The financing statement listed specific items of farm equipment but did not mention after-acquired property. In July 1984. Ward sold a combine to Bennett and obtained a written document in which he attempted to perfect a security interest in the combine by retaining title to it. On October 12. 1984. Ward filed the agreement of record as a financing statement. The combine was subsequently destroyed by fire and $10.000 in insurance proceeds became available to replace the combine. The question presented to the trial court was whether the bank or Ward had a prior interest in the in· surance proceeds. The trial court held in favor of First National Bank and the Arkansas Supreme Court reversed. The Court held tha1 a financing state· ment does not necessarily have to include a specific reference to afteracquired property to perfect an in· terest in it; however. the language describing the collateral must be at least broad enough to encompass the after-acquired property. The Court concluded 1hat the financing statement of the bank did not suggest any interest and would lead one to believe the bank claimed an interest in after-acquired property pertaining only to the specific items of farm equipment listed. The Court concluded that First National Bank's security interest in after-acquired property and its proceeds were un· perfected and remanded the case to the trial court to determine whether Ward's security interest was properly perfected and which creditor had priority in the insurance proceeds. First Commercial Bank. N.A. v. Kramer. 292 Ark. 82. 728 S.W.2d 172 (1987). In Kramer. the trial court assessed both compensatory and punitive damages against First Commercial Bank based upon the tort of mali-

cious prosecution. Kramer, a recovering alcoholic, engaged in a serious drinking bout after a period 01 sobriety. Through the assistance 01 a friend, Kramer checked into the Arkansas Rehabilitation Institute. The Institute requested a $400 deposit. A friend lilled out the $400 check and Kramer signed it. After checking out 01 the Institute, Kramer reviewed her bank statement and discovered a $400 debit that did not appear in her personal check records. Kramer completed an affidavit stating the check had been lorged in order to receive a credit 01 $400 to her account. First Commercial contacted the Institute and confirmed that the check had actually been written. An employee 01 First Commercial then contacted a detective with the Little Rock Police Department. Handwriting samples 01 Kramer were provided to the detective. The State Crime Lab concluded that it could not identify the signature on the check. The detective then spoke with the prosecuting attorney's office who advised that no criminal charges should be filed and that the matter should be handled as a civil matter. The employee of First Commercial proceeded to discuss the matter with another deputy prosecutor, failing to disclose the prior handwriting samples, prior discussions with the prosecutor's office and its recommendations that the case not be referred for criminal prosecution. An arrest warrant was issued and Kramer was arrested at her apartment on charges of false swearing and theft by deception. Kramer was taken to the police station, fingerprinted and booked. She was later released on her own recognizance. The charges against Kramer were dismissed by the municipal court for insufficient evidence of intent and lack of probable cause. Thereafter, the employee of First Commercial asked the prosecutor's office to file the theft of deception charge with the circuit court despite the municipal court's ruling, and the request was refused. Kramer then brought an action against First Commercial seeking damages. The jury awarded Kramer compensatory damages in the amount of $S,COO plus punitive damages in the amount of $150,000 based upon the events regarding the $400 check. The trial judge gave

Kramer the choice 01 accepting a remittitur of $75,000 or a new trial. Kramer accepted the award of $75,000 plus compensatory damages. First Commercial appealed, alleging that the punitive damage award was excessive in comparison to the compensatory award so as to shock the conscience of the court. The Arkansas Supreme Court disagreed and affirmed both the compensatory and punitive damage award against First Commercial. Womack v. First State Bank 01 Calico Rock. 21 Ark. App. 33. 728 S.W.2d 194. (1987). On January 13, 1984, Coy Womack obtained a $31,301 loan from the First State Bank of Calico Rock. As security lor the loan, he pledged two used 1974 Wilson trailers, a used 1973 white truck and a used 1974 Challenger mobile home. Ray Womack also signed the note providing additional security. First State Bank and Coy Womack agreed to substitute a used 1979 Ford tractor for one of the Wilson trailers. Coy Womack defaulted, the collateral was repossessed and sold and suit was filed against both Coy and Ray Womack lor the deficiency. Coy Womack filed bankruptcy, and First State Bank proceeded against Ray Womack for the deficiency. At the trial. the bank's only witness was its vice president who testified to the making of the note, the delault, the repossession, the demand for payment and the notice of the sale which was published in a local newspaper. When the vice president attempted to testify about the parties present at the sale, the bids made and the terms of the sale, counsel for Womack objected. On voir dire, the bank's employee admitted that he had not been present at the sale and had learned everything he knew about the sale from the bank president. First State Bank then attempted to introduce two pieces 01 paper containing the bank logo at the top with handwritten notations identifying who had been present at the sale and the prices that had been received. The trial court admitted the two memorandums pursuant to the business records exception to the hearsay rule, concluded that the sale was held in a commercially reasonable manner and granted a deficiency judgment in the amount of $16,384.80 against Ray Womack in favor of the bank.



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Upon appeal. the Arkansas Supreme Court reversed and remanded. The Court held that the handwritten notes were not within the business records exception as defined by Arkansas Rules of Evidence. Rule 803. and should not have been admitted. With this evidence being excluded. the only evidence that the sale was conducted in a commercially reasonable manner was the notice published in the newspaper. The Supreme Court held specifically that notice of publication alone is not sufficient to support a finding of a commercially reasonable sale. The Court discussed the factors necessary for a commercially reasonable sale and the effect of a low price on the commercial reasonableness of the sale. The Court then addressed the issue of whether the agreement between First State Bank and Coy Womack to substitute the 1979 Ford tractor for the 1974 Wilson trailer was a material alteration so as to release the co-maker. The Court concluded that each of these issues is to be decided on the facts of the particular case; however. it went into great depth in setting forth the law to be applied to each set of facts that may be presented. The Court reversed and remanded the decision of the trial court with instructions to allow additional testimony on the commercial reasonableness of the sale. First National Bank of Wynne v. Hess. 23 Ark. App. 129. _ _ S.W.2d _ _ (1988). On October 17. 1984. First National Bank of Wynne loaned $45.006 to JART Enterprises. Inc.. a business entity consisting of Jim Foley and Theresa Foley. Bob Hess executed and delivered to First National his personal guaranty agreement on the date of the loan. JART operated a convenience store through a sub-lease from MidSouth Sales Company. First National obtained a security interest in the inventory of JART valued at $22.000 as well as a security interest in the furniture and Iixlures valued at $16.800. JART became delinquent on the indebtedness and filed a Chapter II bankruptcy proceeding on June 3. 1985. The bankruptcy court terminated JART's leasehold interest in the building and awarded possession of the premises. including inventory. furniture and fixtures. to Mid1741Arkansas Lawyernuly 1988

South Sales. subject to First National's security interest. Pursuant to an agreement with First National. Mid-South began operating the store and selling the inventory. On June 2. 1986. Mid-South purchased the inventory. furniture and fixlures from First National for $15,000. First National applied the proceeds to the debt and sought to hold Hess liable for the $30.009 deficiency. At trial. Hess defended on the grounds of improper notice and the commercial unreasonableness of the sale and disposal of the collateral pursuant to Ark. Stat. Ann. § 85-9-504 (Supp. 1985) [now Ark. Code Ann. § 4-9-504]. The trial court determined that a guarantor is a debtor within the meaning of Ark. Stat. Ann. § 85-9-504(3)] now Ark. Code Ann. § 4-9-504(3)]. and that notice and commercial reasonableness were issues for the jury. The jury returned a verdict that Hess was not liable for the deficiency. On appeal. First National argued that. pursuant to the terms of the personal guaranty agreement. Hess waived all notice requirements and that the provisions of the Uniform Commercial Code were not applicable. The testimony at trial established that Mid-South Sales took possession of the inventory on October 9. 1985. Hess testified he did not receive notice of JARTs default until November 4. 1985. and the notice did not include any information that Mid-South Soles had laken possession of the premises and was disposing of the inventory. Hess testified he did not learn that Mid-South Sales was in possession of the store until November 25. 1985. approximately two months after MidSouth Sales took possession of the collateral. The court concluded that pursuant to Ark. Stat. Ann. § 85-9-105 (Supp. 1985). [now Ark. Code Ann. § 4-9-105] a guarantor is clearly within the definition of a debtor and although the guaranty agreement contained certain boilerplate language, the guarantor was placed in the position of a debtor for purposes of collection of the indebtedness and for purposes of notice. The court concluded Hess was a debtor entitled to notice and that First National was required to dispose of the collateral in a commercially reasonable manner before it could proceed against him for a de-

ficiency. The Supreme Court affirmed the trial court's ruling denying First National a deficiency judgment because proper notice had not been given. Tipp. v. United Bank of Durango. 23 Ark. 176. _ _ S.W.2d _ _ (1988). On January 5, 1984, Robert and Roberta Duffy entered into a contract to sell certain real property in Chicot County to Robert L. and Agnes B. Tipp. The contract provided for a total purchase price of $66.000 and acknowledged the receipt of an initial down payment of $13.200. It further provided that the Tipps were to pay the Duflys the balance of $52.800 plus interest at a rate of 10 percent per annum in 10 annual installments of $5.280 plus interest. with the first installment being due on January 5. 1985. On November 5. 1984. the United Bank of Durango. Colorado. obtained a default judgment against the Duffys in the amount of $19.176.94 plus interest. costs and attorneys' fees. On January 4. 1985. the Tipps paid the Duffys the annual installment due of $5.280 plus interest for a total amount of $5.808. On February 19. 1985. the Bank filed a petition in the Chicot County Circuit Court to register the foreign judgment against the Duflys. On March 22. 1985, the Tipps made the Duffys a linal payment of $40.000 and. although this amount was less than the amount owed, the Duflys executed a deed conveying the property to the Tipps. The deed was filed on April 1. 1985. The judgment in favor of the bank was entered and enrolled in the records of Chicot County on May 23. 1985. The bank filed suit to set aside the transfer from the Duffys to the Tipps as a fraudulent conveyance on February 6. 1986. The trial court deemed certain items could be admitted due to the default of the Duflys. These items included the insolvency of the Duffys; the amount and validity of the Colorado judgment; the fact that the Tipps in February 1985 were aware of pending litigation against the property; that the purchase price paid in March 1985 was substantially less than the amount due and owing under the contract; that the March 1985 transaction was closed in a hurry with no title work or title insurance; and that the conveyance was fraudulent. Based upon these findings. the trial court set aside the conveyance as fraudulent; however, it established a first para-

mount equitable lien on the property in favor of the Tipps in the amount of $19,008, reflecting the $13,200 down payment and the first annual installment of $5,808 made before the Tipps learned of the Duffys' financial difficulties. The Arkansas Court of Appeals affirmed the trial court's decision. The trial court relied upon the provisions of Ark. Stat. Ann_ ยง 68-1302 (Rep!. 1979) [now Ark. Code. Ann. ยง 4-59-204]. The Court of Appeals also considered the "badges of fraud" which include insolvency or indebtedness of the transferor, inadequate or fictitious consideration, retention of the property by the debtor, dependency or threat of litigation, secrecy or concealment and the employment of unusual business practices in the disputed transaction. The Tipps argued that they should be treated as a good faith purchaser because there was no evidence that they had notice of the Duffys' financial difficulties or the pendency of the litigation at the time they entered into the land sale contract. The Court of Appeals disagreed, concluding that a purchaser's good faith must exist both at the time of the purchase and at the time the consideration is paid. The Court found that this particular contract

may have been in good faith in January 1984 when it was entered into and in January 1985 when the first installment was made. However, in February 1985, the Tipps had knowledge of the Bank's interest and despite the knowledge, proceeded to borrow money from family members to secure sufficient funds to pay the lump sum amount to the Duffys. In addition, the amount actually paid was substantially less than the agreed purchase price. The Court of Appeals affirmed the ruling of the trial court setting aside the payment as a fraudulent conveyance. with the Tipps having a first equitable mortgage for the $13,200 down payment and the $5,808 installment payment. 0

Recent legislative enactments concerning real property and the secondary mortgage markel. By Robert M. Wilson, Jr.

Editor's Note: Lance R. Miller is an associate with the Walker, Snellgrove. Laser & Langley law firm of Jonesboro. He was formerly associated with the Mitchell, Williams. Selig & Tucker law firm of Little Rock. Miller is a graduate of the University of Arkansas at Little Rock School of Law and works in commercial litigation and the representation of financial

During its last two sessions, the Arkansas legislature partly focused its attention and direction on issues which involve mortgage lenders and allect Arkansas' position in the national secondary mortgage market. With enactment of Act 15 of 1988 and Act 53 of 1987, the legislature insured that Arkansas will stay abreast of the national mortgage lending market and demonstrated its recognition of the importance of secondary mortgage market participation. As a result, Arkansas, once considered a poor investment by secondary mortgage market participants, is now perceived as a progressive leader in the legal concepts surrounding its lending activities. Gone are the 10 percent usury cap, long delays in foreclosure proceedings and unusually burdensome hazardous waste laws. To fully understand these changes, a review of Act 15 of 1988, which amended the Emergency Response Fund Act and the Remedial Action Trust Fund Act. and Act 53 of 1987, the Statutory Foreclosure Act,


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Act 15 of 1988 In 1985, two hazardous waste cleanup acts were enacted by the legislature, The first, Act 452, the "Emergency Response Fund Act," and the second, Act 479, the "Remedial Action Trust Fund Act," were sponsored by the Arkansas Department of Pollution, Control and Ecology to provide the requisite state action for emergency and longstanding hazardous waste contamination as required by the federal superfund law (Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA)). These provisions made the state eligible for federal matching funds in large cleanup cases. The legislature's intent was to bring Arkansas into the mainstream of hazardous waste contamination response. Contained in the acts were provisions providing for the filing of a lien upon contaminated real property which has been cleaned up by the state and for meeting CERCLA's requirements for receiving federal matching funds. Recapture of expenses was made available following the cleanup and lien perfection. The problem with the lien provision was that it had "priority second only to the lien of real estate taxes upon the property:' thereby creating a "super lien." A super lien may prime any pre-existing liens simply by its existence. In other words, the application of a super lien makes

any prior liens fall subordinate and affects the priority and enforceability (at least in principle) of all first mortgages and other liens and encumbrances upon the property within the state. Being unable to insure that a first mortgage was indeed a first mortgage had the p0tential of creating severe problems with title insurance; legal attorneys' opinions as to real property; bond issues by the Arkansas Development Finance Authority and other entities which rely upon first mortgages on real property as security; and national secondary mortgagebacked securities which rely upon first mortgage liens on real property. In October 1987, the Federal Home Loan Mortgage Corporation (Freddie Mac) published proposed changes for underwriting standards based upon Arkansas' hazardous waste super lien laws. The changes included requiring certificates by appraisers and abstractors on the use of the property and possible hazardous waste contamination and were so onerous as to force Arkansas from the secondary mortgage market. The impact of the changes on Arkansas' economy would have been disastrous. After meeting with representatives of Freddie Mac, the legislature enacted simple legislation to provide an immediate cure to the problem. Act 15 reads: "Section 1. Arkansas Code

8-74l7(b) is hereby amended to read as follows: (b) the lien shall be effective upon the filing of a notice of lien by the state or by the state agency which made the expenditure. This notice shall be filed with the Circuit Clerk in the county in which the land is located. "Section 2. Arkansas Code 8-7-516<b) is hereby amended to read as follows: (b) the lien shall be effective upon the filing by the Director of a notice of lien with the Circuit Clerk in the county in which the land is located. "Section 3. All laws and parts of laws in conflict with this Act are hereby repealed. "Section 4. Emergency. It is hereby found and determined by the General Assembly that FHLMC (Freddie Mac) has indicated that loans in Arkansas may be jeopardized due to the lien provisions con-

tained in the Emergency Response Fund Act; that this matter needs immediate clarification in order to insure that monies are available to the peaple of Arkansas for economic development. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in lull force in effect from and after its passage and approval period." Sections I and 2 change the acts to simply delete the language providing for the super lien. In doing so,


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Arkansas provides for a lien upon real property which is in compliance with CERCLA but which does not create a problem that would jeopardize Arkansas' lending industry. Under the language of the amendments. the lien on real property is established in the same manner as required under Arkansas law for all other liens or encumbrances. First mortgages therefore remain first mortgages and liens created under the act are subordinate liens to the first mortgages. There is a second problem. however. In the definition section of the Emergency Response Fund Act. Arkansas Code ยง8-7-403. the term "responsible party" is defined as "the owner or operator of a facility or a site at which hazardous substances have been disposed and from which releases or threatened releases of hazardous substances occur." It adds. "any person who. at the time of disposal of the hazardous substance. owned or operated a facility or site from which releases or threatened releases of hazardous substances occur ...." The definition creates uncertainty in the eyes of lenders. Conceivably. properties may be foreclosed and the foreclosing mortgagee would be responsible for hazardous waste cleanups. The liability sections of Acts 452 and 479 provide that the responsible party. in addition to having a lien placed on the property, will be personally responsible. Amendments to CERCLA were introduced in 1986 to provide an "innocent owner's defense.'" It has been recommended that Arkansas adopt an innocent owner's defense as well to provide that so long as a party is not an active participant in the release of hazardous wastes 'it shall bear no liability. A mere holder of a security interest will not be subjected to liability as envisioned under CERCLA. Although this particular language has not been adopted by the Department of Pollution. Control and Ecology, it is clear Act IS encompasses a foreclosing mortgagee and possibly an innocent third party purchaser of property at a foreclosure sale. An innocent owner defense should be devised and amended into this legislation as soon as possible. The potential hazards which exist due to this language should be limited to those parties which actively encourage or are involved in the releasing of hazardous substances and

materials. Act 53 of 1987 Within the last 10 years. the process of foreclosure has become increasingly important to lenders. Until the early 1980s. the oversight and managemenf of foreclosures by lenders was of no significant importance. The Real Estate Owned (REO) properties' provided a comfortable profit margin upon resale, even taking info consideration the high costs of the foreclosure itself, real esfate brokerage costs and other costs directly related to the sale of the property. Because of this "back side" profit margin, the time period and the method of the foreclosure was entirely unimportant to the lender. Foreclosure to loan portfolio ratios were well under three percent and the overall profitability of loan portfolios remained relatively high. The collapse of oil prices in the early 1980s forced a change upon the thinking of the mortgage industry. As many cities. including Houston, Oklahoma City and Grand

kansas, it was a large part of the problem. Mortgage insuring entities such as the Veterans Administration and the Federal Housing Authority began to curtail lost interest claims due to the length of time they were in the foreclosure process. Further, secondary mortgage market investors like Fannie Mae began requesting post foreclosure repurchase of REOs due to these delays. Lenders nationwide began to look for a solution to the problem. Many state legislatures' realized that foreclosure delays were often due to uncontrollable time periods in often unnecessary foreclosure litigation. The legislative response was to enact "strict" or "non-

judicial" foreclosure procedures. Typically. most states have been bound by judicial foreclosure, an often lengthy process due to the procedural and constitutional safeguards afforded litigants. Judicial foreclosure procedures combine an action on the debt for personal judgment with an action for remittance against the securitized collateral of the debt. At the conclusion of a judicial foreclosure, the lender receives a personal judgment against the borrower and an order requiring the sale of the collateral. with the proceeds applied (to whatever extent bid at the sale) toward satisfaction of the judgment. If the bid is less than the judgment. the portion unsatisfied after application of the bid to the judgment is known as a "deficiency judgment." The combin-

Junction, experienced unprece-

dented ratios, lenders found themselves for the first time in recent memory facing losses on the REO level. They found themselves writing off ever-increasing sums of money as real property values dropped in some locations by as much as 60 percent. The foreclosure process was not the only reason for the turnaround, but in many states. including Ar-

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ing of a personal judgment and foreclosure sale is known as the "one action" rule. This concept came into being in the early 191Os. It was very popular because of the automatic deficiency judgment which existed upon sale of the property for a lesser amount than the judgment. Prior to the one action rule, most

foreclosures were held under the power of sale theories. Thus, the sale was held first and if it did not bring a sufficient bid to satisfy the debt then the borrower would be sued personally for the deficiency. Upon adoption of the one action rule, deficiency judgments were available for all bids less than total debt. This method, while in some instances the preferred activity, in practice seldom aids the foreclosing mortgagee. Since the borrower in most cases lacks adequate funds to make his mortgage payments, the one action rule is seldom used to its

full potential. Most mortgagees will bid full judgment and not obtain a deficiency through a lesser bid. As the saying goes, "The more things change, the more they stay the same." Many legislators in the 1980s began reviewing long abandoned power of sale foreclosure processes

in the hopes of revising and adopting long forgotten and abandoned practices.

The Arkansas legislature drifted through precisely this scenario for the same reason. Judicial foreclosure in Arkansas is provided for in Arkansas Code §18-49-103(c). Prior to Act 53, Arkansas provided for nonjudicial foreclosures pursuant to Arkansas Code §18-49-107, "Sale under power in mortgage or deed of trust." The problem with this statute was the non-waivable, one-year right of redemption. Additionally, the statute was substantially deficient as to notice requirements. To clarify the procedural aspects of nonjudicial or power of sale foreclosure and to repeal the statutory right of redemption, the legislature enacted Act 53 of 1987 (Arkansas Code §18-50-101. et. seq. "Statutory Foreclosure. ") The Act repeals Arkansas Code §18-49-107, and provides a mechanism to foreclose on real property and obtain a deed within 70 days from the date notice of default is filed. The title obtained from the sale is unconditional and is govemed by the same principles of title as any other conveyance of real property. There is no redemption

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period subsequent to sale. The Act's impoct on lenders and the state is profound. Although a judicial foreclosure can occur in theory within 65 days from the date of service of process upon a defendant. the reality is that the slow pace of local county sheriffs, frivolous responsive pleadings filed by defendants' attorneys' and congested court dockets stretch foreclosures in Arkansas from five months to literally years. With a 70-day turnaround on statutory foreclosure, the savings are obvious. The loss to lenders on extended interest. vandalism, fire loss, real property value and depreciation, to name just a few, adds up to real dollars. A Michigan lender with a substantial loan portfolio in Arkansas estimated the savings to be about $5,000 per case. Taking into consideration the approximate 3,000 mortgages which will be foreclosed in Arkansas this year, the savings to lenders could be as high as $15 million. Couple that with a lessening of congestion in the court dockets and the impact on the state becomes clear to the imagination. In view of the impact of Acts IS and 53, it is clear the legislature has chosen a direction which has brought Arkansas into the mainstream of mortgage lending. We have avoided at the most the loss of our secondary mortgage market investors and at the least a targeting of Arkansas as a poor choice for mortgage locm investors. The future economic progress in OUI state depends on a thorough understanding of the long-term impact this legislation has on the overall market place. 0 FOOTNOTES '42 USCS §9607(bl

"There shall be no liability under sub· section (0) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the re· lease or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by (I) an act of God: (2) an act of war; (3) an act of omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual re· lationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by roil), if the defendant establishes by a preponderance of the evidence that (a) he exercised due core with respect to the hazardous substance concerned, taking into consideration the

characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences thai could foreseeably result from such acts or omissions; or (4) any combination of the foregoing paragraphs." 42

uses §9601(35XA)

"The term 'contractual relationship: for the purpose of section I07(b)(3) [42 USCS §9707(bX3)J, includes, but is not limited to. land contracts, deeds or other instruments transferring title or possession, unless the real properly on which the facility concerned is located. was acquired by the defendant after the disposal or placement of the hazardous substance on. in, or at the facility, and one or more of the circumstances described in clause (0. (ii), or (iii) is also established by the defendant by a preponderance of the evidence: 0) At the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in. or at the facility. (ij) The defendant is a government entity which acquired the facility by escheat. or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation. (iii) The defendant acquired the facility by inheritance or bequest. In addition to establishing the foregoing. the defendant must establish that he has satisfied the requirements of section I07(b)(3)(a) and (b) [42 and (bl)."


§960H35XA) to 42


288 Ark. 611, 708 S.W.2d 60611986), where the

Court slaled: "ARC? Rule 8 sets out the required content of a complaint and of an answer. It is a rule of procedure and not a matter of substantive law. Ark. Stat. Ann. §27-1142 does not conform with ARC? Rule 8 and therefore, it is not so listed in our per curiam order of December 18. 1978. See Venable v. Becker. 287 Ark. 236. 697 S. W.2d 903 (1985). A suil to collect a debt is not a special proceeding as contemplated by ARC? Rule 81(0) and therefore. it is not subject to a diUerent statute .... "

Editor's Note: Robert M. Wilson, Jr., of Little Rock, is owner of Wilson & Associates, P,A. He is a graduate of the American University and the University of Arkansas School of Law, Fayetteville. From 1984 to 1986, Wilson was vicechair of the Pulaski County Bar Association's Real Estate Section. He is a Fellow in the American College of Mortgage Attorneys. Wilson practices in the areas of real estate foreclosure, real estate litigation and personal injury law.





Applying the amendment identified as 42


fortunately. the Arkansas Supreme Court found this provision to have been im· pliedly superceded by Rule 8 in BorgWarner Acceptance Corporation v. Krestron.

§9607(bX3), a

mortgagee is now permitted to assert an "innocent owner's defense" wherein mortgagee can show by preponderance of the evidence that the release or threat of release of a hazardous substance and damages resulting therefrom occurred at such time as it did not know nor had reason to know of any such release. Additionally, the mortgagee may still assert any other defense available under 42 USCS §9607(b). 2REO (Real Estate Owned) properties are properties successfully purchased by a lender at a foreclosure sale. Upon a successful bid. the deed is issued to the lender being the grantee and the realty becomes property of the lender. JAlabama, Alaska, Arizona, Arkansas, California. Colorado. Georgia, Hawaii. Idaho, Illinois. Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi. Missouri, Nevada, New Hampshire. North Carolina, Oregon, Rhode Island. South Dakota, Tennessee. Texas, Utah. Washington. West Virginia and Wyoming. 4Ark. Stat. Ann. §27-1142 provided for "the filing by a plaintiff of an affidavit of no defense in an action founded upon a note ... mortgage to the effect that affiant verily believes that there is no good and valid defense to said action upon the merits and that if defense is made thereto. it will be made for the purpose of delay. merely; .... " This procedure was very effective in accelerating the foreclosure process and avoiding unnecessary delays. Un-





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and shareholder-owned private utilities. Arnold appeared on behalf of SWEPCO and other electric-utility clients in major litigation in state and federal courts, proceedings before state and federal regulatory commissions and hearings before committees of both houses of Congress. Arnold also successfully negotiated a settlement in SWEPCO's favor in a series of antitrust cases

Richard Lewis Arnold Richard Lewis Arnold, age 81, of Texarkana, a leading electricutility lawyer for more than 50 years and the father of two Arkansas federal judges. died Saturday. March 12, 1988, Arnold served as a special associate justice of the Arkansas Supreme Court in 1954 and 1973. Arnold had represented Southwestern Electric Power Company (SWEPCO). formerly Southwestern Gas and Electric Company. since 1932. He served as a member of the board of directors of SWEPCO from 1955 to 1977, when company rules required him to retire from the board at age 70. He became general counsel of SWEPCO in 1948, and in that capacity fought many legal battles to secure the independence of investorowned utilities from government control. In the early years. Arnold resisted competition from rural electric cooperatives, but later was a leader in negotiations resulting in

close cooperation between the membership-owned institutions lBO/Arkansas Lawyer/July 1988

brought in the early 1960s against General Electric Company and other large manufacturers of electrical equipment He had been a member since 1931 of the Texarkana law firm of Arnold and Arnold, in which four generations of the Arnold family practiced law from time to time. Arnold also served as a member of the boards of directors of the Texarkana Federal Savings and Loan Association (since 1935) and First Federal Savings and Loan Association of Texarkana (since 1934). Arnold was proud of displaying what he called his "million-dollar wall:' where the degrees earned by family members are hung. "[ call it that because all of these things cost me ... a lot of money," he would explain. Arnold received a classical diploma from the Phillips Exeter Academy in Exeter, New Hampshire, in 1925. He received a B.A. in 1929 from Yale College and an LL.B. in 1932 from Harvard Law School. He passed the bar examination and was admitted to the Arkansas bar in 1931. before his graduation from law school. Arnold served as a member of the Bar Association Building Committee to supervise the construction of the Miller County Courthouse in Texarkana in 1939. the Board of Law Examiners from 1941-43, the Professional Ethics and Grievances Committee of the Arkansas Bar Association from 1956-57 and the Association's Corporation Law Committee from 1966-67. He was president of the Miller County Bar Association in 1955 and chairman of the Arkansas

Bar Association's Committee on the Economics of the Practice of Law from 1959-60. Arnold was a life member of the 2000-member American Law Institute and belonged to the American and Texarkana Bar Associations and the Texas Utility Lawyers Association.

Arnold was a member of St. james Episcopal Church in Texarkana, the Phi Chi Chapter of Beta Theta Phi Fraternity at Yale College, the Texarkana Country Club, the Shreveport Club, the Little Rock Club and the Arkansas Society. Sons of the American Revolution. His chief recreation was golf and he made three holes-in-one. Arnold was born on December 30, 1906, in Texarkana. the son of William Hendrick Arnold, a president of the Arkansas Bar Association who later served as special chief justice of the Arkansas Supreme Court and chief judge for the Eighth judicial Circuit of Arkansas. His mother was Katherine Lewis of Calhoun (Columbia County). In 1934, Arnold married janet Sheppard of Texarkana, Texas. and Washington. D.C .. a daughter of United States Senator Morris Sheppard of Texas. Mrs. Arnold died in 1955. Arnold credited the first Mrs. Arnold. his sons' mother, with "giving them their brains" and fostering in them an interest in politics. "[S]he had the finest and quickest mind I have ever encountered. She was intensely political." In 1972, Arnold married Helen Bradley Callicott. who survives him. Other survivors include two sons. Richard Sheppard Arnold of Little Rock, a U.S. circuit judge for the Eighth Circuit. and Morris Sheppard Arnold of Fort Smith. a U.S. district judge for the Western District of Arkansas. and two grandchildren.

Chester Ashley Cockrill Chester Ashley Cockrill. age 83, of Little Rock. died Friday, April 1.

1988, Cockrill was the great-greatgrandson of United States Senator Chester Ashley, who served Arkansas from 1844 to 1848, and was a retired partner of the Cockrill and McGehee law firm, A native of Little Rock, Cockrill attended Little Rock High School (now Central High School) and obtained a law degree from the University of Virginia at Charlottesville in 1928, Before practicing law, he was a lieutenant colonel in the Army Air Corp during World War II, He served in the Army from 1940 to 1945, In 1962, Cockrill served as general chairman for the Mid-South regional meeting of the American Bar Association held at Little Rock, The region covers Arkansas, Missouri, Tennessee, Louisiana. Mississippi.

Texas and Oklahoma, He was a member of the Arkansas Bar Association for 60 years and was a member of the American Bar Association, Kappa Sigma social and Phi Delta Phi legal fraternities the Country Club of Little Rock and the Little Rock Club. Cockrill was a member of Trinity Episcopal Church. Survivors are his wife, Jane Rogers Cockrill; two sons, Chester Ashley Cockrill. Jr., and Rogers Cockrill of Little Rock; two daughters, Emma Jane Sellers and Frances C. Mayhan of Little Rock; a brother, Howard Cockrill of Little Rock; two sisters, Ann Wait of Little Rock and Jane Thompson of San Luis Obispo, California; and seven grandchildren.

P.E. Dobbs. Sr. P.E. Dobbs, Sr., age 89, of Hot Springs, formerly of Benton, died Sunday, January 31. 1988. Dobbs was a former Garland County circuit judge. He was a retired attorney with the law firm of Dobbs and Herbert. He was a member of the Arkansas Bar Association, the American Bar Association and the Arkansas Sheriffs Association. Survivors are a son, P.E. Dobbs,

Jr., of North Little Rock; two daughters, Gloria Polk and Norma Jean Thompkins both of North Little Rock; two sisters, Una James and Myrtle Biggs of Benton; and nine grandchildren, 18 great-grandchildren and three great-great-grandchildren.

the Arkansas Law School. She was a Presbyterian, a member and former Worthy Matron of Cotter Chapter 227 of the Order of the Eastern Star and the Arkansas and Baxter County Bar Associations.

Survivors are an aunt. Virginia

Joe M. (Pat) Fore Joe M. (Pat) Fore, age 58, of Prescott, died Wednesday, April 6, 1988. Fore owned Fore's Department Store at Prescott. Born in Nevada County, he was the son of the late John and Thalia Carrington Fore. Fore was a veteran of the Korean War. He was a 28-year member of the Arkansas Bar Association and a member of the Nevada County Bar Association. He was a Baptist. Survivors are a son, lim Fore of North Little Rock; two daughters, Sharman Langley of Bryant and Susan Nix of Hope; and two grandchildren.

Richard C. Knight Richard C. Knight, age 84, of Kansas City, Missouri. died Monday, January 25, 1988. Knight was a 16-year member of the Arkansas Bar Association. He was admitted to the Arkansas bar in 1932.

Jennie Fielding Pond Jennie Fielding Pond, age 80, of Cotter, died Sunday, January 31. 1988. Pond was born January 1I. 1908, in Harrison, the daughter of the late Clarence Emory and Cora Fielding Pond. She had lived in Cotter most of her life and was the Cotter city attorney for more than 28 years. Pond was a graduate of the Galloway School for Girls in Searcy and received degrees from Emerson College in Boston, Massachusetts, and

Young of Cotter, and several cousins.

Julian Bruce Streett Julian Bruce Streett, age 89, of Russellville, formerly of Camden, died Wednesday, February 3, 1988. Streett had practiced law for more than 50 years and had served as a circuit judge and chancellor. He was appointed circuit judge in 1942 by Governor Homer Adkins, chancellor in 1944 by Governor Ben Laney and chancellor again in 1964 by Governor Oval E. Faubus. Streett was born at Pine Bluff and grew up at Lake Village. He moved to Camden in 1923, where he practiced law until 1974. He was a graduate of the former Little Rock College and Arkansas Law School. He was admitted to the Arkansas bar in 1921 and to practice before the United States Supreme Court. In 1971. Streett was honored by the Arkansas Bar Association for 50 years of active law practice. Streett's father and grandfather had also been lawyers and judges. He was a World War I veteran, a member of SI. Louis Catholic Church, a Fourth Degree Knight of Columbus and a member of the Lions Club and Robert W. Jackson American Legion Post 45. He was the widower of Gertrude Sanderson Streett. Survivors are three sons, John Bruce Streett of Las Cruces, New Mexico, Julian Streett of Little Rock and Alex G. Streett of Russellville; two daughters, Gertrude Kenny of Reno, Nevada, and Shelly Grunden of Monticello; a brother, Duvall Streett of Camden; two sisters, Pat Kaigler of Yakima, Washington, and Julia Walker of Camden; and 18 grandchildren. D Juty 1988/Arkansas Lawyerll81


November Ballot Has Potential By R. Christopher Thomas As this is written in April. the content of the ballot we will face this November remains. to some extent. unresolved. However. at the moment. a few items on that ballot are clear. George Bush will be the Republican nominee for president and the voters of Arkansas will have the opportunity to improve certain aspects of our judicial system. The p0tential one might contemplate in connection with the candidacy of Vice President Bush is a matter for discussion elsewhere. On the other hand. I feel comfortable in touting the positive potential which resides in the proposed constitutional amendments on judicial discipline and juvenile court jurisdiction. Our 1874 Constitution is woefully inadequate in both areas. Presently. the only remedies for removal of a judge who is guilty of serious misconduct are impeachment. address or petition in circuit court. Those alternatives have been shown to be cumbersome and ineffective. As regards the juvenile justice system. our antiquated constitution does not make clear where the appropriate forum is for such important litigation. The proposed constitutional amendments will. to a substantial degree. answer these inadequacies. The 1987 General Assembly. in response to a request of the justices of the Arkansas Supreme Court. has referred to the voters a proposed constitutional amendment on judicial discipline. suspension. removal and disability retirement. If enacted. this proposal would authorize the creation of a commission composed of nine individuals. Three of those commissioners would be judges appointed by the Supreme Court. three would be li1821Arkansas Lawyernuly 1988

suspend or remove a judge. which. as noted. is contingent upon enabling legislation. The other distinct area of responsibility for the commission will be disability of a judge. Under the proposed amendment. any judge may request voluntary leave for physical or mental disability. In addition. the commission will have the authority to recommend to the Court that a judge be placed on leave. with pay. for a period of disability. In the more serious case where a judge is permanently incapocitated by reason of mental or physical disability. the proposed constitutional amendment will give the Supreme Court the authority to involuntarily retire the judge. Another proposed constitutional amendment which will be on the November ballot concerns jurisdiction for juvenile and paternity

proceedings. In the case of Walker Arkcmsas Department of Human Services. 391 Ark. 43 (1987). the Supreme Court determined that the then existing juvenile court system. which was within the jurisdiction of county judges. was unconstitutional. In response. the General Assembly referred a proposed constitutional amendment to the voters to allow the legislature discretion in selling jurisdiction of juvenile and paternity matters. At the same time. Governor Bill Clinton appointed a Commission on Juvenile Justice. In the event the proposed constitutional amendment passes. the commission will suggest legislation to implement a juvenile and paternity system. It is premature to draw conclusions about the specific recommendations this commission might make to the 1989 General Assembly. It is reasonable to conclude. however. that the commission will recommend legislation that enhances the status of juvenile court proceedings in this state. Our November ballot will he crowded with candidates and other proposed constitutional amend-


censed attorneys appointed respectively by the attorney general. president of the Senate and s'1E!Oker of the House. and three we .ld be citizens appointed by the governor. The commission could receive. or initiate. action in connection with judicial misconduct or disability. Action for censure or reprimand of a judge will be based upon violations of the Code of Judicial Conduct or conviction of a felony. In addition. the General Assembly would be authorized to enact grounds upon which suspension or removal of a judge would be authorized. Unless the legislature takes this additional step. the constitutional amendment will only allow the commission to discipline a judge by censure or reprimand. The commission will have the authority to enter a finding of reprimand or censure. subject to appeal to the Supreme Court. The Supreme Court would retain the authority to

ments. As lawyers, each of you

should have a high level of interest in the proposed constitutional amendments on judicial discipline and juvenile court jurisdiction. I encourage your active support of their enactment. Each of them has great potential for improvement of our judicial system. 0


Arkansas IOLTA Program

Foundation Awards Grants By Susanne Roberts The Arkansas IOLTA Foundation, Inc., selected recipients in March for its second annual grants cycle. The Foundation awarded $121,345 to 11 recipients. Fifteen funding applications were received.

Six grant recipients from last year were funded again this year. The 11 recipients are: • Central Arkansas Legal Services,

$25,000 to retain an attorney and a

paralegal. • Legal Services of Arkansas,

$23,000 to hire additional stall, to purchase a computer and programming

services and to retain a WArS line. • East Arkansas Legal Services.

$18,500 to hire additional stafl. • Ozark Legal Services, $15,000 to retain an attorney.

• Legal Services of Northeast Arkan-

sas, $13,000 to hire an additional secretary/receptionist and to pay WArS line expenses. • Western Arkansas Legal Services.

$2,000 for stall training. • East Texas Legal Services, $4,000 to fund Q portion of a paralegal salary. • Arkansas Volunteers for the Elder· ly. $2,500 to recruit new member attor·

neys (AVLE's services are provided pro

bono by the private bar). • Henderson State University, $5,345 to provide a statewide mock trial pro·

gram for high school students and to provide law-related education training for teachers. • University of Arkansas School of

Law, Fayetteville, $6,500 for tuition scholarships. • University of Arkansas at Little Rock School of Law, $6,500 lor tuition scholarships.

The majority of IOLTA funds are designated to assist entities that deliver legal aid to the poor. The Foundation's efforts this year were directed toward enabling legal aid providers to serve more clients than

they have been able to serve in the past. East Arkansas Legal Services and AVLE received "legal aid to Ihe poor" funds from the Foundation for the first time. Henderson State University was funded as a project to improve the administration of justice. The Foundation is especially interested in funding worthwhile grants in this category.

ATTORNEY HONOR ROLL (January 16, 1988, to April 15, 1988)


Owens, McHaney & Calhoun

Compton, Prewelt, Thomas & Hickey

UTTLE ROCK John Wesley Hall, Jr. Hardin & Grace Lewis A. Huddle, Jr. Madden, Byarlay & Johnson

MAGNOLIA Michael G. Epley Mike Kinard ROGERS Slinkard & Halbrook

The slate's two law schools will select recipients for the tuilion scholarships based on essentially the same criteria that was required last year - need, merit and statewide geographical distribution, in descending order of importance. In addition, Ihe Foundation has asked each school to designate one scholarship for a minority student. Two scholarships at each school will be named in honor of Ihe Arkansas Bankers Association and the Arkansas League of Savings Institutions. The application process for a Foundation grant is designed for people who have no grant writing experience. Applicant criteria require that applicants be reputable and that their projeci proposal be credible. Applicants are not limited to non-profit organizations. Any local bar association or motivated person or group with an idea for improving the administration of justice is encouraged to start planning now for the next grants cycle. Funds will be available next year for this calegory, with applications available in November. We are able to award grants because of your commitment and the support of your financial instilution. And, we continue to grow. In March, the Home Savings Association began waiving all fees and charges for IOLTA accounts 01 its main office and at its 33 branches. Also, by the end of the first quarter of 1988, we had collecled $60,457.08, compared to $29,471.51 at the same time last year. As always, we thank you for your continued support. 0 July 1988/Arkansas Lawyer/183

Executive Director's Page

Our Highest Principles, Traditions constant over the years - lasting friendships, inspiring associations with great and good persons and a sense of satisfaction that [ was making to some small extent my personal contribution to the great system of law and order which has given so much to all mankind...... He recalled a young man who, 60 years ago, wanted to be a lawyer:

By William A. Marlin Each year, the Fellows of the American Bar Foundation - the research arm of the American Bar Association -

bestow "an award on

a lawyer who, during more than fifty years of practice, has adhered to the highest principles and traditions of the legal profession." Today, with the advent of committees and commissions which study and dissect "professionalism:' we have as great a need for role models as we have for theory and scholarly discussion. In February, the American Bar Foundation presented its 1988 Fellows Fifty-Year Award to E. Charles Eichenbaum of Little Rock. What better person could they have chosen to "personalize" professionalism? Retired Chief justice john A. Fogleman wrote the biography for the awards program in Philadelphia. In addition to citing many of Charlie Eichenbaum's specific accomplishments and honors, justice Fogleman said: "Whoever first attached the title 'Esquire' to the names of lawyers must have foreseen E. Charles Eichenbaum, that is, if he had in mind a definition given in Black's Law Dictionary - 'A title of dignity next abave gentleman ... : Devotion to the legal profession and observance and promotion of the highest professional and ethical standards have characterized this scholarly lawyer, his practice and his life. At the same time, by his community service he has shown his devotion to the community in which he lives... This eminent legal scholar, worthy adversary, wise counselor and good citizen, through his dedication, zeal and exemplary 1841Arkansas Lawyer/july 1988

"In his home and elsewhere he had

always heard lawyers spoken of with great respect. They were the leaders of

the community. its souL its conscience and its voice. and now he was to take a place among them ... He grew up and had a great time doing it. But in these

six decades, what has happened to the way lawyers are regarded? Then, the lawyer was looked on with great re-

spect and little thought of criticism, as

conduct. has been a model for younger lawyers. The Fifty-Year Award is for lawyers like Charlie Eichenbaum." Think what it would mean to the committees and commissions studying professionalism if all or nearly all the nation's lawyers deserved such a tribute. On a personal level. Charlie Eichenbaum has been a very good friend and an exceptionally valuable advisor since my homecoming almost five years ago to take the executive director's position. He's shown unequaled zeal and foresight in protecting our not-for-profit status, insuring we adhere to approved purposes. He has also frequently articulated his vision of the ideal lawyer, inspiring all of us to keep on the right track. In his remarks following the presentation, Charlie said, ..... 1 could not believe that this honor would come to one who has always been merely a worker in the ranks. My rewards for that work have been

the interpreter of the law. as the defender of rights. He engaged in the resolution 01 disputes, seeking justice under the law. It is a sad reflection upon this background that today we are regarded as the handmaidens of artifice and deception... Why has this change occurred, and where and how did we fail our future? Is it because the

body of the law itself has been so changed as to demand a different type of proponent? Is it because younger lawyers entering the profession no longer see it as the fortress guarding

the rights of all? .... .1 wonder it young men of high ethics and idealism ... would today look forward to a career in the law ... 1f I ask myself, 'Is this an irreversible situation?' I must answer, 'Definitely not.' Most importantly. these problems are receiving the attention of our Association ... More must be done: It is a task for every bar entity and every lawyer. it must go forward. it must succeed. Lawyers must once again be perceived

as walking uprightly and honorably, serving their communities, their clients. their courts and the system of justice." 0


Does it Rin in

Your ars?

By Michael H. Crawford In keeping with the many duties inherent in the job description of the chair of the Young Lawyers' Section, I have attended two "Swearing-In Ceremonies" for new bar admittees. The events were rather short, unexciting and almost routine to everyone except the new admittees and their families, Besides remembering the excitement and relief over being admitted to the bar, most attorneys can recall little about the ceremony, Time dulls even these small remembrances, The single aspect of this event which should not be lost to time is the pledge to uphold the "Attorney's Oath." When's the last time you read or even thought about this Oath? Sitting as an impassioned observer at the swearing-in ceremonies, I

listened closely as the Oath was recited and thought about its words and meaning, This is an interesting and useful experience for all attorneys, regardless of their age or level of legal experience, Consider these passages: • "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed. or delay any man's cause for lucre or malice. SO HELP ME GOD," How many pro bono cases do you handle each year? Are you on a pro bono honor roll? How often do you tum away clients with a good case but which generates no fee? • "I will abstain from all offensive personality. and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause

with which I am charged," Do you show professional courtesy to other attorneys, judges and witnesses? Have you confused aggressive advocacy with rudeness and callousness? • "I will maintain the confidence and preserve inviolate the secrets of my client. and will accept no compensation in connection with his business except from him or with his knowledge and approval." Do you keep a tight lip about your clients' affairs? Have you accepted cases with the knowledge of a clear conflict of interest? • "I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor. and will never seek to mislead the Judge or jury by any artifice or false statement of fact or law," Have you assisted your clients in contriving a story that fits the facts? Have you presented a false picture to the op-

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w. Looney

Faculty Activities • Mort Gitelman (with Marcia Mcivor and Carl E. Smith) published Arkansas Rules of Evi· dence with commentary and annotations available from M & M Press. • Robert A. Leflar's article. "Conflict of Laws: Arkansas 1983'07," appeared in the Arkansas Law Review. • Robert B. Lellar's "Compensation for Work-Related Illness in Arkansas" was published in the Arkansas Law Review. • Julia R. Wilder's article, "Some Observations on the Chapter 12 Family Farmer Concept," appeared in Agricultural Law Update. • Linda Malone's article, "Swampbuster, Sodbuster, and Conservation Compliance Programs - Final Regulations," appeared in Agricultural Law Update, • Phillip E. Norvell spoke at the Arkansas Bar Association's Natural Resources Law Institute on "The Implied Duty to Market," • Robert Laurence l8G/Arkansas Lawyer/july 1988

testified before the U. S. Civil Rights Commission regarding the rights of American Indians. • Lonnie Beard spoke at the Washington County Beef Short Course on "Taxation of Beef Producers." • Jake Looney conducted a workshop on Cooperative Directors' Responsibili ties and Liabilities for the American Crystal Sugar Company in Fargo, North Dakota; spoke to the Conway County Cattlemen's Association on tax reform; spoke at a

and David Raupp. ABA Law Student Division

The law school hosted the ABA-LSD 10th Circuit Spring Meeting and received the Governor's Trophy for the best SBAABA programs in the circuit. The law school was recognized for its local SBA and ABA community service, for out-

federal farm programs and to the Newport Rotary Club on the Soviet legal system; and was a panelist at a Washington County League of

standing representation and high membership in the 10th Circuit and for sponsoring local and regional competitions. Dean Looney received the "Friend of the Division" Award for his service to the circuit in hosting the Regional Client Counseling Competition for the past two years, for assisting with local SBA-ABA programs and for support-

Women Voters program

ing studen t organiza-

on federal agricultural policy. He attended the ABA Dean's Workshop in Philadelphia, was appointed to the Council on Agricultural Science and Technology Task Force on Risk Assessment and is chair of the AALS Section on Agricultural Law. Arkansas Law Review The Arkansas Law Review elected new officers for the 1988-89 school year. They are: editor-in-chiel, Lisa Pruitt; managing editor, Glenn Reems; articles editors, Lisa Tobin and Tony Black; research editor, Tim Brooks; and student writings editors, Jeff Gearhart, Debie Boden, Aaron Mitchell

tions both personally and financially. Dina Wood, the ABA student liaison to the Administrative Law Section during the post year, received the Silver Key Award for three years of service to the local SBA, the 10th Circuit and the entire ABALSD program. Don Parker and Bruce Buck were recognized as winners of the Regional Client Counseling Competition. Parker recei ved a Bronze Key Award for raising ABALSD membership at the law school. Antoinette Barksdale, Lisa Pruitt, Elizabeth Vines, Lou Ann Langdon and Don Parker received ABA

seminar in Newport on

service pins for their work with the LSD. Pruitt was appointed 1988-89 lieutenan t governor of Communications for the Circuit. Fredrick Douglas Competition Valencia Rainey and Toni Barksdale represented the law school in the regional Fredrick Douglas Moot Court Competition sponsored by the Black Law Students Association held on the campus of Case Western Reserve in Cleveland, Ohio. Leflarfest '88 Leflarlest '88 was again sponsored by Phi Delta Phi and featured music and skits by law school students, staff and faculty. Bill Kropp coordinated the event, Tim Payne was director and Paul Ray, Richard Worsham and Arty Howard chaired committees. Silas Hunt Award Paul Kimbrough, a third-year law student, received the 1988 Silas Hunt Award at the University's Martin Luther King, Jr., Birthday Program. The award is presented annually to the minority student who has a distinguished record in both academics and service.

Moot Court U. S. District Judge Henry Woods, Arkansas Court of Appeals Judges Jim Cooper and John Jennings, federal Judge G. Thomas Eisele and Chief Justice Jack Holt, Jr., and Justice David

Newbern of the Arkansas Supreme Court heard oral arguments in the final round of the moot court competition. The new National Moot Court Team is Lisa Pruitt, Chris Kirby, Tim Cheatham and Jeff Dixon (alternate). Judicial Clerkship Session A meeting on judicial clerkships, organized by the faculty's Student Advising Committee, featured recent law school graduates who are clerking or have recently clerked for federal or state judges. The clerks talked about their experiences and gave tips on application strategies. Returning to the campus for the session were Sherry Gilbertson (1987), Liz Levy (1987), Tom Mars (1985), Mike Murphy (1986), George Oleson (1985) and Nancy Rahmeyer (1987). 0

UNIVERSITY OF ARKANSAS AT UTIlE ROCK SCHOOL OF LAW By Paula Casey Faculty Activities • United States Supreme Court Justice Harry Blackmon and Judge Myron Bright of the Eighth Circuit Court of Appeals will be at the Law School on September 13 to 14, 1988, for a "Jurist in Residence Program." On September IS, Judges Bright, John R. Gibson and J. Smith Henley of the Eighth Circuit Court of Appeals will hear oral arguments at

the Law School. • Dean Lawrence H. Averill, )r., will serve as visi ting professor at Southern Methodist University in Dallas this fall and teach the course on wills and trusts. • Professor Susan Webber Wright attended the Arkansas Natural Resources Law Institute in Hot Springs on February 25 to 28. • Professor Fred Peel's book Understanding the Federal Income Tax - A Lawyer's Guide to the Code and Its Provisions has been published by the American Bar Association, Section of General Practice. Professor Robert R. Wright III is chairman of publications for the American Bar Association's General Practice Section. • Legal Clinic Supervisor Joy Durward attended the Gulf Coast Regional Program of the National Institute of Trial Advocacy in January. Professor Durward testified before the Arkansas Commission on Juvenile Justice in March concerning the restructuring of the state's juvenile court system. • Professor Andy McClurg's article "Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquist's Opinions In Criminal Procedure Cases" was accepted for publication by the University of Colorado Law Review. • Associate Dean Scott Stafford's article "I. R. C. 752(c): The Offer issue in Tuffs v. Commissioner" will be published in the Fall 1988 issue of The Tax Lawyer. • Professor John DiPippa has resigned from the faculty to direct a Legal Services pro-

gram in West Virginia. • The Law School and the Center for Computer-Assisted Legal Instruction sponsored a workshop on authoring computer-based exercises in legal education on June 2 to 4 at the Law School. • Professors Kenneth Gould and John DiPippa spoke at the annual meeting of the Arkansas Bar Association in June in Hot Springs. Associate Dean Paula Casey spoke at the family law supplemental program held in conjunction with the annual meeting. Student News The editorial board of the UALR Law Journal for 1988-89 is Pam Bryan, editor-in-chief. Tricia Sievers, executive editor, Mark Rogers, articles editor, Carmen Arick, casenote editor, Don Taylor, research editor, Tim Howell, survey editor, and John Neilhouse, managing editor. Coleen Barger, a Rule XV law student. argued a case before the Arkansas Court of Appeals in March on behalf of a Legal Clinic client. Peggy Matson did an outstanding job of organizing the Law School's annual student awards banquet in April at the Otter Creek Racquet Club. The Student Bar Association presented an outstanding teaching award to Professor John DiPippa. Arkansas Bar Foundation writing awards were presented to Kim Golden, William Freeman, Mary Wiseman and Frank Arey. The Student Bar Association received a First

Place Award in the

was chaired by Patricia Eables. 0

A.I.C.L.E. NEWS By Rae Jean McCall All members of the legal profession face a growing struggle to keep abreast of rapidly changing laws. New cases, statutes, regulations, procedures and techniques of practice make keeping current an enormous task. To

meet this challenge, the Arkansas Institute for CLE continuously seeks the advice and assistance of the practicing bar in producing the kinds of programs desired by the legal community. Throughout the year, the time and talents of many dedicated members of the bar go into planning and executing CLE programs. Although the names of people who served on planning and advisory committees, program

faculties and the AlCLE board and committees are too numerous to

mention here, it is appropriate to recognize those persons who served as program chairpersons during the 1987-88 fiscal year. These individuals have contributed a great deal to the profession through their relentless efforts and deserve the respect of their colleagues: Gregory T. Jones and Rosalind R. McClanahan, 1987 Practice Skills Course, September 2-4

American Bar Associa-

tion's 1987 Law Day U. S. A. Public Service Award Competition. The Law Day Committee

Glenn Pasvogel and Janet

Flaccus. Fundamentals of Bankruptcy. September

18-25 July t988/Arkansas Lawyer/187

Mary Beth Matthews and Frances Fendler, Fall Legal Institute. October 22-24

Preview of Upcoming Programs The fall line-up of CLE programs includes some exciting new programs in addition to the traditional oUerings. On July 22. a one-day seminar entitled How to Handle a OWl Case will be held at the Little Rock Hilton Inn. Designed as a practical, nuts-andbolts program. this seminar will cover various aspects of the DWI case - from the initial client interview through dispasition of the case. A new seminar entitled Employment Law for the General Practitioner will be held on August 26 at the Little Rock Hilton Inn. This program will cover vari-

Bruce E. Buchanan. Labor

Law and Relations Semi-

nar. April 8-9 Regina Hopper Blakely, Securities Law and Practice Seminar. April 20

Byron M. Eiseman and Joseph Hickey. Federal Tax Institute. December 3-4

Glenn Pasvogel and Janet Flaccus. Debtor/Creditor

Update. April 29

Philip E. Dixon, Mid-Year Meeting. January 21-22

James L. Moore III and Joseph M. Erwin, Tax Aware-

William C. Bridgforth, Ag-

ness Seminar. May 6

ricultural Law Institute.

February II

John D. Eldridge III. Financial Institutions Law Semi-

nar. May 13

James Bruce McMath and R. T. Beard. How to Devel-

Dent Gitchel. Arkansas Advocacy Institute. May

op a Winning Personal Injury Case. February 24


Honorable Ellen Brantley,

Michele A. Harrington. Municipal Law Seminar.

Arkansas Federal Practice Institute. March 11

June IS

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188JArkansas Lawyer/July 1988

be added 10 the mailing Ibt for our (>Crlodic valuation commentaries.

ous aspects of personnel and labor practices that are commonly encountered by the general practitioner. in addition to providing bosic labor and employment law concepts to enable them to recognize problems in the early stages. An extensive update on current issues will be presented at a Criminal Law Seminar to be held on September 1-2 at the Little Rock Hilton Inn. This exciting program will provide an analysis of recent cases and developments in the area of criminal law. A one-day seminar designed for attorneys and others engaged in the lobbying process will be held on September 9 in Little Rock. Entitled The Lobbying Process. this program will provide an overview of successful strategies and tactics in addition to useful information on city and county. state and federal governmental procedures. Practice Before Arkansas Administrative Agencies will be the focus of a seminar scheduled for September 16 at the Little Rock Hilton Inn. Anyone who has represented or will represent clients before the various state agencies will benefit from this program. The 1988 Fall Legal institute will concentrate on Estate Planning Issues and Developments. Scheduled for September 29-30. this progrcan will be extremely beneficial for anyone who practices in this area. For additional information about any of these programs or to offer a suggestion for future CLE programs, contact the Arkansas Institute for CLE at 375-3957. 0

Presents: Proficiency Tools For Arkansas Lawyers





This 1988 edition is designed to introduce lawyers to the new Ar-

A step-by-step tool, from client interview to final appeal, in presenting or defending claims for workers' compensation benefits.

A checklist of steps to be considered, schedules to follow and deadlines to be met, plus sample

This revised and updated handbook is indispensable to practice in the bankruptcy courts in Arkansas. Included are a multitude of forms and local rules and procedure.

kansas Business Corporation Act of 1987.

probate forms to help avoid pitfalls in handling decedents' es-






ARKANSAS DOMESTIC RELATIONS (Vol. 11 (Artlansas Material




This 400路page book deals with divorce, separate maintenance, domestic retations procedures, child support and custody. alimony and enforcement.

An update for Volume 1, this book provides a wealth of information on major federal legislative enactments which impinge directly on family law. Also covered are Social Security, military matters, PKPA & UCCJA.

This handbook provides both the experienced and inexperienced criminal defense attorney with a ready-reference guide for handling criminal cases in federal and state courts.

Enhance Your Practice With Forms. The TWO-VOLUME edition of the Arkansas Form Book offers 1000 pages which are sure to increase your proficiency.





ORDER FORM Name: Mailing Address:


_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Zip:


Add $3 mailing charge for each book ordered. Non-members of the Arkansas Bar Association add another $50.





Exp. Date


Signature Return to: Arkansas Bar Association, P.O. Box 5130, No. unle Rock, AR 72119 (to order by telephone, call 375-4605 or HlOO-482-9406)


Corporation Law System




Workers' Compensation Law Desk Book . .

$ 75.00



Probate Law System

$ 75.00





.. $ 75.00



Domestic Relations (Vol. 2)

$ 75.00



Criminal Law Handbook

$ 75.00



Arkansas Form Book

$125.00 TOTAL

$ $

_ _

Domestic Relations (Vol. 1). .

_ _

Contacting local and state officials, court personnel or anyone associated with the legal profession can be easier with... THE ARKANSAS LEGAL DIRECTORY.

SPECIAL F'EATURES• A handy guide 10 county. state and federal offices including departments of the U.S. and Arkansas state government. • A compteta digest of courts containing terms, rules and Jurisdiction of federal, state and local courts with names. addresses and telephone numbers of court personnel.

• A complete foster of attorneys and law firms in Arkansas with addresses and telephone numbers.

• Professional associations including officers. committees and sections of the Arkansas Bar Association.

• Professional and biographical data of some of the law firms and individual practitioners in Arkansas.

Alphabetical listing of Firms Alphabetical listing of Individuals - - - - - - - And we continue - - - - - -

The Roster of Attorneys by County and City Order as many copies as you need today! Please send _ _ copies of the 1987·88 ARKANSAS LEGAL DIRECTORY. The price is $25.00· plus $2.67 for postage and handling totaling $27.67. Check must accompany order. ( ) I am interested in a listing In the blue Biographical Section. ) I am Interested In being Included In the Advertising (non· lawyers} Section.


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·Prlce subject to change without notice.

LEGAL DIRECTORIES PUBLISHING COMPANY, INC. 2122 KIDWELL STREET P.O. BOX 140200 DALLAS, TEXAS 75214·0200 Telephone: (214) 824·8092 Facsimile: (214) 821-8553 If'ILL/AAl E. BROlf'N. Prt'Jldua -

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JULY 1988