The Arkansas Lawyer Fall 2021

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Vol. 56, No. 4, Fall 2021 online at www.arkbar.com

Inside Honoring Those Who Served and Sacrificed to Protect Our Freedom

PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins PROOFREADER Cathy Underwood EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Haley M. Heath Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. William A. Waddell, Jr. Brett D. Watson David H. Williams Nicole M. Winters OFFICERS President Bob Estes President-Elect Joe F. Kolb Immediate Past President Paul W. Keith Secretary Glen Hoggard Treasurer Brant Perkins Parliamentarian Brent Eubanks YLS Chair Payton C. Bentley BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins Executive Administrative Assistant Michele Glasgow Director of Government Relations Jay Robbins Director of Education & Operations Kristen Frye Data Integrity Specialist Alexis Teal Director of Finance & Administration Yan Chen Meetings & Membership Director Jennifer Jones Office & Data Administrator Cynthia Barnes Publications Director Anna Hubbard

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. 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 to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address.

Copyright 2021, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 56, No. 4

features 10 The Committee on the Unauthorized Practice of Law: Striving for Fairness and Efficiency in Arkansas' UPL Enforcement System

By Justice Robin F. Wynne and Caroline Boch 14 A Nonlawyer's Perspective on the Unauthorized Practice of Law

By Faye Shepherd 16 Stare Decisis

By William A. Waddell, Jr.

22 The New Arkansas Uniform Limited Liability Act: A Statutory Overhaul

By H. Watt Gregory, III, John P. Fletcher and Pierce G. Hunter

Members who have served in the military

28 Members Who Have Served in the Military

32 The Bank is Open for Collegiate Student-Athletes: What You Should Know about Name, Image and Likeness

By Judy Simmons Henry and Collins Hickman

Cover Photo of the Arkansas State Veterans Cemetery in North Little Rock by Mike Pirnique

Contents Continued on Page 2

Lawyer The Arkansas Vol. 56, No. 4

in this issue ArkBar News

4

A Call to Leadership

6

Legislative Timetable

Arkansas Access to Justice

Disciplinary Actions

20 40

Arkansas Bar Foundation

44

In Memoriam

45

columns

President’s Report Bob Estes

7

Young Lawyers Section Report Payton C. Bentley

9

43

Board of Trustees

District A1: Kesha Zaffino, Geoff Hamby, Jason B. Hendren, Timothy R. Scott District A2-A3: Evelyn E. Brooks, Leslie Copeland, Jason M. Hatfield, Brian C. Hogue, Sarah C. Jewell, Kristin L. Pawlik, George M. Rozzell, Russell B. Winburn District A4: Kelsey K. Bardwell, Craig L. Cook, Brinkley B. Cook-Campbell, Dusti Standridge District B: Michael S. Bingham, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Jesse J. Gibson, Steven P. Harrelson, Michael M. Harrison, Rachel Hildebrand-Kane, Anton L. Janik, Jr., Jamie H. Jones, Victoria Leigh, Jessica V. Mallett, William C. Mann III, Skye Martin, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, Molly M. McNulty, David S. Mitchell, Jr., Meredith S. Moore, John Ogles, Emily M. Runyon, Carter C. Stein, Danyelle J. Walker, Patrick D. Wilson, George R. Wise District C5: Melanie A. Beltran, Joe A. Denton, Todd C. Watson, William Z. White District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, Ryan Wilson District C7: Kandice A. Bell, Laurie Bridewell, Sterling T. Chaney, R. Margaret Dobson Delegate District C8: Taylor A. King, Carol C. Dalby, Amy Freedman, Wm. Blake Montgomery At Large Members: Paul W. Keith, Payton C. Bentley Liaison Members: Dean Theresa M. Beiner, Dean Margaret Sova McCabe, Denise Reid Hoggard, Gregory J. Northen, Judge Edwin A. Keaton, Curtis E. Hogue

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The Arkansas Lawyer

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Is it Time to Change Your 401(k) Provider?

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ArkBar News

Class of 1996 Congratulations to Members Celebrating Their 25th Year of Practice Steven Abed David R. Bachman David Allen Bailey Judge Kristine G. Baker Steven King Benson Wes Bradford Judge Robin J. Carroll Bradley A. Chambless Emmett B. (Chip) Chiles IV Keith L. Chrestman Kim Flanery Coats Christy Tosh Crider Marcus M. Crider Susan K. Crowley Niki Trang Cung Judge Catherine Palmer Dean Darby Doan Jennifer Doan David “Randall” Drake Jane W. Duke Janelle Evyan Zina Hill Frazier Karey W. Gardner Andrew D. Gleason Melissa Glover Robert Gminski Tina R. Green M. Joseph Grider Laura D. Grimes Audra Katharine Hamilton Steve W. Haralson Sarah Harbour-Swander Jeffrey W. Hatfield Bradley F. Hathaway Rebecca D. Hattabaugh Kyle Heffley Wanda Brown Hiebert Anthony A. Hilliard Charles R. Hoskyn David A. Hughes Jonathan K. Johnson Todd Jones

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The Arkansas Lawyer

Jason B. Kelley Matthew R. King Jay W. Kutchka Lance Lee Judge Mark D. Leverett Todd P. Lewis Louis S. Lim Nga Mahfouz L. Randolph Mano Harvey “Jay” C. Martin, Jr. Marianne Elizabeth McBeth Virginia Y. Middleton Rodney P. Moore Lance Eric Newkirk Stephen B. Niswanger John Darren Owen Nealon M. Pomtree Scott D. Provencher Winonia Griffin Roberts Stacey D. Ryall Jack A. Sallee D. Scott Schrader Robert M. Sexton Clay E. Simpson James Harmon Smith III James H. Swindle Kathleen Talbott Bruce B. Tidwell Amy E. Tu Jennifer Horton Tucker Gray Allen Turner U.S. Magistrate Judge Joe Volpe Clement S. Walls III W. Brant Warrick Billy Bob Webb Dr. Evelyn E. (Jeannie) Winston Judge Elizabeth A. Wise Wendy S. Wood Scott Edward Wray Regina A. Young

www.arkbar.com

ArkBar's Fall Mid-Year Meeting The Association held its Mid-Year Meeting virtually November 9-12, 2021. Thank you to the sponsors, volunteer speakers, planners and registrants who made the meeting a success! The meeting included four days of CLE seminars presented livestream by a professional production company, MP Productions, at the Bar Center.

Thank you to the Chair and Program Planners: Mid-Year Chair and Probate and Trust Law Planner: Lillian Dee Davenport; Appellate Law Track Planner: Chief Judge Brandon Harrison; Family Law Track Planner: BrookeAugusta Ware; Elder Law Track Planner: Maya Goree; Probate and Trust Law Planner: Ashley Phillips; Section of Taxation: Adam Reid.

Thank you to the Sponsors: Platinum Sponsor: BXS Insurance; Gold Sponsors: Friday, Eldredge & Clark LLP and Simmons Private Wealth; Bronze Sponsors: ArkBar Sections: Elder Law, Probate and Trust Law, Section of Taxation, and Family Law. See the full agenda and list of speakers at www.arkbar.com/midyearmeeting. Watch for the courses available on CLE CENTRAL in the future.

Mid-Year registrants will have access to the courses from December 1, 2021, through February 1, 2022.

Top photo: Mid-Year Chair Lillian Dee Davenport behind the scenes during the production.

Bottom photo: local tax experts Chris Travis, Michelle Perez and Adam Reid.

Oyez! Oyez!

ACCOLADES Wright Lindsey Jennings partner Gordon S. Rather, Jr., has been honored with the Richard S. Arnold Award for Distinguished Service in the Eastern District of Arkansas.

Cynthia Nance, dean emerita and the Nathan G. Gordon Professor of Law at the University of Arkansas School of Law, has received the Richard S. Arnold Award for Distinguished Service in the Western District of Arkansas by the Eighth Circuit Bar Association. Dennis Zolper received the Distinguished Alumni Award from the Arkansas State University Alumni Association. Arkansas Economic Developers & Chamber Executives recognized Kimberly B. Dale of Branch, Thompson, Warmath & Dale as Volunteer of the Year. Jamie Huffman Jones of Friday, Eldredge & Clark was recently presented with the Federation of Defense and Corporate Counsel Joseph R. Olshan Award. UA Little Rock William H. Bowen School of Law recognized three distinguished alumni: Judge Joyce Williams Warren, Sherry Bartley with Mitchell Williams, and Price Gardner with the Friday Firm.

APPOINTMENTS AND ELECTIONS Wright Lindsey Jennings partner David L. Jones was elected a national director of the Defense Research Institute. Governor Asa Hutchinson has appointed Karen Whatley as Chief Legal Counsel for the Governor’s Office and Jordan Burgess as Director of Legislative and Agency Affairs. Jamie Huffman Jones of Friday, Eldredge & Clark has been appointed to serve as Chair on the Arkansas Supreme Court Committee on Model Jury Instructions – Civil. J. Cliff McKinney has been appointed a member of the Joint Editorial Board for Uniform Real Property Acts of the Uniform Law Commission (ULC). McKinney has also been appointed a Council Member of the Legislative Committee of the ULC. Southern Bancorp CEO Darrin Williams has been appointed by the White House to the 15-member board that advises the Community Development Financial Institutions Fund. Nathan Looney has been named to the National Alumni Board of Directors Class of 2024 by the Arkansas Alumni Association. The College of Labor and Employment Lawyers announced the election of John D. Coulter of McMath Woods P.A. as a new Fellow. ArkBar's new Appellate Law Section elected the following officers: Troy A. Price, Chair; Brett D. Watson, Vice-Chair; Secretary Gerry Schulze.

WORD ABOUT TOWN Lion Legal Services announced that Tara Pool is the firm’s newest partner. Taylor King Law announced that Leanna Hubbard, Ross King and Jacob White have joined the firm as associates. Quattlebaum, Grooms & Tull PLLC announced the return of the Honorable J. Leon Holmes, a former federal judge for the United States District Court for the Eastern District of Arkansas, and the addition of John M. Jewell and Shelley Fleisch-Djurica to the law firm. The firm also welcomed four new associates to the law firm: Sharri Bell has joined the firm’s office in Springdale, and Byron T. Keaton, Laura L. O’Hara and Noah P. Watson have joined the office in Little Rock. Ashlea Brown has been promoted from associate corporate counsel to executive vice president and corporate counsel at Nabholz Construction of Conway, and Dana Nichols is the new associate corporate counsel. Mary Claire Hyatt is the new general counsel for the Fayetteville School District. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. announced the addition of three attorneys. Peyton Hildebrand has joined the law firm’s office in Rogers, while Savannah Johnston and Austin Reed have joined the office in Little Rock.

2022 Mock Trial Competition Call for Volunteers This spring, students will be back in the Mock Trial courtroom for the 2022 Arkansas High School Mock Trial Competition.* Regional competitions will be held in Fayetteville, Jonesboro, and Pine Bluff on February 12, 2022, and the state championship will be held in Little Rock on March 5, 2022.

“Participants and committee members are excited about the opportunity to return to an in-person competition this year,” said Adrienne Griffis, co-chair of the LawRelated Education Committee’s Mock Trial Subcommittee. “The competition offers a chance for attorneys across the state to have a positive impact on high school students by showcasing the inner workings of the legal system.” To that end, the Mock Trial Subcommittee seeks attorney volunteers to serve as scoring and presiding judges during the competition. No mock trial experience is necessary. Volunteer registration will be available here, beginning in January: www. arkbar.com/ARMockTrial. The Mock Trial Subcommittee appreciates your support! *Subject to change in the event of health and safety concerns that necessitate a virtual competition.

ArkBar offers free job postings for employers.

arkbar.com/jobs Submit your Oyez! news to ahubbard@arkbar.com.

Look for the Oyez feature with photos in ArkBar's Monthly Electronic Member Newsletter.

Visit arkbar.com /for-attorneys/publications/ member-newsletter.

Vol. 56 No. 4/Fall 2021 The Arkansas Lawyer

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A Call to Leadership Nominations due for President and Board of Trustees positions on January 31, 2022

Election Cycle Timeline January 31st Deadline for submission of completed nomination forms to the Arkansas Bar Association’s Secretary

February 15th Deadline for mailing of ballots in contested races

March 18th Deadline for receipt of signed ballots

2021-2022 Districts

Total No. Seats

No. of Available Seats

County(ies) within Each District

A1

4

1

Benton

A2, A3

8

3

Washington

A4

4

1

Boone, Carroll, Crawford, Franklin, Johnson, Logan, Madison, Newton, Sebastian

B9-15

28

9

Pulaski

C5

4

2

Baxter, Cleburne, Conway, Faulkner, Fulton, Independence, Izard, Jackson, Lawrence, Marion, Perry, Pope, Randolph, Searcy, Sharp, Stone, Van Buren, White, Yell

C6

4

1

Clay, Craighead, Crittenden, Cross, Greene, Lee, Mississippi, Monroe, Poinsett, Prairie, St. Francis, Woodruff

C7

4

1

Arkansas, Ashley, Bradley, Calhoun, Chicot, Clark, Cleveland, Columbia, Dallas, Desha, Drew, Grant, Jefferson, Lincoln, Lonoke, Ouachita, Phillips, Union

C8

4

2

Garland, Hempstead, Hot Spring, Howard, Lafayette, Little River, Miller, Montgomery, Nevada, Pike, Polk, Saline, Scott, Sevier

Total Trustees

60

20

The next president-elect designee will come from Bar District C, which encompasses the following counties: Arkansas, Ashley, Baxter, Bradley, Calhoun, Chicot, Clark, Clay, Cleburne, Cleveland, Columbia, Conway, Craighead, Crittenden, Cross, Dallas, Desha, Drew, Faulkner, Fulton, Garland, Grant, Greene, Hempstead, Hot Spring, Howard, Independence, Izard, Jackson, Jefferson, Lafayette, Lawrence, Lee, Lincoln, Little River, Lonoke, Marion, Miller, Mississippi, Monroe, Montgomery, Nevada, Ouachita, Perry, Phillips, Pike, Poinsett, Polk, Pope, Prairie, Randolph, Saline, Scott, Searcy, Sevier, Sharp, St. Francis, Stone, Union, Van Buren, White, Woodruff and Yell. Please contact Karen Hutchins at 501-801-5663 for nominating petitions for the Offices of President-Elect. The office of Secretary is also elected on the same January 31st deadline.

Nominations for 2022-2023 President-Elect

Secretary and ABA Delegate

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The Arkansas Lawyer

www.arkbar.com

Nominations are being collected for the Office of Secretary and American Bar Association Delegate positions. Contact Karen Hutchins at 501-801-5663 for information on these positions.

PRESIDENT'S REPORT Bob Estes is the President of the Arkansas Bar Association.

He is a solo practitioner in Fayetteville.

Honoring Those Who Served This month the country pays tribute to all American veterans, living or dead, who served their country honorably during war or peacetime. A Veteran takes an oath to serve in the United States Armed Forces. The soldier’s creed states: “I stand ready to deploy, engage and destroy, the enemies of the United States of America in close combat. I am a guardian of freedom in the American way of life.”

A Veteran knows loyalty, duty, selfless service, integrity and personal courage.

A Veteran puts the welfare of others before her own. A Veteran knows fear and danger. A Veteran knows physical courage and enduring physical distress and risking personal safety. A Veteran never leaves a fallen comrade. A Veteran supports and defends the Constitution of the United States against all enemies foreign and domestic. A Veteran takes an oath before God to defend and protect our freedom and our liberty surrendering, if necessary, his life.

In this issue of the magazine, we are honoring our Arkansas Bar Association

members, past and present, who have served in the U.S. Military. The number of members on the list grows each year as we continue to hear from members who have either served or known someone who has served. Please submit your photo and information if you are not on the list on page 28.

This year, Veterans Day fell during the Association’s Mid-Year Meeting and a special video tribute was played during the lunch hour. You can view the video at this link: www.arkbar.com/midyearmeeting.

Thank you to the Friday Firm for sponsoring this event. I would also like to thank all of our Mid-Year Sponsors: BXS Insurance, Simmons Private Wealth and the five ArkBar Sections who put together an incredible agenda filled with local and national experts (Probate and Trust, Tax Law, Appellate Law, Family Law and Elder Law). Thank you to Mid-Year Chair Lillian Dee Davenport and program planners: Chief Judge Brandon Harrison, Maya Goree, Brooke-Augusta Ware, Ashley Phillips and Adam Reid.

Like his father and brothers, Bob proudly served in the United States military. In this poem he shares an emotional experience after visiting the Vietnam Memorial in Washington D.C. After college Bob enlisted in the Army as a private and was awarded the Bronze Star after his tour in Vietnam. The poem was published in Poesia: The Wall by Bob Estes My first visit to the Wall.

With apprehension and some fear.

Not unlike that early morning, When I first stepped in country In that early warm and humid hour.

I stepped down into the Wall.

The names.

Moms and Dads whose sons were taken.

Daughters who would never know their father.

Sons their Dads would never know and love.

Down into the Wall.

My reflection came back to me.

I was one of them again.

Tears flooded through my eyes.

Remembrances through my thoughts.

Spectators glanced and turned away.

A soldier had come home.

Something sometimes hard to watch.

Vol. 56 No. 4/Fall 2021 The Arkansas Lawyer

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Second Class of the Public Service Academy Announced

SPRING 2022 CLE CALENDAR

In Person!

February

23-25 April

8

Sit Amet 60th AnnualDolor Natural Resources Institute

DoubleTree Hot Springs

Dolor Sit Amet Workers' Compensation

Northwest Arkansas

April

22

DolorLaw Sit Amet Construction Conference

Oaklawn Racing Casino Resort Hot Springs

May

Dolor Sit Amet 25th Annual Environmental Law Conference

4-6

Don Tyson Center for Agricultural Sciences & AgriPark Fayetteville

May

Sit Amet 25th AnnualDolor Debtor/ Creditor Conference

12-13 June

15-17

Pleasant Valley Country Club Little Rock Dolor Sit Amet 124th Annual Meeting

Hot Springs Convention Center Hot Springs

ALSO WATCH FOR UPCOMING WEBINARS HTTPS://MX.ARKBAR.COM/ CLE-EVENTS/EVENTS-LIST

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The Arkansas Lawyer

www.arkbar.com

The Arkansas Bar Association and the University of Arkansas Clinton School of Public Service, in association with UA Little Rock Bowen School of Law and the University of Arkansas School of Law, are proud to announce the second class of the Public Service Academy. The following individuals will participate in two sessions: one in Little Rock (November 12-13, 2021) and one in Fayetteville (February 18-19, 2022): Martin Arroyo, Springdale, Student Jamie Beal, Cabot, Student Caitlin Alana Campbell, Little Rock Nathan David Coulter, Little Rock Sarah Elizabeth Cowan, Benton Chris Danforth, Little Rock, Student Bob Edwards, Little Rock Hayley Ferguson, Benton, Student Daniel D. Ford, Little Rock Benton James Gann, England Jordan Broyles Hallenbeck, Little Rock Deborah L. Hardin, Cabot Chelsea Nichole Harvey, Little Rock Haley M. Heath, Little Rock Maegan C. Hodge, Fayetteville Shelby Nicole Howlett, Little Rock Marion Andrew Humphrey, Little Rock Hannah Lucile Hungate, Elkins Adam Donner Jackson, Little Rock Ashley Denae James, Van Buren, Student Mikayla Jayroe, Russellville, Student Michael Kiel Kaiser, Little Rock Eun Sol Kim, Fayetteville Elizabeth Kimble, Little Rock, Student Gabriela Lopez-Gardner, Fayetteville, Student Joseph Karl Luebke, Little Rock Logan M. Mustain, Little Rock Andrew Michael Nadzam, Jonesboro Ali Brady Noland, Little Rock William Johnson Ogles, Little Rock Kristin L. Pawlik, Fayetteville Jacob Stem Potter, Texarkana Taylor Slover Pray, Little Rock Gregory M. Thomas, El Dorado Presley Hager Turner, Conway Quinten Johnson Whiteside, Little Rock Marquisa Wince, Little Rock

The Public Service Academy is chaired by Nate Looney and Michael Goswami, with assistance from vice-chairs Skye Martin and Madhav Shroff. Nate and Michael also serve on the steering committee, which includes former Chief Justice Howard Brill, Vincent Foster Professor of Legal Ethics & Professional Responsibility at the University of Arkansas School of Law; Circuit Judge Earnest Brown; House Speaker Matthew Shepherd; and Maggie Benson.

The Public Service Academy is sponsored by the University of Arkansas School of Law, University of Arkansas at Little Rock William H. Bowen School of Law, Rose Law Firm, and Brian Rosenthal, as well as the Civil Practice and Government Practice Sections of the Arkansas Bar Association.

YOUNG LAWYERS SECTION REPORT Payton C. Bentley is the Chair of the Young Lawyers Section. He is an attorney at the Clark Law Firm, PLLC.

Since the last update, YLS’ hopes of in-person events has come to a halt with the increase in COVID-19 numbers. YLS, however, has remained steadfast and active!

On August 18th, I spoke on behalf of YLS at the 1L orientation at the University of Arkansas at Fayetteville School of Law, welcoming the new 1Ls to the profession.

I provided advice on professionalism in school and the community as representatives of the legal profession and finding a group of peers to help cope with the stresses of law school. I also discussed the many benefits of being a student member of the Arkansas Bar Association.

On September 30th, I had the honor of recording a brief video at a local recording studio in Fayetteville, Crisp Recording Studios, that covers the many benefits of being a member of the Association. I also spoke about my experiences on the Legislation Committee and the vital role our Association plays in advocating and advancing the practice of law. More below!

This video will be sent to the new members of the Association and the new admittees who recently passed the bar exam.

The YLS’ Executive Council met on October 4th to begin discussing some options for safe outdoor in-person social events and options for a virtual event for the Mid-Year Meeting. YLS is in the process of updating the Domestic Violence Handbook under the leadership of Alexandra Benton. YLS is also forming a committee to update the Local Practice Guidebook that provides information on judges, trial court administrators, and clerks for every county in Arkansas. This committee will be co-chaired by Ezra Smith and Elizabeth Richardson.

Make sure to keep an eye on the YLS Facebook page and the YLS ACE Community for future updates!

Legislative Advocacy One of the most important functions of our Association in representing our profession comes in the form of legislative advocacy. The painstaking work the Association puts into legislative advocacy is frequently overlooked and unrecognized.

Before I got involved, I had no idea what the Association does for our profession related to legislative advocacy. Now, as a member of the Legislation Committee, I have witnessed the hours on hours of hard work the Association puts in to advocate and advance the practice of law.

The Committee reviews every single bill that is filed during the legislative session to identify bills that have an impact on the practice of law or the administration of justice. The Committee meets every Friday during the legislative session to discuss and debate the identified bills and constitutional amendments that impact the practice of law.

We then report to the various sections the bills and constitutional amendments that impact their practice area to obtain more information on the subject matter or input on the position the Association should take.

This feedback from our members is essential for the Association to be able to advocate on behalf of all our members. We use this information and feedback from the sections to have more vigorous debates and entertain motions to support, oppose, remain neutral, or take no position on the identified bills and constitutional amendments.

The position the Committee takes on the identified bills is communicated to the bill sponsor or the legislature in general through the Association’s lobbyist, Jay Robbins. The Association is truly fortunate to have Jay Robbins as our lobbyist. His expertise and ability to communicate on behalf of the Association is invaluable to the Association.

The Association will frequently also have

a member representative attend legislative sessions on certain bills to testify to the Association’s position.

Under the Association’s bylaws, the position the Committee takes on constitutional amendments is reported to the Board of Trustees, which then has the authority to override the Committee’s position. The ultimate position of the Association on constitutional amendments is likewise communicated to the amendment sponsor or the legislature in general by Jay Robbins. A member representative typically will attend the legislative session on the amendment to testify to the Association’s position.

Lastly, a priority of the Association is to advance our own proposed legislation to improve the legal system in Arkansas through our legislative package that is advocated by Jay Robbins to find legislators to sponsor and support our bills. The 2020-2021 legislative package included bills for Non-Candidate Expenditure, Uniform Limited Liability Company Act, Uniform Fiduciary Income and Principal Act, Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act, and Power of Attorney Technical Corrections.

All the 2020-2021 legislative package, except the Non-Candidate Expenditure bill, passed through the legislature and is now law. This is a great accomplishment for the Association. A special thanks is owed to our members who worked tirelessly on drafting and revising these bills, and of course to our Lobbyist, Jay Robbins.

Involvement in the Association and in the various sections allows you to provide a voice on proposed legislation that impacts your practice and is key for the Association to be able to represent all our Members! ■

Vol. 56 No. 4/Fall 2021 The Arkansas Lawyer

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The Committee on the Unauthorized Practice of Law: Striving for Fairness and Efficiency in Arkansas’ UPL Enforcement System

By Justice Robin F. Wynne and Caroline Boch

Justice Robin F. Wynne was in private practice in Fordyce for more than 30 years before his election to the Arkansas Court of Appeals and then the Arkansas Supreme Court.

Caroline R. Boch is a law clerk to Justice Robin F. Wynne of the Arkansas Supreme Court.

Wynne 10

The Arkansas Lawyer

Boch www.arkbar.com

Reflections from Justice Wynne The Supreme Court has 19 committees and commissions which are the “hands and feet” of our court. They assist our court’s superintending authority mandated by Amendment 80. These committees have as few as five members to as many as 30 or more. The extensive work that these volunteer lawyers and nonlawyers do provides valuable rules, procedure, and practice for our court system.

Each of the seven justices on the Supreme Court is assigned as liaison to these various committees. I have the pleasure of serving as liaison to the Arkansas Access to Justice Commission, the Client Security Fund Committee, and the Committee on the Unauthorized Practice of Law. Assuming these duties as liaison has given me the opportunity to work with some wonderful lawyers and nonlawyers as well.

The Supreme Court created the Committee on the Unauthorized Practice of Law in 1978 to address all “complaints of and matters or inquiries dealing with the unauthorized practice of law.”1 The committee is currently composed of nine members—four lawyers and five nonlawyers, and two alternates. When I became the committee’s liaison in 2015, there were several hundred pending cases dating back to 2011. With the hard work of the committee, we have extinguished the backlog and are current with the pending complaints. This has been accomplished through the diligent efforts of the committee, chaired by attorney Phillip Stone of El Dorado and assisted by Charlene Fleetwood, Senior Staff Attorney in the Office of the Committee on Professional Conduct. Other committee members include attorneys William A. Waddell, Jr., of Little Rock, J.T. Skinner of Batesville, and Kathryn Elizabeth Platt of Fayetteville, and the nonlawyer members include Gary E. Mueller of Little Rock, Natasha Murray of White Hall, Deana Osment of Jonesboro, and Faye Shepherd of Conway. My law clerk Caroline Boch attends all committee meetings on the court’s behalf.

Complaints come to the committee from all corners of the state. We receive complaints from attorneys, judges, and nonlawyers. Each complaint is scrutinized before any action is taken. In most cases it is easy to determine if someone is practicing law without a license, but then there are those “close calls” that the committee must make as to whether there is a violation. Defining what constitutes the unauthorized practice of law can be more difficult than one would think. There is no one definition that fits all circumstances, and this is where the wisdom and real-world experience of the committee is most valuable. This is a frequently asked question of the committee—What is the “practice of law” in Arkansas? The committee provides these two answers: •When a person appears before a court of record for the purposes of transacting business with the court in connection with pending litigation or when a person seeks

to invoke the processes of the court in any matter pending before it, the person is engaging in the practice of law.2 •The practice of law includes any services of a legal nature rendered outside of courts and unrelated to matters pending in the courts, including conveyances, the preparation of legal instruments of all kinds, and, in general, all advice to clients and all action taken for them in matters connected with the law.3 One case may be disposed of with a short deliberation while another may take several meetings before the action of the committee can be determined. Not only is the committee very thorough but extremely thoughtful as well. Further information about the committee can be found on the Arkansas Judiciary website, including the complaint form in both English and Spanish; FAQ in English, Spanish, and Marshallese; rules; procedures; and actions of the committee.4 Our court system is only as good as those who are dedicated to making it better.

The members of this committee are great examples of how our judiciary works and its concern for the citizens of Arkansas and the Arkansas Bar. The work of the UPL committee is outstanding and I applaud the committee for its tireless efforts and dedication to protect the public from those individuals who attempt to practice law without a license and create a risk of harm.

Revising the UPL Rules The UPL committee’s dedication to improving Arkansas’ UPL enforcement system is evident in its recent efforts to modernize the structure of the committee and the rules governing its work. With the exception of an immunity provision added in 2017, the rules had not been revised since 1994. According to committee chair Phillip Stone, “We kept noticing that the current rules did not address everything we were facing, and we would hear that previous committees had handled things in a particular way. We wanted to codify our processes and practices for ourselves and future committees.” Mr. Stone also noted that the committee “knew that the rules were dated and that other states had already updated rules to deal with a number of the issues we were facing.”

In 2019, with funding from the Supreme Court, a consultation team from the American Bar Association traveled to Arkansas and met with committee members and staff. The ABA consultation team issued a report in early 2020 recommending changes to the committee rules and structure.

In addition, two committee members and Ms. Fleetwood of the OPC staff attended the American Bar Association’s UPL School, where they learned about best practices from UPL committees in other jurisdictions as well as challenges facing the UPL enforcement system nationwide.

Committee structure is one of those challenges. In response to the decision of the United States Supreme Court in NC Dental Examiners Board v. Federal Trade Commission5 and the Federal Trade Commission’s guidance document of the same year entitled FTC Staff Guidance on Active Supervision of State Regulatory Boards Controlled by Market Participants,6 UPL committees around the United States began to consider changes to committee structures to lessen or eliminate control by market participant lawyers. However, elimination of a majority of market participants is not a panacea, and the application of the state action defense to antitrust liability recognized by the FTC and courts is dependent upon active state supervision of a UPL committee’s work. The Arkansas committee members realized that adherence to set standards established by a state body such as the Arkansas Supreme Court and not the subjective decision of the market participants is not only the correct legal response to criticism of UPL committees’ work by nonlawyers, but it is

also the fairer way to address UPL issues within the rule of law. Therefore, the UPL rule revisions consider the issues raised by the FTC and applicable court rulings to: (1) eliminate the majority of market participant lawyers making decisions but preserving the necessary and desirable role of lawyers’ input into decisions; (2) emphasize rules of procedure that meet basic requirements of due process and provide standards for reaching a decision; and (3) provide relief to an aggrieved person by a right of appeal.

Based on the recommendations of the ABA report and the best practices learned at the UPL School, the UPL committee developed several proposed revisions to the UPL rules. On May 27, 2021, the Supreme Court issued a per curiam revising the rules.7 Highlights of the New Rules The rule changes standardize the procedures the committee follows in responding to complaints alleging the unauthorized practice of law, with the goal of increasing fairness and efficiency. As Mr. Stone explained, “The changes define what the committee is to do at each stage of the process. From my perspective, the biggest change is to state our processes more clearly and to allow for a right of further review when a person accused of the unauthorized practice of law disagrees with the committee’s decision.”

First, the new rules formalize the complaint investigation process, which had not been described in the prior rules. Under the new rules, after a complaint is received, committee members vote whether they believe probable cause exists to conduct an

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investigation.8 If the committee votes to open an investigation, committee staff investigates the allegations and provides a report to the committee within sixty days if practicable.9 Under the new rules, the committee may decide to hold formal proceedings if it determines that such proceedings would help it determine whether the respondent engaged in the unauthorized practice of law.10 The new rules outline procedures for formal proceedings, which the committee had not previously adopted. Under these procedures, the committee must provide written notice to the respondent.11 At the hearing, the respondent may be accompanied by counsel and may present documentary evidence, testify, present witness testimony, and cross-examine witnesses.12 Following the hearing, the committee may prepare written findings of fact—applying a preponderance of the evidence standard—and conclusions of law in support of its final disposition of the matter.13 What are the possible dispositions? The new rules formally describe the actions the committee may take in response to complaints that someone is practicing law without a license. The committee may close the matter if it finds no evidence of the unauthorized practice of law.14 If the respondent agrees to cease and desist from actions which appear to constitute the unauthorized practice of law, the committee may close the matter by formal agreement.15 If the committee finds that the respondent engaged in activities that could be considered the unauthorized practice of law but did so indirectly and unintentionally, the committee may issue a warning letter to the respondent.16 If, however, the committee finds that the respondent intentionally engaged in such activities, the committee may issue a letter of caution to the respondent.17 Following formal proceedings, if the committee finds that the respondent engaged in activities that were a blatant and intentional violation of the prohibition against the unauthorized practice of law, the respondent has a history of such activity, or the activities pose a significant threat to the public, the committee may issue a cease and desist letter that requires the respondent to immediately stop the activities and enter into a consent agreement with the committee not to engage in the activities.18 The respondent 12

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has the right to appeal the committee’s decision to issue a cease and desist letter to the Pulaski County Circuit Court.19 If the respondent fails to stop the activities after a cease and desist letter is issued or fails to enter into a consent agreement with the committee, the committee has the right to seek an injunction and declaratory relief against the respondent in the Pulaski County Circuit Court.20 The committee can also institute an original proceeding seeking an injunction or declaratory relief in other circumstances if it believes such relief is warranted.21 In addition to formalizing procedures, the new rules modify the membership of the committee. The committee was expanded from seven to nine members, adding two nonlawyers to make nonlawyer members the majority of the committee.22 The inclusion of additional nonlawyer members lessens concerns about control by market participant lawyers, broadens the perspective of the committee, and furthers the committee’s mission to protect the public from the unauthorized practice of law. The new rules also provide for staggered terms for members, enhancing the continuity of the committee.

A few provisions, while not entirely new, are worth noting: •The committee has the power to authorize the Chair to subpoena, subject to Rule 45, the respondent, witnesses, and documents.23 •Any matter under investigation is to remain confidential until formal proceedings are initiated or until the matter is resolved.24 •No advisory opinion issued or action taken by the committee is to be construed as a court order.25 •The committee, its members, agents, and employees are immune from suit or action for their activities under the procedures to the full extent of judicial immunity in Arkansas.26 Looking Ahead The new rules increase the efficiency and fairness of Arkansas’ UPL enforcement system by outlining uniform procedures and providing due process protections to respondents. They “will ensure fair process for the work of the current committee and future committees” and “place the committee at the forefront of UPL committees around

the United States,” Mr. Stone said.

“This has been a hard-working committee that works together well,” Mr. Stone added.

“We come from different backgrounds and different parts of the state, but we have been able to make a lot of progress toward public protection from the unauthorized practice of law while making lasting friendships along the way.”

Endnotes: 1. Rule of Court Creating a Committee on the Unauthorized Practice of Law, 264 Ark. App’x 960 (1978) (per curiam).

2. https://www.arcourts.gov/courts/supremecourt/boards-committees/committeeunauthorized-practice-law/home/faq; Arkansas Bar Ass’n v. Union Nat’l Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408 (1954).

3. Id. 4. https://www.arcourts.gov/courts/supremecourt/boards-committees/committeeunauthorized-practice-law/home.

5. 574 U.S. 494 (2015).

6. https://www.ftc.gov/system/files/ attachments/competition-policy-guidance/ active_supervision_of_state_boards.pdf.

7. In re Amendments to Rules of Court Creating a Committee on the Unauthorized Practice of Law, 2021 Ark. 123 (per curiam).

8. Rule 10(A), Rules of Court Creating a Committee on the Unauthorized Practice of Law. 9. Rule 10(C).

10. Rule 10(D).

11. Rule 11(A).

12. Rule 11(E).

13. Rule 11(F).

14. Rule 12(A).

15. Rule 12(B).

16. Rule 12(C)(i).

17. Id. 18. Rule 12(C)(ii).

19. Id. 20. Rule 12(C)(iii).

21. Id. 22. Rule 1.

23. Rule 4.

24. Rule 9(B).

25. Rule 4.

26. Rule 15. ■

Collaborative.

Respectful.

Supportive.

Objective.

Analytical.

Persuasive.

Whether in state or federal court, Joe Hall brings a broad and sophisticated perspective to appellate advocacy, having also spent extensive time working in the public and academic sectors.

A master of the written word, he excels at legal analysis and crafting compelling arguments around complicated legal issues.

Contact Joe 479.289.7420 jhall@roselawfirm.com

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A Nonlawyer’s Perspective on the Unauthorized Practice of Law

By Faye Shepherd

Having worked around courts my entire career, my assumption was that the unauthorized practice of law was flagrant and easy to recognize in a comical way like My Cousin Vinny. I expected that the perpetrators were either trying to save money by taking pro se litigation to a new level or fiendish shadowy scammers preying on unsuspecting victims – with no gray area between. When asked to serve on the Unauthorized Practice of Law (UPL) committee, I couldn’t even articulate to my husband what all that would entail but imagined it would involve checking boxes on a form: easy to recognize, black and white, tidy, open and shut. My operating supposition was that this committee was a means to protect the legal profession and their livelihoods. I also anticipated that as a nonlawyer, my role would be more or less as a silent token member, rubberstamping the attorneys’ estimations on the UPL cases.

The first UPL committee meeting I attended disabused me of ALL of the preconceived notions listed above. I was expected to be more than an observer.

Sleeves up, I dug in. What became apparent was that each case had layers – some more than others – that required the UPL committee members to drill through the intricate strata looking for the intent of the respondent, which lines were crossed, how many times, for how long, and the impact or potential impact to the public. This process truly requires many sets of eyes working as a unitary body bringing different lenses, experiences, backgrounds, and fields of education with all opinions and questions valued working the assemblage’s way toward consensus.

After a few meetings, the discomfort I felt as a nonlawyer was replaced with a 14

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confidence that perhaps as a member, I could contribute in a meaningful way. My day job brings me into different judicial districts throughout the state. Because there is no centralized judiciary, every circuit judge who hears juvenile cases directs her/his staff the way s/he sees fit, or many times the juvenile officers continue to do things the way they have done them and the way they were done before they were hired. When some procedures are called into question, most will reply, “It’s always been done that way. I didn’t know there was anything wrong with it.” Most of those court staff adopt and adapt to standardized practice while other juvenile officers continue to indulge in outmoded or questionable practices.

Framing the UPL cases this way helps me to answer the questions of intent, for how long, and whether it is affecting the court-involved youth, the judge, or the public. I am frequently accused of being “social worky,” and I plead guilty but trust that many try to help others altruistically. My background frequently supports an alternative frame regarding motivation for the unlicensed practice of law for some of the respondents.

Many UPL complaints lodged are undoubtedly citizens lacking access to justice and without means to retain an attorney. Of that number, plenty are immigrants with language barriers and limited understanding of roles of Notario Publicos vs. practicing attorneys. Others are incarcerated persons trying to help fellow inmates out by filing legal documents on their behalf. Still others are out-of-state attorneys who are offering or providing their services in Arkansas without being affiliated. The list goes on and so do the damages to the public, so investigating and intervening is important to limit some losses and prevent others. After serving

on the UPL Committee for one full term and the beginning of another, I have come to believe that the general public deserves access to knowledge about what constitutes the Unlicensed Practice of Law and a path to legitimately meet their needs. A good start to this is in the developing UPL website: https://www.arcourts.gov/administration/ boards-committees/committeeunauthorized-practice-law/faq.

UPL committee members bring to the scheduled meetings diverse views and areas of expertise, but it would be inadequate to stop there and not consider what the members take from the committee to shape their practice or vocation. Serving on the committee has deepened my resolve to look further into many of the lingering questions in juvenile justice. How can court-involved youth and their families file for expungement? How can they challenge something that is incorrect on their record?

A myriad of other issues that their probation officers cannot advise on. The meetings have given me another lens in which to see other aspects of courts, the processes, the need and the dire consequences when unsuspecting citizens trust unqualified opinions. ■

Faye Shepherd is the Juvenile Justice Specialist for the Arkansas Administrative Office of the Courts.

Since 2015, Faye has been a nonlawyer member of the Arkansas Supreme Court’s Committee on the Unauthorized Practice of Law.

CONGRATULATIONS To our attorneys on their recent accomplishments JAMIE HUFFMAN JONES JOSEPH R. OLSHAN AWARD Federation of Defense & Corporate Counsel

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DISTINGUISHED ALUMNI UA Little Rock Bowen School of Law

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15

Stare Decisis

By William A. Waddell, Jr.

Introduction Lawyers depend upon the doctrine of stare decisis1 to do their work.

Indeed, as Justice Holmes noted many years ago in “The Path of the Law,”2 stare decisis is to provide the predictability that lawyers need to advise their clients and that courts need to continue the orderly administration of the rule of law: When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.3

William A. Waddell, Jr., is a partner at Friday, Eldredge & Clark LLP in Little Rock. He is a member of the firm’s litigation practice group.

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There was a renewed focus on stare decisis in the United States Supreme Court’s cases decided in 2020 and 2021. The decisions discussed in this article are not only important indicators of why the underlying substantive issues were decided as they were, but they also provide insight into the future interpretation of these and other issues in the context of stare decisis.

In a sense, all cases are about stare decisis, because every court addresses how an issue in the case before it should be decided in the context of prior precedent. However, as the cases discussed herein demonstrate, the words stare decisis may signal that a justice is invoking the doctrine either to justify an opinion for which he may be criticized4 or to question the majority’s view.5 In some cases, the departure from stare decisis gets the point across without mentioning the doctrine, as Justice Sotomayor wrote in Americans for Prosperity www.arkbar.com

Foundation v. Bonta: “Today’s decision discards decades of First Amendment jurisprudence recognizing that reporting and disclosure requirements do not directly burden associational rights.”6 Thus, the cases discussed in this article raise the question whether the invocation of the doctrine affirms it as a bedrock of predictability or as the harbinger of shifting sands of change. When it is the latter, a lawyer’s senses are quickened, because the predictability aspect of her work is made more difficult.

The Cases Decided in 2020 and 2021 In its cases decided in 2020 and 2021, justices of the Supreme Court discussed stare decisis in various contexts. For example, in Barr v. American Association of Political Consultants, Inc.7 the court issued a plurality holding in which the doctrine’s dimensions are questioned down to the footnotes. Nuanced concepts of stare decisis, such as factors for overruling previous precedents and the distinction between vertical and horizontal stare decisis, make their way into the lawyer’s predictability consciousness.8 Similarly, in Allen v. Cooper,9 Justice Elana Kagan, writing for the majority, stated that stare decisis requires “a ‘special justification,’ over and above the belief ‘that the precedent was wrongly decided’” in order to reverse a decision.10 Evidencing a tension as to the core authority for overruling prior decisions, Justice Clarence Thomas, concurring, took exception.

I cannot join the Court’s discussion of stare decisis.

The Court claims we need “‘special justification[s]’” to overrule precedent because error alone “cannot overcome stare decisis.” [Citation omitted] That approach “does not comport with our judicial duty under Article III.” [Citation omitted] If our decision in Florida Prepaid were demonstrably erroneous, the Court would be obligated to “correct the error, regardless of whether other factors support overruling the precedent.” [Citation omitted]11 Although it appeared at the time that Justice Kagan’s statement of the “special justification” principle was controlling, Justice

Sotomayor questioned whether that conclusion still held in her dissent in Jones v. Mississippi: How low this Court's respect for stare decisis has sunk.

Not long ago, that doctrine was recognized as a pillar of the “‘rule of law,’” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge's opinion.” Ramos, [citation omitted]. Given these weighty interests, the Court “usually require[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then “carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn. of Political Consultants, Inc. [citation omitted]. Now, it seems, the Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is “founded in the law rather than in the proclivities of individuals.” Ramos, [citation omitted].12 The most extensive discussion of stare decisis in 2020 is contained in Justice John Roberts’ concurring opinion in June Medical Services L. L. C. v. Russo.13 Prefacing his decision to side with the majority in holding a Louisiana abortion law unconstitutional, Justice Roberts gave this detailed explanation of stare decisis: Stare decisis (“to stand by things decided”) is the legal term for fidelity to precedent. Black’s Law Dictionary 1696 (11th ed. 2019). It has long been “an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” 1 W. Blackstone, Commentaries on the Laws of England 69 (1765). This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the “private stock of reason ... in each man is small, ...

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individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France110 (1790).

Adherence to precedent is necessary to “avoid an arbitrary discretion in the courts.” The Federalist No. 78, p. 529 (J. Cooke ed. 1961) (A. Hamilton). The constraint of precedent distinguishes the judicial “method and philosophy from those of the political and legislative process.” Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).

The doctrine also brings pragmatic benefits. Respect for precedent “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v.

Tennessee, … It is the “means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, ...

In that way, “stare decisis is an old friend of the common lawyer.” Jackson, supra, ...

Stare decisis is not an “inexorable command.” Ramos v. Louisiana, ... But for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly. The Court accordingly considers additional factors before overruling a precedent, such as its administrability, its fit with subsequent factual and legal developments, and the reliance interests that the precedent has engendered. See Janus v.

State, County, and Municipal Employees, …

Stare decisis principles also determine how we handle a decision that itself departed from the cases that came before it. In those instances, “[r]emaining true to an ‘intrinsically sounder’ doctrine established in prior cases better serves the values of stare decisis than would following” the recent departure. Adarand Constructors, Inc. v. Peña, [citation omitted] (plurality opinion). Stare decisis is pragmatic and contextual, not “a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, ....14 With this background and to reconcile his vote in Russo with his vote on previous abortion cases, Justice Roberts concluded succinctly that “[s]tare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”15 Dissenting justices criticized Justice Roberts’ application of the doctrine, but his open discussion of his vote based on stare decisis inspires a sense of predictability.

The concept of “fidelity to precedent” appeared in another way in the concurrence by Justice Kagan in Collins v. Yellen,16 in which she also used the doctrine to explain her vote: To ensure that our decisions reflect the “evenhanded” and “consistent development of legal principles,” not just shifts in the Court’s personnel, stare decisis demands something of Justices previously on the losing side. …

They (meaning here, I) must fairly apply decisions to 18

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which they disagree. But fidelity to precedent also places demand on the winners. They must apply the Court’s precedents – limits and all – wherever they can, rather than widen them unnecessarily at the first opportunity.

In Ramos v. Louisiana,17 another plurality decision, the court held that a Louisiana law allowing conviction by a non-unanimous jury was an unconstitutional denial of the Sixth Amendment right to a jury trial. Justice Gorsuch wrote for the majority, which overruled two prior precedents after applying principles of stare decisis. The jurisprudential history of the cases overruled is a revealing example of precedent leading to years of application of overruled decisions based on stare decisis: How, despite these seemingly straightforward principles, have Louisiana’s and Oregon’s laws managed to hang on for so long? It turns out that the Sixth Amendment’s otherwise simple story took a strange turn in 1972. That year, the Court confronted these States’ unconventional schemes for the first time—in Apodaca v. Oregon and a companion case, Johnson v. Louisiana. Ultimately, the Court could do no more than issue a badly fractured set of opinions. Four dissenting Justices would not have hesitated to strike down the States’ laws, recognizing that the Sixth Amendment requires unanimity and that this guarantee is fully applicable against the States under the Fourteenth Amendment.

But a four-Justice plurality took a very different view of the Sixth Amendment. These Justices declared that the real question before them was whether unanimity serves an important “function” in “contemporary society.” Then, having reframed the question, the plurality wasted few words before concluding that unanimity’s costs outweigh its benefits in the modern era, so the Sixth Amendment should not stand in the way of Louisiana or Oregon.

The ninth Member of the Court adopted a position that was neither here nor there. On the one hand, Justice Powell agreed that, as a matter of “history and precedent, ... the Sixth Amendment requires a unanimous jury verdict to convict.” But, on the other hand, he argued that the Fourteenth Amendment does not render this guarantee against the federal government fully applicable against the States. In this way, Justice Powell doubled down on his belief in “dual-track” incorporation—the idea that a single right can mean two different things depending on whether it is being invoked against the federal or a state government.

Justice Powell acknowledged that his argument for dualtrack incorporation came “late in the day.” Late it was.

The Court had already, nearly a decade earlier, “rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” It’s a point we’ve restated many times since, too, including as recently as last year. Still, Justice Powell frankly explained, he was

“unwillin[g]” to follow the Court's precedents. So he offered up the essential fifth vote to uphold Mr. Apodaca's conviction—if based only on a view of the Fourteenth Amendment that he knew was (and remains) foreclosed by precedent.18 Noting the role of Justice Powell as the ninth and deciding justice in the previous cases, Justice Gorsuch concluded: Every occasion on which the Court is evenly split would present an opportunity for single Justices to overturn precedent to bind future majorities. Rather than advancing the goals of predictability and reliance lying behind the doctrine of stare decisis, such an approach would impair them.19 Justice Gorsuch was prescient, particularly as to the ability of a justice to affect stare decisis, because he soon joined a majority that held the holding in Ramos should not be applied retroactively.20 Justice Kagan dissented, stating that “[t]he majority crawls under, rather than leaps over, the stare decisis bar.”21 Far from predictability, the Edwards decision means that the same constitutional issue resulted in Ramos receiving habeas relief and Edwards not.

As a final example of a discussion of stare decisis in recent decisions, Justice Clarence Thomas, concurring, discussed the timing of overruling a previous decision when, according to the justice, the court has recognized that it should no longer be followed: I write separately because, in my view, the time has come to consider discarding the Bivens doctrine altogether.

The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided. Stare decisis provides no “veneer of respectability to our continued application of [these] demonstrably incorrect precedents.” Gamble v. United States, [citation omitted]. To ensure that we are not “perpetuat[ing] a usurpation of the legislative power,” [citation omitted], we should reevaluate our continued recognition of even a limited form of the Bivens doctrine.22 Thus, although a case is made for overruling Bivens based on stare decisis, the predictability of such a result seems more dependent upon gathering votes of like-minded justices.

Final Thoughts The foregoing decisions from 2020 and 2021 illustrate that stare decisis is in the forefront of the justices’ legal reasoning. However, the decisions leave questions as to how the doctrine will be applied in the development of the issues in particular areas of the law the decisions address. Are they evidence of a gradual movement of the law that responds to modern nuances of societal change, such as the evolving sentiment of the 1980s around the exclusion of persons

from juries on account of race? That change was a multi-year evolution bookended by Swain v. Alabama23 and Batson v. Kentucky.24 Or are the decisions in 2020 and 2021 rumblings of a greater seismic event reflecting political shifts? Time will tell, but in the interim, these larger questions about how stare decisis is being used impact the predictability upon which practicing lawyers depend.

Endnotes: 1. “‘Stare decisis’ is short for stare decisis et non quieta movere, which means ‘stand by the thing decided and do not disturb the calm.’” Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003) (quoting James C. Rehnquist, Note, The Power That Shall Be Vested in a Precedent: Stare Decisis, the Constitution and the Supreme Court, 66 B.U.L. Rev. 345, 347 (1986)).

2. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897).

3. Id. at 458.

4. E.g., Justice John Roberts’ concurring opinion in June Medical Services L. L. C. v. Russo, 140 S. Ct. 2103 (2020), discussed infra.

5. For example, in the case of Minerva Surgical, Inc. v. Hologic, Inc., 141 S. Ct. 2298, 2312 (2021), Justice Alito, dissenting, criticized both the majority opinion and the principal dissent with these words: “The Court’s evasion of stare decisis is fully matched by the principal dissent.”

6. Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373, 2404 (2021).

7. Barr v. American Association of Political Consultants, Inc.,140 S. Ct. 2335 (2020).

8. Id. at 2351 n.8. See also Torres v. Madrid, in which Justice Gorsuch, concurring, noted an additional layer of predictability by stating that “whatever utility it may have, dicta cannot bind future courts.” 141 S. Ct. 989, 1005 (2021). The lawyer’s task thus involves discerning whether a statement in a prior case is part of the legal holding or merely dicta to which stare decisis applies.

9. Allen v. Cooper, 140 S. Ct. 994 (2020).

10. Id. at 1003 (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).

11. Id. at 1007-1008.

12. Jones v. Mississippi, 141 S. Ct. 1307, 1336-1337 (2021).

13. June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

14. Id. at 2134-2135.

15. Id. at 2141-2142.

16. Collins v. Yellen, 141 S. Ct. 1761, 1801 (2021).

17. Ramos v. Louisiana, 140 S. Ct. 1390 (2020).

18. Id. at 1397-1398.

19. Id. at 1403. See also Justice Kagan’s opinion in Allen v. Cooper, 140 S. Ct. 994 (2020).

20. Edwards v. Vannoy, 141 S. Ct. 1547 (2021).

21. Id. at 1580.

22. Hernandez v. Mesa, 140 S. Ct. 735, 750 (2020).

23. 380 U.S. 202 (1965).

24. 476 U.S. 79 (1986). ■

Vol. 56 No. 4/Fall 2021 The Arkansas Lawyer

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The New Arkansas Uniform Limited Liability Company Act: A Statutory Overhaul

By H. Watt Gregory, III, John P. Fletcher and Pierce G. Hunter

This article provides an overview of Arkansas’ recently-enacted version of the Uniform Limited Liability Company Act and its impact on both existing and new limited liability companies organized in Arkansas.

Watt Gregory is a partner, John Fletcher is of counsel, and Pierce Hunter is an associate in the Little Rock office of Kutak Rock LLP. Their practice includes corporate and securities law, mergers and acquisitions, and business entity formation, development and governance matters.

Gregory 22

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Fletcher www.arkbar.com

Hunter

Introduction We live in a time of dramatic change. In fact, for limited liability companies organized under Arkansas law, that change has already begun to occur. Act 1041 of the 2021 Acts of the Arkansas General Assembly (“Act 1041”),1 signed into law on April 30, 2021, with an effective date of September 1, 2021, repealed in its entirety the state’s former limited liability company statutory scheme, commonly known as the Arkansas Small Business Entity Tax Pass Through Act (the “Old Act”),2 and replaced it with the Arkansas Uniform Limited Liability Company Act (the “New Act”),3 making Arkansas the 20th state at the time to adopt the Uniform Limited Liability Company Act (2006) (last revised 2013) (the “RULLCA”).4 Because limited liability companies (“LLCs”) are now the most popular form of business entity in the United States,5 the New Act will have a broad impact on the Arkansas business law landscape. The New Act, modeled after the RULLCA, represents a substantial overhaul of the law governing Arkansas LLCs, and now applies to all LLCs organized under this state’s laws. There is no savings clause for the Old Act or any ongoing transition period for LLCs organized under the Old Act, and since September 1, 2021, the New Act has applied to all Arkansas LLCs without regard for their date of organization.6 Advocates of the RULLCA believe it provides “reduced compliance costs, streamlined administration and consistency across jurisdictions.”7 That may be an important virtue of the New Act, but certain provisions of the New Act make substantive and material changes to the statutory law that governed Arkansas LLCs prior to September 1, 2021, and that expand the potential personal liability of those managing the LLC, including all members in a membermanaged LLC. This article summarizes key changes the New Act brings to the governance and operation of Arkansas LLCs, and also highlights important provisions that may prompt owner-members of Arkansas LLCs to amend their existing operating agreements and possibly change their historical governance practices.

History of LLCs in Arkansas Prior to 1993, Arkansans seeking both limited legal liability and pass-through tax treatment for their business activities, i.e., the payment of taxes solely through the business owners’ tax returns, and not by the business itself, had only a certain type of close corporation (“S corporation”) available to obtain the desired tax passthrough treatment. Regulations of the Internal Revenue Service pertaining to S corporations at the time, among other things, imposed strict limitations on the number of shareholders and required all shareholders to be natural persons.8 In April 1993, the Arkansas business landscape changed with the enactment of the Old Act and the introduction of the LLC as a new form of tax-efficient legal entity under which an owner or owners could conduct business, large or small. The LLC form was designed to provide the same limited liability to members as that commonly associated with stockholders’ immunity from liability in most cases for debts and obligations of a corporation, while retaining sufficient characteristics to be taxed as a partnership (allowing pass-through treatment to the members of all taxable gains and losses for federal income tax purposes9). Since the Old Act’s adoption, the use of LLCs in Arkansas business has proliferated across all sectors of economic activity in the state, whether farming or high tech, manufacturing or

retail, or professional services of all types.

When advising on the formation of a new business, the question for many Arkansas practitioners has evolved from “Should we form an LLC?” to “Why not?”

One of the chief advantages of electing to own and operate a business governed by the Old Act was the freedom of the members of an LLC to choose provisions they specifically agreed to include in the operating agreement, the basic LLC governance document. By making contractual agreements among themselves regarding such provisions, Members could avoid application of substantially all the “default” provisions in the Old Act that would otherwise be mandated if the operating agreement failed to address the particular subject matter.

A principal example of this contractual flexibility included the ability of the members to choose to manage the LLC themselves or appoint a manager or managers to run the affairs of the business with varying degrees of responsibility to the members. In either case, the persons responsible for the actions of the LLC could be exculpated in the operating agreement from most liabilities resulting from the failure to properly exercise their operating responsibilities.

Establishment of Nonwaivable Fiduciary Duties under the New Act While the New Act generally preserves the concept of allowing LLC members the

freedom of contract in most cases,10 the New Act imposes certain new, more extensive and nonwaivable statutory fiduciary duties, upon the manager or managers in the case of a manager-managed LLC, and upon the members in a member-managed LLC. The imposition of nonwaivable fiduciary duties upon LLC members or managers, as applicable, which can be altered only in certain ways under the New Act,11 is one of the most significant changes introduced by the New Act. These fiduciary duties, among others, include new and expanded duties of loyalty12 and care.13 These particular duties embrace concepts that should be familiar to most practitioners in corporate law, but they were not recognized as being applicable under the Old Act.14 In addition, in certain cases the class of persons owing fiduciary duties to others in an LLC environment has been expanded15 or made non-alterable by contract except in limited cases.16 Where the fiduciary duties may be altered or limited, there is an overriding qualifier: so long as such alterations or limitations are not “manifestly unreasonable.”17 This new term is to be determined by the court as a matter of law where a dispute exists concerning the affected fiduciary duty.18 The importation into Arkansas LLCs of these new fiduciary duties and the undefined standard by which the performance of these duties, if altered, is to be judged will likely present novel issues and require interpretation by Arkansas courts.

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It should be noted that these fiduciary duties will apply in the governance of an LLC whether it was formed under the Old Act or under the New Act; thus, it is important for practitioners, if they haven’t already done so, to promptly address the issues in drafting operating agreements for any newly-created LLCs, and to also bring these matters to the attention of their clients with LLCs created under the Old Act in order to determine whether it would be advisable to take any steps by amending pre-existing operating agreements to modify or limit, to the extent permissible under the New Act, such nonwaivable fiduciary duty provisions now applying to all Arkansas LLC operating agreements.

The Old Act’s handling of duties of the members or managers could be characterized as “ultra-contractarian”—the view that the obligations members and managers owed to one another could be altered or rejected through the “freedom of contract.” This approach traditionally has been attractive to parties working with legal counsel experienced in defining the business relationships among the members and, where applicable, between the managers and the members. For example, subject to a contrary provision in the operating agreement, the Old Act provided that members and managers were not liable to one another “in damages or otherwise” for any act or omission unless it “constitute[d] gross negligence or willful misconduct.”19 The Old Act also did not articulate a fulsome duty of loyalty or an obligation of good faith and fair dealing. Critics of the Old Act, however, have noted that this failure to address in full the fiduciary duty of loyalty and duty of care applicable to members and managers could facilitate an abuse of power by persons with management authority.20 The New Act spells out the following duties that will now arise by default upon members in a member-managed LLC under the New Act: 1. Duty of Loyalty: “A member of a member-managed limited liability company owes to the company and . . . the other members the duties of loyalty and care.”

Under the New Act, the fiduciary duty of loyalty of a member in a member-managed limited liability company includes the duties: (1) to account to the company and to hold 24

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as trustee for it any property, profit or benefit derived by the member: (i) in the conduct or winding up of the company’s activities and affairs; (ii) from a use by the member of the company’s property; or (iii) from the appropriation of a company opportunity; (2) to refrain from dealing with the company in the conduct or winding up of the company’s activities and affairs as or on behalf of a person having an interest adverse to the company;21 and (3) to refrain from competing with the company in the conduct of the company’s activities and affairs before the dissolution of the company.22 2. Duty of Care: “The duty of care of a member of a member-managed limited liability company in the conduct or winding up of the company’s activities and affairs is to refrain from engaging in gross negligence, recklessness, willful misconduct or knowing violation of law.”23 3. Obligation of Good Faith and Fair Dealing: “A member shall discharge the duties and obligations under this title or under the operating agreement and exercise any rights consistent with the contractual obligation of good faith and fair dealing.”24 Counterpart provisions likewise apply to manager-managed LLCs.25 Furthermore, the New Act limits the ability of members to modify these default duties, which is a significant departure from the freedom of contract approach afforded under the Old Act. The New Act does permit parties to an operating agreement to alter the statutory default rules concerning these duties, but in most cases, only to the extent such changes are not “manifestly unreasonable.”26 For example, the duty of loyalty (including the duty to refrain from competition) may be altered only to the extent not manifestly unreasonable. Additionally, the obligations between members of good faith and fair dealing may not be eliminated, but the operating agreement may provide standards by which the obligation is judged.

Although there appear to be no cases from other jurisdictions squarely deciding what the term “manifestly unreasonable” means in the context of the RULLCA, at least one court, in a case arising in a bankruptcy proceeding, addressed the meaning of that term arising in the context of the Revised Uniform Partnership Act, stating essentially that in the absence of other guidance the

court would simply have to use its common sense in defining the term.27 Unless other courts further define the meaning of this term in the context of the RULLCA in the interim, Arkansas courts may be faced in the future with interpreting what is and what is not “manifestly unreasonable” within the context of LLC members and managers and their relationships to each other, with no guidelines other than the court’s “common sense.”

Mandatory Information Disclosures While the New Act will replace many parallel provisions in the Old Act, in some cases, it will establish entirely new obligations for members and managers. For example, the New Act requires that an LLC “furnish to each member . . . without demand, any information concerning the company’s activities, affairs, financial condition, and other circumstances which the company knows and [that] is material to the proper exercise of the member’s rights and duties under the operating agreement or [the New Act], except to the extent the company can establish that it reasonably believes the member already knows the information . . . .”28 The Old Act included no such explicit obligation.29 Instead, the Old Act provided any member the right, upon reasonable request, to “inspect and copy . . . any limited liability company record, wherever the record is located.”30 It remains to be seen whether this open-ended responsibility to provide all information, without request of a member, that the Company knows, and that is material to a proper exercise of a member’s rights and duties under the operating agreement or the New Act, will invite litigation against managers and managingmembers of Arkansas LLCs for the failure to fully furnish each member all “material” information relevant to such member’s rights and duties.31 Expulsion of a Member The New Act will also bring a new ability to expel a member where an LLC’s operating agreement is silent. Under the Old Act, absent written agreement, a person would cease to be a member under a narrow set of circumstances,32 and courts were limited to dissolving an LLC entirely where it was “not reasonably practicable to carry on the

business of the [LLC] in conformity with the operating agreement.”33 The New Act permits the expulsion of a member “by an affirmative vote or consent of all the other members” in the event conducting business with an existing member would be illegal. Additionally, under the New Act, any member may petition a court to expel another member where the member has engaged in wrongful conduct, has committed a material breach of the operating agreement, or has engaged in conduct that makes it impracticable to carry on the activities and affairs of the company with the person as a member.34 Operating Agreement May be Unwritten According to one commentator, one quirk of the Old Act is the requirement that an LLC maintain a written operating agreement without (i) any requirements as to its contents or (ii) clear guidance regarding the consequences for the failure of an LLC to have one.35 By contrast, the New Act defines an “operating agreement” as the “agreement, whether or not referred to as an operating agreement and whether oral, implied, in a record, or in a combination thereof, of all the members of a limited liability company, including a sole member” regarding the governance of the LLC.36 Thus, it would be possible under the New Act for Arkansas LLC members and managers operating under a simple form of written operating agreement under the Old Act, but who currently operate day to day under the convenience of “handshake” understandings among the members, to possibly have those informal understandings automatically engrafted upon the written agreement without any required affirmative action on the part of the members or managers.37 The practical counseling point here, obviously, is that oral agreements may have wide variances between the parties regarding their interpretation, and that the interests of all parties will be best protected when a written agreement is put in place that requires all amendments or other understandings, including amendments, to be in writing and signed by the members, and that clearly spells out the conduct required and the relationships among the members, inter se, and between the managers and the members.

Conclusion For all LLCs organized under Arkansas law, it is a fact that operating agreements and the duties and relationships between the members in a member-managed LLC and the members and the managers in a managermanaged LLC have already changed, effective September 1, 2021, whether or not the members and managers intended or agreed to make the changes. With a practitioner’s eye on the New Act’s many default rules, Arkansas attorneys should revisit existing LLC operating agreements and address these new rules with clients and ensure that, if appropriate, clients’ operating agreements are promptly amended (i) to clearly provide for alternatives to the default provisions of the New Act38 that are not viewed as appropriate for the clients’ business expectations, other than the nonwaivable fiduciary duties required by the New Act, and (ii) to expressly alter the default standards regarding the fiduciary duties and obligations prescribed in the New Act in a permissible way, all the while being cautious regarding what may constitute “manifestly unreasonable” alterations or changes.

Endnotes: 1. See SB601: To Repeal The Small Business Entity Tax Pass Through Act; And To Establish The Uniform Limited Liability Company Act, Ark. State Legis., available at https://www. arkleg.state.ar.us/Bills/Detail?id=SB601&d dBienniumSession=2021%2F2021R (last accessed May 13, 2021); see also Limited Liability Company Act, Revised, Uniform Law Commission, available at https://www. uniformlaws.org/committees/communityhome?CommunityKey=bbea059c-68534f45-b69b-7ca2e49cf740 (last accessed May 13, 2021).

2. Ark. Code Ann. § 4-32-101 et seq.

3. Codified as Ark. Code Ann. § 4-38-101 et seq.

4. See Limited Liability Company Act, Revised, Uniform Law Commission, available at https://www.uniformlaws. org/committees/communityhome?communitykey=bbea059c-6853-4f45b69b-7ca2e49cf740&tab=groupdetails (last accessed May 21, 2021).

5. See Trends in New Business Entities: 30 Years of Data, Berman Solutions (Feb. 24, 2021), available at https://www. berkmansolutions.com/articles/entities/30-

years-of-new-business-entities.

6. Ark. Code Ann. § 4-38-110.

7. Why Your State Should Adopt the Uniform Limited Liability Company Act ULLCA (2006) (Last Amended 2013), Uniform Law Commission, available at https:// www.uniformlaws.org/HigherLogic/ System/DownloadDocumentFile. ashx?DocumentFileKey=36ed703c-12ad070f-fa01-64010b1dabb6&forceDialog=0 (last accessed May 13, 2021).

8. See Mary Elizabeth Matthews, The Arkansas Limited Liability Company: A New Business Entity Is Born, 46 Ark. L. Rev. 791, 792–93 (1994).

9. Id. at 796.

10. Ark. Code Ann. § 4-38-105(a).

11. Ark. Code Ann. § 4-38-105(e)(5).

12. Ark. Code Ann. § 4-38-409(b).

13. Ark. Code Ann. § 4-38-409(c).

14. See K.C. Properties of N.W. Arkansas, Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 280 S.W.3d 1 (2008).

15. For example, in a member-managed LLC, each member now has fiduciary duties to all other members. See Ark. Code Ann. § 4-38-409(a).

16. See, e.g., Ark. Code Ann. § 4-38105(e)(5); Ark. Code Ann. § 4-38-105(f).

17. Ark. Code Ann. § 4-38-105(e)(6).

18. Ark. Code Ann. § 4-38-105(g).

19. Ark. Code Ann. § 4-32-402(1).

20. Carol Goforth, Making the Case for the Uniform Limited Liability Company Act (2013) in Arkansas, 40 U. Ark. Little Rock L. Rev. 187, 200 (2017).

21. It is a defense to a claim under clause (b)(2), and any comparable claim in equity or at common law, that the transaction was fair to the limited liability company. See Ark. Code Ann. § 4-38-409(g).

22. Ark. Code Ann. § 4-38-409(b).

23. Ark. Code Ann. § 4-38-409(c).

24. Ark. Code Ann. § 4-38-409(d).

25. Ark. Code Ann. § 4-38-409(i).

26. Ark. Code Ann. § 4-38-105(e)(6); Ark. Code Ann. § 4-38-105(f)(3).

27. See In re Brobeck, Phleger & Harrison L.L.P., 408 B.R. 318, 335 (Bankr. N.D. Cal 2009), also cited in the Commentary to Section 105(e) of the RULLCA: “RUPA [UPA (1997)] does not define what is ‘manifestly unreasonable’ and the parties have not cited, nor can the court locate, a decision that defines the term. Absent case law or even a dictionary definition, the court must rely on its common sense to recognize

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something as manifestly unreasonable.”

The Commentary to Section 105(e) of the RULLCA, which was not adopted in the New Act, also includes an extended discussion of the term as used in subsection (e) and recommends the process that should be followed in determining the meaning of the term in the specific context of a court proceeding where the term is relevant to the issues in the particular case.

28. Ark. Code Ann. § 4-38-410(a)(2)(A).

29. Note, however, that Arkansas’ Uniform Partnership Act has established this affirmative disclosure obligation in the case of a partnership. See Ark. Code Ann. § 4-46403.

30. Ark. Code Ann. § 4-32-405(b).

31. Revised Uniform Limited Liability Company Act § 410(a)(2) CMT. (Unif.

Law Comm’n 2014) (The comment to the RULLCA regarding this subsection clarifies that “[t]his paragraph imposes a duty on the limited liability company, not the members who manage the LLC. However, a member could be liable in damages if the member were to: (i) breach a duty under Section 409 or the operating agreement; and (ii) in doing so cause or suffer the LLC to breach the duty

26

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stated in this paragraph.”).

32. See Ark. Code Ann. § 4-32-805 (including, among other things, in the event the member files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors, or a member’s death).

33. See Ark. Code Ann. § 4-32-905.

34. See Ark. Code Ann. § 4-38-602(6).

35. Carol Goforth, Making the Case for the Uniform Limited Lability Company Act (2013) in Arkansas, 40 U. Ark. Little L. Rev. 187, 198 (2017) (“As to the contents of the agreement, a careful perusal of the statute does not indicate that anything has to be in the required agreement. As for the consequences of not having one, other than the obvious result that the statutory default rules will then control the relationship of the parties and the operation of the business, there also appears to be no specified consequence for not following the explicit statutory mandate.”).

36. Ark. Code Ann. § 4-38-102(3).

37. See Goforth, supra note 35, at 199.

38. See Ark. Code Ann. § 4-38-105(a). ■

The Arkansas Bar Association thanks the Wilson Law Group for donating proceeds from the Wilson Law Group CLE Program in October.

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Members who have served in the military Thomas E. Allen

Sam Gibson

Henry N. Means, III

John Cecil Shane

Overton Anderson

Martin G. Gilbert

Russ Meeks

William F. Sherman

Philip S. Anderson

John P. Gill

James W. Moore

Brenda Simpson

James A. Badami

Morton Gitelman

George B. Morton

Damon C. Singleton

Frank Bailey

Paul Leo Giuffre

J. R. Nash

Berl S. Smith, Jr.

Judge Harry Barnes

James C. Graves

Edward Nelson

James E. Smith, Jr.

Marilyn Dearien Barton

Ron Griggs

Judge David Newbern

Judge Kim Smith

Fines F. Batchelor, Jr.

Judge Wayne Gruber

Frank B. Newell

Richard H. Smith

Jonathan W. Beck

Will Gruber

Jim Nickels

Richard S. Smith

Joe Benson

Thomas P. Guarino

Richard C. Ourand, Jr.

Scott E. Smith

Ed Bethune

Judge David F. Guthrie

Hugh Overholt

Thomas Streetman

Allen W. Bird II

Don F. Hamilton

William L. Owen

William R. Stringfellow

Sam N. Bird

Stuart W. Hankins

Eudox Patterson

Judge John F. Stroud, Jr.

Judge Denzil Keith Blackman

Judge Eugene S. “Kayo” Harris

Walter Paulson

Paul Suskie

Daniel C. Blaney

Dave Wisdom Harrod

Leon Francis Pesek, Sr.

William L. Terry

John Dudley Bridgforth

Dick Hatfield

Ellis Lamar Pettus

Marvin Dell Thaxton Sr.

Charles A. Brown

William D. Haught

David Dero Phillips

Corey E. Thomas

Major Natalie G. Brown

Dr. Morriss Murphey Henry

George E. Pike, Jr.

F. Mattison Thomas III

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Robert L. “Skip” Henry

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William Jackson Butt, II

Donald C. Hill

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Donald E. Prevallet

Judge Rice VanAusdall

Jennifer Carlisle

James W. Hyden

Brian D. Rabal

Magistrate Judge Joe Volpe

Charles L. Carpenter, Sr.

Greg S. James

Gordon S. Rather, Jr.

George Christopher Walthall

Charles L. Carpenter, Jr.

C. Cole Jeffries, Jr.

Herbert Lynn Ray

Stan L. Warrick

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Edward P. Jones

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Edward Ward

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Dewey Watson

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Robert L. Jones, Jr.

Andy Rittenhouse

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Dak Kees

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Joseph M. Kraska

Fred Roberson

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Tim Leathers

Allen P. Roberts

Wayne Williams

Judge Gerald K. Crow

John C. Lessel

William S. Robinson

Judge Billy Roy Wilson

F. Thomas “Tom” Curry

Fletcher C. Lewis

Adam Rose

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Stark Ligon

James (Jim) A. Ross, Jr.

Jeffery D. Wood

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Chester C. Lowe, Jr.

Herb Rule

Daniel H. Woods

Greg Downs

William A. Martin

Judge David L. Rush

Judge Wm. Randal Wright

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Phillip A. McGough

Thomas S. Russell

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This list of Arkansas Bar Association members who have served and continue to serve in the United States military is published to honor and remember their service. A full list with more detail on each member’s service can be found online at www.arkbar.com/for-attorneys/publications/the-arkansaslawyer. The list was compiled from members’ contributions and is not inclusive. If you know of someone who should be included in future publications, please contact the editor.

Allen

Anderson O.

Anderson P.

Badami

Bailey

Barnes

Batchelor

Beck

Benson

Bethune

Bird A.

Bird S.

Blackman

Bridgforth

Brown, N.

Burch

Butt

Buttry

Camp

Carlisle

Carroll

Cavaneau

Chadick

Curry

Dixon

Dodd

Downs

D. Elliot

Cherry

Clark

Estes B.

Everett

Coulter

Fendler

Crow

Gibson

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Gilbert

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Gill

Gitelman

Giuffre

Graves

Griggs

Gruber Wa.

Gruber Wi.

Guarino

Guthrie

Hamilton

Hankins

Harrod

Hatfield

Haught

Henry, M.

Henry, R.

Hill

Hobbs

Hyden

James

Jones E.

Jones R.

Kees

Kraska

Leathers

Ligon

McNeil

Meeks

Lowe

Martin

Moore

Morton

Paulson

Rather

McGough

McCay

McKenzie

McMath

McMenis

Nash

Nelson

Newbern

Newell

Ourand

Overholt

Owen

Pesek

Pettus

Phillips

Pike

Pittman

Plastiris

Powell

Rabal

Ray

Reid

Rhodes

Rittenhouse

Ritter

Roberson

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Judge Ralph Wilson receives the “Community Service Award” from Judicial Council Pres. Kim Smith.

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Hon. Ralph Wilson received the “Community Service Award”. The award is presented each year to a judge that is chosen by his/her peers for off the bench activities in service to the community.

Judge Wilson has served as President of Osceola Chamber of Commerce, President of Osceola Kiwanis Club, and on the Osceola School Board. He has been a Cubmaster in Osceola, and has 1. Publication Title

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Judge Wilson has been a circuit judge for the 2nd Circuit, which Thaxton Thomas C. Turner includes six counties and nine courthouses, since 1989.

Judicial Council Officers and Board members that served during the 2006-2007 term: (seated: left to right) Judge Rice Van Ausdall, Judge Lance Hanshaw, Judge Alan Epley. (Standing: left to right) Judge Vann Smith, Judge Ellen Brantley, Judge Jim Spears, Judge Don Glover, J.D. Gingerich, Judge Kim Smith, Judge Carol Anthony, Judge John Fogleman and Judge Joe Griffin. (Not pictured, Judge John Pittman.)

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The Bank is Open for Collegiate Student-Athletes What You Should Know About Name, Image and Likeness

By Judy Simmons Henry and Collins Hickman

Judy Henry serves in management of Wright Lindsey Jennings as its business litigation chair. Henry has led the charge for NameImage-Likeness/Publicity Rights representation of businesses and athletes in Arkansas and regionally.

Collins Hickman is an associate attorney who joined Wright Lindsey Jennings in 2020. He supports clients as a member of the firm’s sports law team focusing on Name-Image-Likeness regulations. **For more information on the authors' bios, please see the endnotes.

Henry 32

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June 30, 2021, July 1, 2021, and January 1, 2022—these three dates have and will alter the landscape of collegiate athletics in Arkansas and elsewhere as we’ve known it for the last century. But first, let’s roll backward to 2019. The amateur sports world was calmer, although a soft roar of collegiate athletes’ voices was rumbling across the nation.1 By summer of 2020, student-athletes were chanting loudly to lift the NCAA ban on their “right to work.”2 Claims of disparate treatment among college students and profiteering at the expense of student athletes were the heartcries of the movement. But athletes were unable to muster enough force to impact the rigid NCAA regulation prohibiting payments to most amateur collegiate athletes.3 Undeterred, student-athletes, their parents and in some instances, coaches and athletic directors of institutions of higher education took their concerns to state legislators, who listened.4 By summer 2021, the movement had reached its peak.

A few states’ newly-passed laws giving athletes more control over their publicity rights were on the verge of becoming effective on July 1, 2021.5 The NCAA was now under immense pressure to address its conflicting bylaw prohibiting work compensation for athletes. The NCAA’s initial hope was that Congress would pass a federal law to make a uniform solution to its impending problem.6 However, after a pair of Senate hearings in June 2021, it was clear that no federal law was on the immediate horizon.7 And around this same time, the Supreme Court of the United States struck down the NCAA’s rules that limited the amount of education-related benefits that schools could provide to their student-athletes in National Collegiate Athletic Association v. Alston.8 With the unfavorable ruling in Alston, the NCAA was concerned that antitrust liability would result if it issued a blanket restriction on compensation rights for student-athletes.9 Backed into a corner, the NCAA had no choice. Its actions on June 30, 2021, will forever be recognized as a monumental day in collegiate sports.

“Until Congress eventually steps in and provides a uniform federal law pertaining to NIL work transactions, individual state laws, higher education requirements, and NCAA regulations will continue to evolve and govern. For now, the only certainty is that there is no turning back—NIL transactions are here to stay.”

On this date, just one day before state laws were to go into effect, the NCAA’s Board of Directors approved a “temporary” policy that allowed student-athletes nationwide to begin profiting from the sale of their name, image, and likeness (NIL) beginning on July 1, 2021.10 With the prohibitions officially lifted, some athletes took immediate advantage of their newly-minted NIL rights as the clock struck midnight.11 As stories of student-athletes partnering with businesses to use their NIL in exchange for payment made the front-page headlines, the result of this monumental change in collegiate athletics was becoming a reality.

Just as the NIL era arrived in dramatic fashion, so too did questions. Without many answers being readily available, some coined the NIL developments as the “Wild, Wild West” of the sports world.12 But, after a few months in, some of the dust has settled. So, what should you know?

While the NCAA relented and relaxed its athlete work compensation prohibition, it kept in place companion restrictions prohibiting both “pay for play” and recruitment incentives.13 The NCAA also prohibited athletic performance from being the “consideration” for NIL compensation, meaning that some “work” is required of the student-athlete.14 Additionally, academic institutions cannot provide compensation to student-athletes in exchange for use of their NIL.15 But other than these prohibitions, the NCAA essentially stepped back and joined the masses as a sideline spectator of

what is to come in this new NIL world.

As its parting act, the NCAA placed the responsibility on colleges and universities to police NIL activities in light of their own state’s law.16 For schools in states without effective state laws, each higher education institution could publish its own guidelines until such state law is enacted or becomes effective.17 Arkansas falls into this latter category of states.

Primer of New Arkansas Law Arkansas’ NIL law, named the Arkansas Student-Athlete Publicity Rights Act, passed in April 2021, becomes effective January 1, 2022.18 The Act allows student-athletes to earn compensation for the commercial use of their publicity rights.19 In other words, a business may contract with a student-athlete to use that athlete’s name, voice, signature, photograph, or likeness in conjunction with the promotion of the business’ products, goods, or services.20 While schools remain free to establish and enforce academic standards, team rules, and disciplinary guidelines,21 institutions and athletic conferences generally may not prevent or penalize student-athletes for receiving compensation for the commercial use of these personal assets.22 Notably, the Act’s definition of a “studentathlete” limits the right to profit from their NIL to those enrolled at an institution of higher education who are eligible to engage in a varsity athletic program at the institution.23 High school athletes, at

least in Arkansas, must still ask family for money rather than the local car dealership, restaurant, or other business.

The Act expressly provides some logical restrictions of which businesses and athletes should be aware. For example, an NIL contract may not require a student-athlete to promote a business or product during a game, practice, or other team-related activity.24 Student-athletes also may not promote certain prohibited products, such as alcohol, firearms, and drugs, to name a few.25 Any NIL deal that conflicts with a contract, policy, rule, regulation, or standard of the school where the athlete attends will be deemed void and unenforceable.26 A transaction involving the student-athlete’s performance or lack of performance in an athletic competition is likewise off limits.27 Importantly for the schools, the Act also does not provide a blanket waiver for student-athletes to use the college or university’s intellectual property.28 Generally, the school’s written consent must be given prior to the student-athlete appearing in an NIL activity sporting the jersey, colors, logos and other trademarks of their school and team.29 The Act now allows student-athletes to hire attorneys licensed in Arkansas, among others, to represent their interests in NIL dealings.30 An attorney serving in this representative capacity is tasked with complying with the disclosure requirements of the student-athlete’s school related to NIL contracts.31 The Act expressly requires

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that every NIL contract be provided to the respective university where the studentathlete attends.32 If the attorney fails to follow the university’s disclosure rules, it could be an expensive mistake. The Act allows the school or student-athlete to bring a cause of action against a representative in certain circumstances.33 Specifically, a representative may be liable for punitive damages, attorneys’ fees, and other costs of litigation for causing either the university or student-athlete to lose eligibility or suffer financial harm.34 Just as with any practice area, knowing the NCAA regulations, Arkansas law, and each institution’s rules is essential.

“Temporary” Guidelines Since Arkansas’ Act is not effective until January 1, 2022, many Arkansas colleges and universities have established NIL compliance guidelines for representation and transactions in the gap period, July 1 to December 31, 2021. And as you probably guessed, these institutional rules are not uniform.

While many collegiate rules mirror the provisions set forth in the Act, there are some subtle but important differences among the schools. A major difference is found in the disclosure requirements for representation agreements, proposed contractual terms, actual NIL agreements, and ads for goods and services. While these policies may appear to be temporary, the Act provides that Arkansas universities will retain the authority to designate the time period and manner of when the disclosure of the NIL transactions should be made.35 Because of this permission, and the fact that the Act does not provide for these disclosures, a continual review of each institution’s rules is essential. And beware—these rules are subject to change at any time.

What’s Missing?

While the Act regulates who can work and provides for some control over the reporting processes, it doesn’t address either equity or quality of the work transactions. Even though there is typically disparate experience on the sides of the NIL transaction, and substantial room for businesses to take advantages of inexperienced or unrepresented student-athletes, the Arkansas 34

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law, which is drafted heavily in favor of the student, allows the market to dictate which students get NIL opportunities and the fairness, or lack thereof, of the deal.

What’s Next?

As recently as September 29, 2021, the general counsel for the National Labor Relations Board (NLRB) issued a memorandum that declares certain studentathletes as “employees” of their schools.36 This development affords those athletes numerous protections under the labor laws.

While the NLRB only has jurisdiction over private universities, the NLRB has fired a shot declaring that it “will consider pursuing charges [for violations of the National Labor Relations Act] against an athletic conference or association even if some member schools are state institutions.”37 What the NLRB has in mind for states like Arkansas, where its Act specifically provides that students are not deemed employees of their school, is unsettled at this time.38 Until Congress eventually steps in and provides a uniform federal law pertaining to NIL work transactions, individual state laws, higher education requirements, and NCAA regulations will continue to evolve and govern. For now, the only certainty is that there is no turning back—NIL transactions are here to stay.

Endnotes: 1. Colin Dwyer, NCAA Plans To Allow College Athletes To Get Paid For Use Of Their Names, Images, NPR (Oct. 29, 2019), https://www. npr.org/2019/10/29/774439078/ncaa-startsprocess-to-allow-compensation-for-collegeathletes.

2. Tom VanHaaren, Pac-12 Football Players Show Unity, List Demands in Letter to Conference, ESPN (Aug. 2, 2020), https:// www.espn.com/college-football/story/_/ id/29583023/pac-12-football-players-showunity-list-demands-letter-conference.

3. NCAA responds to California Senate Bill 206, NCAA (Sept. 11, 2019), https://www. ncaa.org/about/resources/media-center/ news/ncaa-responds-california-senatebill-206.

4. Sarah Kellogg, House Committee Advances Bill Allowing Arkansas College Athletes to Make Money Off Publicity Rights, KUAR (Mar. 23, 2021), https://www.

ualrpublicradio.org/post/house-committeeadvances-bill-allowing-arkansas-collegeathletes-make-money-publicity-rights.

5. Jada Allender, The NIL Era Has Arrived, Harv. J. Sports & Ent. L. (July 1, 2021), https://harvardjsel.com/2021/07/the-nilera-has-arrived-what-the-coming-of-july1-means-for-the-ncaa/. (Texas, Alabama, Florida, Georgia, Mississippi, and New Mexico had NIL laws going into effect on July 1, 2021, as of June 30, 2021, with two states, Kentucky and Ohio, having executive orders becoming effective on July 1st).

6. Sam Cooper, A New Era: NCAA Approves Change to Allow Name, Image and Likeness Payments for College Athletes, Yahoo Sports (June 30, 2021), https://sports.yahoo.com/ ncaa-takes-next-step-toward-nil-paymentswith-rule-change-expected-to-pass-onwednesday-203631607.html.

7. Alan Blinder, Hopes Fade for Imminent Federal Deal on College Athletes, Pressuring N.C.A.A., N.Y. Times (last updated Sept. 29, 2021), https://www.nytimes. com/2021/06/17/sports/ncaafootball/ncaafederal-bill.html.

8. 141 S. Ct. 2141 (2021).

9. Andrew Brandt, Business of Football: The Supreme Court Sends a Message to the NCAA, Sports Illustrated (June 29, 2021), https://www.si.com/nfl/2021/06/29/ business-of-football-supreme-courtunanimous-ruling.

10. NCAA, Interim NIL Policy (2021).

11. Dan Murphy, Let’s Make a Deal: NCAA Athletes Cashing in on Name, Image and Likeness, ESPN (July 1, 2021), https:// www.espn.com/college-sports/story/_/ id/31738893/ncaa-athletes-cashing-nameimage-likeness.

12. Khristopher J. Brooks, It’s the “Wild, Wild West” for Companies Hoping to Monetize College Athletes, CBS NEWS (July 30, 2021), https://www.cbsnews.com/news/nilcollege-athletes-collegiate-sports-ncaa/.

13. See NCAA, supra note 7.

14. Name, Image and Likeness Policy: Question and Answer, NCAA (July 1, 2021), https://ncaaorg.s3.amazonaws.com/ncaa/ NIL/NIL_QandA.pdf.

15. Id. 16. See generally NCAA, supra note 7.

17. Id. 18. H.B. 1671, 93rd Gen. Assemb., Reg. Sess. (Ark. 2021).

CONGRATULATIONS Cliff Gibson On his 40th Anniversary In the Practice of Law

We’re proud to celebrate this achievement with you and thank you for your commendable integrity, character and leadership in the legal profession and the community.

Arkansas lawyer Cliff Gibson founded the Monticello law firm of Gibson & Keith in 1981.

During the ensuing 40 years he and the other lawyers of the firm have provided legal services to many of the people, businesses, and the state and local governments of Arkansas.

In addition to an active law practice as a private attorney, Deputy Prosecuting Attorney and County Attorney, Gibson has served five times as a Special Justice of the Arkansas Supreme Court, and has conducted legal education seminars for other attorneys and had his writings published in legal periodicals. He has also served in the House of Delegates of the Arkansas Bar Association, and is the 2020 recipient of the James McKenzie Professionalism Award of theArkansas Bar Association and Arkansas Bar Foundation Awards Committee.

Gibson supports his community and state through his church and by his current service on the University of Arkansas Board of Trustees. Over the years, he has served on numerous boards of charitable and community organizations, and he continues to be active in business as a Director of Commercial Bank & Trust Company and through construction and farming interests.

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19. Ark. Code Ann. § 4-75-1303(a) (2021) (effective Jan. 1, 2022).

20. Ark. Code Ann. § 4-75-1302(1)(A).

21. Ark. Code Ann. § 4-75-1307(a)(4) (A)–(D).

22. See Ark. Code Ann. § 4-75-1303(a)– (d).

23. Ark. Code Ann. § 4-75-1302(7)(A).

24. Ark. Code Ann. § 4-75-1304(a)(1).

25. Ark. Code Ann. § 4-75-1307(b).

26. Ark. Code Ann. § 4-75-1304(a)(2), (b).

27. Ark. Code Ann. § 4-75-1304(a)(3).

28. Ark. Code Ann. § 4-75-1307(a)(3).

29. See Name, Image, Likeness, Univ. of Cent. Ark., https://ucasports.com/ sports/2021/7/1/nil.aspx (last visited Oct. 4, 2021); Regulations, Ark. State Univ., https://astateredwolves.com/sports/ 2021/8/3/nil-regulations.aspx (last visited Oct. 4, 2021).

30. Ark. Code Ann. § 4-75-1305(a).

31. Ark. Code Ann. § 4-75-1306(b)(1)–(2).

32. Ark. Code Ann. §4-75-1306(b)(1).

33. Ark. Code Ann. § 4-75-1308.

34 .Ark. Code Ann. § 4-75-1308(a)(2) (A)–(B).

35. Ark. Code Ann. § 4-75-1306(a)(1)–(2).

36. See Nat’l Lab. Rev. Bd., Memo.

GC 21-08, Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act (Sept. 29, 2021).

37. Id. at p. 9, n. 34.

38. Ark. Code Ann. § 4-75-1307(a)(6). **About the Authors: Judy Henry, a former collegiate gymnast, has been engaged in an active business litigation practice for 33 years and serves in management of Wright Lindsey Jennings as its business litigation chair. Henry is the firm’s sports law group leader, representing D-1 coaches, athletes and, previously, the NCAA. Most recently, Henry has led the charge for Name-Image-Likeness/Publicity Rights representation of businesses and athletes in Arkansas and regionally.

Collins Hickman is an associate attorney who joined Wright Lindsey Jennings in 2020. Hickman has a diverse practice that centers around transactional and commercial litigation matters, as well as estate planning.

He also supports firm clients as a member of the firm’s sports law team focusing on Name-Image-Likeness regulations. ■ 36

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PRESERVE THE JURY TRIAL

2022 ArkBar Legislative Timetable

JANUARY 31, 2022

This is the deadline for submission of legislation to the Jurisprudence and Law Reform Committee.

All proposals must be submitted to Jay Robbins at jrobbins@arkbar.com in bill format no later than January 31, 2022.

JUNE 2022

The Board of Trustees considers the report from the Jurisprudence and Law Reform Committee, and acts upon the recommendation. Up to 10 bills may be selected for Association sponsorship.

One of the most important things the Arkansas Bar Association does each year is represent its members at the Arkansas Capitol during the legislative session. The Association speaks with a unified voice to best represent the interests of the legal community and the profession of law.

Legislative or administrative proposals concerning all matters of jurisprudence and procedure, including reforms of the substantive law and improvement in practice and in administration of the courts, originate with Association members, sections and committees. If proposals are recommended by the Jurisprudence and Law Reform Committee and adopted by the Board of Trustees, they become part of the Association’s Legislative Package.

Deadlines have been established by the Arkansas Bar Association to facilitate consideration and inclusion for the ArkBar’s Legislative Package, and thereby sponsored by the Association. For the 2023 legislative session of the Arkansas General Assembly those deadlines are above.

Please consider becoming a supporting member of the nonpartisan political action committee. The Arkansas Bar PAC is your opportunity to be the change you wish to see. Becoming politically involved is the best way to ensure your voice is heard and that you are part of the solution.

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Live Training for Paralegal Affiliate Members Don’t let your support staff miss out

ArkBar has scheduled the following webinars for its paralegal affiliate members this year (more information on how to join each webinar will be sent closer to each one): December 7: Ethics for Paralegals Presenter Cathy Underwood January 18 – March 8 (every Tuesday during this time at 11:00am): Live Microsoft Word Training with Affinity expert Jeffery Schoenberger April 5: Live Adobe PDF Training with Affinity expert Danielle Davis Roe These webinars are free to all paralegal affiliate members. If you would like your support staff to take advantage of this free training, there is still time to join. Membership is open to any employee of an ArkBar attorney member. Just click here to register: https://www.arkbar.com/for-attorneys/ paralegal.

ArkBar Ad - Half Page.pdf 1 8/17/20 3:35 PM

Creation of Supreme Court of Arkansas Office of Ethics Counsel

By Per Curiam Order issued September 30, 2021, at 2021 Ark. 169 and effective immediately, the Supreme Court of Arkansas established the Office of Ethics Counsel (OEC), adopted rules for operation of the Office, and amended Arkansas Rules of Professional Conduct 1.6 (Confidentiality) and 8.3 (Reporting) to conform to the new OEC operational rules. The purpose of OEC is to provide Arkansas licensed attorneys in good standing and pro hac vice admittees free informational guidance, advice and opinion in the areas of attorney ethical conduct and interpretation of the Arkansas Rules of Professional Conduct for Attorneys at Law. View the Per Curiam at https://opinions.arcourts.gov/ ark/supremecourt/en/513713/1/document.do.

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Arkansas Has Implemented Best Practices to Mitigate Attorney Shortage More Work is Needed to Accommodate Self-Represented Litigants

By Jordan-Bates Rogers Many Arkansas attorneys likely know that there just aren’t enough of us in the state. Arkansas is ranked sixth from last in attorneys per capita, according to a recent American Bar Association report. In recent years, we have even tied for last place.

This lawyer shortage impacts the ability of Arkansans to access the courts. However, the pain isn’t spread evenly. Higher population counties like Pulaski, Washington, and Benton have plenty of attorneys. In fact, these three counties account for the vast majority of all attorneys who reside in the state. Meanwhile, our rural counties are critically underserved. Cleveland County is currently the only Arkansas county with no resident attorneys. However, given the aging of the rural bar, Cleveland County might be joined by more rural counties. This impacts all rural Arkansans, but low-income folks are harmed the most, because attorneys tend to focus their pro bono efforts where they live and work.

In response to this attorney shortage, Arkansas has done an outstanding job of adopting policies to facilitate pro bono service and improve access to attorneys.

According to the Justice Index, a report compiled by the National Center for Access to Justice, Arkansas ranks 8th in the nation in attorney access. This ranking is based on factors like whether a state: provides a right to counsel in certain cases, relaxes rules to make pro bono service easier, and reports data about the need for pro bono service.

Among other things, Arkansas gets points for: • Encouraging attorneys to provide 50 hours of pro bono service; • Permitting judges to encourage pro bono service; • Waiving licensure requirements for outof-state attorneys, retired attorneys, and inactive attorneys who provide only pro bono services; 40

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• Allowing attorneys to earn CLE credit for pro bono work; and • Authorizing limited scope representation.

This ranking is thanks to years of collaboration among partners, including the Arkansas Supreme Court, the Arkansas Bar Association, legal aid, and many others.

As we celebrate our achievements in improving access to attorneys, we must also start the work of providing better access to our courts for those without a lawyer.

The sad reality is that there will always be court users who don’t have an attorney.

Approximately 658,464 Arkansans earn so little that they can’t meet the basic needs of life and, therefore, qualify for legal aid.

However, with just 59 legal aid attorneys in the state, legal aid simply can’t meet the need. Neither can pro bono service.

As important as pro bono work is, with 6,808 resident attorneys and hundreds of thousands of Arkansans qualified for legal aid, no pro bono program can ensure that every low-income Arkansan with a legal problem will be served by a lawyer.

With that reality in mind, we should build a court system that allows every Arkansan to access justice, regardless of whether they have an attorney representing them. The Justice Index provides some solutions, including: • Providing plain language court forms for common case types, such as divorce, child support modification, eviction, etc.; • Establishing a statewide self-help center which can be accessed remotely; • Simplifying and explaining the fee waiver process; • Seeking feedback from self-represented litigants to help improve court procedures; • Permitting cell phones in courts to allow for presentation of relevant evidence; and • Offering text message reminders for hearings.

Some of these recommendations are ambitious, but bold action is required to

close the justice gap. While implementing some of these reforms might be challenging, it is achievable. This can be seen in the number of states that have already adopted some of the reforms. Fifteen states collect feedback from self-represented litigants on court services, 17 states have policies allowing cellphones in courts, and nine states offer text message reminders of hearings or appointments. These aren’t just better-resourced and larger states either. For example, five of the six states that neighbor Arkansas have already created at least some plain language forms for common case types.

Montana, an even less populous state than Arkansas, has adopted reforms that make the fee waiver process easier.

The bottom line is that Arkansas can do this. We have shown that we have the compassion and willingness to adopt reforms to improve attorney access and facilitate pro bono service. We can and should do the same to make our courts easier to navigate for those who will not get access to an attorney.

The following sources were used in preparation of this article: Profile of the Legal Profession 2021, A.B.A. (July 2021), https://www.americanbar.org/content/dam/ aba/administrative/news/2021/0721/polp. pdf; ABA Profile of the Legal Profession 2020, A.B.A. (July 2020), https://www. americanbar.org/content/dam/aba/ administrative/news/2020/07/potlp2020. pdf; https://www.americanbar.org/content/ dam/aba/administrative/news/2021/0721/ polp.pdf; Attorney Access, National Center For Access To Justice (2021), https:// ncaj.org/state-rankings/2020/attorneyaccess; Arkansas State Profile, Legal Services Corporation, https://www.lsc. gov/node/1102; and Self-Representation, National Center For Access To Justice (2021), https://ncaj.org/state-rankings/2020/ self-representation. ■

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Attorney Disciplinary Actions Final actions from July 1, 2021 – September 30, 2021, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online through the Judiciary website by checking under “Opinions and Disciplinary Decisions” using the following link: https://www.arcourts.gov/professional-conduct/opinions.

[The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005.

The “Arkansas” Rules are in effect from May 1, 2005.]

of $50.00, and ordered to pay $850.00 in restitution for his conduct in this matter. For his failure to file a response to the Complaint, he was separately reprimanded and fined an additional $2,500.00. Davis hired Berry to represent her in a domestic relations matter.

Berry set a hearing date with the Court and then failed to appear with his client. Berry failed to communicate with Davis and failed to take action to complete the representation.

REPRIMAND: MORITZ, ASHLEY TOLLESON, of Hope, ABN: 2010026, in Committee Case No. CPC-2021-004, on a complaint by former client Celia Vershay, by Findings & Order issued July 21, 2021, for violations of AR Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 1.4(b), 1.16(d), 1.19(b)(1), 3.2, and 8.4(c), was Reprimanded and assessed costs of $50.00 for her conduct in this matter. Vershay hired Moritz and paid a fee of $1,600.00 to represent her in a bankruptcy matter. Moritz failed to communicate with her client and never filed the bankruptcy petition. Moritz also failed to maintain the file and was unable to return it to her client, but did refund the fee paid by Vershay.

FORD, DANIEL DEMOTTE, of Little Rock, ABN: 2014162, in Committee Case No. CPC-2020-026, on a self-reported complaint, by Findings & Order issued July 21, 2021, for violations of AR Rules 1.1, 3.3(a)(1), 8.4(c), and 8.4(d), was Reprimanded and assessed costs of $50.00 for his conduct in this matter. Ford represented Ronnie Latiolais in a civil case in federal court. Ford failed to properly serve the individual defendants and then failed to comply with the Court’s directive to serve hearing notices on the business defendants.

Ford’s failure to provide documentary evidence of service caused his client’s case to be dismissed. Ford also made false representations to the Court regarding the service and was sanctioned for doing so.

BERRY, ROBERT MILES, of Little Rock, ABN: 96224, in Committee Case No. CPC2021-009, on a complaint by former client Shara Richards, by Findings & Order issued August 17, 2021, for violations of AR Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 8.4(c), was Reprimanded, fined $1,000.00, assessed costs of $50.00, and ordered to pay $1,600.00 in restitution for his conduct in this matter. For his failure to file a response to the Complaint, he was separately reprimanded and fined an additional $1,500.00. Richards hired Berry to represent her in a divorce matter. Berry filed an answer in the case and then failed to communicate with Richards and failed to take any further action to complete the representation.

BERRY, ROBERT MILES, of Little Rock, ABN: 96224, in Committee Case No. CPC2021-010, on a complaint by former client Beth Davis, by Findings & Order issued August 17, 2021, for violations of AR Rules 1.1, 1.3, 1.4(a)(3), 1.16(d), and 8.4(c), was Reprimanded, fined $1,500.00, assessed costs

CAUTION: KLOCK, ROBERT DAVID, of Bentonville, ABN: 76066, in Committee Case No. CPC2020-009, on a complaint by former client Hugo Portillo, by Consent Findings & Order issued August 24, 2021, for violations of AR Rules 1.1 and 1.3, was Cautioned, assessed costs of $50.00, and agreed to pay $7,500.00 in restitution for his conduct in this matter.

Portillo hired Klock to file an asylum application with the Immigration Court.

Klock failed to timely and properly file the application, which resulted in Portillo’s case being dismissed.

KELLEY, KEVIN L., of Dallas, TX, ABN: 2010089, in Committee Case No. CPC2020-014, on a complaint by former clients Lakesia Chandler and Jasmine Davis, by Findings & Order issued September 14, 2021, for violations of AR Rules 1.4(a)(3), 1.8(e), 1.15(a)(1), was Cautioned, fined $1,500.00, and assessed costs of $50.00 for his conduct in this matter. Chandler hired Kelley to represent her daughter in a personal injury matter. Kelley failed to timely inform his clients of the status of the Summary Judgment in their case. Kelley advanced monthly payments to Chandler as financial assistance during the litigation, which was also an improper use of IOLTA funds. ■

Vol. 56 No. 4/Fall 2021 The Arkansas Lawyer

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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.801.5670

HOWLIN’ HOUR

Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period August 1, 2021, through October 31, 2021.

In Memory of W. Christopher Barrier Judy and Glenn Vasser

In Memory of Elaine Scott Hayden and Gordon Rather

In Memory of Winslow Drummond David M. Powell

In Memory of Mrs. Gerry Eilbott Soltz Designated to the R.A. Eilbott, Jr. Scholarship Fund Patti and Michael Jones Janis and Bill Walmsley

In Memory of Roberta Ann Gill Don A. Eilbott

In Memory of Richard A. Stephens Hayden and Gordon Rather

In Memory of Judge Eugene “Kayo” Harris Sherry and Alan Epley Jefferson County Bar Association Rosalind and Kirby Mouser John L. Rush

In Memory of Judge Van Taylor Judge Robert T. Dawson

In Memory of Rogers Cockrill B. Jeffery Pence

In Memory of Donald H. Henry Sherry and Alan Epley In Memory of Alston Jennings David M. Powell

In Memory of Edward L. Wright David M. Powell

Arkansas Bar Foundation Memorial Medallion In Memory of William L Patton, Jr.

In Memory of Robert S. Lindsey David M. Powell In Memory of Frank Newell Judith M. Johnson In Memory of Bobby Odom Judy and Glenn Vasser In Memory of Judge William R. Overton David M. Powell In Memory of William L. Patton, Jr. Hayden and Gordon Rather

Honored by: Donald H. Bacon Tom Baxter William M. Griffin III Jim Simpson Fred Ursery

In Memory of George E. Pike, Jr. Hayden and Gordon Rather In Memory of Judge John Plegge Glenn Jones Hayden and Gordon Rather Sharon and Fred Ursery Mike Wilson 44

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Contributions to Arkansas Bar Foundation Judge Shannon Blatt Judy and Glenn Vasser

(l to r): Judge John N. Fogleman, Laura Partlow Foster, Jim McLarty, Dennis Zolper, Judge Cindy Thyer, and Tom Womack (not pictured: Harry Truman Moore) The Arkansas Bar Foundation held its fourth annual Foundation Friendraiser on October 13, 2021. Thanks to 42 generous sponsors, and the support of other donors and guests from the Bench and Bar, Howlin’ Hour was a great success after its postponement in the fall of 2020. The event was held at the Cooper Alumni Center in Jonesboro at the same time the Arkansas Judicial Council held its fall meeting. Approximately 100 attorneys, judges and guests in attendance enjoyed fellowship, delicious fare, and beverages.

Net proceeds benefit the Arkansas Bar Foundation with 25% of net proceeds designated to the Arkansas Mock Trial Competition to help support travel costs for the winning team to attend Nationals in the Spring of 2022. Many thanks to the Foundation’s Immediate Past President Judge Cindy Thyer for her leadership and the hard-working efforts of the Foundation’s Development Committee: Tom Womack, Chair; Judge John N. Fogleman, Retired; Laura Partlow Foster; Jim McLarty; Harry Truman Moore; and Dennis Zolper.

The Arkansas Bar Foundation is grateful for the support of the Sponsors of Howlin’ Hour 2021.

For a complete listing of the sponsors, please visit our website at: arkansasbarfoundation.com/news

Thank you for your generosity.

in memoriam Judge Eugene “Kayo” Harris of Pine Bluff died August 22, 2021, at the age of 86. Judge Harris graduated from Pine Bluff High School in 1953. He received a Naval Reserve Officer Training Corps scholarship to Duke University in Durham, North Carolina, and graduated with a Bachelor of Arts degree in 1957. Following graduation from University Law School in 1957, Judge Harris entered active duty in the United States Navy for three years.

Years later, he would retire from the Naval Reserves achieving the rank of Commander.

Judge Harris graduated from the University of Arkansas School of Law in 1962. Judge Harris went on to practice law in Pine Bluff for 10 years before being elected to the bench in 1972, at which time he was the youngest trial judge in Arkansas.

Judge Harris retired in 2002 after 30 years of distinguished service to the citizens of Jefferson and Lincoln County.

William L. Patton, Jr., (Bill), of Little Rock died October 21, 2021, at the age of 84. He graduated from Hayward County High School in 1955 and from Davidson College in 1959. Upon graduating from the University of Arkansas School of Law in 1964, Bill was a clerk for Arkansas Supreme Court Judge Sam Robinson and then worked as Assistant Attorney General under Bruce Bennett.

Thereafter, he clerked for Judge Pat Mehaffy on the Eighth Circuit Court of Appeals in St. Louis. In December 1966, he joined the law firm Smith Williams Friday and Bowen, now Friday Eldredge & Clark.

George Ewing Pike, Jr., of Little Rock died October 11, 2021, at the age of 84. He graduated from Hendrix College in 1959 and Harvard Law School in 1962. George served in the U.S. Army National Guard from 1955-1961. He practiced at the law firm Friday, Eldredge & Clark for 29 years before entering solo practice. In 1985, he was inducted into the American College of Trial Lawyers.

John Bertran Plegge of Little Rock died August 5, 2021, at the age of 86. He attended Arkansas Tech and then obtained his Juris Doctorate degree from Arkansas Law School.

He was a graduate of the National Judicial College and the American Academy of Judicial Education. He served as legislative representative in the Arkansas General Assembly from 1971-1972, and was appointed Municipal Traffic Judge by then Governor Bill Clinton in 1986. He was elected as 6th Judicial District, 7th Division, Circuit Court Judge in 1989, where he served until 2002. From 1992-2000 he was appointed to the Arkansas Judicial Discipline and Disability Commission by the Arkansas Supreme Court. In 2003 he was appointed as Supreme Court presiding Special Judge and also joined the firm of Watts, Donovan, and Tilly, P.A.

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