The Arkansas Lawyer magazine Fall 2023

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Inside: Perspectives of Arkansas Lawyers with Physical Challenges Tribute to Members Who Have Served in the Military Robert L. “Bob” Shults Jr. ChatGPT

Vol. 58, No. 4, Fall 2023

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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 Caroline R. Boch Anton L. Janik, Jr. Jim L. Julian Kimberly D. Logue Drake Mann Tyler D. Mlakar Gordon S. Rather, Jr. William A. Waddell, Jr., Chair Brett D. Watson Amie K. Wilcox David H. Williams Nicole M. Winters OFFICERS President Margaret Dobson President-Elect Kristin L. Pawlik Immediate Past President Joe F. Kolb President-Elect Designee Jamie Huffman Jones Secretary Glen Hoggard Treasurer Brant Perkins Parliamentarian Brent J. Eubanks YLS Chair Caroline Kelley BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins Executive Administrative Assistant Michele Glasgow Director of Operations Kristen Frye Finance Administrator/CPA Staci Clark Office & Data Administrator Cynthia Barnes Publications Director Anna Hubbard Administrative Assistance for Events Donyale Morris Business Support Administrator Lisa McCormick 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 2023, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 58, No. 4

features 10 Members Who Have Served in the Military

14 Robert L. "Bob" Shults, Jr.: 1925-2018

By Fred Ursery

18 Perspectives of Arkansas Lawyers with Physical Challenges Written and moderated by Caroline Boch 24 ChatGPT: A Lawyer's Friend or Ethical Time Bomb? Professional Responsibility in the Age of AI

By Devin R. Bates and Sainabou M. Sonko 28 What Should I Do With My IOLTA Account After Leaving Private Practice?

By Jordan Bates-Rogers

34 Defining Legal Fees: An Update After ABA Formal Ethics Opinion 505 (May 2023)

By Stark Ligon

Contents Continued on Page 2

Lawyer The Arkansas Vol. 58, No. 4

in this issue ArkBar News

4, 8

In Memoriam

36

Arkansas Bar Foundation

37

Disciplinary Actions

38

columns President’s Report Margaret Dobson

7

Young Lawyers Section Report Caroline W. Kelley

9

Lawyer

The Arkansas

A publication of the Arkansas Bar Association

Vol. 58, No. 2, Spring 2023

SIDE A Gimme Shelter Five Bagatelles at Law Up Around the Bend

SIDE B Musical Notes Members’ Jam Judicial Harmony A Musical Interlude at Law

Advertise in the next issue of The Arkansas Lawyer https://www.arkbar.com/ about-arkbar/advertising

MUSIC AND THE LAW ISSUE

Board of Trustees

President: Margaret Dobson; President-Elect: Kristin L. Pawlik; Immediate Past President: Joe F. Kolb; President-Elect Designee: Jamie Huffman Jones; Secretary: Glen Hoggard; Treasurer: Brant Perkins; Parliamentarian: Brent J. Eubanks; YLS Chair: Caroline Kelley Trustees: District A1: Geoff Hamby, William M. Prettyman, Timothy R. Scott, Lindsey C. Vechik District A2-A3: Matthew Benson, Evelyn E. Brooks, Jason M. Hatfield, Christopher M. Hussein, Michelle Rene' Jaskolski, Sarah C. Jewell, George 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, John A. Ellis, Bobby Forrest, Michael K. Goswami, Steven P. Harrelson, Michael M. Harrison, Jim Jackson, Anton L. Janik, Jr., Victoria Leigh, William C. Mann III, Skye Martin, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, Molly M. McNulty, Meredith S. Moore, John Ogles, Casey Rockwell, Aaron L. Squyres, Jessica Virden Mallett, Danyelle J. Walker, Brett Austin Whitley, Patrick D. Wilson, Ryan M. Wilson, George R. Wise District C5: William A. “Bill” Arnold, Joe A. Denton, John T. Henderson, Todd C. Watson District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, District C7: Kandice A. Bell, Robert G. Bridewell, Sterling T. Chaney, Taylor A. King Delegate District C8: Carol C. Dalby, Amy Freedman, Connie L. Grace, Wm. Blake Montgomery Ex-officio Members: Judge Mackie Pierce, Judge Chaney W. Taylor, Michael H. Crawford, Dean Cynthia Nance, Dean Colin Crawford, Denise Reid Hoggard, Eddie H. Walker, Jr., Christopher Hussein, Karen K. Hutchins 2

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Vol. 58 No. 4/Fall 2023 The Arkansas Lawyer

3

ArkBar News

Class of 1998 Congratulations to Members Celebrating Their 25th Year of Practice Judge Andrew Jeffery Anglin

Eva Camille Madison

Bruce D. Anible

Judge William D. Martin

Christopher Aaron Averitt

James Matthew Mauldin

Barry D. Baker

Christopher C. May

Judge Stephanie Potter Barrett

George McManus

Joseph H. “Hank” Bates, III

Michelle Bass Miller

Kandice A. Bell

Laura Atchley Mitchell

Judge Shannon L. Blatt

Teri C. Modelevsky

Ryan P. Blue

Dannell Patrick

W. Blair Brady

John G. Phillips

Jennifer Brown

David Bernard Pieper

Michelle L. Browning

Randall K. Pulliam

Judge Beth Storey Bryan

Dennis R. Raebel

Jennifer Brittain Carlisle

Cheryl L. Reinhart

Claire M. Cissell

Malcolm L. Rigsby

R. Jeff Conner

Scott A. Robbins

Russell W. Cook

Jerry D. Roberts

James H. Cooper

Georgia A. Robinette

Stephen Lance Cox

Greg S. Scharlau

Holly Dickson

Harry G. Scoufos, IV

Matthew R. Durrett

Candice A. Settle

Eric B. Estes

Mark Aubrey Sexton

Jennifer Ferguson

Jeffrey L. Singleton

Roger H. Fitzgibbon, Jr.

Tylar C. M. Tapp, III

Bruce A. Flint

Greg A. Thurman

John D. Flynn

J. Andrew Vines

Travis W. Ford

Eric Fitzgerald Walker

Allen Vaughan Hankins

Richard P. Walt

Michael McCarty Harrison

Hon. Diane Bartsch Warren

P. J. Hayes

Carla S. Wasson

J. Michael Helms

Audra Bailey Wilcox

Timothy N. Holthoff

James L. Wilkes, II

Teresa J. Howell

Dale Kenyon Williams, Jr.

David Johnson

Sarah Beth Williamson

Susan K. Kendall

Philip C. Wilson

Lee Michael Kirner

Lori E. Withrow

C. Wesley Lasseigne Brooke Ellen Lockhart

4

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ArkBar Welcomes New Staff Member Donyale Morris joins the Association’s staff as the Administrative Assistant forEvents.

“Donyale is a valuable addition to our team,” Executive Director Karen K. Hutchins said. “Her impressive organizational skills and event Donyale Morris planning expertise greatly support the administration of CLE and Membership.”

Donyale is a graduate of the University of Arkansas at Little Rock with a Bachelor of Arts in English and Creative Writing.

Donyale has a diverse background with experience in different areas. She has served as a business community liaison, been involved with Crisis Management for Women and Children of Domestic Violence, and has served as a director of programming for a cosmetology program.

“After pursuing a career in the beauty industry for 30 years as a hairstylist and 15 years as an instructor, my love for planning and organizing has become my second act,” Donyale said. “I love being a mom to my two sons and have recently added two bonus daughters. I enjoy weekend getaways with my husband, roller skating, and DIY everything!”

2024 Mock Trial Competition Call for Volunteers Single-Weekend, Round-Robin Competition March 1-2

"Every year, our students are excited about taking on the role of attorneys and witnesses and digging into each year’s case,” said Anthony McMullen, chair of the Mock Trial Committee.

“I can think of no other activity in the state of Arkansas that engages students on this level on knowledge of the legal system and the judicial process.

Students continue to participate, in part, because of the positive interactions with members of our legal community.” To this end, we seek judges and lawyers to serve as scoring and presiding judges during the competition. No mock trial experience is necessary, as we provide a brief orientation before the round.

We are pleased to return to a single-weekend, round-robin competition, which will take place on Friday, March 1 and Saturday, March 2, 2024, in Little Rock. Because we are returning to a single weekend of competition, where all teams will get to compete in four rounds of competition, we will need as many volunteers as possible to hold a successful competition.

To volunteer, go to www.arkbar.com/ARMockTrial or contact McMullen at AnthonyLMcMullen@gmail.com. The Mock Trial Committee appreciates your support.

Oyez! Oyez!

ACCOLADES Retired Circuit Judge Kim Smith has been named as the 2023 Washington County Historical Society’s Distinguished Citizen of the Year. The Arkansas Municipal League honored Representative Carol Dalby with a Distinguished Legislator Award. Steven W. Quattlebaum, a founder of Quattlebaum, Grooms & Tull PLLC in Little Rock, was honored as the Defense Lawyer of the Year by the Arkansas Association of Defense Counsel. UA Little Rock Bowen Alumni Association honored the following members with awards: Kevin Crass, Friday, Eldredge & Clark, LLP, Distinguished Alumnus Award; Judge Amy Dunn Johnson, Outstanding Alumna in Public Service; and Cody McKinney, Emerging Young Alumni Award. Dean Cynthia Nance was honored with the 2013 Carrying on the Legacy Award by the W. Harold Flowers Law Society. Stark Ligon was honored with the 2023 Justice Robert L. Brown Community Support Award by Arkansas JLAP. WORD ABOUT TOWN Quattlebaum, Grooms & Tull PLLC announced that Nicholas S. S. Rogers and William T. Yandell joined the firm as litigation associates in the firm’s Little Rock office. Friday Eldredge & Clark, LLP announced the addition of three new associates: Emma Jumper, Anuj “A.J.” Teotia, and Rose McGarrity. Rose Law Firm and Cross, Gunter, Witherspoon & Galchus (CGWG) announced that the following attorneys practicing with CGWG will join Rose Law Firm’s Little Rock office effective October 1, 2023: Amber Wilson Bagley, M. Stephen Bingham, Mary E. Buckley, Caitlin A. Campbell, Alexander D. Clark, J. Bruce Cross, Missy McJunkins Duke, Laura Dyer Johnson, Cindy W. Kolb, Ross E. Simpson, Brett W. Taylor and Carolyn B. Witherspoon. Rose Law Firm also announced the hiring of J.P. Boyter, Hayley Harris and Tyler Mlakar.

50-YEAR MEMBER Congratulations to James E. McMenis of Smackover for celebrating 50 years of the practice of law. James’ name was inadvertently left off of the list of 50year members included in the Summer issue of this magazine.

The Arkansas Bar Association honored Jason B. Hendren, a partner with Hall Booth Smith, P.C. in Rogers, with the Charles Carpenter Award for his dedication to membership development efforts the last two years.

(Ret.) The Arkansas Bar Association congratulates the Honorable Joyce Williams Warren for being inducted into the 2023 Arkansas Black Hall of Fame.

Second Hall of Fame induction this year!

(AR Women’s Hall of Fame in August)

Jamie Huffman Jones elected the new ArkBar President-Elect Designee The Arkansas Bar Association is pleased to announce Jamie Huffman Jones as the new President-Elect Designee. Jones, of Little Rock, was elected without opposition at the close of nominations on October 2, 2023. Jamie is a partner in the Litigation Practice Group at Friday, Eldredge & Clark, LLP and a member of the firm’s management committee.

Jamie’s commitment to her community and profession is extensive. Jamie is currently serving on ArkBar’s Board of Trustees and has been the District B representative to the Executive Committee for the past two years. She previously served on the Board of Governors and House of Delegates (tenured). ArkBar has honored Jamie with two Presidential Awards of Excellence: in 2023 for her work as Chair of the Membership Value Task Force and in 2017 for her work on the Drafting Task Force.

She received a Golden Gavel Award in 2019 for her work as chair of the Mid-Year Meeting, in 2020 for her work as co-chair of the Jurisprudence and Law Reform Committee, and in 2021 for her work as co-chair of the Annual Meeting.

She is a Fellow of the Arkansas Bar Foundation and serves on the Board of Directors. She was recently appointed by the Arkansas Supreme Court to serve a three-year term on its Civil Practice Committee, following her term as Chair of the Arkansas Model Jury Instructions Committee. She is the immediate past President of the Arkansas Association of Defense Counsel. Jamie was selected in 2016 to the Federation of Defense & Corporate Counsel.

Jamie’s commitment to her community is felt in Arkansas. She currently serves as Chair of the Board of Directors for the American Heart Association—Central Arkansas, and President-Elect of the National Charity League—Little Rock. She has previously served on the Board of Directors for the Arkansas Museum of Fine Arts, the Junior League of Little Rock, and the Little Rock Chamber of Commerce’s Leadership Greater Little Rock.

When she is not lawyering or serving the community, she is enjoying life with her husband, David, and her daughter, Arden.

Jamie graduated magna cum laude from the University of Arkansas with a Bachelor of Arts in Psychology in 2000. She graduated from the University of Kansas School of Law in 2003. She served as managing editor of the Kansas Law Review and received the top score on the Arkansas Bar Exam in July 2003. She will serve a oneyear term as President-Elect beginning June 2024 before assuming the office of President at ArkBar’s 2025 Annual Meeting.

Vol. 58 No. 4/Fall 2023 The Arkansas Lawyer

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The Arkansas Lawyer

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PRESIDENT'S REPORT

Excelling, Connecting, and Making a Difference

The Arkansas Bar Association is committed to helping you excel, connect, and make a difference, both in your legal practice and in the world. Here are some of the exciting initiatives we’ve been working on: 1. E-Notary Service Launch: We are thrilled to announce the successful launch of our E-Notary service. This service offers convenience and efficiency for both attorneys and clients while ensuring compliance with legal standards. I urge everyone to familiarize yourselves with this tool and integrate it into your practice.

Check out the information video at https:// www.signix.com/legal-ron-learn-morearkansas-bar-association.

2. AI Task Force for Ethical Practice: Artificial Intelligence (AI) is rapidly transforming the legal landscape. To ensure that our members harness the potential of AI ethically and effectively, we have established a dedicated task force. This group of experts will explore how AI can be integrated into legal practice while upholding the highest ethical standards and will advise us on best practices.

As technology continues to evolve, the Arkansas Bar Association is committed to being at the forefront, guiding our members toward responsible and innovative usage of digital tools. Be on the lookout! We are providing information through our weekly e-bulletins and CLE and will have even more information at the Annual Meeting next June.

3. Local and County Bar Meetings: Building connections and fostering collaboration among our members is one of our top priorities. President Elect Kristin Pawlik and I have been travelling

Margaret Dobson is the President of the Arkansas Bar Association. She is the principal member of the Dobson Law Firm in Sheridan.

across the state, visiting attorneys, local bar associations, and leaders of other legal associations. We have also been working with leaders of bar associations around the nation, sharing knowledge and addressing legal issues.

These meetings serve as vital forums for exchanging ideas, addressing common challenges, and building a network that reinforces our collective strength. Your participation and contributions in these gatherings are extremely important.

4. Social Media: I would like to extend a sincere request to all members to follow and share our social media posts. The digital landscape offers us a unique platform to share information and engage in meaningful conversations.

5. Membership: I encourage each one of you to advocate for the benefits and values of our Bar Association within the legal community. Your firsthand experience as a member serves as a powerful testament to the advantages of being part of our association. Please take the opportunity to invite and encourage other lawyers to join. Their participation not only enriches our association but also diversifies and strengthens our collective knowledge base.

In closing, I want to express my profound gratitude to each one of you for your support and dedication to the Arkansas Bar Association. Together, we are not just a professional association, but a supportive community devoted to each other’s success.

As we move forward, let us continue to embrace innovation, nurture connections, and make a difference in the lives of those we serve. I am honored to lead and serve alongside such an esteemed group of legal professionals. ■

Caroline Witherspoon, H.T. Moore, Denise Hoggard, Rick Ramsay, Margaret, Karen Hutchins, Paul Keith and Kristin Pawlik at the Southern Conference of Bar Presidents Meeting in West Virginia in October

Margaret, Skye Martin, Sydney Rausch, and Shana Graves at the Womens Hall of Fame event honoring Judge Joyce Williams Warren in August

Margaret, Danyelle Walker and Ernest Sanders Jr. at the W. Harold Flowers Law Society Civil Rights Banquet in October honoring Dean Cynthia Nance

Vol. 58 No. 4/Fall 2023 The Arkansas Lawyer

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A Call to Leadership

ArkBar 2023-2024 Committee Chairs ArkBar President Margaret Dobson appointed the following members to serve as committee chairs. Thank you to all committee members who volunteer their time, talent and expertise to the Association.

501(c)(3) Exploratory Committee: Katelyn M. Eaves Annual Meeting: Joe Denton and Leslie Copeland Arkansas Bar PAC: Jason M. Hatfield Artificial Intelligence Task Force: Jacob D. White Audit: Dan C. Young Bar Center Task Force: Bob Estes Editorial Advisory Board - The Arkansas Lawyer: William A. Waddell, Jr. Finance: Brant Perkins Governance Drafting: Payton C. Bentley Judiciary: Margaret Dobson Jurisprudence and Law Reform: Paul W. Keith Legal Related Education Super Committee: Chistopher M. Hussein and William J. Ogles Law School: Harry A. Light Legislation: Glen Hoggard Membership: Patrick D. Wilson Membership Value Task Force: Jamie Huffman Jones Mock Trial: Margaret K. Davis and Anthony L. McMullen Personnel (ArkBar): Denise R. Hoggard Practice Closure Task Force: Stark Ligon Program Review: Paul N. Ford Public Service Academy Planning Committee: Skye Martin and Madhav R. Shroff Sponsorship: Bob Edwards Task Force to Reconstitute Sections: Sarah C. Jewell

ArkBar 2023-2024 Section Chairs

Election Cycle Timeline

January 29th Deadline for submission of completed nomination forms to the Arkansas Bar Association’s Secretary

February 12th Deadline for mailing of ballots in contested races

The next President-Elect Designee will come from Bar District C. Please contact Karen Hutchins at 501801-5663 for nominating petitions for the office of President-Elect. Nominations are being collected for the Office of Secretary and American Bar Association Delegate positions. Contact Karen Hutchins at 501-8015663 for information on these positions.

Districts

Total No. Seats

No. of Available Seats

County(ies) within Each District

A1

4

1

Benton

A2, A3

8

3

Washington

A4

4

2

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

B9-15

28

9

Pulaski

C5

4

1

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

C6

4

2

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

1

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

Total Trustees

60

20

Thank you to the following members for leading the sections this year! Watch for additonal chair elections.

Construction Law: William E. Lawrence Debtor/Creditor: William F. Godbold Elder Law: Trae A. Norton Environmental Law: Eli C. Bauer Family Law: Sara C. Moery Natural Resources Law: Daniel W. Pilkington Probate & Trust: Robert B. Beach Section of Taxation: Wade Bowen Workers’ Compensation Law: Bill Frye Young Lawyers’ Section: Caroline W. Kelley

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The Arkansas Lawyer

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March 4th Deadline for receipt of signed ballots

YOUNG LAWYERS SECTION REPORT

Blazing a Trail

The crisp autumn air has settled in, and with it, the Young Lawyers Section continues to blaze a trail of enthusiasm and activity. Amidst the sweltering summer days, I had the opportunity to represent Arkansas at the American Bar Association Annual Meeting in Denver as the state’s delegate. Engaging in workshops, absorbing wisdom from esteemed speakers, and connecting with fellow bar associations nationwide, the experience was enriching and enlightening.

Upon my return to Arkansas, I embarked on a mission to inspire the next generation of legal minds. Visiting both law schools, I welcomed incoming 1Ls during their initial week of classes. While celebrating their achievements, I emphasized that the journey ahead demands collaboration. The positive response from these events was overwhelming, leading to an influx of new law students joining the Bar Association.

This aligns seamlessly with our goal of establishing Arkansas Bar Association chapters in every law school, fostering a sense of community among aspiring lawyers.

Collaborating with the Arkansas Bar Association Board of Trustees, we recently organized an event for Bowen law students at Fassler Hall in Little Rock on September 24. It was a night filled with networking and learning, paving the way for these students to become future members of our vibrant legal community. Thank you to our co-sponsor Hall Booth Smith!

Looking ahead to November, our section is gearing up for a flurry of activities. We’re proud to partner with Arkansas Access to Justice in sponsoring two Free Legal Answers clinics. These events hold the promise of making a substantial impact

Caroline Kelley is the Chair of the Young Lawyers Section. She is an attorney at the Mitchell Williams Law Firm.

on underserved communities. Prior to the clinics, low-income Arkansans submitted their legal queries online. On November 16, our dedicated YLS attorneys logged in to provide competent legal advice, ensuring that those in need receive valuable assistance. And, of course, our hard work was rewarded with camaraderie, as we shared libations in celebration of our shared commitment to service.

Amidst our busy schedule, we are also putting the finishing touches on a significant project: the update of the Arkansas Bar Association’s handbook, “18 and Life to Go: A Legal Handbook for Young Arkansans.” Tailored to the needs of high school students, this guide aims to empower them with relevant information.

We, as a section closely resembling our target audience, have taken charge of this initiative. Our objective is clear: to present complex legal concepts in a manner that resonates with young adults, equipping them to make informed decisions that shape their future. Under the guidance of past chairs Will Ogles and Chris Hussein, YLS attorneys are set to travel to select high schools, delivering impactful presentations that demystify the legal realm.

As we reflect on our accomplishments so far this year, we’re brimming with excitement for the projects and events that lie ahead. We invite everyone to join us at the Mid-Year Meeting in February, where we’ll continue our journey of camaraderie.

For inquiries and further information, please feel free to reach out to Caroline Kelley at ckelley@mwlaw.com. Here’s to a season of growth, collaboration, and making a difference in the lives of those we serve. ■

Dean Cynthia Nance, Margaret Dobson, Caroline Kelley and Kristin Pawlik at the U of A Law School Alumni Reception in Denver

Caroline and Justice Wood at the Bowen Law School presentation

Caroline and Kristin Pawlik at the U of A School of Law presentation

ArkBar Young Lawyers Section

@ ArkBar YLS

Vol. 58 No. 4/Fall 2023 The Arkansas Lawyer

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★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★

We proudly recognize and pay tribute to the current members of the Arkansas Bar Association who have selflessly served in the United States military. Their unwavering dedication and sacrifice have left an indelible mark on our nation, and it is with great reverence that we honor their commitment and service.

A comprehensive list featuring detailed accounts of each member's invaluable contributions, including those we respectfully remember posthumously, can be accessed on our website at https://www.arkbar. com/for-attorneys/membership-nav/members-in-the-military. While this compilation is a testament to their bravery, we acknowledge that it may not encompass all who have served. We encourage you to reach out to the editor if you know of someone deserving of inclusion in future publications. Together, let us ensure that their legacies of courage and sacrifice are forever remembered.

Members who have served in the military Overton Anderson Philip S. Anderson James A. Badami Frank Bailey Marilyn Dearien Barton Zach Baumgarten Jonathan W. Beck Joe Benson Ed Bethune Allen W. Bird II Sam N. Bird Judge Denzil Keith Blackman Daniel C. Blaney John Dudley Bridgforth Charles A. Brown Major Natalie G. Brown LeAnne Pittman Burch William Jackson Butt, II Worth Camp, Jr. Jennifer Carlisle Charles L. Carpenter, Jr. Jerry W. Cavaneau John S. “Jack” Cherry Nathan Coulter F. Thomas “Tom” Curry Justice Paul Danielson Thom Diaz Jerry Dodd Greg Downs Don R. Elliott, Jr. Bob Estes Peter G. Estes, Jr. 10

The Arkansas Lawyer

John C. Everett Judge Vic Fleming William Charles Frye Sam Gibson Martin G. Gilbert John P. Gill Morton Gitelman James C. Graves Ron Griggs Judge Wayne Gruber Will Gruber Judge David F. Guthrie Don F. Hamilton Stuart W. Hankins Dick Hatfield William D. Haught Dr. Morriss Murphey Henry Robert L. “Skip” Henry Donald C. Hill Randal Hobbs Justice Jack W. Holt, Jr. James W. Hyden Greg S. James C. Cole Jeffries, Jr. Glenn W. Jones Robert L. Jones, Jr. Dak Kees Joseph M. Kraska Tim Leathers John C. Lessel Fletcher C. Lewis Stark Ligon

www.arkbar.com

Phillip A. McGough Joseph P. McKay Col. J. Conley Meredith James McMenis Henry N. Means, III Russ Meeks George B. Morton J. R. Nash Edward Nelson Judge David Newbern Jim Nickels Alan J. Nussbaum Richard C. Ourand, Jr. Hugh Overholt William L. Owen Eudox Patterson Ellis Lamar Pettus David Dero Phillips John M. Pittman George Plastiras David M. Powell Donald E. Prevallet Brian D. Rabal John “Buddy” W. Raines Gordon S. Rather, Jr. Herbert Lynn Ray Chris Rittenhouse George Ritter Fred Roberson William S. Robinson Adam M. Rose James (Jim) A. Ross, Jr.

Thomas S. Russell Marissa A. Savells Corey Seats Brenda Simpson Damon C. Singleton Berl S. Smith, Jr. James E. Smith, Jr. Judge Kim Smith Richard H. Smith Scott E. Smith Paul Suskie F. Mattison Thomas III Lonnie C. Turner Richard E. Ulmer Fred Ursery Magistrate Judge Joe Volpe Wyman R. (“Rick”) Wade, Jr. George Christopher Walthall Stan L. Warrick John Dewey Watson Todd C. Watson Richard N. Watts Phillip Wells David H. Williams W. Jackson Williams, Jr. Wayne Williams Judge Billy Roy Wilson Jeffery D. Wood Daniel H. Woods Judge Wm. Randal Wright Steven S. Zega

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Anderson O.

Anderson P.

Badami

Bailey

Baumgarten

Beck

Benson

Bethune

Bird A.

Bird S.

Blackman

Bridgforth

Brown

Burch

Butt

Camp

Carlisle

Cavaneau

Cherry

Coulter

Curry

Danielson

Diaz

Dodd

Downs

Elliot

Estes

Everett

Fleming

Gibson

Gilbert

Gill

Gitelman

Graves

Griggs

Gruber Wa.

Gruber Wi.

Guthrie

Hamilton

Hankins

Hatfield

Haught

Henry M.

Henry R.

Hill

Hobbs

Holt

Hyden

James

Jones

Kees

Kraska

Leathers

Ligon

★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★ Vol. 58 No. 4/Fall 2023 The Arkansas Lawyer

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★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★★

McGough

McKay

McMenis

Meeks

Meridith

Morton

Nash

Nelson

Newbern

Nussbaum

Ourand

Overholt

Owen

Pettus

Phillips

Pittman

Plastiris

Powell

Rabal

Raines

Rather

Ray

Rittenhouse

Ritter

Roberson

Robinson

Rose

Ross

Savells

Seats

Simpson

Singleton

Smith B.

Smith K.

Smith R.

Smith S.

Suskie

Turner

Ulmer

Ursery

Volpe

Wade

Walthall

Warrick

Watson J.D.

Watson T.

Watts

Wells

Williams D.

Williams W.

Wilson

Wood

Woods

Wright

Please visit ArkBar’s Tribute to Members who Have Served in the Military Web page at the link below or scan the code: https://www.arkbar.com/for-attorneys/membership-nav/membersin-the-military Zega

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Robert L. "Bob" Shults, Jr. 1925-2018

By Fred S. Ursery

An expanded version of this article was previously published in the Jefferson County Historical Quarterly and is used by permission.

Fred S. Ursery is Of Counsel with Friday, Eldredge & Clark in Little Rock. He served in the Vietnam War in 19681969.

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R

obert L. “Bob” Shults, Jr., was born and raised in Pine Bluff. He was a decorated World War II combat veteran. After that he had an illustrious career as a lawyer and civic leader in Little Rock. His influence was statewide.

Bob graduated from Pine Bluff High School in 1943, which was at the peak of World War II. After graduation, he signed up for the Army Specialized Training Program (ASTP). The goal of the program was to produce technicallytrained personnel for the Army.

The requirements for the ASTP were strict. High scores were required on the Army General Classification test. One Army officer testified before Congress that the requirements for the ASTP were more demanding than those of either West Point or the Naval Academy. Other well-known alumni of the ASTP were Mel Brooks, Bob Dole, Henry Kissinger and Kurt Vonnegut.

When he signed up for the program in the summer of 1943, Bob was sent to LSU with the thought that he would graduate from there in four years with an engineering degree. The demands of the war, however, were such that after only one semester at LSU he was called to active duty in the Army.

His actual date of enlistment in the Army was July 23, 1943. At that time his family resided at 2003 West 25th Street. He spent one semester at LSU and was called to active duty at Camp Robinson on December 23, 1943. Like many of the ASTP students who were called to active duty he was sent where he was needed the most — to the infantry.

He was assigned to the First Battalion of the 397th Infantry Regiment. At that time the 397th Infantry Regiment was stationed at Fort Bragg, North Carolina, and was actively training for combat. The regiment was then sent for further training to Fort Jackson, South Carolina.

On September 25, 1944, the 397th Infantry Regiment took a troop train at Fort Jackson to New York City. They then boarded the United States Army Transport George Washington. They were in a convoy with other troop ships.

Prior to World War I, the George Washington had been a German luxury liner, but during that war it was captured and converted into a troop carrier.

On October 17, 1944, the ship landed in Marseilles, France. It had been at sea for 11 days. On that same date an order was issued designating the 397th Infantry Regiment as a combat regiment.

On October 19, 1944, the regiment marched 12 miles to a bivouac area. The

troops were issued live ammunition. They were in the bivouac area for 10 days. On October 30, 1944, they left in a convoy to St. Helene, France. They bivouacked there for five days. At that point they were six miles from the German troops and could hear the noise of the German heavy artillery.

On November 5, 1944, they were driven in 2½-ton trucks to their positions on the front line. The 397th Regiment first saw combat action on November 7, 1944, near Baccarat, France, where Shults’ First Battalion took the town of Clairupt on November 15, 1944. This was the first town liberated by the 397th.

On November 16, 1944, the First Battalion Commander was killed by machine gun fire. The next day all three battalions of the 397th launched a coordinated attack on the town of Raon l’Etape, France. The Germans were in prepared defensive positions on the high ground north of town. The 397th drove the Germans off the high ground and took the terrain advantage.

It was on the same day, November 17, a month after his ship had arrived in France, that Bob Shults earned his Bronze Star for bravery. (The award was issued by the Army on May 3, 1945.) The Bronze Star citation reads as follows: Robert L. Shults, Jr., 0211702, Second Lieutenant [he’d still been a sergeant on November 17], 397th Infantry Regiment, for heroic achievement in action on 17 November 1944, in the vicinity of Raon L’Etape, France.

After attainment of the company objective, Lieutenant Shults was reconnoitering for mortar positions when the enemy launched a counterattack against our forces.

Without hesitation Lieutenant Shults led his squad to an exposed position from which he could bring fire upon the attacking troops, and despite hostile artillery and small arms fire remained in the open directing the fire of his men until the enemy withdrew. His prompt and courageous action was instrumental in repulsing the

"Celebrated but humble, Bob Shults’ life as a soldier and skilled lawyer is a part of the legacy we enjoy as members of the Arkansas Bar Association."

attack and enabled our troops to reorganize and prepare defensive entrenchment for the night.

Entered military service from Pine Bluff, Arkansas.

By December 6, 1944, the 397th Regiment had sustained 167 dead and 511 wounded. On March 28, 1945, Bob was given a battlefield commission. He was promoted from sergeant to second lieutenant. This was done because the ranks of the officers were being depleted due to combat injuries and deaths. He was 19 years old at the time of his promotion and was one of the youngest officers in the U.S. Army.

Shortly after he received the commission his unit was involved in combat in the vicinity of Heilbronn, Germany. His unit was given a citation for its involvement in combat from April 5–11, 1945. The citation reads as follows: THE FIRST BATTALION, 397 INFANTRY REGIMENT, is cited for outstanding accomplishment in

combat during the period 5 April 1945 to 11 April 1945, in the vicinity of Heilbronn, Germany.

Crossing the Neckar River by assault boat under heavy fire, the battalion secured a bridgehead in the face of unyielding resistance and inaugurated its block by block, house by house and even room by room conquest of the key rail city of Heilbronn. Deadly cross-fire from automatic weapons emplaced in rubble heaps and cellars of ruined buildings slowed the attack; snipers in countless vantage points constantly harassed our troops; and thickly wooded hills on three sides afforded the enemy perfect observation for the direction of all types of artillery fire. Yet despite fanatical resistance, the battalion continued in implacable advance, repulsing repeated tank-infantry counterattacks and destroying group after group of infiltrating enemy infantry. Supporting armor and tank destroyers were

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sped across the river by a hastily installed pontoon bridge, which was quickly demolished by artillery fire; casualties were evacuated and supplies brought forward by ferry under continuous shelling; and on April 11, after seven days of the most savagely-prosecuted fighting on the entire western front, the battalion virtually completed its capture of the city, thus by the individual bravery of its members and the esprit de corps of the organization, reflecting the highest traditions of the military service.

The war ended in Europe on May 8, 1945, when Germany unconditionally surrendered to the Allies. Even though the war had ended, Robert Shults stayed in the Army in Europe throughout most of 1946.

His Army commendation medal describes his activity in this post-war period. It states: ROBERT L. SHULTS, JR., 0-2011702, Second Lieutenant, Infantry Headquarters First Battalion, Seventh Infantry Regiment. For meritorious service from 18 December 1945 to 10 June 1946. Lieutenant SHULTS carried out his duties as Battalion S-2 in an exemplary manner. Spending long hours on investigations, he has broken up organized border smuggling rings and reduced vital security threats to a minimum.

His effective and efficient organization of his duties have been accomplished in a manner above and beyond normal expectations, and have aided in making his regiment’s mission a success.

On August 10, 1946, he was promoted to first lieutenant. On September 10, 1946, he ended his active duty and returned home.

Bob’s medals for his service include the Bronze Star for Bravery, the Army Commendation Medal, the Combat Infantry Badge, and the Distinguished Unit Badge.

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Although Bob never discussed his combat experience, he did relate a few of his other war experiences to his son. He said that while his unit was in France and then Germany, an infantry group from Ireland was temporarily assigned to their unit for training purposes. One of the Irishmen happened to be a member of the Jameson family in Dublin that produced the famous Jameson Irish whiskey. After the training assignment was over, the Jameson family member returned to Dublin. He arranged for a case of Jameson to be delivered to Bob Shults’ unit. From then on, Bob was a Jameson drinker. Steve said that he was not sure his dad even liked Irish whiskey all that much, but he drank it for sentimental reasons.

After his discharge from the Army in 1946, he returned to LSU on the GI Bill. He had excellent grades as usual and completed his degree cum laude in electrical engineering in 1950.

While at LSU he met Barbara Taylor from Arcadia, Louisiana. They were married in 1950. After LSU, he decided that he wanted to go to law school rather than be an electrical engineer. Because he had an excellent academic record at LSU and the GI Bill was helping pay the expenses, he applied to Harvard Law School. He was admitted, and he and Barbara spent the next three years in Cambridge, Massachusetts.

Bob’s son, Steve Shults, was born during the Harvard Law School years. Once again Bob was a top student and served as an editor of the Harvard Law Review. He graduated in 1953.

With his sterling academic and military record, he could have practiced law with a top firm in any city in the U.S. However, he made the decision to come back to his home state where he felt he could make an impact.

He joined the firm of Wright, Lindsey & Jennings in Little Rock. He had a successful career with that firm. It was later named Wright, Lindsey, Jennings, Lester & Shults.

After practicing with the Wright Firm for a number of years, he and his law partner Ed Lester started their own law firm, Lester & Shults. Bob practiced with that firm for the rest of his career. Steve

was also a Harvard Law School graduate and practiced with his dad.

Little Rock attorney Dick Williams practiced law with Bob for five years when they were both at Wright, Lindsey, Jennings, Lester & Shults. Dick later became a named partner in the large Little Rock firm of Mitchell Williams. He said, “Bob Shults was a man of quiet rectitude.

He approached life with the unemotional precision that one would expect from his undergraduate training as an engineer.

Colleagues said of Bob that when he pondered a legal problem, you could hear his mind clicking like a computer before giving his opinion. Although Bob was a graduate of Harvard Law School, he never mentioned that fact to anyone. While he was proud of it, he did not want to appear to be bragging.”

Bob was active in his profession. He was a member of the Bar on the local, state and national levels. He served as president of the Pulaski County Bar Association in 1971–1972. He was chairman of the Executive Committee of the Arkansas Bar in 1968–1969. Bob received the Arkansas Bar Association’s Outstanding Lawyer Award.

During his legal career he was the personal attorney for Winthrop Rockefeller and for the various Rockefeller entities. He served on the board of the Winthrop Rockefeller Charitable Trust.

United States Magistrate Judge Tom Ray stated that Bob often worked with large Wall Street firms on complex legal matters.

Judge Ray recalled that contrary to the normal practice, the large New York firms deferred to the local lawyer and his advice because of the high regard in which they held Bob. Celebrated but humble, Bob Shults’ life as a soldier and skilled lawyer is a part of the legacy we enjoy as members of the Arkansas Bar Association. ■

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Perspectives of Arkansas Lawyers with Physical Challenges

Written and moderated

by Caroline Boch Special thank you to Brausell Reporting for sponsoring the transcription.

F Caroline Boch is an attorney in Little Rock.

Jen Goodwin is an attorney with Disability Rights Arkansas, Inc.

Theresa Morris is an assisant city attorney for the city of Little Rock.

Julie Roper is an attorney with a solo general practice in Bismarck, Arkansas.

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or more than three decades, the Americans with Disabilities Act (ADA) has widened access to the legal profession for people with disabilities. Among other things, the ADA prohibits state and local government agencies and places of public accommodation from discriminating against individuals with disabilities, requires government entities to make their programs and services accessible to individuals with disabilities, sets minimum accessibility standards for public accommodations, and requires employers to provide reasonable accommodations to workers with disabilities.1 About one in three adults in Arkansas has a disability.2 While we don’t know how many lawyers in Arkansas have disabilities, about 5.5% of recent law graduates nationwide report a disability, and only 1.6% of attorneys in law firms report a disability.3 These statistics suggest that people with disabilities are underrepresented in our legal community and that the legal profession can do more to increase accessibility for lawyers with disabilities.

To learn more about the day-to-day realities of practicing law with a disability, The Arkansas Lawyer spoke with three lawyers who agreed to share their personal perspectives.

They include a solo practitioner, a government lawyer, and a nonprofit lawyer. Our conversation has been edited for length and clarity.

Let's meet our panelists.

Jen Goodwin: My practice area is with Disability Rights, mainly in education and employment. I’m working in our Client Assistance Program and our Protection and Advocacy for Beneficiaries of Social Security. In education work, we are making sure that kids with disabilities are getting the resources that they need to be successful in school. Our main focus is on kids who are being suspended or expelled in schools, typically due to behaviors caused by their disabilities. We also represent people with disabilities who need to get back to work and aren’t necessarily getting the services that they need through the programs that Arkansas offers.

I have a spinal cord injury. About 15 years ago, someone fell on me in a boat and broke my neck, so I’m a quadriplegic. There are limitations that come along with that and some extra challenges every day. I just navigate the inaccessibility in a lot of places and figure out how to make that work.

I’m a mama with two small boys and working full time, so life is busy.

Theresa Morris: I actually call myself the oldest, newest, assistant city attorney for the City of Little Rock. I just became a member of the Bar this past February. My goal and the whole reason I did this to myself at my age was to serve people in need.

I was diagnosed about 14 years ago with dermatomyositis, which is a rare autoimmune disorder affecting the skin and muscles. I was diagnosed and I still am seen at Johns Hopkins Hospital a couple of times a year. I went from being a crazy Marine Sergeant years ago to feeling like I was already 80 or 90 when I was age 52 and diagnosed. The interesting part is my doctor at Hopkins says that it’s definitely one of those hidden disabilities, so you don’t really see it, if my skin is not flaring. And you might just think I have a weird sunburn or something. Don’t ask me to move fast or carry something that’s really heavy or stay up late hours, because fatigue is a huge component of this; stress exacerbates that, as well.

I was a professor at UAMS, in the physician assistant program.

I actually helped start that in 2013. When we teach, dealing with individuals who have disabilities and challenges of various types, it’s an uncomfortable topic for a lot of people because we don’t know how to interact. And I was one of those people.

Julie Roper: I have a solo general practice firm in Bismarck, Arkansas. I was born with only one hand. I wear an electronic prosthetic right hand. I type using jhgf as my base hand position on the keyboard and have a high functioning one-hand typing speed. I do not use dictation.

We first asked panelists to share some of the issues and challenges they face in the everyday practice of law that other lawyers may not.

Ms. Goodwin: My challenges started in law school. The very first meet and greet was in a basement. I called ahead and made sure that there was an elevator because I wanted to go and do all the things with my classmates.

“The attitude of the law profession collectively sets the tone for everyone else dealing with the judicial system. When we still have bar-licensed attorneys saying, ‘We aren’t discriminating…’ to explain away their own discrimination—there is still a message to be delivered in law school, in the courtroom, in CLE, and in our professional community." Ms. Roper

There was an elevator. I met the guy at the first of the night, who said we’ll just leave the key in the elevator so it will be here at the end of the night. I met all my new friends from law school, and, at the end of the night, we went to go up. Some friends were going to walk me to my car that night. We went to get on the elevator, and someone had taken the key. So my new friend went and told the waitress that the elevator’s not working. And she said, oh, it doesn’t work, it’s just for show.

So, by the end of that night, from that point on, no one left until I got out of there. And I got out of there with probably eight firemen carrying me and my 400-pound chair up the stairs to get out. So that just kind of broke everybody into what my world is like. Everybody else was just horrified that this was happening. And, to me, I was like, ah, it’s another day, it’s another chapter in my book, it’ll be fine.

One of the things that comes along with spinal cord injury is instability in blood pressure. So, for me, being able to work from home has been a big blessing. Before, my pressure could bottom out while driving in the mornings and it made for a scary drive to work.

It’s also easier for me to get sick. I have to be really cognizant of what I’m doing and making sure I’m taking care of myself too.

Ms. Morris: I’m a night owl, and that does not work with my disease at all. I really have to get plenty of extra sleep. And I just can’t go as long as I want to.

It really hasn’t presented a huge problem for me as a lawyer yet.

I’ve only been practicing for a few months. I can tell it’s probably going to start having an impact, and that may be an issue I’ll have to address. And eating well is super important, to try to stay with an anti-inflammatory diet in order to keep my symptoms at bay, or at least tolerable, because I do have muscle weakness and things. So I just try to take good care of myself.

Ms. Roper: Managing exhibits at trial has been challenging. The court reporters have all been excellent at being helpful by managing the exhibit labels. I learned to not let the silence of my delay make me nervous. I also learned to keep my electronics away from the microphone or I cause that horrific feedback screech. These lessons came early in my career. I’ve been licensed since 2006.

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"For me, I would just say, if you’re on the other side of a case with me, still be a human first. Just be aware of opportunities to be helpful.

Be willing to talk to us. Just ask questions too. Most of us are fine with discussing and answering questions. As long as it’s in a respectful manner, then ask the questions and we can have the conversation." Ms. Goodwin

Panelists then talked about ways in which the legal profession can be inaccessible for lawyers with disabilities or other health conditions.

Ms. Roper: I was concerned how a jury would view me and that jurors might be distracted from my presentation. I had no predecessors as reference. Judge David Switzer advised me before my first jury trial to add to my introductory statement of who I am a very brief, “You might notice I wear an electronic hand. That is because I was born with only one hand.” It was very brief and minimal, but every juror leaned forward to look then seemed to never pay any other attention to it. (I won that trial.) I’m still very grateful that Judge Switzer gave that advice. It seemed very effective.

Ms. Goodwin: Whenever I flew for work for a training, it was kind of fun, because it was a coworker of mine who is blind with her seeing eye dog and me boarding a plane together. So we were bringing all the challenges to the people. But I told them that my medical bag would fly for free, because I had called and found out and I knew the laws. And, long story short, they were fighting me about it. They brought a manager over and her quote was, “Yeah, when they know the law, you have to follow it.”

That sums up so much right there and is what is a huge problem in our society, that people only get the accommodations that they need when they know there’s a law that backs it.

Whenever I tried to get funding for school, I called Vocational Rehab to say, hey, I’m looking at going back to law school; and they said, oh, we don’t cover graduate school programs at all. And I just took my “no” and went with it.

And, now, one of the first things I read was the policy manual which says no grad school programs unless it’s required for your degree path such as med school, law school, dental school, that sort of thing. There are so many programs out there, and there is help available, but you take that gatekeeper “no” because you don’t know any different. And then, really, you’re missing out on a lot of opportunities that are there. So, I make sure that all of my clients know about those things at ARS (Arkansas Rehabilitation Services) and the different programs that we work in.

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I helped a guy get funding for taking the Bar through ARS recently. I felt proud to go back and use those programs for other people that I didn’t get to use for myself because I didn’t know about them then.

Panelists described some accommodations for lawyers with disabilities. They also talked about other ways in which courts and workplaces can be more accessible for people with disabilities.

Ms. Goodwin: Having an accommodation to work from home has been fantastic for me because I’m able to do Zoom meetings. Also, I have limited hand function with being a quad, so I use dictation software as well when needed.

I think it would be super helpful if there was information on accessible entrances in courtrooms. Whenever I was at Legal Aid, we were going to small towns and courthouses all over the state.

And every single time, I was calling the trial assistant and asking about accessibility. Sometimes they knew, and sometimes they didn’t. Whenever I would talk to someone, they would say it’s a courthouse, it has to be accessible. But that accessibility might also come needing a map to go along with it.

Even in Little Rock, there is a courtroom that I had to find a mystery elevator to even be able to get up and into that courtroom.

You can imagine what it’s like in some of the smaller towns with the older courthouses. I would have to call people to come open locked doors, because that’s where the ramp was.

Ms. Morris: I was able to get close parking because I would be exhausted by the time I walked from the back parking lot all the way to the building. The hidden aspect of some of these things is kind of hard to help people understand. When you don’t have an appearance that you have a need, it’s a little different kind of challenge that we have to face.

Ms. Roper: I chose to not use dictation, but it may have been a great resource. I wanted to push my skills and it paid off for me to become a fast typist. I would have used a courtroom assistant if that had been an option, but I always had judges and court reporters that were courteous and helpful and not once condescending. I have experienced opposing party insults, and one truly loathsome attorney tried to demean me, but I am very capable of dealing with ignorance. Having a peer group during law school or fresh out of law school might have been helpful and reassuring.

We then talked about misperceptions of some in the legal community about lawyers with disabilities.

Ms. Roper: There is a lot to overcome. We are a profession of law-trained people, but I have my own firm for a reason. Once I was told, “This office is very fast paced and I don’t think you can do this kind of billing and briefing with one hand. We aren’t discriminating; that is just how this office operates and I don’t think you’d be a good fit.” We learn the law, but there are still many who

believe if you don’t have malice, it’s not discrimination. We still have courthouses with no elevators and witness stands with no ability to mic anyone in a wheelchair. There is little incentive to evolve.

Ms. Morris: I think there’s a lot of times in life, when somebody appears to be different, for some reason, once they get to know you as a person, then it really changes a lot of how they perceive you in toto. So it just makes a big difference to me. And also how you’re regarded.

When I was going on the plane to my first trip to Johns Hopkins, there was a young lady who was ahead of me who had her arm in a sling. And the flight attendant was very accommodating, very helpful to her, to put her luggage up. And I said, “Ma’am, would you mind helping me get my luggage up?”; and she said, “Oh, well you look fine,” and said she had a sling on her arm.

Ms. Goodwin: Being a person who uses a wheelchair, I remember, I was going against a guy. And my client told me her ex-husband called her and said, “You know that little girl in a wheelchair is not a real attorney, right?” So those are some of the misconceptions that we get.

For the most part, people have been kind. Once they know me, the chair seems to disappear.

Panelists shared how they keep going on difficult days.

Ms. Morris: For me, it was a matter of accepting what I had to accept—that my body didn’t work like it was supposed to. It didn’t work like I wanted it to, that’s for sure, and that I know it’s progressive.

But I want to live my life just like anybody else does. And so, as long as I am able, I’m just going to do it. I don’t know that I can say it’s any magic formula or a way of thinking other than this is me, I’m not my disease. I’m a human being and I’m going to go do what I want to do, as long as I’m able to do it and where I’m able to do it.

I’ve made a conscious decision to live my life as fully as I can and recognize when I need some help or accommodation, and being willing to ask for that and that humility, at some times, has come harder than at others.

Ms. Goodwin: I know that it’s going to take me longer to do things. It takes me longer to write things just because of my hand limitation, that sort of stuff.

But, at the end of the day, I shut my computer off and I put my phone up. I have to have a really good work life balance. I just have to tell myself, if I’m saying yes to work late into the evening, then I’m saying no to my boys.

We asked panelists to talk about professional successes they’ve had and reflect on whether their challenges played any part in these accomplishments. Panelists also shared how their presence in the legal profession affected others.

“The hidden aspect of some of these things is kind of hard to help people understand.

When you don’t have an appearance that you have a need, it’s a little different kind of challenge that we have to face." Ms. Morris

Ms. Goodwin: Well, I just feel like it has taken away a lot of the stigma that is there for people with disabilities. I know that my coworkers have become some of my very best friends. They are people who have never worked with somebody that uses a wheelchair before. And so I think it’s broadened their perspective on what we can do, what disability looks like, what it doesn’t look like, those sorts of things. And it’s just broken down those barriers and allowed us to have great friendships along the way.

Whenever I’m doing a lot of my work over the phone, clients don’t understand or don’t know that I’m a person with a disability myself. And I don’t disclose that all the time. But, every now and then, whenever I can tell that they need an empathetic ear, somebody who really knows what they’re going through, then I will go ahead and give them just a little touch of my story, too, just so they can know that I do understand what they are going through.

One of my favorite clients that I had, whenever I was at Children’s, was a young girl with a shoulder issue. She thought she would never be able to drive. By the end of the day, she was down in my car for her to see how I drive with hand controls every single day, just to show her that there are options in life. It was such a fun moment because the lights went off in her and she realized then that she could do so much more.

One of my coworkers uses a wheelchair. I didn’t realize that I had met her about 10 years ago when she saw me doing a workout video for people with disabilities. She was in high school, and I was in law school at that time. She recently told me that she knew, whenever I saw you, that she could do this too. She ended up getting her master’s degree. She said meeting me that day and seeing me as a person who was in law school and a chair user, she was like, okay, if she can do that, I can do that.

Ms. Roper: I do pro bono for amputees who are denied insurance for prosthetics. My most loved case involved a worker’s comp denial.

The insurer accepted the claim for a lost hand in the workplace and paid for the initial medical cost and a prosthetic hand. As the wearer adjusted and then needed subsequent prosthetics the insurer refused to pay for additional or “high end” devices. My appeal established that the insurer is on the hook for all prosthetics prescribed for the remainder of the claimant’s lifetime, not just the less expensive ones.

This is huge because the devices can run up to $200,000.00. Mine is $139,000ish every five years.

Ms. Morris: When people do find out [about my disability], they still have a hard time. Because what they do is they look at me.

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something that’s hidden, that makes it a little more challenging. So I find myself divulging things that I might not otherwise do. I don’t really mind that much. It helps raise awareness for disabilities that individuals may have that aren’t as obvious.

One time, I was pulling up into valet parking, and a young attendant was there. I said do you all have accommodations, and he said who does that blue tag belong to anyway. And I said it’s mine.

And it gave me an opportunity to talk with that young man that it’s not what you think always when people have disabilities.

I’m pretty open with it. I don’t lead with it at all. It’s not who I am. I want people to accept me for me and not what I have to deal with every day.

Here are some resources about accommodations for lawyers with disabilities: • The Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s Office of Disability Employment Policy, provides guidance on job accommodations for individuals with disabilities and health conditions.https:// askjan.org/ • The EEOC publication Reasonable Accommodations for Attorneys with Disabilities discusses accommodations under the ADA for lawyers with disabilities. https://www.eeoc.gov/laws/ guidance/reasonable-accommodationsattorneys-disabilities

Finally, we asked panelists what they wanted other Arkansas lawyers to know about practicing law with a disability or other physical challenge.

Ms. Goodwin: For me, I would just say, if you’re on the other side of a case with me, still be a human first. Just be aware of opportunities to be helpful.

Be willing to talk to us. Just ask questions too. Most of us are fine with discussing and answering questions. As long as it’s in a respectful manner, then ask the questions and we can have the conversation.

Endnotes: 1. An Overview of the Americans with Disabilities Act, ADA National Network, available at https://adata.org/factsheet/ADAoverview.

2. Disability & Health U.S. State Profile Data for Arkansas, Centers for Disease Control and Prevention (May 2023), available at https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/arkansas. html.

3. Employment Outcomes for Graduates with Disabilities, NALP Bulletin+, National Association for Law Placement (Dec. 2022), available at https://www.nalp.org/1222research. ■

Ms. Morris: Don’t assume that whatever you see or don’t see or observe, the actions don’t make us any different than anybody else.

We still have feelings and thoughts and hopes and dreams and aspirations, just like anybody else.

Ms. Roper: The attitude of the law profession collectively sets the tone for everyone else dealing with the judicial system.

When we still have bar licensed attorneys saying, “We aren’t discriminating…” to explain away their own discrimination—there is still a message to be delivered in law school, in the courtroom, in CLE, and in our professional community.

I wasn’t asking to be accepted for employment without a belief in my own capabilities. The hiring attorney could not imagine doing their job with only one hand, but I do life with one hand and typing quickly is a very, very low-level challenge in the job of being a lawyer! I was evaluated on a false presumption of a preconceived limitation by a person ignorant of my actual capability. Isn’t that by definition discrimination?

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ChatGPT: A Lawyer’s Friend or Ethical Time Bomb?

Professional Responsibility in the Age of Generative AI

By Devin R. Bates and Sainabou M. Sonko

W

riting about recent developments in generative artificial intelligence-based technology comes with the risk that, one month from now, this article1 may be obsolete. Despite the fast-evolving nature of AI technology, we can make two predictions with relative certainty. First, generative AI services, like ChatGPT, will play a role in your future as an Arkansas lawyer. Second, navigating the ethical issues in the age of AI will be constant and challenging, yet essential. This article explores the paradigm shift that generative AI-based technology brings to the way we practice law and discusses the ethical issues facing Arkansas attorneys as seen most frequently, at least at the time of writing, through ChatGPT. I. Why you can’t ignore this.

This article assumes that generative AI will fundamentally reshape the way we practice law. But do you believe that? You should. Here’s why.

Generative AI has already become an essential tool for some clients and attorneys. Take a look at these statistics: • • • • • Devin R. Bates is a Member at Mitchell, Williams, Selig, Gates & Woodyard, PLLC.

24

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Sainabou M. Sonko is Senior Counsel at Tyson Foods, Inc.

www.arkbar.com

82% of attorneys agree generative AI can be applied to legal services;2 51% of lawyers have used, or plan to use, ChatGPT in their work;3 15% of consumers have already sought legal services or advice from a generative AI tool; 60% of consumers would consider using generative AI for general legal advice; 43% of consumers would consider using generative AI to draft a will.

As one leading commentator noted: “For the legal industry, ChatGPT may portend an even more momentous shift than the advent of the internet.”4 It’s here for the long term and ignoring its impact on the legal landscape is not an option.

Recognizing this paradigm shift, law firms are now taking a hard look at the use of generative AI technology. A few firms—recognizing the “significant competitive edge”5 AI technology provides—have launched their own versions of ChatGPT.6 Others continue to consider

"The sky is not falling and you are not about to be replaced by a robot lawyer. This should be reassuring when we think about what we do in the practice of law. Our real valueadd to clients does not come from rehearsing law like a robot. It comes from applying the many nuances of the law to novel, complex, and divergent fact patterns, solving problems, and spotting issues to prevent, correct, or avoid."

AI integration,7 while some have issued mandates prohibiting their attorneys from using generative AI altogether.8 Courts have also responded in kind, with one judge writing that “[r]eliance on AI in its present development is fraught with ethical dangers.”9 II. Uses of generative AI in the legal field.

Before delving into the ethical issues, let’s examine the theoretical uses of ChatGPT in legal practice.

ChatGPT can draft just about anything you ask it to, including simple motions, filings, orders, contracts, and agreements, among other documents. It can also prepare letters, e-mails, checklists, and other timeconsuming tasks. It can review and provide feedback on NDAs, purchase orders, and contracts. It can study and analyze trends after reviewing thousands of pages of documents. It can be used for research, citation assistance,10 and analysis of most anything.

For lawyers hiring and managing outside counsel, generative AI may be a game changer. Some corporate counsel are already using this technology to do background research on outside counsel before hiring them, critique attorney work product, respond to e-mails, and predict outcomes.11 III. Drawbacks, pitfalls, and risks of using generative AI. Despite its immense potential, generative AI use in the legal space also has its risks.

Since its launch, ChatGPT has been at the

center of a few “lawyers beware” cautionary tales.

Perhaps the most notable of these cautionary tales stems from the Mata v.

Avianca12 case, in which a brief drafted using ChatGPT contained several fictitious cases fabricated by a chatbot. The Mata case highlights the primary drawback of ChatGPT—the “hallucinations,” or false information, sometimes generated by the chatbot in the absence of existing information. ChatGPT’s proclivity to hallucinate, if left unchecked, can be detrimental to not only the underlying cases, but also one’s professional reputation.

In the Mata case, the attorney’s failure to confirm the accuracy of the information provided by ChatGPT resulted in sanctions.13 As Judge Castel explained in Mata: “Many harms flow from the submission” of briefing containing inaccuracies invented by ChatGPT, including the “potential harm . . . to the reputation of a party attributed with fictional conduct.”14 This is illustrated in a June 2023 defamation lawsuit filed against OpenAI—ChatGPT’s developer—after a published case summary generated by ChatGPT falsely reported that the plaintiff was a named party accused of fraud and embezzlement.15 The possibility of inaccurate output from ChatGPT underlies another notable limitation: the chatbot’s data is incomplete.

ChatGPT “generally lacks knowledge of events that have occurred after the vast

majority of its data cuts off (September 2021).”16 This poses a serious limitation for attorneys given that our work must be done with up-to-the-moment information.

ChatGPT also presents inherent data privacy and copyright infringement risks. Attorneys using the generative AI tool should always remain cognizant that ChatGPT collects and logs each conversation, which may be reviewed by its “AI trainers” for training and other purposes.17 And, in cases of technological glitches, other ChatGPT users may become privy to information inputted by an attorney.18 Similarly, those using ChatGPT should ensure that any information derived from a ChatGPT search does not contain copyrighted content.19 IV. Regardless of how you approach generative AI, do it with ethics at the forefront.

Reviewing ethics rules anew in light of adopting new technology is prudent.

Technology evolves quickly, and because the potential ethical issues are so nuanced, we cannot be prescriptive here and speak in absolutes. We can, however, recommend questions to ask and issues to consider as you navigate the possibility of integrating generative AI into your work as a lawyer.

•Privilege. Generative AI, like ChatGPT, is available online for free or at a low cost.

But every time you enter a prompt, feed it a document, or invite it to generate output—

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all that data gets stored somewhere in the cloud and is used to train the AI. This should raise alarm bells about our ethical duty to maintain client confidentiality.20 •Truth and accuracy. Although it has tremendous promise, as highlighted above, generative AI also has been known to make errors. There are several ethical rules that compel lawyers to only make true representations.21 Lawyers should confirm and verify the accuracy of any generative AI content.

•Competence. Lawyers have a duty to provide competent representation to their clients.22 When using any new tool, the rules provide that lawyers must maintain “the requisite knowledge and skill” by keeping abreast of “changes in the law and its practice, including the benefits and risks associated with relevant technology.”23 When making the decision about whether to integrate generative AI into your law practice, this means having some understanding about how AI works and how to incorporate it into your practice.

•Supervision. Lawyers have a duty to supervise other lawyers and nonlawyers working on cases for them.24 Thus, to the extent that others assisting representation are using generative AI, or making decisions about whether to use generative AI, Arkansas lawyers must pay attention and supervise accordingly.

•Billing considerations. Whenever timesaving technology is used by attorneys, this raises ethical questions about billing.25 For example, if generative AI writes a 10-page brief and the lawyer spends two hours checking the citations and cleaning it up, the lawyer should bill for two hours of time, not the time that it would have taken had the lawyer written the brief the oldfashioned way.

•Bias. Generative AI technology absorbs information from its sources, processes it, and spits out computer-created content. In the case of ChatGPT, OpenAI admits that the system has “shared outputs that [are] considered politically biased, offensive, or otherwise objectionable.”26 This necessarily means that there is an inherent risk that AI replicates bias found in its inputs. The Model Rules of Professional Conduct, and to some extent the Arkansas Rules, specifically prohibit engaging in harassment 26

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and discrimination in a lawyer’s conduct “related to the practice of law.”27 Any and all use of AI, including ChatGPT, must be done in a way that checks a lawyer’s work so that bias is not perpetuated.

V. Best practices for Generative AI Use. Caution advises against unfettered use of generative AI in your practice. It is, however, irrefutable that this technology can change the way you do your work. In the event that a lawyer proceeds with using and/ or experimenting with generative AI, here are some best practices that can be observed.

•Be upfront with clients. The rules contemplate that it is the lawyer’s duty to communicate with clients about the means by which the client’s objectives are to be accomplished.28 In the engagement letter, or as a separate acknowledgement and waiver, inform the client that you may use generative AI in your practice. Be clear that you still plan to protect their confidence.

Give them the option to opt out.

•Handle a waiver of privilege expressly.

Even though you have informed clients that you plan to use generative AI in the course of your representation, do not assume that means you can break privilege. Any waiver of privilege should only occur “after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”29 •Check with your malpractice carrier.

Many have not yet issued guidance on the use of generative AI, but that is changing.

Watch for updates, and when in doubt, ask.

•Use it for nonclient/nonbillable tasks.

Consider asking generative AI such as ChatGPT to write a description for your website, to write a letter template, or write a blog post. Just be sure to check its work and customize it with your own voice. Keep in mind that while the content generated might be unique, it might also repeat errors or just regurgitate an agglomeration of unoriginal information found elsewhere.

That might be sufficient for your purpose, but know what you’re getting. Remember that your experience as an Arkansas lawyer and your original thoughts are something that no machine can replicate.

VI. Conclusion The sky is not falling and you are not about to be replaced by a robot lawyer. This should be reassuring when we think about what we do in the practice of law. Our real value-add to clients does not come from rehearsing law like a robot. It comes from applying the many nuances of the law to novel, complex, and divergent fact patterns, solving problems, and spotting issues to prevent, correct, or avoid. We are often called upon to deal with situations that go beyond information already available on the internet. A robot cannot do what you can.

Lawyers tend to be late adopters of technology and the change that comes with it, and that is not always a bad thing.

Rushing to implement a tool like ChatGPT too quickly may compromise our ethical duties. Our healthy hesitation makes us a profession of risk-averse professionals that often save our clients considerable future headaches. But that does not mean that we should ignore the explosive growth of generative AI, either. Whenever you decide that it is the right time to use generative AI, it is important to always remain mindful of our ethics rules. The rules are there for a reason, and navigating the minefield of adopting new technology is precisely such a time when the rules can set us free more than they shackle us.

Endnotes: 1. This article expresses the opinions of the authors only, and does not reflect the opinions of Tyson or Mitchell Williams.

2. ChatGPT and Generative AI for Law Firms in 2023, Thomson Reuters, https:// www.thomsonreuters.com/en-us/posts/ technology/chatgpt-generative-ai-lawfirms-2023/ (last visited Sept. 13, 2023).

3. Source for remaining bullet points: Generative AI Captures Imagination of Lawyers, Law Students, Consumers Alike, LexisNexis, https://www.lexisnexis.com/ community/pressroom/b/news/posts/ generative-ai-captures-imagination-oflawyers-law-students-consumers-alike (last visited Sept. 13, 2023).

4. Andrew Perlman, The Implications of ChatGPT for Legal Services and Society, Harvard Civil Liberties Review, https:// clp.law.harvard.edu/knowledge-hub/ magazine/issues/generative-ai-in-the-legal-

profession/the-implications-of-chatgpt-forlegal-services-and-society/ (last visited Sept.

14, 2023).

5. David Wakeling, AO Announces Exclusive Launch Partnership with Harvey, Allen & Overy LLP, https://www.allenovery.com/ en-gb/global/news-and-insights/news/ ao-announces-exclusive-launch-partnershipwith-harvey (last visited Sept. 14, 2023).

6. See, e.g., id.; Paul Jarvis, Dentons to Launch Client-Secure Version of ChatGPT, Dentons, https://www.dentons.com/en/ about-dentons/news-events-and-awards/ news/2023/august/dentons-to-launch-clientsecure-version-of-chatgpt# (last visited Sept.

20, 2023); Gunderson Dettmer Launches ChatGd: A Homegrown Generative AI Chat App to Its Lawyers, Gunderson Dettmer, https://www.gunder.com/news/gundersondettmer-launches-chatgd-a-homegrowngenerative-ai-chat-app-to-its-lawyers/ (last visited Sept. 20, 2023); Jessie Yount, Davis Wright’s Gen AI Chatbot Is Fostering Collaboration, LegalTech News, https:// www.law.com/legaltechnews/2023/08/25/ davis-wrights-gen-ai-chatbot-is-fosteringcollaboration/ (last visited Sept. 20, 2023); Troutman Pepper Launches GPT-Powered AI Assistant, Troutman Pepper Hamilton Sanders LLP, https://www.troutman.com/ insights/troutman-pepper-launches-gptpowered-ai-assistant.html (last visited Sept.

20, 2023); Rhys Dipshan, Forget ChatGPT, Law Firms Are Launching Their Own Gen AI Chatbots, Law.com, https://www.law. com/2023/09/07/forget-chatgpt-law-firmsare-launching-their-own-gen-ai-chatbots/ (last visited Sept. 20, 2023).

7. ChatGPT: Generative AI and Law Firms in 2023, Thomson Reuters, https:// www.thomsonreuters.com/en-us/posts/ technology/chatgpt-generative-ai-lawfirms-2023/ (Apr. 17, 2023).

8. Id. 9. In re Vital Pharm., 652 B.R. 392, 398 (Bankr. S.D. Fla. 2023).

10. The authors utilized ChatGPT for the citations in this article (with some subsequent editing). During this process, ChatGPT warned that we needed to “consult the latest edition of the Bluebook for any updates or changes in the citation style” as its data “only goes up until September 2021.”

11. Top 5 Ways Your Clients Are Using AI

Today, BTI Consulting Group, https:// bticonsulting.com/themadclientist/top-5ways-your-clients-are-using-ai-today (Aug. 2, 2023).

12. Mata v. Avianca, Inc., 2023 WL 4114965 (S.D.N.Y. June 22, 2023).

13. Id. at *16.

14. Id. at *1.

15. Walters v. OpenAI, LLC, Case No. 1:23cv-03122 (N.D. Ga. July 14, 2023).

16. GPT-4, OpenAI, https://openai.com/ research/gpt-4 (last visited Sept. 14, 2023).

17. What Is ChatGPT? OpenAI, https:// help.openai.com/en/articles/6783457-whatis-chatgpt (last visited Sept. 14, 2023); New Ways to Manage Your Data in ChatGPT, OpenAI Blog, https://openai.com/blog/ new-ways-to-manage-your-data-in-chatgpt (last visited Sept. 14, 2023).

18. March 20 ChatGPT Outage, OpenAI Blog, https://openai.com/blog/march-20chatgpt-outage (last visited Sept. 14, 2023).

19. See, e.g., Matt G. Southern, ChatGPT Creator Faces Multiple Lawsuits Over Copyright, Privacy Violations, Search Engine Journal, https://www. searchenginejournal.com/chatgpt-creatorfaces-multiple-lawsuits-over-copyrightprivacy-violations/490686/ (July 2, 2023) (discussing recent copyright infringement suits against OpenAI).

20. Ark. R. Prof ’l Conduct 1.6.

21. Ark. R. Prof ’l Conduct 1.3.

22. Ark. R. Prof ’l Conduct 1.1.

23. Ark. R. Prof ’l Conduct 1.1, cmt. 8.

24. Ark. R. Prof ’l Conduct 5.1 and 5.3.

25. Ark. R. Prof ’l Conduct 1.5.

26. How Should AI Systems Behave? OpenAI Blog, https://openai.com/blog/how-shouldai-systems-behave (last visited Sept. 14, 2023).

27. Model R. Prof ’l Cond. 8.4(g) (not adopted by Arkansas); Ark. R. Prof ’l Conduct 8.4, cmt. 3.

28. Ark. R. Prof ’l Conduct 1.4(a)(2); see also Ark. R. Prof ’l Conduct 1.2(a) (noting that “a lawyer . . . as required by Rule 1.4, shall consult with the client as to the means by which” the objectives of representation “are to be pursued”).

29. Ark. R. Prof ’l Conduct 1.6, cmt. 2; Ark. R. Prof ’l Conduct 1.0(e). ■

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What Should I Do With My IOLTA Account After Leaving Private Practice?

By Jordan Bates-Rogers

A

ttorneys in private practice have an obligation to hold client and third-party funds separate from their own funds.1 This ethical obligation is almost always satisfied by opening an IOLTA account. IOLTA accounts allow for the pooling of client funds in a single trust account. The interest generated on IOLTA accounts funds legal aid and court improvement programs that make the court process easier for low-income Arkansans.

Occasionally tricky issues come up with IOLTA accounts. One of these situations is closing an IOLTA account. Whether you’re retiring after decades of practice or switching from private practice to a government job, the tips below will help you comply with the ethics rules.

Jordan Bates-Rogers is the Executive Director of the Arkansas Access to Justice Foundation

28

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Step 1: Decide to Close the Account One of the most common mistakes attorneys make when retiring or leaving private practice is leaving their IOLTA account open. This is a mistake.2 Tomorrow might seem like the best time to handle closing the account, but tomorrow is always a day away.

Accounts that are not closed become “dormant.” At the point of dormancy, the bank may begin charging additional fees. Also, after a while, many banks will remit the remaining funds to the Auditor of the State. Allowing IOLTA funds to revert to the Auditor of the State violates the Arkansas Rules of Professional Conduct.3 We also see many IOLTA accounts that must be closed by the estate after an attorney dies. The attorney had often been retired for years but never closed their IOLTA account. This burdens the estate and increases the chances of client funds being inadvertently mishandled.

Even if you’re not retiring, close the IOLTA account. Often practitioners tell us they want to keep an IOLTA account open when moving to a government or in-house counsel job. The reasoning is that they might return to private practice. However, the process of opening a new IOLTA account is easy—don’t leave an account open just in case you return to private practice. These accounts are often forgotten about and never used again, risking that the account will become dormant.

Step 2: Make Disbursements and Reconcile the Account Now that you know not to leave an IOLTA account open after

leaving private practice, the next step is making final payments. These may include settlement funds that need to be disbursed, refunds of unearned fees, and final transfers of earned fees to the operating account. Be sure to reconcile the account. Ensure that all payments have cleared.

At this point, if you’re lucky, there will be only your opening deposit left in the account. As a reminder, attorney funds in an IOLTA account can never exceed $500.4 Furthermore, there must be clear trust records documenting all attorney funds held in the IOLTA account.5 If you have not maintained records of your funds in the IOLTA account, the funds must be disposed of according to the unclaimed funds rule.

Many practitioners will find that some additional funds remain after attempting final disbursements and reconciliation. These could be from settlement checks that were never cashed or fee refund checks to clients that were returned as undeliverable. If you find yourself in this situation, continue to Step 3. If there are no funds other than your opening deposit, skip to Step 4.

Step 3: Deal with Unclaimed Funds If you have funds left in the IOLTA account that have not been claimed or that you cannot identify, these funds must be disposed of according to Arkansas Rule of Professional Conduct 1.15(c). The first step in this process is to make reasonable efforts to locate or identify the owner of the funds.

What efforts are reasonable will depend on the amount of funds and the information you have available. For smaller amounts, a letter to the last known address of the client, a phone call, and an email may be sufficient.

For substantial amounts, additional effort may be required, such as paying for a background check to locate a new address or hiring a private investigator.

Whatever reasonable efforts you employ, you must make those efforts and hold the funds for two years. Sometimes this process will start when closing the IOLTA account.

In this situation, you must keep the IOLTA account open to hold the funds for two years from beginning efforts to locate or identify the owner. However, most diligent attorneys will have started this process well before preparing to close the IOLTA account.

If you locate or identify the owner of the funds, promptly disburse them. If you can’t locate or identify the owner of the funds, the next step is to complete the unclaimed/ unidentifiable funds form at arkansasjustice. org/IOLTA. Include your contact information, any information you have about the owner of the funds, a description of the reasonable efforts you made to locate the owner, and the amount of the funds.

Send a check and the form to the Arkansas Access to Justice Foundation (AATJ) and a copy to the Office of Professional Conduct.

They will hold the funds for an additional two years. If the owner of the funds approaches you during this period, contact AATJ for a refund. After two years, if there is no claim, AATJ will use the funds to support its mission of funding legal aid and improving the court system.

Step 4: Withdraw Your Opening Deposit and Close the Account Once you have disbursed all funds either through payments to the owner or via the unclaimed funds process, you can close your IOLTA account. Contact your bank or credit union to withdraw your opening deposit. Be sure to communicate to the bank that they should not attempt to withdraw interest after closing the account.

After closing your IOLTA account, complete the Attorney Change of Status Form located at arkansasjustice.org/IOLTA and send it to the Arkansas Access to Justice Foundation.

If you have questions about IOLTA, contact the Arkansas Access to Justice Foundation at 501.492.7174 or jrogers@ arkansasjustice.org.

Endnotes: 1. Ark. R. Prof ’l Conduct 1.15(a)(1).

2. This article is written primarily with solo practitioners in mind. If you are leaving a firm that manages a firm IOLTA account, all you need to do is complete the change of status form at www.arkansasjustice.org/ IOLTA. 3. Ark. R. Prof ’l Conduct 1.15(c).

4. Ark. R. Prof ’l Conduct 1.15(b)(3).

5. Id. ■

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Preferred IOLTA Banks Shown below are the Arkansas IOLTA Program’s Preferred Banks. These financial institutions currently pay competitive interest rates on IOLTA accounts, providing extra funding for legal aid programs.

Don’t see your bank? You must contact the Arkansas IOLTA Program before opening your account to ensure that the bank is approved to hold IOLTA funds. Call 501.492.7175 to verify bank participation.

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Defining Legal Fees An Update After ABA Formal Ethics Opinion 505 (May 2023)

By Stark Ligon

What is a “retainer” legal fee? How many of you have used the term “retainer” in the past or seen other lawyers use it, and especially in fee agreements with clients? Would you be surprised to know that neither the ABA Model Rules of Professional Conduct nor the Arkansas Rules of Professional Conduct or the Comments to them contain the term “retainer?” Likewise, how do you define and use the fee terms of “flat fee,” “fixed fee,” “nonrefundable fee,” “minimum fee,” “earned upon receipt fee,” and “advance fee”? The problem for Arkansas lawyers is that there has been and even now are no standard definitions for such fees or terms in our Rules of Professional Conduct or the comments to them. This situation has led to the uninformed use or even misuse of the terms, sometimes leading to disciplinary complaints and sanctions, as well as consequences in civil cases.

Consider one trial judge’s recent dilemma.

In Campbell v. Campbell,1 in a postdivorce custody dispute, ex-husband's veteran counsel filed a motion to withdraw, alleging, “There is no unearned fee or part of fee paid in advance.” Client replied that there was an unearned fee issue involved. In a late 2022 Order, the trial court found that there was no understanding, written or otherwise, regarding the rate of attorney fee and expenses between counsel and her exhusband client, and there was no written contract upon which the court could rely.

The court addressed the terminology used by counsel in describing the money paid by client husband, referring to the money as: “Flat minimum fee of $10,000”; “Flat 34

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fee”; “$10,000 flat”; “minimum fee”; and “Nonrefundable minimum fee.” The court stated the money counsel received from client is “either a nonrefundable flat fee or a refundable retainer to be billed from at counsel’s hourly rate of $350.00 per hour, but under no circumstances can it be both.”

The court then found that counsel was titling the fee funds with numerous contradictory terms and names in an effort to keep the fee as a nonrefundable flat fee and not return any to the owner while trying to withdraw from his case.

Using counsel’s requested $350 hourly fee rate, the court then arrived at real services provided for the client of approximately $1487.50, leaving $13,512.50 remaining and unaccounted for out of what the court determined was a total $15,000 paid retainer, stating that it was abundantly clear counsel’s attorney’s fee of $15,000 was excessive. The court considered the amount of work performed and ordered a refund of $10,000 of unearned attorney’s fee to the client. Counsel eventually paid the refund as a contempt hearing neared.

ABA Op. 505 helps Arkansas lawyers by giving clear guidance as to how each type of fee is defined and should be treated, as either a “general” retainer that does not go into a trust account, or as all other types of fees, which it calls “advances,” that do go into a trust account, based on a theory of “ownership” of the fee funds at various stages of the representation. The Opinion states that the one form of “retainer” that is generally recognized is a fixed amount payment to ensure the lawyer’s future availability for a fixed time to represent

the client if a legal matter arises and the client calls on the lawyer for that specific representation, upon fee terms then negotiated. Such a rare retainer for only future “availability” goes into the lawyer or firm’s account, not a trust account, as it is deemed earned upon payment. Such an arrangement also creates an attorney-client relationship for the time period of the retainer, unless canceled.

Other types of legal fees, categorized as “advances” in Opinion 505, go into a trust account and are generally either billed against on a set hourly basis as work is done or funds are transferred to the lawyer’s account as certain “milestones” of services or stages provided in the representation, hopefully set out clearly in the written fee or engagement document, are reached. The use of the term “nonrefundable” is strongly discouraged, as both the Model Rule and AR 1.16(d) make almost any fee that is not earned refundable, regardless of the name given the fee by the lawyer, as the judge in Campbell found in the end.2 Endnotes: 1. Faulkner Circuit No. 23dr-16-584, writ of cert denied, No. CV-22-649 (Apr. 6, 2023).

2. See Arens v. Committee on Professional Conduct, 307 Ark. 308 (1991). ■

Stark Ligon, Attorney/Mediator/ Legal Ethics Consultant

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in memoriam Philip Sidney Anderson, Jr., of Little Rock died August 15, 2023, at the age of 88.

He earned his B.A. and J.D. from the University of Arkansas, Fayetteville in 1959. He was editorin-chief of the Arkansas Law Review. After law school, he served as a Captain with the United States Army Reserve in the Adjutant General Corps. Anderson practiced law in Little Rock for nearly 60 years—first with his father-in-law, Edward L. Wright, at the firm of Wright, Lindsey & Jennings, and then at Williams & Anderson, the firm he founded with W. Jack Williams in 1988. Anderson served as President of the American Bar Association in 1988–1989, only the third Arkansan to hold that position. He was presented with the Outstanding Service Award by the Fellows of the American Bar Foundation in 2013 and was inducted into the inaugural class of the Arkansas Bar Association Legal Hall of Fame in 2022.

Judge Wiley Austin Branton, Jr., of Little Rock died August 21, 2023, at the age of 72.

Judge Branton graduated from Morehouse College in 1973 and Georgetown University Law Center in 1976.

His life was a testimony to his dedication to the law and civil rights. He had over 45 years of legal and academic experience, including full-time college professor at his alma mater, the private practice of law, general counsel of a District of Columbia government agency, and service as an adjunct professor at two law schools. As a civil rights lawyer, Wiley attempted to utilize the law as a beacon of progress. In the tapestry of justice and civil rights, he was a thread, woven with the legacy of his father. His commitment to equal justice under the law did not waver when he became a judge. Judge Branton served as a circuit court judge in Arkansas from 1993 until his retirement in 2020. First appointed, he was then elected five times to the seat.

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Nathan Price Chaney of Little Rock died August 27, 2023, at the age of 43. Nathan graduated in 2001 with a computer systems engineering degree from the University of Arkansas. In 2004, Nathan graduated from Washington and Lee School of Law in Lexington, Virginia, with a focus on patent and technology law. Nathan spent about a dozen years in law firm work, including a partnership with Mark Henry of Fayetteville.

He worked in a collegial group as research contracts attorney at the University of Arkansas for Medical Sciences (UAMS).

Nathan completed a Masters in Information Science in 2020 while working at UAMS. In 2022, Nathan leveraged patent law, privacy, and machine learning experience to secure the perfect role for him: Senior Counsel for Artificial Intelligence at Walmart.

Patrick Henry Hays of North Little Rock died on October 4, 2023, at the age of 76. Mayor Hays served as mayor for six terms and became the longest serving mayor in North Little Rock history. He was a former member of the Arkansas House of Representatives and was the Democratic candidate for U.S. Congress in 2014. Hays returned to private law practice after his career in public service.

He obtained his bachelor’s degree from the University of Arkansas at Fayetteville. He received his Juris Doctor from the University of Arkansas School of Law. Hays was a member of the United States Army Reserves, reaching the rank of captain.

Monzer Mansour of Fayetteville died on May 4, 2023. He completed his education at Georgia State and the University of Georgia with two masters in philosophy and religious studies as well as a law degree.

Monzer began a bilingual law practice in Northwest Arkansas in 1997. As an attorney, he was known for his work with the Latino community in Washington and Benton Counties, and for outstanding achievements with the Arkansas ACLU. James “Jim” Victor Spencer III, of Birmingham, Alabama, died August 25, 2023, at the age of 79.

Jim graduated with a law degree in 1968 from the University of Arkansas.

After law school, he returned to El Dorado and joined his father and grandfather’s law firm, where he practiced multiple areas of law, but eventually focused on real estate, estate planning, and oil and gas law. Jim served as El Dorado’s city attorney from 1971–1979 and was circuit judge for the 13th Judicial District of Arkansas from 1989 to 1991. In 1998, Jim moved to Birmingham, Alabama, and began practicing law there.

Judge Rice Lee Van Ausdall of Harrisburg died on May 19, 2023, at the age of 88. Rice attended Arkansas State University. Rice received his commission as an officer in the United States Army where he served three years on active duty as a paratrooper, pathfinder, and Army Ranger in the 101st Airborne. Upon his return to civilian life, Rice attended the University of Arkansas School of Law. He practiced law in Harrisburg. In 1987, Rice was elected chancery judge, and he sat on the bench for 22 years before retiring at age 74. Rice was also appointed to the Arkansas Judicial Discipline & Disability Commission from 1994 to 2000 and elected its chair.

The information contained herein is provided from the members’ obituaries.

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

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 July 15, 2023, through October 15, 2023.

In Memory of Philip S. Anderson Judge Raymond R. Abramson Patti and Charles Coleman Nancy and Judge John N. Fogleman Hayden and Gordon S. Rather, Jr. Charles D. Roscopf Rex M. Terry In Memory of Judge Wiley Branton, Jr. Nancy and Judge John N. Fogleman Judge Shawn Johnson Charles D. Roscopf Fred Ursery In Memory of William Bridgforth Nancy and Judge John N. Fogleman In Memory of Nathan Chaney Judge Shawn Johnson In Memory of Andrew L. Clark, Sr. Friday, Eldredge & Clark, LLP

In Memory of Dan Kennett Judy and Glenn Vasser

The Arkansas Bar Foundation is grateful to its sponsors, guests and development committee for a successful 2023 Raising the Bar fundraiser hosted on September 21, 2023 at Garvan Woodland Gardens. Members of the committee include Missy Duke, Chair; Amber Bagley; Chip Chiles; Michael Crawford; Darby Doan; Mark Mayfield; and Lyn Pruitt.

In Memory of Judge Jack Lessenberry Nancy and Judge John N. Fogleman In Memory of Senator Roy C. “Bill” Lewellen Nancy and Judge John N. Fogleman In Memory of Gene Matthews, Jr. Rose and Don Pullen In Memory of Letty McAdams Barbara and B. Jeffery Pence In Memory of Frank Morledge Judy and Glenn Vasser In Memory of Eudox Patterson Rose and Don Pullen In Memory of Judge Russell Rogers Don A. Eilbott

In Memory of Ralph Cloar Don A. Eilbott Judy and Glenn Vasser

In Memory of John L. Rush Jan and Jim Sprott

In Memory of Judge Barbara Ann Griffin Sally and Jim McLarty

In Memory of J. E. Sanders Sally and Jim McLarty Rose and Don Pullen

Honoraria, Scholarship Contributions and Other Gifts

In Memory of Patrick Henry Hays Fred Ursery Judy and Glenn Vasser

In Memory of James V. Spencer III Nancy and Judge John N. Fogleman

In Honor of Steve W. Quattlebaum Hayden and Gordon S. Rather, Jr.

In Memory of Philip E. Kaplan Don A. Eilbott Nancy and Judge John N. Fogleman Jeffrey and Lester McKinley Steve Quattlebaum Jan and Jim Sprott Judy and Glenn Vasser

In Memory of Judge Rice Lee Van Ausdall Judge Raymond R. Abramson Nancy and Judge John N. Fogleman Tom D. Womack In Memory of Justice Robin Wynne Judge Raymond R. Abramson Don A. Eilbott Nancy and Judge John N. Fogleman

Justice Andree Layton Roaf Scholarship Fund Bishop Phoebe A. Roaf In Honor of Judge Joyce Williams Warren Hayden and Gordon S. Rather, Jr. Contributions to Arkansas Bar Foundation Michael Crawford Audra Hamilton Gwendolyn Rucker Becky and Steve Singleton Vol. 58 No. 4/Fall 2023 The Arkansas Lawyer

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Attorney Disciplinary Actions Final actions from July 1, 2023 – September 30, 2023, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online at http://www.arcourts. gov by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page.

REFERRED FOR DISBARMENT: TAGGART, MAURICE L., of Pine Bluff, ABN: 2021042, in Committee Case No. CPC-2023-010, on a complaint by Cynthia Allison, by Findings & Order filed August 22, 2023, for violation of AR Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 1.5(a), 3.2, 8.1(b), and 8.4(d), was ordered to pay restitution of $8,200.00, assessed costs of $150.00, and was referred on August 22, 2023, for disbarment proceedings to be initiated by OPC. Taggart failed to appear in court for the client, then filed a notice of appeal and failed to perfect the appeal, to the irreversible detriment of the client’s interests.

TAGGART, MAURICE L., of Pine Bluff, ABN: 2021042, in Committee Case No. CPC-2023-011, on a complaint by Hosia Thomas, by Findings & Order filed August 22, 2023, for violation of AR Rules 1.1, 1.3, 1.4(a)(4), 1.16(d), 1.19(a)(3), and 8.1(b), was ordered to pay restitution of $3,250.00, assessed costs of $150.00, and was referred on August 22, 2023, for disbarment proceedings to be initiated by OPC. Taggart failed to provide the services for which he was paid and failed or refused to refund the monies paid, as well as the client’s file.

TAGGART, MAURICE L., of Pine Bluff, ABN: 2021042, in Committee Case No. CPC-2023-013, on a complaint by Mohammed Bensassi, by Findings & Order filed August 22, 2023, for violation of AR Rules 1.3, 1.4(a)(3), and 1.4(a)(4), was ordered to pay restitution of $3,757.00, 38

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TAGGART, MAURICE L., of Pine Bluff, ABN: 2021042, in Committee Case No. CPC-2023-015, on a complaint by Lon Denton, by Findings & Order filed August 22, 2023, for violation of AR Rules 1.3, 1.4(a)(4), 8.1(b), and 8.4(c), was ordered to pay restitution of $1,837.00, assessed costs of $150.00, and was referred on August 22, 2023, for disbarment proceedings to be initiated by OPC. Taggart failed or refused to provide the services for which he was paid and failed or refused to refund the monies paid.

REPRIMAND: SKARDA, CECILY PATTERSON, of North Little Rock, ABN: 98114, in Committee Case No. CPC-2023-004, on a complaint by Barbara Patterson, by Findings & Order filed July 12, 2023, was REPRIMANDED, ordered to pay restitution of $10,735.00, and assessed costs of $150.00, for violations of AR Rules 1.1, 1.3, 1.4(a)(3), and 1.16(d). Skarda failed to timely lodge a record, which resulted in the dismissal of the client’s appeal. Skarda further failed to inform the client of the dismissal and failed or refused to refund the monies paid to her for the appellate representation. ■

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