The Arkansas Lawyer Spring 2015

Inside: Data Security and Privacy Online Presence Cyberliability PCI Compliance ADR

It’s Time to Renew Your Membership The 2015-2016 Bar Year Begins on July 1, 2015.

Renew by June 30, 2015, to continue your membership without interruption.

Look for these NEW member values this year:

1 CLE Select/ Membership Bundle With the CLE Select/ Membership bundle, enjoy member benefits through June 30, 2016 and take advantage of unlimited CLE. Members can now pick and choose their CLE schedule in 2015-2016 for one flat rate. See ad on page 3 for more information.

2 ArkBar Docs On the Cloud The ArkBar Docs library of hundreds of legal templates is now available for purchase through a cloudbased platform and access from any device, including Macs. See ad on page 41 for more information. Firm pricing available, including user licenses for support staff.

3 Additional Options Available on the Membership Form Join Sections

Speak,connect, be heard!

Join Arkansasfindalawyer Market your law practice for only $75/year

Become a Benefactor or Patron Member

Look for your opportunity to contribute to important association projects on your membership renewal form.

To Join/Renew and for more information on the benefits of membership, visit our new membership website at ArkBarBenefits.com.

Learn what it means to be an insider, with insider deals and benefits.

PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Keith L. Chrestman Karen Sharp Halbert Judge Brandon J. Harrison Ashley Welch Hudson Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Brian H. Ratcliff Board of Governors Chair Anthony A. Hilliard President-Elect Eddie H. Walker, Jr. Immediate Past President Jim Simpson President-Elect Designee Denise Reid Hoggard Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Jessica S. Yarbrough BOARD OF GOVERNORS Thomas M. Carpenter Suzanne G. Clark Don R. Elliot, Jr. Frances S. Fendler Amy Freedman Buck C. Gibson Amy L. Grimes Denise Reid Hoggard Don Hollingsworth Leslie J. Ligon Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Kristen L. Pawlik Brant Perkins John C. Riedel Gwendolyn Rucker Jerry L. “Jay” Shue, Jr. Brian A. Vandiver Danyelle J. Walker

The Arkansas

Lawyer Vol. 50, No. 2

features

14 Data Security and Privacy: More Than I.T.

By Drake Mann, Christopher L. Travis and Don Lloyd Cook

20 An Attorney’s Online Presence—A Byte of Prevention is Worth a Gig of Cure

By Kathleen McDonald 26 Cyberliability—An Uninsured Risk

By Dwayne Shelton 28 Stay on Top of Credit Card Security in Your Law Firm

By Amy Porter 32 Arkansas Lawyers: An Ethical Obligation to Give ADR Advice?

By Ariel M. Kiefer and Stanley A. Leasure 40 Supreme Court Justice Marshal L. Stephenson

By L. Scott Stafford

LIAISON MEMBERS

Brian M. Clary Jack A. McNulty

Judge Van A. Gearhart Rosalind M. Mouser

Karen K. Hutchins Richard L. Ramsay

Judge Mary S. McGowan Charles D. Roscopf

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 non-members 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 2015, Arkansas Bar Association.

All rights reserved.

Contents Continued on Page 2

Lawyer The Arkansas Vol. 50, No. 2

in this issue ArkBar News

4

2015 High School Mock Trial Competition

10

2014-2015 Benefactor and Patron Members

12

Arkansas Bar Association Annual Meeting

18

2014 CLE Speakers and Planners

34

House of Delegates Report

42

Disciplinary Actions

46

Arkansas Bar Foundation Memorials and Honoraria

50

In Memoriam

51

Classified Advertising

52

columns President’s Report

7

Brian H. Ratcliff

Young Lawyers Section Report

9

Jessica S. Yarbrough

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Vol. 50, No. 1, February 2015 online at www.arkbar.com

For information on submitting articles for publication, go to http://tinyurl.com/ thearkansaslawyermag or email ahubbard@arkbar.com

Inside: ArkBar Lawyer Legislators Tort Reform Retirement Planning Same Sex Marriage

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. Vasser Delegate District A-2: Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Bob Estes, M. Scott Hall, Jason M. Hatfield, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Sarah A. Sparkman Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Colby T. Roe, Samuel M. Terry, Candice A. Settle Delegate District A-4: Open Delegate District A-5: Wade A. Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Kenya Gordon Davenport, Jason W. Earley, Edie Ervin, Caleb Peter Garcia, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson, Jamie Huffman Jones, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney II, Chad W. Pekron, Shaneen K. Sloan, Robin L. Sullivan, W. Carson Tucker, Jonathan Q. Warren,J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Keith L. Chrestman, Robert J. Gibson, Jason Milne Delegate District C-4: Jobi J. Teague Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Michael L. Murphy, Andrea G. Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, John P. Talbot, Jessica S. Yarbrough Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: S. Taylor Chaney, J. Philip McCorkle Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: John Andrew Ellis, Brian M. Clary Law Student Representatives: Tiffany Nicole Godwin, University of Arkansas School of Law; Nicholas Williams, UALR William H. Bowen School of Law

2

The Arkansas Lawyer

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ArkBar NEWS

ArkBar 2015 Mid Year Meeting held in Little Rock February 18-20

ArkBar hosted a reception for all attorneys on February 18 at the Great Hall of the William J. Clinton Presidential Center. The reception kicked off the association’s Mid Year Meeting that was held in Little Rock for the first time in almost 20 years. In addition to interesting events at the Old State House, CLE seminars were held at the Capital Hotel.

Save the Date for Mid Year 2016 January 27-29, 2016 As part of the three-day conference, the Arkansas Supreme Court held Oral Arguments at the Old State House for the first time in over 100 years. Other events at the Old State House included a theatrical production, “Funny Moments of Arkansas History.” The play starred some ArkBar members. The 1836 and 1874 Arkansas Constitutions and territorial court records were on display at the museum during the meeting.

Arkansas Supreme Court justices pictured above, from left to right: Justices Rhonda K. Wood, Robin F. Wynne, Karen R. Baker, Jim Hannah, Courtney Hudson Goodson, Paul E. Danielson, and Josephine L. Hart. Photo by Dero Sanford.

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The Arkansas Lawyer

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ArkBar Staff Anniversary Karen K. H u t c h i n s , ArkBar’s Executive Director, recently celebrated her 10-year anniversary with the association.

During her KAREN K. HUTCHINS time as Executive Director, Karen has led the Association in many changes and innovations.

“Congratulations to Karen for 10 years of service to the Arkansas Bar Association,” said Association President Brian H. Ratcliff. “Karen is a dedicated, hardworking, loyal, and compassionate leader for the association. I have been impressed with the breadth of her footsteps. Whenever we travel, all bar association leaders know and respect Karen Hutchins.”

Prior to becoming the Executive Director, Karen served as the Associate Executive Director and the Director of Continuing Legal Education of the association. Karen earned her designation of Certified Association Executive (CAE) in 2013.

A current board member of both the National Association of Bar Executives (NABE) and the Arkansas Society of Association Executives (ASAE), Karen serves as the liaison to the Small Bar Conference and Scholarship Committees for NABE and the networking chair for ASAE. She earned a Bachelor of Business Administration majoring in Finance from the University of Texas at Austin and a Doctor of Jurisprudence from the University of Houston Law Center.

Karen previously practiced law both in Texas and Arkansas concentrating in trust, wills, real estate, and oil and gas law.

She continues to share her knowledge of the law and nonprofit management with students teaching online courses in business law, ethics, and business management consulting.

Karen and her husband Doug have three children, Kelley, Katy and Kirk.

ArkBar NEWS Ratcliff Roast and Toast

Oyez! Oyez!

ACCOLADES Rosalind M. Mouser taught at SMU’s Southwest Graduate School of Banking’s 140th Assembly for Bank Directors at Amelia Island, Florida. Judge Brandon Harrison of the Arkansas Court of Appeals officiated as Pulaski Technical College inducted nine students into its newly formed Lambda Epsilon Chi chapter, the national honor society for paralegal students. Cathy Underwood received the Susan K. Reid Award for Teaching Excellence from Pulaski Technical College.

APPOINTMENTS AND ELECTIONS Baker Kurrus was appointed superintendent of the Little Rock School District.

Josh Mostyn, partner at Mostyn Prettyman, PLLC, was named president, and Lee Rudofsky, assistant general counsel at Walmart Stores, Inc., was named vice-president of the Northwest Arkansas Federalist Society Lawyers Chapter. Karen K. Hutchins was recently elected as treasurer for the National Association of Bar Executives.

WORD ABOUT TOWN PPGMR Law, PLLC announced that Jamie Fugitt has been named a member of the firm. Littler has added Brook A. Brewer to its Fayetteville office. Rose Law Firm announced that Steve Bauman joined the firm. Amy Clemmons Brown has joined McMullan Law Firm as a partner and the firm’s name is now McMullan & Brown.

Mitchell Blackstock Law Firm announced that Janet L. Pulliam has joined the firm and will assume “of counsel” status. Dana Landrum has joined Williams & Anderson PLC.

l to r: Lee Warden and Brian H. Ratcliff

The Union County Bar Association held a “Roast and Toast” to honor Arkansas Bar Association President Brian Ratcliff at the El Dorado Golf and Country Club in February. The UCBA presented Brian with a framed portrait of The Arkansas Lawyer magazine cover on which he and Karen appeared.

Benefactor and Patron Member Recognition

We encourage you to submit Oyez! information to ahubbard@arkbar.com.

Congratulations to the New Members Admitted to the Practice of Law May 2015 Zehra Abbasi Jenna A. Adams Makenzie A. Arnold Damon Assem Cody J. Bassham Virginia L. Baughn Margaret H. Benson Ramon J. L. Bertucci Stacie C. Bertucci Sybil A. Brown Kayla M.Campbell Jason A. Carter Benjamin T. Catterlin Lauren E. Clark Alycia M. Curtis Joshua A. Eason Jason A. Epperson Laura C. Fellows Ryan C. Hill Benjamin R. Hollowell

Ryan J. Jewell Ashley K. Jones Jarred W. Kibbey Jarid M. Kinder William M. Klein Braden C. Land Richard K. Lippard Jonathan P. Martin Taylor D. Martin Mackenzie J. Meador Patrick D. Melikian William B. Montgomery Christopher M. Morgan John E. J. Morgan Samuel T. Mundy Micah E. Murphree Samuel W. Norwood Christopher J. O’Neill Tara W. Raddle Blake A. Ray

James M. Reardon Victor R. Richardson Benjamin M. Ross Stella A. Rowland Zachary F. Ryburn Caitlin E. Savage Scott J. C. Schrum Charles G. Shepherd Sean Short Kayla C. Smith William K. Stoner Gary B. Swain Dylan W. Thomas John B. Van Kleef Joseph T. White Johnny R. Williams Jennifer A. Wyse Michael C. Young Michael C. Zangari

David Matthews of Matthews, Campbell, Rhoads, McClure and Thompson, P.A. in Rogers proudly displays his Patron Member decal in his office. The association recently recognized Benefactor and Patron members’ extra efforts with an official decal. Money from Benefactor and Patron contributions helps fund important association projects. For more information on becoming a Benefactor or Patron contributing member, visit www.arkbar.com.

Also, look for the opportunity to contribute on your membership renewal form.

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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CONGRATULATIONS, BRIAN! We at PPGMR Law are proud of all you accomplished as president of the Arkansas Bar Association. Thanks for the leadership you provide to our clients, our El Dorado office, and to the bar.

With offices in Little Rock and El Dorado, PPGMR Law is a businessfocused law firm known for its expertise in environmental law, oil and gas, natural resources law, business start-ups, commercial litigation, and insurance defense. Visit us online at ppgmrlaw.com.

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The Arkansas Lawyer

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PRESIDENT’S REPORT

A Three Course Meal—The Wine

By Brian H. Ratcliff

It’s time to talk about one of my favorite subjects—wine. A good wine can bring an entire meal together. When I select a wine I want to know where it is from. I love wine lists at restaurants. You can tell a lot about the quality of a restaurant by looking at the wine list.

In America we name our wine by the grape:, i.e., it’s a Pinot Noir, or a Cabernet Sauvignon, or a Chardonnay. In Europe wine is named for the region (appellation) and by government regulation a producer must grow only the approved grape(s) for that location. For instance in Burgundy the growers are required to grow Pinot Noir and Chardonnay. I know a little about Italian and French wines, but my knowledge is limited to a few areas like Tuscany (Sangiovese), Cotes de Rhone (Syrah and Grenache), Burgundy (Pinot Noir) and Bordeaux (Cabernet Sauvignon, Merlot, Petite Verdot, Cabernet Franc, and Malbec).

In my last article I compared the legislative session to a stinky/ stout blue cheese and promised to report more to you. This time I want to compare the session to a Zinfandel. This is a wine that can be very different depending upon the winery. Sometimes you can get a fresh and easy drinking wine with light tannins, but you may also get a very complex jam-

my wine with ripe tannins. One of my favorite Zinfandels is from Sonoma’s Mauritson Winery.

I refer to the current legislative session as a Zinfandel as it was easy going at times and then the next day spicy and full of zest.

The Association had a six-pack package of bills. Four of our six bills have been signed into law.

Act 107 allows one heir to purchase the interest of another heir in real property as opposed to a forced sale at the courthouse steps.

Act 304 creates a criminal offense of unlawful distribution of sexual images, a/k/a revenge porn.

Act 381 provides limited immunity for underage drinkers when the police are called due to a minor needing medical aid.

Act 380 clarifies and reorganizes the venue statutes.

We negotiated agreements on two other bills that were introduced. Insurance Commissioner Alan Kerr agreed to work with us to exempt attorneys from various requirements in the Arkansas Title Insurance Act. We worked with Lexis and the Code Revision Commission to make all the Arkansas Statutes available to the public. This may sound easy, but at times we felt like we were wrestling with a Melchizedek (30 liter) bottle of wine.

There were a number of bills

we opposed and many we supported. I will highlight a few. We joined forces with the Arkansas Chamber of Commerce and just about every licensed industry (accountants, HVAC, contractors) in opposing HB 1158 that made it lawful to engage in a licensed occupation without a license if it could be shown the licensing procedure was a substantial burden. If this was done the onus then shifted to the particular licensing agency to prove that the licensing requirements had not been sufficiently burdensome.

Many thanks to Tom Curry who provided research and testified against the bill. We worked with the authors and eventually got attorneys exempted.

The bill still failed to be passed into law as in my opinion it tried to “fix” burdensome licensing procedures with an unnecessary legal process. We then opposed the Chamber of Commerce on two bills that would remove the “made whole” doctrine from workers’ compensation and insurance contracts. This bill also failed. We also opposed HB 761 which mandated awarding attorney’s fees against the losing side when a motion to dismiss is granted. This bill also failed.

The Legislature can have up to three joint resolutions that are then placed on the general ballot for consideration. We support-

Brian H. Ratcliff is the president of the Arkansas Bar Association. He is a partner with PPGMR Law, PLLC and manages the El Dorado office.

ed SJR 1005. This was a joint resolution filed by our member, Representative Matthew Shepherd. SJR 1005 provided for merit selection of Arkansas Supreme Court Justices. If enacted, an appointed panel would make a recommendation of three to the Governor and the Governor would then select one from the list. This was not one of the three joint resolutions that were recommended by the Legislature.

I want to thank the Legislative Committee and Chair, Teresa Wineland, and our lobbyist, Jack McNulty, for all the work that was put into the session. When they adjourned sine die we all said Amen!

This is my last article as president. I cannot close without thanking the staff at our association for all their hard work this year. Just as a good wine can bring together a meal, a good staff can make our association the best of the best.

I hope you have enjoyed your food and wine tour of the association this year. I appreciate the opportunity to serve as president. Bon Appétit. 

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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The Arkansas Lawyer

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Kim Evans, JD Vice President of Development and Client Services

YLS REPORT

Launching Ahead

By Jessica S. Yarbrough

The Arkansas Bar Association Young Lawyers Section continues to “spring forward” with momentum in community involvement and professional development.

Estate Planning On Saturday, February 21, 2015, the Citizenship Education Committee joined the Leadership Academy Alumni Section to host a free Estate Planning Clinic in Little Rock. Committee Co-Chair John Rainwater reported, “the Free Estate Planning Clinic hosted by the Leadership Academy Alumni Section of the Arkansas Bar Association held at the UAMS Winthrop P. Rockefeller Cancer Institute was a success! Despite the unfavorable weather conditions, our volunteers showed up and served cancer patients by preparing free estate planning documents. We greatly appreciate Amy Johnson’s efforts in providing coordination and training; everyone at the Bar Association for all the planning and detail work done; and all our volunteers who gave up their Saturday to help others.”

Social Media Thanks to Sarah Sparkman, the YLS Social Media Guide has made its debut. Entitled “Ethics and Social Media: A Guidebook for Arkansas Attorneys,” the guide provides valuable information for lawyers who use social media in

their personal and professional lives. Topics of discussion include oversharing information in personal media accounts, as well as advertising legal services. YLS members may access an electronic version of the guide via ACE. Access to Justice Arkansas Access to Justice (AATJ) continues to ignite dialogue in the legal profession concerning accessibility of legal services in rural or underserved areas. Amy Johnson of AATJ, Mark Nichols, and Nate Coulter recently joined together to host a Jeffersonian Dinner in which attendees discussed the importance of quantifying the current unmet demand for services and ways to meet the needs of underserved Arkansans. I was honored to attend this collegial event on behalf of YLS for the purpose of learning more about how young lawyers may become part of the solution.

Those who may share an interest in helping to develop solutions should contact me or Amy Johnson at Arkansas Access to Justice.

American Bar Association Subgrant Awards The Arkansas Bar Association YLS has been awarded Subgrants in the amount of $1,000.00 and $2,000.00 from the American Bar Association to fund its Law School Application Guide and its Domestic Violence Handbook

Jessica S. Yarbrough is the Chair of the Young Lawyers Section.

She is an attorney with McKissic & Associates, P.L.L.C. in Pine Bluff. respectively. The Law School Application Guide will be used as a resource for students that are interested in embarking upon a legal career. The Guides will be disseminated during the College Road Tours, in which YLS members visit Historically Black Colleges and Universities and community colleges throughout the state. The Domestic Violence Handbook will include information concerning protective orders, custody, support, and visitation in the stir of domestic violence. YLS hopes that once printed, the handbook would be distributed to shelters and circuit clerks across the state.

ArkBar Annual Meeting The YLS is looking forward to a rewarding and fun-filled Annual Meeting, which will be held the week of June 8, 2015. The ArkBar Young Lawyers Section has created a program specifically for law student attendees and new admittees on Thursday, June

11th. All meeting registrants are welcome to attend. The programs do qualify for CLE. The following topics will be presented on Thursday in Rooms 203-204 of the Convention Center.

9:00 - 10:00 a.m.: The Arkansas Lawyer’s Ethical Use of Social Media presented by Sarah Sparkman 12:45 - 1:45 p.m.: Student Loan Debt presented by Heather Jarvis 1:45 - 2:45 p.m.: Do’s and Don’ts for Starting Your Own Law Firm presented by Brandon Moffitt and Robin C. Smith 3:00 - 4:00 p.m.: 10 Things You Won’t Learn in Law School—But Really Should Know Speakers TBA 

Attorneys helping at the Estate Planning Clinic at UAMS Winthrop P. Rockefeller Institute Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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mock trial Mock Trial

Thank You to the Attorneys & Judges Who Volunteered for the 2015 High School Mock Trial Competition Congratulations to the 2015 Mock Trial Champions—Parkview High School Blue Team (l to r): Andres Rodriguez, Jordan Borst, Michelle O’Neal, Josie Efird, Delaney Robertson, Brian Ratcliff, President, Arkansas Bar Association, Hannah Burdette, Melissa Vachon, Christian Mendez Parkview Arts/Science Blue Team (Varsity team) came out on top over their Red Team (Junior Varsity Team) at the conclusion of the annual Arkansas High School Mock Trial State Tournament. Over 100 high school students from across the state gathered in Little Rock on March 6-7, 2015 ,for the event, with 17 teams competing.

The semi-finals rounds included the top four teams: Parkview Arts/ Science Blue Team, Parkview Arts/Science Red Team, Springdale Har-Ber High School Team B, and eStem High School.

The students from Parkview’s Blue Team will represent Arkansas at the National High School Mock Trial Championship in Raleigh, N.C., May 15-16, 2015.

This year’s competition was held in the US Federal Courthouse in Little Rock starting on Friday afternoon and concluding on Saturday evening.

The final round of competition was held at the US Federal Courthouse with Honorable Leon Holmes presiding, with the Arkansas Bar Association President Brian H. Ratcliff and Arkansas Bar Foundation President Charles D. Roscopf serving as scoring judges.

Special thanks to the ArkBar Mock Trial Committee, Arkansas Bar Association, Arkansas Bar Foundation, Pine Bluff Area Community Foundation and the Arkansas Bar Association’s annual sponsors.

Charlotte A. Aceituno Elizabeth Joyce Armstrong LaTonya Laird Austin Adrienne L. Baker Kristine G. Baker Robert E. Bamburg Michael Brechlin Phillip M. Brick, Jr. T. Scott Brisendine Aaron Brooks Earnest E. Brown, Jr. Thomas E. Brown Waymond M. Brown Kristin H. Bryant Susan E. “Beth” Burgess Kimberly D. Burnette Scott Adam Burton Katelyn Burch Busby Laura L. Calhoun Jo Ellen Carson

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The Arkansas Lawyer

Erin E. Cassinelli Brian M. Clary Tracy Lynn Cole Cathleen V. Compton Vicki Shaw Cook Carl Frederic Cooper III Mary Galchus Cooper Jennifer Louise Corbin Chris P. Corbitt Brandon Michael Crawford Cory S. Crawford Don N. Curdie Kimberly Dale John D. Davis Amber Davis-Tanner Margaret Diane Depper Robert L. Depper, Jr. Suba Sruti K. Desikan Tony Anthony DiCarlo III Natalie J. Dickson

www.arkbar.com

Baxter D. Drennon Kimberly J. Eden George Raff Ernst Audrey R. Evans William P. Feland Jason D. Files Hugh A. Finkelstein Daniel DeMotte Ford Caleb Peter Garcia Andrew C. Gill Adrienne Morris Griffis Milas H. Hale III Randall I. Hall Christian Harris Harvey Harris Stephanie M. Harris Brandon J. Harrison Floyd A. Healy Michael Bailey Heister Samuel S. High

Grayson Tyler Hinojosa Johnathan D. Horton James Owen Howe Seth Hyder Adam Donner Jackson William Owen James, Jr. Michael D. Johnson Shawn J. Johnson Brian W. Johnston Kendra Akin Jones Phyllis M. Jones David Chan Jung Valerie L. Kelly Michelle Coe Lawrence Victoria Leigh Lynn D. Lisk Jennifer Norsokapie Liwo Lizabeth Lookadoo E. Lee Lowther Krystal A. Mann William C. Mann III Barbara C. Mariani Denzil Price Marshall, Jr. Winston C. Mathis Steven Michael McClelland Benjamin R. McCorkle Mary S. McGowan Mary C. Molly McGowan Anthony L. McMullen Chris A. McNulty Abtin Mehdizadegan Carla L. Miller David S. Mitchell Sandy Bailey Moll James Maxwell Moody Jr. James M. Moody Barrett Moore Jeffrey H. Moore D. Ryan Mullenix Ali Brady Noland Gregory J. Northen Bridget Hillebrand Norton Valerie L. Palmedo-Goudie Pamela E. Panasiuk

Kara Ann Petro Constance Brown Phillips Joseph Wayne Price II Joseph Alan Ramsey Michael D. Ray Bourgon Burnelle Reynolds Emily Jean Reynolds Gina H. Reynolds Elizabeth L. H. Richardson Scott P. Richardson James Kirby Riffel Bonnie Lee Robertson Charlotte A. Scott Katherine Jordan Smith Keesa M. Smith Laura H. Smith Andrea Catherine Stokes Michelle M. Strause Katherine S. Streett Meredith Baker Strong Robin L. Sullivan Mattie Adele Taylor Richard D. Taylor Bruce B. Tidwell Jordan Brown Tinsley W. Carson Tucker Brian A. Vandiver R. Keith Vaughan Larry D. Vaught Joe Volpe Karen V. Wallace Brian D. Welch II Morgan E. Welch, Jr. Jennifer Ann Wells Matthew D. Wells Karen Whatley William Zac White Phillip Whiteaker Jenny Wilkinson Kerry Nicole Wood (James) Susan Webber Wright James W. Wyatt Colleen A. Youngdahl

LOOK FOR NEW VALUES WITH YOUR MEMBERSHIP RENEWAL With the CLE Select/Membership bundle, enjoy member benefits through June 30, 2016 and take advantage of unlimited CLE. Members can now pick and choose their CLE schedule in 2015-2016 for one flat rate. You can attend in-person CLE by the hour, or by the seminar. A limited number of livestreaming CLE events will also be available. CLE Select can be used by any member for any in-person event, excluding Annual Meeting, Mid-Year Meeting, Best of CLE sessions, insurance discount programs and webinars.

CLE Select can be used for individual hours versus registration for an entire event.

We believe you will enjoy the flexibility and cost savings that this new option has to offer.

CLE Select/Membership Bundle

Join Sections —Get Inlvolved

Membership in one or more of ArkBar’s 32 sections provides an opportunity to speak, connect and be heard!

NEW this year—Civil Rights Section.

To Join/Renew and for more information on the benefits of membership, visit our membership website at ArkBarBenefits.com.

Learn what it means to be an insider, with insider deals and benefits.

yls publishes new social media handbook Ethics and Social Media: A Guidebook for Arkansas Attorneys The Young Lawyers Section recently published its online guide to social media. This guidebook is intended to give lawyers, whether new to the profession or seasoned and experienced attorneys, insight into the world of social media and how its use—for both personal and business purposes —intersects and interplays with the Arkansas Rules of Professional Conduct.

" This guide is not meant to discourage you from having an online presence; rather, it is meant to point out ethical predicaments so you can find creative ways to have an online presence while you can rest easy knowing that you are working within the Rules of Professional Conduct. "

The handbook is located at Arkbar’s website under Law Practice Management.

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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Thank You 2014-2015 ArkBar Benefactor and Patron Members

Benefactors

Your Benefactor and Patron member contributions finance a variety of projects and programs.

Patrons Mark H. Allison Philip S. Anderson Harry Francis Barnes Melody Peacock Barnett W. Christopher Barrier Fines F. Batchelor, Jr. David L. Beatty M. Stephen Bingham Will Bond Ted Boswell Wayne Boyce Robert Bruce Branch, Sr. Robert R. Briggs Fred E. Briner Sandra Burns Robert D. Cabe John C. Calhoun, Jr. Jerry L. Canfield Thomas M. Carpenter Douglas M. Carson Jerry Winston Cavaneau William M. Clark, Jr. Roger U. Colbert Randy Coleman Jon B. Comstock Barry E. Coplin James O. Cox Michael A. Crockett James E. Crouch C. Michael Daily Thomas A. Daily Robert T. Dawson Joseph B. Deacon Beth M. Deere Tracey Dennis Charles B. Dyer, Jr. Stephen Engstrom Bob Estes Audrey R. Evans 12

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William Lee Fergus Amy Freedman Charles Frierson III Matthew L. Fryar Price C. Gardner Pamela B. Gibson Sam E. Gibson Buck C. Gibson Dent Gitchel Dorsey D. Glover Donald Goodner Ronald L. Griggs Timothy W. Grooms James H. Gunter, Jr. Don F. Hamilton Betty J. Hardy Eugene S. “Kayo” Harris Charles L. Harwell Richard F. Hatfield Paul F. Henson Joseph Hickey R. H. “Buddy” Hixson Cyril Hollingsworth Don Hollingsworth Robert Howard Hopkins Robert E. Hornberger Karen K. Hutchins Michael E. Irwin Donald T. Jack, Jr. Randolph C. Jackson William Owen James, Jr. Amy Dunn Johnson Robert S. Jones Glenn W. Jones, Jr. Jim Julian David W. Kamps Philip E. Kaplan Paul W. Keith Sean T. Keith www.arkbar.com

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13

Data Security and Privacy: More than I.T.

By Drake Mann Christopher L. Travis and Don Lloyd Cook

One day, you click a link.

Your screen goes dark. After a few seconds, a skull with glowing red eyes emerges from the darkness next to a message: “Your files are now encrypted…pay $1,500 for the key or the key will be destroyed when the countdown clock gets to zero.”

A clock beneath the message is counting down.

The statistics are attention-getting: 40% of all targeted cyberattacks are directed at companies with fewer than 500 employees; almost two-thirds of victimized companies are forced out of business within six months of an attack; 83 percent of small businesses have no formal cyber-security plan, even though 71 percent are dependent on the internet for daily operations. Yet most business managers think hacks are isolated incidents that won’t have an impact on their business.1 It’s Too Late There’s a running gag among data security presenters: “How many here work at an organization that has never been hacked?”

The novices’ hands shoot up. The crowd snickers.

The presenter smirks: “There are two kinds of companies, those that have been hacked and those that have, but don’t know it yet.”

It’s funny (to them) because it’s true. In 99% of all payment card data security breaches—regardless of victim size or attack method— “someone else told the victim they had suffered a breach.” And in 14

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85% of those cases, it took an average of 178 weeks to discover the problem.2 Data security is no longer something simply to hand off to the IT guy. A culture of data security diligence and awareness must permeate every organization, large and small.

“Humans are the weak link.”

Organizations can’t leave data security and privacy to IT professionals because the IT folks cannot manage the problem alone.

A firewall and some antivirus software are inadequate protections these days.

Thieves frequently send emails designed to look trustworthy— “phishing” emails—that install malicious software (“malware”) when the victim clicks a link in the phishing email. The malware infiltrates the victim’s network, and can steal information, log key strokes to capture usernames and passwords, spread more malware, encrypt files for ransom, or other nefarious actions. The malware agent sometimes hides for weeks before it goes to work.

Consider the Target breach. The Target breach appeared “to have begun with a malware-laced email phishing attack sent to employees at a heating and air conditioning firm that did business with the nationwide retailer.”3 Target had provided the HVAC firm network credentials to access Target’s computer network for electronic billing, contract submission, and project management.4 The thieves stole the HVAC firm’s credentials at least two months before they stole any data from Target. Before the attack, the HVAC firm probably did not consider itself a likely hacking target.

Yes, Target’s own technical security failures ultimately enabled the thieves to steal Target’s data.5 But the initial breach could have been avoided if the HVAC firm had had a data security culture that included not only good network security, but also policies and practices that included training employees to identify phishing emails and to respond appropriately.6 Adequate data security measures these days should include enterprise-wide policies and practices that support a security-conscious culture.

Parisa Tabriz, self-titled Security Princess at Google, Inc., proclaims that a company’s greatest data security weakness is not technical: “For better or worse, humans are the weak link in security.”7 And, as “60 Minutes” reported, “there’s no shortage of weaknesses. Most company employees are allowed to browse online or visit Facebook on corporate computers and many take them home for personal use. All it takes to contaminate a network is for one person to unwittingly access an infected file that looks realistic ... like an Adobe Flash Player update or an email that pretends to be from Apple Support.”8 These points of human vulnerability can be managed. Similarly to complying with state and federal employment laws, companies can survey their operations and establish operational standards that provide supervisory controls for employee behavior. Businesses should regard their privacy and data security landscape and address it enterprise-wide.

Several frameworks are available to assist in the process of assessing data security and developing reasonable and appropriate controls. The Federal Trade Commission publishes a guide with practical tips on creating a plan for safeguarding personal information.9 The AICPA publishes Generally Accepted

Privacy Principles10 and the ISACA publishes Control Objectives for Information and related Technology Drake Mann, CIPM, CIPT (known as COBIT).11 In general, the Christopher L. Travis and frameworks show that achieving and Don Lloyd Cook, Ph.D., CIPP/US, CIPP/C maintaining strong data security is an are members of the Data Security and ongoing process that touches every Privacy Group at Gill Ragon Owen, P.A. aspect of company operations.

Even if statistics or anecdotes do not persuade businesses (including law firms) to address data security, they may soon find their hands forced. Trends in regulation and in standards of care forecast that broad changes in privacy and data security practices are on their way.

It is already nearly impossible for a business to avoid some form of external data security oversight, whether by contract or regulation. The Payment Card Industry requires that all businesses that accept payment cards meet the PCI Data Security Standard (PCI DSS). And federal the payment processor, and through it card regulatory regimes provide baseline data brands such as VISA, to levy (potentially security guidance in banking and healthcare. crippling) fines.13 Every business accepting However, even businesses that don’t accept payment card payments should ensure that it payment cards and are not in banking or is, in fact, PCI-compliant. (Editor’s Note: See healthcare should add data security con- page 28 of this magazine for a more detailed trols for at least two reasons: 1) healthcare article on PCI Compliance). and banking regulations are incrementally extending data security obligations to busi- Regulatory Creep—HIPAA & GLB nesses that serve healthcare and banking Healthcare and banking regulations proinstitutions and 2) negligence standards of tect non-public, personal information— care evolve. information that technology has increasingly made faster, easier, and cheaper to move. In PCI Compliance healthcare, the Health Insurance Portability Every enterprise that accepts payment and Accountability Act of 1996 (HIPAA) cards has contracted with a payment card is widely known for its concern for protectprocessor and, as a necessary component of ing patient privacy. But the banking sector that contract, has certified that it is PCI- may have the most mature regulation of all compliant, meaning its computer network information security regulatory regimes. The and operations comply with the PCI DSS. Gramm-Leach-Bliley Act (GLB) includes the Low-transaction-volume businesses, such as latest additions to the banking regulatory law firms, usually provide self-assessments regime; among other things, GLB addresses of their PCI compliance. Often an office the collection, disclosure, and safeguarding manager or billing staff member completes of customers’ personal financial information. a self-assessment questionnaire (SAQ)12 on Recent amendments to both HIPAA behalf of the organization. However, busi- and GLB have extended their reach and nesses may not appreciate the implications influence beyond the business sectors those of simple, innocuous-looking SAQ ques- laws initially regulated. For example, under tions, such as whether the computer utilized HIPAA, covered entities have for some time to conduct payment card transactions is asked third-party service providers (e.g., connected to the company’s network. If it lawyers, data processors, storage warehouses) is, the entire network typically must be PCI- who handle Protected Health Information compliant. If a breach occurs, a business’s (PHI) to enter into “business associate”14 contract with its payment processor allows contracts requiring those third parties to Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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acknowledge their commitment to ensuring the privacy and security of PHI they receive and to promise to notify the covered entity in the event of a data breach. But changes in 2009 (and related regulatory changes in 2013)15 made HIPAA directly applicable to the “business associates” of covered entities.16 One of the core requirements of HIPAA’s Security Rule (one that must be documented)17 is that business associates must conduct an accurate and thorough assessment of the

the subject of regulatory concern, banking regulators are beginning to take a closer, and broader, view of banks’ oversight of their third-party vendor relationships.

One example of this spread exists in the title industry. The American Land Title Association, the title industry’s main trade group, adopted a voluntary set of “best practices” that it strongly encourages its members to follow. These “best practices” include a wide range of written privacy and

“DATA SECURITY IS NO LONGER SOMETHING SIMPLY TO HAND OFF TO THE IT GUY. A CULTURE OF DATA SECURITY DILIGENCE AND AWARENESS MUST PERMEATE EVERY ORGANIZATION, LARGE AND SMALL. ‘HUMANS ARE THE WEAK LINK.’” potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information (ePHI) it holds. The business associate must implement security measures sufficient to reduce risks and vulnerabilities to a reasonable and appropriate level and must sanction employees who fail to comply. And, the business associate must regularly review records of information system activity such as audit logs, access reports, and security incident tracking reports.18 These formal, structured, entity-wide requirements, long familiar to health care providers, now must become routine business practices of business associates of covered entities.

In a similar manner, GLB’s protections are also spreading beyond the walls of financial institutions. In late 2013, the Office of the Comptroller of the Currency issued guidance to national banks and federal savings associations regarding how those entities should manage the risks associated with the third parties to which the institutions outsource significant banking functions.19 While those relationships have long been 16

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information security plans, controls, and documentation practices. Some speculate that, as data breaches of title companies increase, as they inevitably will, banks will tend to rely less on those title companies that cannot certify that they have implemented ALTA’s best practices regime.

GLB’s regulatory extensions are also impacting law firms. Lawyers who handle bank-customer financial information in the course of their representation of banks are finding that banks are beginning to require their outside counsel to verify that the outside counsel has a coherent, comprehensive set of information-security policies and practices. Some banks even require their outside counsel to agree to subject themselves to periodic data security assessments.

Weak Data Security Provokes20 Civil Liability Beyond banking and healthcare, not protecting sensitive information is increasingly the subject of civil litigation. While there is no private right of action for HIPAA violations and proving damages or causa-

tion from most privacy breaches is at best a challenging proposition, there are emerging trends that prefigure a broad sea change in data security and privacy litigation.

In Acosta v. Byrum,21 the North Carolina Court of Appeals considered the claim of a psychiatric patient who brought a claim for negligent infliction of emotional distress when the psychiatrist allegedly allowed a clinic employee to access her electronic health records. The employee allegedly “had severe personal animus towards plaintiff,” and he provided information from those records to third parties, causing the plaintiff severe emotional distress. In reversing the lower court’s dismissal for failure to state facts on which relief can be granted, the North Carolina Court of Appeals held that, while HIPAA does not provide a private cause of action, HIPAA could provide evidence of the duty of care owed by the psychiatrist with regard to the privacy of plaintiff’s medical records.

Acosta was not unique.22 Since Acosta, cases in West Virginia23 and Connecticut,24 among others, have held that HIPAA’s requirements are relevant to the standard of care in negligence cases. The Connecticut Supreme Court held that “to the extent it has become the common practice for Connecticut health care providers to follow the procedures required under HIPAA in rendering services to their patients, HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients’ medical records pursuant to a subpoena.”25 The FTC offers free on-line resources for businesses, including tips for creating and implementing a comprehensive plan for safeguarding personal information.26 The very fact that these sorts of tips are readily available and easy to implement implies a shift in the burden businesses bear.

What To Do Now Attacks happen every day. Blindly trusting that “the IT people have it covered” is no longer a responsible option. Any business should inventory the data it holds, develop policies and procedures that are reasonably related to its risks, minimize its data footprint, oversee third parties entrusted with handling sensitive data, educate employees and punish policy violations, and periodically reassess its policies and operations. IT

professionals have a role to play, but that role is only one part of a larger whole.

Before the recent onslaught of computer viruses and data breaches, perhaps no one could be faulted for not having anti-virus software or paying much attention to data security. But now, malware, worms, and Trojan horses are universally recognized as harmful, and their appearance on any computer is increasingly foreseeable. Standards of care change, and a reasonable person holding others’ personal information must do more than install anti-virus software, dust his or her hands, and walk blithely away from further data security concerns.

The countdown clock is running.

Endnotes: 1. http://smallbusiness.house.gov/uploadedfiles/kaiser_testimony.pdf; see also, John Patrick Pullen, How to Protect Your Small Business Against a Cyber Attack, Entrepreneur, http://www.entrepreneur. com/article/225468.

2. Verizon 2014 Data Breach Investigations Report.

3. http://krebsonsecurity.com/2014/02/ email-attack-on-vendor-set-up-breach-attarget/.

4. http://faziomechanical.com/TargetBreach-Statement.pdf.

5. http://www.sans.org/reading-room/ whitepapers/casestudies/case-study-criticalcontrols-prevented-target-breach-35412.

6. Some good responses include not clicking on any link, reporting the attempted phish, or forwarding the email to the company it appears to be from so that the company can take defensive steps, and then deleting it. http://www.antiphishing. org/; https://www.paypal.com/us/cgi-bin/ webscr?cmd=xpt/cps/general/Spoof-outside.

7. http://www.cbsnews.com/news/googlehacker-security-princess-parisa-tabrizfemale-star-tech-industry/.

8. Steve Kroft, “60 Minutes” report “The Attack on Sony” broadcast April 12, 2015. http://www.cbsnews.com/news/north-korean-cyberattack-on-sony-60-minutes/.

9. https://www.ftc.gov/system/files/documents/plain-language/bus69-protectingpersonal-information-guide-business_0.pdf.

10. http://www.aicpa.org/InterestAreas/ InformationTechnology/Resources/Privacy/ GenerallyAcceptedPrivacyPrinciples/ DownloadableDocuments/GAPP_ BUS_%200909.pdf.

11. http://www.isaca.org/cobit/pages/faqs. aspx.

12. https://www.pcisecuritystandards. org/security_standards/documents. php?association=saqs.

13. PCI compliance will become even more important after October 1, 2015.

To encourage businesses to shift to new payment card technology—chip-and-PIN cards—VISA and other card brands will shift liability for fraud to the party to the transaction with less-secure technology. For example, if the merchant has chip-and-PIN card readers but the issuing bank has not provided the customer with a chip-and-PIN card, the bank must absorb the loss. http:// usa.visa.com/download/merchants/bulletinus-participation-liability-shift-080911.pdf.

14. 45 C.F.R. §§ 164.502(e), 164.504(e), 164.532(d) and (e).

15. 45 C.F.R. Parts 160 and 164, available at http://www.gpo.gov/fdsys/pkg/FR-201301-25/pdf/2013-01073.pdf.

16. Bryan Looney and Amy Wilbourn, New HITECH Requirements and How They Impact Your Practice, The Arkansas Lawyer, Summer 2011, at 26.

17. See § 164.316 for policies and procedures for Security Rule documentation requirements; note that business associates will have to maintain documentation for six years and be able to produce it, if requested.

18. 78 Fed. Reg. 5590, HIPAA Section 164.308—Administrative Safeguards.

19. OCC Bulletin 2013-29. http://www. occ.gov/news-issuances/bulletins/2013/bulletin-2013-29.html.

20. “Weakness is provocative.” Donald Rumsfeld.

21. 180 N.C. App. 562, 638 S.E.2d 246 (2006).

22. See, generally, Martha Tucker Ayres, Confidentiality and Disclosure of Health Information in Arkansas, 64 Ark. L. Rev. 969 (2011).

23. Tabata v. Charleston Area Medical Center, 759 S.E.2d 459 (W. Va. 2014).

24. Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 314 Conn. 433, 102 A.3d 32 (2014).

25. Byrne, 314 Conn. at 459, 102 A.3d at 49.

26. http://www.ftc.gov/tips-advice/businesscenter/privacy-and-security/data-security. 

Refer to Law Offices of Gary Green, P.A. We Share the Work We Pay the Costs We Pay 1/3 Associate Counsel Fees In Compliance With Rule 1.5(e) of the Arkansas Model Rules of Professional Conduct

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The Annual HOT SPRINGS

ArkBar

The ArkBar’s Largest Annual Event

CONVENTION CENTER

2015

JUNE 10-13th

There is still time to meet us in Hot Springs Preserving Justice for All at the 2015 ArkBar Annual Meeting

I

Featured Speakers

t is time again for Annual Meeting. Pack your suitcases and bring your laptops and mobile devices to Hot Springs June 10-13. This year’s theme is: Preserving Justice for All. Our plenary speaker is Justice E. Oliver Diaz, Jr. He is the former Chief Justice of the Mississippi Supreme Court and his story inspired John Grisham’s novel, “The Appeal.”

One good problem is that there are so many good speakers you will be conflicted on which program to attend. Here are a few tidbits to whet your appetite: Barron K. Henley returns with “60 Tips in 60 Minutes” and another

hour of “Communication Breakdowns.” Dr. William Frederick Meinecke, Jr., will present “Law, Justice, and The Holocaust: How the Courts Failed in Germany.” If you want to bring a smile to your face be sure not to miss humorist Sean Carter. Governor Asa Hutchinson will speak, as will Attorney General Leslie Rutledge.

Of course, our Annual Meeting is not all about CLE. This is a chance we have to see old friends and to make new ones in a non-adversarial arena. On Wednesday, the Arkansas Bar Foundation’s annual Fellows’ Dinner follows the Presidents’ Reception at the Hot Springs Con-

vention Center. A can’t miss, and nobody does, is the reception on Thursday afternoon hosted by the Friday Firm. Our Association is grateful that they have sponsored this magnificent event for more than 50 years. If you see a member of the Friday Firm be sure to thank them for their support.

Brian H. Ratcliff, Arkansas Bar Association President 2015 Annual Meeting Chair: Paul W. Keith

In his lecture, Justice Diaz illustrates the dangers of unregulated campaign spending by wealthy individuals and large corporations who are trying to purchase our elections. With record spending forecast in the 2016 Presidential elections, this issue is at the forefront of national consciousness.

> FULL BROCHURE ONLINE

Sean Carter

Prof. Thomas Clancy

18 The The Arkansas Arkansas Lawyer Lawyerwww.arkbar.com www.arkbar.com

Justice Oliver Diaz, Jr. Former Mississippi Supreme Court Justice Friday, June 12, Keynote Speaker “Buying Justice: Corporate Spending on Judicial Elections in the Wake of Citizens United”

Barron K. Henley

Dr. William F. Meinecke, Jr.

117TH ANNUAL MEETING

Schedule & Course Materials on the Go!

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19

An Attorney’s Online Presence— A Byte of Prevention Is Worth a Gig of Cure1

By Kathleen McDonald

Back in the day, businesses were ahead of the curve if they had websites. It almost didn’t matter how the sites looked or functioned as long as the owners could brag about being on the World Wide Web. Now, however, a website alone isn’t nearly sufficient brand promotion. Faster than you can say what “http” stands for, new social networking tools are popping up that allow individuals and businesses to spread their messages.

In addition to at least a functioning website, a typical online presence today probably also includes any combination of Facebook, LinkedIn, Twitter, and YouTube, and other social media profiles.

Kathleen McDonald is managing partner of Beacon Legal Group. Her practice focuses primarily on cyber matters for local businesses.

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Attorneys are arguably just as involved in the marketing world as other service providers, but our rules are far stricter than most. Although we should, we may not be accustomed to thinking of Tweets as advertisements.2 Since lawyer websites, social media, and blogs are becoming more and more common, we must be sure we know how to utilize them without opening ourselves up to undue legal exposure.3 Staying safe can be as simple as remembering that (1) websites and social media profiles are souped-up advertisements that can reach a LOT of people, and (2) the rules are the rules, regardless of mode of communication.

I. Privacy: a Tool to Benefit Your Cases Discuss with clients the privacy settings of their personal and professional social media accounts.4 Random people may be able to post comments to these, and since such posts could be negative, it is generally a good idea to have high privacy settings at least on personal accounts and to require approval of comment submissions before they are posted.

If the topic of litigation has arisen, however, be very careful about telling clients to make any changes to these settings. Many ethics commissions (and courts) say “cleaning up” a social media page after being sued is spoliation.5 Other states are more relaxed and allow attorneys to advise clients on how to remove information from a social media page as long as: (1) the removal does not violate any substantive evidence law, and (2) an appropriate record of the social media information is preserved.6 Impress upon your clients (and, if necessary, their family and friends, or personnel) the importance of never discussing anything pertaining to the case (online or anywhere else). Consider asking to see all posts before they are published and monitoring the accounts for anything that mentions your client’s opponent, etc. For a cautionary tale, read the one7 about the guy who’d just settled his discrimination suit for $80,000 plus back pay and attorneys fees, but didn’t get to collect because his daughter referred to the confidential terms in a Facebook status update. Finally, while you’re telling your clients what not to post online, remember not to do it yourself. You don’t want to be the one who posts something about your client or the case that ends up causing a problem.

In written discovery, include interrogatories about the other side’s social media accounts. If you have a good hunch that there’s more than what they turned over, hire a company to run a background check that includes social media accounts, and if necessary, ask the court to order a forensic analysis of their hard drives or other potential storage devices.

Once you get to trial, check out potential jurors’ social media profiles to see if they have said anything that would imply a favorable disposition to one side or the other.

The American Bar Association’s opinion is that this type of search is ethical; it may uncover conflicts that otherwise would not be disclosed during typical voir dire. Only access, however, jurors’ public profiles; the

ABA warns against8 any type of direct-access (like sending “friend requests” to jurors) to find anything more than what is available to the general public.

II. Using Your Own Online Presence Ethically Take precautions regarding your privacy settings as well, but at the end of the day, proceed with the assumption that nothing transmitted electronically is truly private. User error, viruses, and hackers all exist, so don’t put anything on your personal social media profile that you wouldn’t want your worst

judiciously,14 it doesn’t compromise an attorney’s professional duties more than any other form of communication.

Rule 1.6: Confidentiality of Information Website users are entitled to know what website owners do with user information they collect, so every website should include a privacy policy statement. Lawyers generally don’t engage in eCommerce, and we already must abide by elevated rules and ethical standards regarding information we “collect,” so our own websites can usually have fairly simple privacy policies.15 It is probably suf-

“BECAUSE WE ATTORNEYS KNOW IT’S OFTEN BETTER TO BE PROACTIVE THAN REACTIVE, IF WE’LL JUST TAKE A SMALL BIT OF TIME TO PAUSE AND THINK ABOUT WHAT WE ARE PUTTING OUT THERE FOR THE WORLD TO SEE, WE SHOULD BE ABLE TO EFFECTIVELY UTILIZE TODAY’S TECH-SAVVY TOOLS.” enemy to see. Starting with the Preamble to the Arkansas Rules of Professional Conduct, the following are some9 of the ways our ethics rules apply to technologically advanced communication.

Preamble: A Lawyer’s Responsibilities Arkansas attorneys must avoid the appearance of impropriety. Accordingly, many states with similar tenets regarding judges have said that members of the judiciary may not be “friends” or “connections” on social networking sites with people who regularly appear or are likely to appear in their courts.10 For example, a Florida court held11 that a trial judge presiding over a criminal case was required to recuse solely because he was Facebook friends with the prosecutor.

Other states’ ethics commissions,12 however, have stated the opposite—that there is nothing inherently inappropriate about a judge joining and making use of internet-based social networks. In early 2013, the American Bar Association issued a formal opinion13 saying judges don’t have to “police” their online contacts unless they have knowledge that a relationship with a specific contact could be or could be perceived to be problematic. Overall, when social media is used

ficient to say that your firm follows Arkansas Rule of Prof. Conduct 1.6; receives many types of sensitive information which it holds in strictest confidence; doesn’t release client information unless approved by the client, required by law, or required by other rules; and maintains other safeguards to protect such information.

Another aspect of maintaining client confidentiality relates to privacy-related torts.

Of the three types16 that can arise from online publication17 of information, arguably the most relevant to Rule 1.6 is the public disclosure of private facts. Don’t violate Rule 1.6 (and possibly the law) by posting something about a case, which a reasonable person would find offensive if made public, just because you’ve gotten swept up in our content-driven social media environment in which people casually broadcast their dayto-day activities with only passing thought about its content, recipients, or ramifications.

Rule 3.3: Candor Toward the Tribunal Don’t ask for a continuance of a trial or hearing due to being sick and then post shots of you sipping rum punch in Barbados.

Seriously.

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

21

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Rule 3.5: Impartiality and Decorum of the Tribunal Everyone, not just judges, should assume that anything they post anywhere online will spread outside their immediate contacts (no matter how strict their privacy settings are), so if a comment, tweet, image, or anything else would cause problems or even just be embarrassing if it “got out,” don’t post it. Want to argue it’s your First Amendment right to express your opinions? That’s great! Your other option is to not tweet a photo of your rear end, post your expletive-laced rant about Judge so-and-so’s recent holding, or comment about how obnoxious defense counsel was in the hearing you presided over this morning.

Rule 3.6: Trial Publicity Be as careful about discussing anything client-related on social media as you would be when talking to a newspaper reporter.

Rule 4.2: Communication with Person Represented by Counsel As previously discussed, sending a “friend request” is “communication.” Although it should go without saying, it is also “communication” if your paralegal/law clerk/private investigator sends a “friend request.”

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Fayetteville

479.595.0245 101 W. Mountain St. Suite 210 A & B Fayetteville, AR 72701 websupport@ferstlvs.com

Rule 7.4: Communication of Fields of Practice and Specialization Some social networking sites are created to be fairly one-size-fits-all-professionals and request a user’s areas of practice which will then be listed on the profile under a header like “Specialties.” In order to remain in ethical compliance, some states19 say attorneys shouldn’t list anything that will show up under a “Specialties” heading unless the attorneys really are certified (or whatever is required) in it.

Furthermore, be mindful of any online recommendations or endorsements you receive, like on LinkedIn. To follow the careful route, regularly monitor all content a third party is able to contribute to any of your sites, and remove it if it violates the rules. You may not have posted it, but by leaving it on your page you are condoning it.

III. Protecting Yourself from Other Issues

Copyright Copyrights automatically attach to all original creative work in a tangible or digiRule 5.1: Responsibilities of Partners, tal form. If you find something online (or Managers, & Supervisory Lawyers, anywhere else) that you want to use, using AND it without appropriate permission may mean Rule 5.3: Responsibilities Regarding you are infringing on its creator’s copyright Nonlawyer Assistants under the Copyright Act.20 This Act gives Make sure you know and follow the rules, creators the exclusive rights to reproduce tell all of your co-workers about the rules, the work (or prevent someone else from and keep reminding yourself and all of your reproducing it), to prepare adaptive works, co-workers about the rules. to distribute copies of the work, and to publicly display the work.21 Giving credit Rule 7.1: Communications Concerning or thanks to a copyright owner is rarely suf a Lawyer’s Services ficient; you will probably have to purchase Don’t put anything on your website or the copyright,22 license the work,23 or just social media profiles that is likely to create not use it unless your use would constitute unjustified expectations about results, or that “Fair Use.”24 violates any of Rule 7.1’s other prohibitions.

You can’t do it in TV ads and brochures, so Trademark don’t do it online. “Harmless puffery” is still It is trademark infringement if, among okay, but phrases like “foremost authority,” other things, you use someone else’s trade“unmatched by any other law firm,” and mark, or link to their site, in such a way that “overwhelmingly favorable results” are not.18 would lead a user to conclude that you and the other person/organization are somehow Rule 7.2: Advertising affiliated when in fact you are not.25 If you shouldn’t or wouldn’t do it on tv or in a newspaper ad, don’t do it online.

Meta-jacking A meta-tag is a key word programmed Rule 7.3: Solicitation of Clients into a website to make it easier for web users Don’t pressure people to hire you; if they to find the site when using search engines. never responded to your request to be a Programming, for example, a meta-tag of

your competitor’s name into your site so that an on online search for their name will pull up your site is meta-jacking, and it has been held to be a form of trademark infringement.

Cybersquatting Mere registration of a domain name does not necessarily bestow the right to use it.

Cybersquatting occurs when a person registers a domain name that is confusingly similar to someone else’s mark or name, with the bad faith intent to profit from it.26 If the name of your business or product appears in someone else’s domain, but they don’t have an actual website up, look into it—you might have a cybersquatter on your hands.

Special Disclaimers At a minimum, attorneys’ web and social media sites should state: • Content is for educational and informational purposes and is not legal advice.

• Visitors should seek the assistance of an attorney licensed to practice in the visitor’s state (it’s the World Wide Web, not the Arkansas Wide Web).

• Attorney-client relationships are not created by filling out online forms, sending emails, etc.; they can only be established via written agreement.

• Content from third parties (like, for example, comments to blogs) does not necessarily represent the views or opinions of the site owner.27

IV. Conclusion Every aspect of an online presence has the potential to subject its owner to liability.

Attorneys need to periodically audit their websites, blogs, and social media sites to make sure they are compliant with evolving state and federal rules and regulations.

Because we attorneys know it’s often better to be proactive than reactive, if we’ll just take a small bit of time to pause and think about what we are putting out there for the world to see, we should be able to effectively utilize today’s tech-savvy tools.

Endnotes 1. The author’s imagined audience is attorneys with a small-to-moderate amount of knowledge and experience with the online world; apologies to any readers who fall outside those parameters.

2. In fact, Florida Rule of Professional Conduct 4-1.1 discusses attorneys’ ability to give social media advice in the same breath as the obligation of general competence.

3. This article discusses some of the most common ways an attorney’s online presence can get her or him in trouble; it does not cover every possible potential problem, how to adequately counsel clients regarding same, or give opinions about the impact of privacy and communication shifts on modern day security, politics, or popular culture.

4. Depending on the type of case, you might also want such lists for anyone closely associated with the client, like a spouse, children, business partners, and friends.

5. These decisions include words like “unlawful” and “obstruction.”

6. New York County Lawyers Association, Ethics Opinion 745 (2013).

7. http://www.cnn.com/2014/03/02/us/ facebook-post-costs-father/.

8. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 466 (2014).

9. Please note that just because I don’t mention every part of every rule does not mean those unmentioned parts don’t apply to online communication.

10. Oklahoma Judicial Ethics Opinion 2011-3 (July 6, 2011).

11. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

12. E.g., Maryland Judicial Ethics Committee, Op. Request # 2012-07 (2012).

13. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 462 (2013).

14. Pun intended.

15. See e.g. Beacon Legal Group’s Privacy Policy: http://www.beaconlegalgroup.com/ privacy-policy/.

16. Public disclosure of private facts, false light, and commercial appropriation of another’s image or likeness.

17. “Publish” in the sense of “make something known to the general public,” regardless of commercial purpose.

18. Iowa Supreme Court Attorney Disciplinary Bd. v. Bjorklund, 725 N.W.2d 1 (Iowa 2006). Iowa’s rules regarding the use of deceptive and unverifiable information in attorney advertisement are similar to our own. In Bjorklund, Iowa’s Attorney Disciplinary Board affirmed the revocation

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of an attorney’s license based on a broad range of misconduct which included the quoted website copy.

19. NY State Bar Assoc. Comm. On Prof’l Ethics, Op. 972 (2013).

20. 17 U.S.C. § 101 et seq.

21. 17 U.S.C. § 106.

22. Transfers of copyright ownership must be in writing. For existing work, the writing must include an express statement that ownership of an existing work is being transferred; for future work, the writing must include a statement that the work to be created is being completed as a “work for hire.”

23. While it is best for the license to be in writing, it isn’t required. If a work is sent to you, for example, with the understanding that it will be used on your site, the law will infer an implied license (but not a sale).

An implied license can also be created if a work is published along with a statement saying something like “permission is granted to copy and distribute this (work) provided proper attribution and copyright notice are included.”

24. Fair use purposes include criticism, comment, news reporting, teaching, and research.

There are several criteria used to make this analysis including how much of the work is used and whether the usage diminishes the potential market value of the work.

25. 15 U.S.C. § 1125(d).

26. Id. 27. See e.g. Beacon Legal Group’s Disclaimer: http://www.beaconlegalgroup. com/contact-us/. 

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PRESERVE Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer 25

THE JURY TRIAL

Cyberliability—An Uninsured Risk

By Dwayne Shelton

After serving in commercial, professional and management liability claims, surety underwriter and brokerage ownership/management over the last 21 years, Dwayne now serves as Vice President for the Risk Management Team at Regions Insurance, Inc.

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Some lawyers carry both commercial general liability insurance and malpractice insurance. Even so, although you may not realize it, you may have significant exposure to cyberliability.

While commercial general liability and professional malpractice insurance policies may have a small amount of coverage for some aspects of this type of loss, most policies do not cover the range of potential injuries to third parties and of operational losses a practice or business might suffer in a data breach.

Imagine your receptionist clicks on an innocent-looking email offering a free gift card and thereby unintentionally releases stealthy malware into your computer network. Later, a hacker uses the malware to enter your network, paw through your hard drives, and steal, encrypt, or erase your or your clients’ banking files, health records, privileged communications, or work product.

Consider some variables presented by that scenario. First, if the breach is a “breach of the security of the system,” the accessed data meets the definition of “personal information” under the Arkansas Personal Information Protection Act, and the personal information was reasonably believed to have been acquired by an unauthorized person, then you must disclose that breach to all Arkansas residents affected by the breach.1 In addition, if the data involves residents of other states, you must also research and comply with those states’ breach notification laws. The cost of the forensic investigation needed to determine existence of the facts giving rise to the notification duty alone could be devastating.

And you may have little-to-no insurance covering the potential liability.

What can you do? Consider cyberliability insurance. Cyberliability can protect against both first-party liability and third-party liability. First-party coverage can protect your firm from expenses incurred for data breach investigation and notification, network extortion (e.g., crypto-locker viruses), digital asset losses, business interruption, and contingentbusiness interruption (such as when a vendor’s business failure interrupts your business). Third-party cyberliability coverage can insure against your firm’s losses arising from liability to your clients (e.g., privacy invasions, or liability for damage to their computer networks). Each of these coverages can have a separate sublimit, so rather than buying, say, $2,000,000 in “cyberliability insurance,” you should tailor your coverage to your practice’s unique potential exposure.

Cyberliability insurance policies come in many forms and from many carriers. There are no standardized documents across the industry. Some cutting-edge policy forms have been replicated, reduced and recycled, but there are no identical platforms among carriers.

Here are some basic elements to consider.

When in doubt, reach out to cyberliability specialists.

Breach notification costs. Failure to meet notification requirements could prove disastrous from a regulatory, public relations, and financial standpoint. Several studies place breach-notification expenses in the range of $200-250 for each breached record. A little math goes a long way in determining an appropriate limit based on these numbers, but not all jurisdictions are the same, and this amount will vary. When purchasing limits, consider stepping outside of the normal single monetary amount framework and investigate a policy limit based on records per loss event.

Most organizations are aware of the number of records they maintain, so this approach eliminates the need to guess-timate a dollarbased limit.

Breach response expertise and costs.

The premise of a “transfer” of the risk is certainly appealing in terms of dollars, but what about breach-response services? While some underwriters only have the financial ability to accept the risk of a data breach, others also offer resources to help contain and manage a breach event. A data breach is nothing short of a crisis, and the response should be proportionate to the event. Notifying those whose data has been leaked is important,

but so is prompt eradication of the source of the breach, forensic investigation (to potentially shift liability), managing the regulatory response and the public relations consequences, providing mass credit monitoring where appropriate, and deploying a loss control/ claim resolution team that focuses on industry-specific services. The temptation to be penny wise and pound foolish flourishes here.

Remediation costs. Even while the various response teams are shot into action, another potential problem still remains. Repairing the computer system itself may be catastrophically expensive—think of a thief who destroys a $20,000 HVAC unit to steal $32 worth of copper. The size and complexity of the damage may vary, but an experienced response team can efficiently mitigate harm and quickly restore function.

As hard as we work in all disciplines of our businesses to avoid breaches, we will continue to see them. A solid plan may not prevent the inevitable but it can help prepare for it.

Endnote: 1. Ark. Code Ann. § 4-110-105. 

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Stay on Top of Credit Card Security in Your Law Firm

By Amy Porter

The term “PCI Compliance” generally elicits one of three responses: complete confusion, vague recognition, or mild panic. You are not alone.

From the moment the Payment Card Industry Security Standards Council rolled out these credit card regulations, attorneys have been struggling with how to understand their meaning and adhere to them.

What is PCI Compliance?

In 2006, the major credit card brands (Visa, MasterCard, Discover, American Express, and JCB) formed a security council. The goals of the security council were to ensure the safety of cardholder data at all times and reduce credit card fraud by developing standardized regulations (Payment Card Data Security Standards or PCI-DSS) the entire credit card processing industry must follow. It applies to any business that processes, transmits, or stores credit card data (see pcisecuritystandards.org). The bottom line is if you accept credit card payments, you also accept the responsibility to protect sensitive card holder information.

How Does It Apply to My Law Firm?

Your day is already filled with mission critical tasks, so taking on compliance is not something you want to think about. It’s understandable. Perhaps your law firm only processes a few credit card transactions a month, you have a trusted staff, and you use 28

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a compliant gateway for your transactions.

Your credit card data is safe, right?

PCI Compliance is actually comprised of several key pieces—how credit cards are processed, who you use as service providers, and how you handle credit card information within the walls of your office.

Think for a moment about how credit card data flows through your law firm. Do your clients pay online? Do they fax credit card authorization forms to your office? Are there copies of credit card numbers in client files? Those are just a few practical security points addressed by the security standards.

The good news is that implementing small changes can have a major impact on your security. There are guidelines in the PCI-DSS that address Internet security and payment applications and also ones that address how businesses handle credit card data on a physical level. Assessing your vulnerabilities is a great way to fix potential issues and educate your staff. According to the 2012 Data Breach Investigations Report

by Verizon Business, 97 percent of breaches could have been prevented by fairly simple measures. Office security policies that define procedures for changing passwords, storing information, and disposing of credit card data can make the difference between compliance and non-compliance Why Now? Until recently, most of the focus has been on major retailers that process in excess of six million Visa transactions per year. All merchants, regardless of credit card processing volume, must now comply with the regulations. Failure to meet requirements can result in security breaches, costly fines, and forensic audits.

Accepting credit cards is a great way to offer a flexible payment option for your clients and improve your cash flow; consequently, this means handling sensitive information that is very desirable to criminals.

By following the PCI-DSS guidelines, you greatly reduce your vulnerability to a secu-

rity breach. Most firms have found taking steps to become PCI Compliant is a productive, beneficial “house-keeping” exercise for their office.

Becoming PCI compliant sends a strong message to your clients that you are doing your due diligence in protecting their sensitive information. The PCI process can also create a greater level of awareness with your staff when they handle credit card information, limiting the potential for a security breach and ultimately reducing the overall liability to your law firm.

How Do I Become Compliant?

There are several steps every merchant must complete to validate PCI compliance: • Identify validation type (this is based on how credit card transactions are processed).

• Complete the self-assessment questionnaire.

• Provide evidence of a passing vulnerability scan, if necessary, from an approved vendor on a quarterly basis.

• Complete the attestation of compliance.

• Submit the self-assessment questionnaire, attestation of compliance, and evidence of a passing scan (if required) to acquirer.

• Create comprehensive Security Policies and Procedures Find out more at pcisecuritystandards. org/merchants/how_to_be_compliant.php.

My Law Firm is Compliant. Now What?

One of the biggest challenges attorneys face is moving beyond a “checkbox” mentality when it comes to compliance. (“I have a Security Policy, check! I shred documents, check!”) To be truly PCI compliant, you need to not only be able to answer questions truthfully and accurately on your self-assessment questionnaire, but also be diligent in monitoring your procedures every day. If you have rock-solid policies and procedures in place, but only follow them four out of five days of the work week, it’s like having bars on your windows and leaving the front door wide open.

Regardless of how you choose to comply with PCI regulations, it is important to keep the ultimate goal in mind: protecting your clients and your law firm. By taking the time to evaluate the flow of cardholder data through your office and addressing security issues, you can achieve that goal. 

Hot Topics in E-Discovery for 2015

By Dr. Gavin W. Manes, CEO of Avansic Excepts from Avansic’s White Paper

Securing Client Data Remember that every added element of security introduces a loss of convenience –there will be extra effort necessary when accessing a case file, emailing a client, or communicating with a vendor. Even with this additional work, keeping data secure is important enough that it will be on every legal professional’s mind in 2015 and beyond.

Insource vs. Outsource Considering the true cost of e-discovery, including overhead, can help legal professionals and their clients determine the most efficient route.

Big Data and Dark Data As applied to the legal industry, big data is large, uncategorized, difficultto-process swaths of information that may exist in discrete forms. Dark data is a subset of big data; it is generated by regular computer processes (such as log files) and is not by the deliberate action of a user (such as creating a new Word document).

In e-discovery, big data is not easily convertible to a readable or producible document, even after it’s been collected, processed, and reviewed (although those are difficult too). Note that having a large amount of email or a pile of Word documents is not generally considered a big data problem; however, having unorganized or undocumented databases with millions of records is a big data issue.

Cloud Preservation Companies and individuals are shifting their data storage to cloud-based solutions but common forensic collection methods such as imaging entire hard drives cannot be used in these cases. There are other acceptable methods, but in-depth forensic analysis (such as recovering deleted data) may not be possible under those circumstances. Cloud collection may require coordination with the owner of the cloud solution and that person may have to be trusted with providing accurate and comprehensive information regarding security, access to the data and activity logs. The question of who had access to the data is more complex with cloud providers.

The number of technology solutions employed means it is important to use a knowledgeable company for cloud preservation projects.

Increased Regulation and the E-Discovery Complications Increased regulation of some industries, health care as a prime example, is complicating the e-discovery process. These changes aren’t a bad thing – in fact, some are closing some critical security and privacy gaps - but the current and anticipated changes to rules such as HIPAA are changing how e-discovery functions with data subject to the regulations.

When engaging an e-discovery firm be sure to ask if they are aware of the regulations and ask to see procedures they have in place for addressing them.

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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Arkansas Lawyers: An Ethical Obligation to Give ADR Advice?

By Ariel M. Kiefer and Stanley A. Leasure

Introduction This is an apt description of the issue we present for consideration in this article: [T]he controversy is not whether an attorney should discuss the advantages and disadvantages of ADR with a client but whether a professional rule should require an attorney to do so.1

Ariel M. Kiefer (pictured left) earned her B.S. degree from Missouri State University, May 2015.

Stanley A. Leasure, J.D., is an Associate Professor of Business Law, Missouri State University and is a certified Arkansas Civil and Appellate mediator.

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Commentators have divided jurisdictions into one of the following categories with respect to the ethical duty of attorneys to inform clients about ADR: (1) explicit encouragement to inform stated in the jurisdiction’s ethical rules;2 (2) explicit duty to inform stated in the jurisdiction’s ethical rules;3 (3) implied duty to inform derived from the jurisdiction’s ethical rules.4 Arkansas has been characterized as one of the jurisdictions whose ethical rules explicitly encourage, but do not require, attorneys to advise clients of potentially appropriate alternative dispute resolution processes.5 In this paper, we hope to encourage discussion of this ethical issue and consideration of whether the Arkansas Rules of Professional Conduct (ARPC) should be amended to explicitly require attorneys to inform clients of appropriate ADR processes.6 We begin by examining several important aspects of civil litigation including: client goals, prevalence of settlement, benefits of early settlement, and the role of alternative dispute resolution processes. In the second and third sections of this article, we compare the practical differences between Arkansas’ “encouragement standard” and the “explicit duty standard” which has been adopted in a number of states including our exemplar, Virginia.

Litigation and Settlement [T]he scorched-earth practices many lawyers employ … seem inconsistent with … what one assumes is the client’s goal: obtaining the best possible result for the least amount of money.7 More than 95% of civil cases are resolved not by trial but by an alternative such as negotiation, mediation, or arbitration.8 Given that almost all civil cases are resolved by a process other than trial and if the client’s goal is “the best possible result for the least amount of money,” it should be no surprise that the question of whether a professional rule should require attorneys to advise clients about alternative dispute resolution processes is a topic of current interest.9 This is particularly true given that “ADR is a desirable cost-effective method for resolving disputes which is not well known to many clients. Although clients are generally familiar with the right to sue in court, they are not as familiar with other means of resolving disputes, such as mediation, arbitration or other ADR techniques.”10 In the vast majority of civil cases, the important question from the client’s perspective is not whether the case will settle— but when. Notwithstanding the fact that few cases ever reach trial, civil litigation is widely characterized as expensive, slow, public, and unpredictable.11 If this is true, it necessarily follows that the earlier a dispute can be resolved, the greater the benefits accruing to the client. The particular benefits of early settlement vary with the case but can include: confidentiality, control over the timeline and process, reduced cost in terms of money and lost productivity, potential for preservation of relationships, avoidance of court-mandated procedures, and freedom to develop a process and remedy suited to the unique interests of the parties.12 Before proceeding to the question of whether a professional rule should require Arkansas attorneys to discuss the advantages and disadvantages of ADR with a client in a litigated civil case, we posit the following as a framework within which to consider our primary question: (1) almost all such cases will settle at some point before trial; (2) early settlement on terms agreeable to the client gives rise to client benefits; and (3) early settlement of such cases on terms agreeable

to the client is consistent with the client’s best interests. The following brief discussion of the current provisions of the ARPC begins our consideration of whether they should be amended to explicitly require attorneys to inform clients of appropriate ADR processes.

Arkansas’ Encouragement Standard As previously noted, Arkansas has been identified as a state which explicitly encourages, but does not require, attorneys to advise clients about alternative dispute resolution issues pertinent to the representation.13 Arkansas’ standard, Rule 2.1, requires an attorney to render candid advice in the context of the law as well as other moral, economic, social, and political factors.14 The encouragement—forming the standard itself—is found in the comment to Rule 2.1: In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client’s course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation (emphasis added).15 In an era in which the overwhelming majority of civil cases settle and ADR is so firmly ingrained in the legal landscape, Arkansas’ encouragement standard stands in contrast to rules in other states which explicitly require such consultation.

An Explicit Duty Standard To illustrate and compare the explicit duty standard, we have chosen the Virginia Rules of Professional Conduct (VRPC). The VRPC specifically require attorneys in that state to advise clients about pertinent ADR processes and issues. Virginia offers a good example of clear language and impactful placement of the provisions mandating ADR consultation.

Virginia’s rule regarding the scope of

representation is similar to Arkansas’ in that client decisions concerning objectives of the representation must be accepted by counsel.

Further, counsel are required to consult with clients regarding the means by which these objectives will be pursued.16 It is in the comments to this rule that the obligation of attorneys to advise clients regarding alternative dispute resolution is first explicitly stated: The client has ultimate authority to determine the purposes to be served by legal representation … . [A] client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. In that context, a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives. … (emphasis added).17 The ethical obligation imposed on Virginia attorneys with respect to ADR processes arises again in connection with Rule 1.4 which requires that clients be kept reasonably informed.18 In the comment, the drafters emphasized that the term “reasonably informed” extends to the “availability of dispute resolution processes that might be more appropriate to the client’s goals than the initial process chosen” together with a specific example concerning mediation.19 Finally, VRPC Rule 2.1 requires that an attorney, when acting as an advisor, exercise independent judgment and render candid advice with reference to the law and other relevant factors.20 Once again, in this context, the attorney’s obligation vis-à-vis ADR consultation is addressed: Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as costs or effects on other people, are predominant.

Purely technical legal advice, therefore, can sometimes be inadequate. It could also ignore, to the client’s disadvantage, the relational or emotional factors driving a dispute. In such a case, advice may include the advantages, disadvantages and availability of other dispute resolution processes

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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that might be appropriate under the circumstances. (emphasis added)21 Observations, Conclusions, and Recommendations We began this article with a premise that the vast majority of Arkansas attorneys and judges would classify as incontrovertible: attorneys should advise clients about appropriate ADR processes including their advantages, disadvantages, and availability.

The imprecise line between litigation and settlement and the maturation of the ADR process discussed in the preceding sections of this article leads us to posit that the time may be right to consider whether the explicit duty rule should be incorporated into the Arkansas Rules of Professional Conduct.

Our thesis is grounded upon the several uncontested points discussed in this article: the vast majority of cases settle, early settlement yields significant monetary and nonmonetary benefits to clients, and clients are entitled to advice with respect to appropriate ADR processes. These factors justify consideration of a mandate explicitly imposing such an ethical duty on attorneys.

As with most significant issues, this one has two sides. For now we will leave consideration of the competing interests to the reader, but it may be useful, in closing, to at least mention a sampling of issues which others have raised.22 The arguments advanced by those opposing the explicit duty rule have included: (1) some attorneys are not fully conversant in the benefits of mediation and arbitration; (2) the explicit duty rule places an onerous burden on attorneys; (3) attorneys will be subjected to malpractice claims for alleged failure to comply; (4) conscientious practitioners will use their professional judgment to appropriately advise clients about ADR processes without the rule; (5) as professionals, lawyers should not be micromanaged by such an ethical rule;23 and (6) determining compliance would be difficult.24 Proponents urge the following in response: (1) many clients are not well-versed in ADR and need the rule to assure access to information sufficient to enable them to make informed decisions; (2) Virginia’s rule, as an example, creates only a minimum standard which is limited in scope; (3) data do not show an increase in claims arising in states which have adopted an explicit duty rule; (4) attorneys with insufficient 34

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understanding of mediation and arbitration should be compelled to acquire knowledge to sufficiently advise clients; (5) lawyers with an interest in accumulating billable hours through protracted litigation can create a conflict of interest with their clients and the required disclosure will enable clients to make informed decisions about the manner in which their disputes should be resolved; and (6) that some practitioners advise clients about ADR does not obviate the need to compel those who do not.25 Regardless of the ultimate conclusion reached, the question of the adoption of the explicit duty rule requiring attorneys to advise clients of options for potentially appropriate alternative dispute resolution processes is one of significant import to attorneys, clients, and the Arkansas judicial system. As such, it is worthy of consideration.

Endnotes: 1. See Gerald F. Phillips, The Obligation of Attorneys to Inform Clients About ADR Mediation, 31 W. St. U.L. Rev. 239 (2004).

2. Katerina P. Lewinbuk, First, Do No Harm: The Consequences of Advising Clients about Litigation Alternatives in Medical Malpractice Cases, 2 St. Mary’s J. Legal Mal. & Ethics 416, 432-433 (2012). The author identified the following jurisdictions as ones which explicitly encourage attorneys to advise: Arkansas, Colorado, Delaware, Hawaii, Louisiana, Massachusetts, New Jersey, New Mexico, Ohio and Virginia. See also, Marshall J. Breger, Should an Attorney be Required to Advise a Client of ADR Options? 13 Geo. J. Legal Ethics 427, 457 (2000).

3. See Lewinbuk, supra note 2 at 432. The author noted that the following jurisdictions explicitly stated a mandatory duty to advise: California, Connecticut, Georgia, Minnesota, Missouri, New Hampshire, Texas, and Virginia (citing Breger, supra note 2 at 463-64).

4. See Lewinbuk, supra note 2 at 431433. This author noted that the following jurisdictions implied a duty to advise: Kansas, Michigan, Pennsylvania; Douglas H. Yarn, Lawyer Ethics in ADR and the Recommendations of Ethics 2000 to Revise the Model Rules of Professional Conduct: Considerations for Adoption and State Application, 54 Ark. L. Rev. 207, 246 (2001); Breger, supra note 2 at 430-31.

5. See Lewinbuk, supra note 2 at 432.

6. Id. Consideration of the implied duty to inform is unnecessary to the issues presented in this article.

7. Patrick J. Walsh, From the Bench: Rethinking Civil Litigation in Federal District Court, 40 A.B.A.J. Sec. of Litig. 6 (2013).

8. The data vary, but current trial rates are typically reported to be less than 5%. See Abraham L. Wickelgren, “Law and Economics of Settlement,” Research Handbook on the Economics of Tort Law (Jennifer Arlen ed., Edward Elgar Publishers, 2013); Abraham L. Wickelgren, The Effect of Settlement in Kaplow’s MultiStage Adjudication, 126 Harv. L. Rev. F. 145 (2012-2013). Marshall J. Breger has opined “[w]e are already in the dispute resolution age, not the litigation age.” Breger, supra note 2 at 461. See also Paul M. Lurie and Sharon Press, The Lawyer’s Obligation to Advise Clients of a Dispute Settlement Option, 20 Dispute Resolution Magazine 34 (Summer 2014). Citing Symposium, “Most Cases Settle”: Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339 (1994).

9. See, for example, Lurie and Press, supra note 2 at 34; Lewinbuk, supra note 8; Kristin L. Fortin, Reviving the Lawyer’s Role as Servant Leader: The Professional Paradigm and a Lawyer’s Ethical Obligation to Inform Clients About Alternative Dispute Resolution, 22 Geo. J. Legal Ethics 589 (2009).

10. John M. Delehanty, Do Attorneys Have an Ethical Obligation to Discuss ADR with their Clients Under the Professional Conduct Rules and When do They Have to do It? American Intellectual Property Law Institute (2010) http://www2.aipla.org/ html/mw/2010/papers/Delehanty_Paper. pdf.

11. Stanley A. Leasure and Kent P. Ragan, Arbitration of Medical Malpractice Claims: Patient’s Dilemma and Doctor’s Delight? 28 Miss. C. L. Rev. 51, 52 (2009).

12. Id. at 52; Michael Scott Hall, Issue Preclusion is no Illusion for Arbitration in Arkansas: Riverdale Development Co. v.

Ruffin Building Systems, Inc., 58 Ark. L. Rev. 929 (2006).

13. See Lewinbuk, supra note 2 at 432-433.

14. Ark. Rules of Prof’l Conduct R. 2.1.

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not

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only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.

15. Ark. Rules of Prof’l Conduct R. 2.1 cmt. 5. Ark. Rules of Prof’l Conduct R. 1.4, cited in the aforementioned comment, provides in part: (a) A lawyer shall (1) promptly inform the client of any decision or circumstance with respect of which the client’s informed consent as defined in Rule 1.0(e) is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and, (5) consult when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or of the law. (b) A lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. … (emphasis added).

16. “(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation … and shall consult with the client as to the means by which they are to be pursued. ...” Va. Rules of Prof’l Conduct R. 1.2. See similar Ark. Rules of Prof’l Conduct R. 2.1.

17. Va. Rules of Prof’l Conduct R. 1.2 cmt.1.

18. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. Va. Rules of Prof’l Conduct R. 1.4.

19. “This continuing duty to keep the client informed includes a duty to advise the client about the availability of dispute resolution processes that might be more appropriate to the client’s goals than the initial process chosen. For example, information obtained

during a lawyer-to-lawyer negotiation may give rise to consideration of a process, such as mediation, where the parties themselves could be more directly involved in resolving the dispute.” Va. Rules of Prof’l Conduct R. 1.4 cmt.1.

20. “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.”

Va. Rules of Prof’l Conduct R. 2.1.

21. 4 Va. Rules of Prof’l Conduct R. 2.1 cmt 2.

22. Phillips, supra note 2 and Delehanty, supra note 10.

23. Phillips, supra note 2.

24. Phillips, supra note 2, citing Frank E.A. Sander, Should There be a Duty to Advise of ADR Options?, 76 A.B.A.J. 50, November 1990.

25. Phillips, supra note 2. 

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Supreme Court Justice Marshal L. Stephenson

By L. Scott Stafford

Marshal Lovejoy Stephenson was born in Kentucky in 1838 but moved with his parents to Putnam County, in north central Illinois, at an early age. He graduated from Putnam Academy in 1858 and then moved to Springfield, Illinois, to study law in the firm of Stuart, Edwards, and Brown. (The firm’s lead partner, James T. Stuart, had at one time practiced with Abraham Lincoln.)

When the Civil War broke out in 1861, Stephenson left the study of law and joined the Tenth Illinois Cavalry as a captain. Later that same year he was promoted to major.

He served with the regiment, primarily in Missouri, although in December 1862 he did participate in the Battle of Prairie Grove in northwest Arkansas. In September 1863, he was detached and sent to recruit troops loyal to the Union. Beginning in Springfield, Missouri, and continuing in the vicinity of Fort Smith, Arkansas, Stephenson raised the Second Arkansas Infantry Regiment. He was commissioned a colonel of the regiment and commanded six companies of the regiment during its participation in General Frederick Steele’s 1864 Camden Expedition into south Arkansas. On April 30, 1864, Stephenson was wounded at the Battle of Jenkins Ferry in Grant County. He continued to serve with the Second Arkansas until the regiment was mustered out of federal service at Clarksville in August 1865.

After leaving the army Stephenson settled in Fort Smith. He attended Cincinnati Law School, from which he graduated in 1866, and was admitted to the bar of Arkansas in April 1866. In 1867 he moved to Huntsville in Madison County, and in the following year voters elected him to the Arkansas Senate. Later that same year Governor Powell Clayton appointed Stephenson judge of the Fourth Judicial Circuit (Van Buren, Searcy, 40

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Marion, Newton, Carroll and Madison Counties). Stephenson resigned from the bench in 1871 and moved to Helena, where he was almost immediately appointed judge of the First Judicial Circuit (Mississippi, Crittenden, Desha, Monroe, and Phillips Counties). In the fall of 1872, he was elected on the regular Republican ticket to Position Four on the Arkansas Supreme Court.

Stephenson authored only 13 opinions during his brief stint on the court. All of the cases were civil in nature, and most involved issues that mattered only to the parties involved.

The exception was the case of State ex rel Brooks v. Baxter.1 Elisha Baxter had been elected governor on the same ticket as Stephenson. Following that election, Baxter’s opponent, Joseph Brooks, challenged Baxter’s election in both the General Assembly and the courts of the state.

In State x rel. Brooks v. Baxter, Stephenson and two other justices ruled that the General Assembly had the exclusive power to determine who had been elected governor. Despite the Supreme Court’s declaration, the Pulaski County Circuit Court ruled in the spring of 1874 that Brooks and not Baxter was the lawfully-elected governor of the state. The circuit court’s decision set off the armed confrontation known as the Brooks Baxter War. In Brooks v. Page, which was issued on May 7, 1874, and does not appear in the official Arkansas Reports, four justices of the Supreme Court, including Stephenson, endorsed the circuit court’s action ejecting Baxter from the office of governor. Brooks’ gubernatorial aspirations were thwarted, however, when President Ulysses Grant proclaimed that the General Assembly should determine who was governor. On May 19, 1874, the day that Brooks and his supporters evacuated the capitol, Stephenson resigned

Old State House Courtesy Old State House Museum Artist Ken Oberste

from the Supreme Court.

Stephenson returned to Helena where he practiced law for the next four decades. In addition to acting as local counsel for a number of railroads, he served as president of the First National Bank of Helena. He died in September 1911 while on a trip to visit relatives of his wife in Battle Creek, Michigan.

Stephenson’s most significant contribution to Arkansas jurisprudence came after he returned to the private practice of law in Helena. He began tutoring a 20-yearold Prussian immigrant, Jacob Trieber, who was admitted to the bar of Arkansas in 1876. Until the turn of the century, Trieber practiced in Helena with either Stephenson or Stephenson’s brother, L.C. Stephenson.

With the support of Powell Clayton, who still wielded considerable clout in Arkansas patronage, Trieber was appointed United States District Judge in 1900 and went on to become one of Arkansas’ most distinguished jurists.

Endnote: 1. 29 Ark. 129 (1873).

L. Scott Stafford is Professor Emeritus at the UALR Bowen School of Law. He serves on the board of the Arkansas Supreme Court Historical Society, Inc. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society, contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@ arkansas.gov; Phone: 501 682 6879. 

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21

Report from February 2015 House of Delegates Meeting

By Karen K. Hutchins

The association’s House of Delegates met on Friday, February 20, 2015, at the Doubletree Hotel in Little Rock. The meeting was held in conjunction with the association’s Mid Year meeting. President Brian Ratcliff presided.

The delegates heard reports from several committees, including the Governance Committee. Mr. Aaron Squyres, Governance Committee Chair, reported on the Board of Governor’s recommendation to approve two changes to the association’s bylaws and the addition of two policies. First, a proposed amendment to Article V clarified the role and authority of the Executive Director to supervise and control the business and affairs of the association. Second, an additional change addressed indemnification for any manager, member, employee, officer, or agent made a party to a proceeding by virtue of their position in the association. The addition of Article XII would guard against liability for actions consistent with the association’s governing documents and also authorizes the association to purchase liability insurance. The House voted to approve both bylaw changes.

Mr. Squyres also reported the recommendation of the adoption of an Antitrust Policy and a Privacy Policy. The Antitrust Policy sets out the commitment of the association to support competition within the association and specifically prohibits actions during association-related meetings including discussion on price or price levels. The Privacy Policy explains the association’s use of information derived from website users and membership. The House approved both the Antitrust and Privacy Policies.

Amy Johnson, Chair of the Paralegal Committee, presented a report outlining proposed Paralegal Utilization Guidelines to be approved by the House of Delegates. She also reviewed the results of the paralegal usage survey. After discussion, the motion to support the proposal passed.

Denise Reid Hoggard was recognized as the new President-Elect Designee. Secretary Tom Curry certified that Ms. Hoggard was duly elected in December and will succeed to the office of President-Elect at the conclusion of the 2015 Annual Meeting.

Treasurer Shaneen Sloan reported on the association’s financial dashboard ending December 31, 2014. She was pleased to inform the delegates that at the end of 2014 the association was able to transfer excess operating funds into operating reserves.

Executive Director Karen Hutchins provided an overview of the new legislative advocacy tool used to assist the Legislation Committee and association members with keeping up-to-date on the activities of the legislature throughout the session. Ms. Hutchins also announced the transition of ArkBar Docs to a cloud platform. This transition will make it easier for members to access ArkBar Docs from anywhere and will make it available to Mac users. Attorneys may purchase the product 42

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anytime throughout the year for the number of users they will have in their firm, including any administrative assistants to whom they would like to provide access.

President-Elect Eddie Walker announced two appointments for the 2015-16 bar year. Mr. Scott Zuerker agreed to serve as the next Board of Governors Chair and Mr. Aaron Squyres accepted the appointment as Annual Meeting Chair for the June 2016 meeting.

President Ratcliff commended the Legislation Committee’s work in meeting each week to review every bill filed during the legislative session. He reported on each of the bills the Legislation Committee had supported or opposed.

President Ratcliff reported to the House that the Supreme Court accepted the association’s petition for changes to Rule VII of the Rules Governing Admission to the Bar. The Court issued a per curiam on November 20, 2014, supporting the amended rule. President Ratcliff thanked House members for attending the special meeting held November 17, 2014, which resulted in this rule change.

The House was updated on the recommendation of the Task Force on Professional Liability Insurance to the Association’s Board of Governors. The Board supported the Task Force’s findings and recommended to move forward with cancelling the contract with the current broker, Regions Insurance. It is the goal of the association to expand this benefit so our insurance program will reach more of our members and provide a broader range of coverage. The Task Force will move towards this goal once the current contract has concluded.

At the close of the meeting, delegates were encouraged to participate in the Lawyer-2-Lawyer Mentoring Program. Mentors are needed for this important program and President Ratcliff urged House members to become involved. Immediately following the meeting the delegates gathered for a brief reception allowing delegates throughout the state time to network.

Make sure to mark your calendar to attend the 2015 Annual Meeting in Hot Springs. All CLEs and related events, the Presidents’ Reception, the Arkansas Bar Foundation Dinner and the Friday afternoon reception will be held in the Hot Springs Convention Center. The Thursday afternoon reception sponsored by the Friday Firm will continue to be held at the Arlington Hotel.  KAREN K. HUTCHINS, J.D., CAE, is the Executive Director of the Arkansas Bar Association.

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions

Attorney Disciplinary Actions

On March 20, 2015, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Admonishment was issued to Former Judicial Candidate, Attorney, Jeannette Robertson of Craighead County, in Commission case #14-215.

Final actions from January 1 - March 31, 2015, by the Committee on Professional Conduct. Summaries are prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http://courts.arkansas. gov by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.”

The full press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.

SURRENDER: you are the experts contact the association if you have article ideas for the arkansas lawyer magazine.

RICHARD LEE HOWARD, IV, Bar No. 96151, of McKinney, Texas, petitioned to surrender his Arkansas law license on December 11, 2014, in Case No. D-141069, following his plea and conviction in the United States District Court in San Antonio, Texas, for the felony offense of

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conspiracy to commit fraud in violation of 18 U.S.C. § 1349, involving a Texas real estate matter. The Court accepted his petition on January 15, 2015, and barred him from law practice in Arkansas courts.

CAUTION: JOHN ROBERT IRWIN, Bar No. 95151, of Morrilton, Arkansas, in Committee Case No. CPC 2014-056, by Consent Findings and Order filed February 24, 2015, was cautioned for his conduct in the representation of Kamran Jackson in the matter of Kamran Jackson vs. State of Arkansas, CR 14-783, for violations of AR Rules 1.3 and 8.4(d). Irwin, a full time public defender, represented Jackson, who was convicted of felony theft of property and sentenced to forty-eight (48) months in state prison. On May 21, 2014, a Notice of Appeal was filed. The appeal record was due to be filed August 19, 2014, but was not filed. On September 11, 2014, Mr. Irwin filed a Motion to Be Relieved as Attorney for Appellant. Four days later Irwin filed a

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DISCIPLINARY ACTIONS Motion for Rule on the Clerk explaining that the record was not filed on August 19, 2014, because the transcript was not tendered by the court reporter until September 8, 2014.

On October 2, 2014, the Arkansas Supreme Court issued its Per Curiam granting both motions. The appeal record was lodged October 2, 2014, and the appeal proceeded with new counsel.

JOHN ROBERT IRWIN, Bar No. 95151, of Morrilton, Arkansas, in Committee Case No. CPC 2014-058, by Consent Findings and Order filed February 24, 2015, was cautioned for his conduct in the representation of Michael E. Childers in the matter of Michael E. Childers vs. State of Arkansas, CR 14-761, for violations of AR Rules 1.3 and 8.4(d). Irwin, a full time public defender, represented Childers, who was convicted of felony second degree domestic battery and sentenced to sixty (60) months in state prison. On May 7, 2014, a Notice of Appeal was filed. The appeal record was due to be filed August 6, 2014, but was not filed. On September 8, 2014, Irwin filed a Motion for Rule on the Clerk, explaining that the record was not filed on August 6, 2014, because the transcript was not tendered by the court reporter until August 25, 2014. Irwin filed a Motion to Be Relieved as Attorney for Appellant. On October 9, 2014, the Arkansas Supreme Court issued its Per Curiam granting both motions. The appeal record was lodged and the appeal proceeded with new counsel.

WILLARD PROCTOR, JR., Bar No. 87136, of Little Rock, Arkansas, in Committee Case No. CPC 2014-054, by Consent Findings & Order filed February 24, 2015, was cautioned for his conduct in the representation of Jimmy Lee Williams on a Rule 37 Petition, for violation of AR Rule 1.3. Williams was convicted of felony drug offenses, sentenced to prison, and in September 2011 his conviction was affirmed on appeal. In December 2011, Proctor filed a petition for relief under Rule 37. In its response, the State alleged that the Rule 37 petition had not been verified by Williams as required by Ark. R. Crim. P. 37.1(c) and 37.1(d), was not valid, and should be dismissed. Proctor filed an amended

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petition verified by Williams. The trial court dismissed the petition as untimely, and Proctor appealed. The State responded that the second petition, although verified, was untimely, the appeal should be dismissed, and “the circuit court lacked jurisdiction to make a discretionary determination

regarding the propriety of the amended petition.� On July 31, 2012, Proctor filed his Response to the Motion to Dismiss, arguing that the circuit court did have jurisdiction to hear issues related to whether the procedural requirements of Rule 37 had been tolled under the relate- back provisions of Arkansas

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Rule of Civil Procedure 15. On August 14, 2012, the Supreme Court issued its Order granting the State’s Motion to Dismiss and finding the motion for extension moot.

Williams’ opportunity to present his Rule 37 petition was taken away when Mr. Proctor failed to file the petition with verification, within the required time frame.

DAVID KEITH SARVER, Bar No. 2006051, of Memphis, Tennessee, in case CPC-2014-007, by Consent Findings & Order filed March 20, 2015, was cautioned for violation of Rule 1.8(j). Sarver, a single person, self-reported he was in a consensual sexual relationship with a firm client, also a single person, and the sexual relationship began following the commencement of a civil suit in which Sarver’s then law firm represented the client. Upon disclosure of the personal relationship, Sarver withdrew from the case and the law firm. At the request of the client, the firm continued to represent the client to the conclusion of the matter. 

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

49

Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period January 15, 2015 through April 30, 2015.

In Memory of Julius C. Acchione Jennifer and Randy Coleman

In Memory of Jerry Watkins Sally and Jim McLarty

In Memory of Jeffrey A. Bell Mark A. Hagemeier

In Memory of Roxanne T. Wilson Judge Richard N. Moore, Jr.

In Memory of Robert H. Crank B. Jeffery Pence Mike Wilson

In Memory of Ralph “Rusty” Wilson Charlotte and Justice Robert Brown Fred Ursery

In Memory of Stacy Duckett Judge Richard N. Moore, Jr. Sharon and Fred Ursery

In Memory of William H. L. Woodyard III Judge Richard N. Moore, Jr.

In Memory of John W. “Jack” Fink Patti and Charles Coleman Jennifer and Randy Coleman

HONORARIUMS, SCHOLARSHIP CONTRIBUTIONS AND GIFTS

In Memory of Judge Melinda Gilbert Judge Richard N. Moore, Jr. In Memory of Elizabeth Suzanne (Betsy) Johnston Judge Cathi Compton and Judge Bill Wilson In Memory of Archie Monroe Hayden and Gordon Rather In Memory of Odell Pollard Fred Ursery In Memory of Arthur Eugene “Gene” Raff Mr. and Mrs. Glenn W. Jones In Memory of Eugene G. Sayre Hyden, Miron & Foster, PLLC Philip E. Kaplan Lax, Vaughan, Fortson, Rowe & Threet, P.A. Michael C. O’Malley Mike Wilson

50

John A. “Jack” Davis III Scholarship Jessica H. Davis Arkansas Bar Foundation Jean Langford In Honor of Justice Jack Holt, Jr. to commemorate the hanging of his portrait in the Supreme Court Building Philip E. Kaplan In Honor of Judge John Plegge to celebrate his 80th Birthday Hayden and Gordon Rather In Honor of David Solomon Designated to the David Solomon Scholarship Fund Helena Bridge Terminal, Inc. Helena Marine Service, Inc. Rose Law Firm Scholarship Fund Rose Law Firm

In Memory of William “Bill” Stringfellow Hayden and Gordon Rather

U. M. Rose Scholarship Fund Rose Law Firm

In Memory of Tom Tanner Mike Wilson

Sebastian County Bar Association Scholarship Fund Sebastian County Bar Association

In Memory of Ray Trammell Mike Wilson

Judge Henry Woods Scholarship Fund John and Claudia Courtway

The Arkansas Lawyer

www.arkbar.com

IN MEMORIAM Jeffrey Alan Bell Jeffrey Alan Bell of Little Rock died December 7, 2014, at the age of 63. Jeff graduated Phi Beta Kappa from the University of Arkansas at Fayetteville with a Bachelor of Arts degree in History. He earned his Juris Doctorate from the University of Arkansas at Fayetteville in 1977, where he graduated with honors and was a member of the Law Review. Early on in his legal career Jeff worked for the Arkansas Attorney General and served as the Deputy of the Civil Department. In 1994, Jeff was recruited by the University of Arkansas General Counsel’s Office where he was chief of litigation.

John “Jack” William Fink John “Jack” William Fink of Little Rock died February 9, 2015, at the age of 59. Jack was a graduate of Centenary College of Louisiana where he was a proud member of Kappa Sigma Fraternity. He was also a graduate of Vanderbilt School of Law. Jack was a well-respected practicing attorney in Arkansas and Tennessee for over 30 years as well as a partner in the Law Firms now known as Jack, Nelson, Jones, and James, House, Downing. He was a member of the Arkansas Bar Association and served on the Debtor/Creditor Law Committee.

Odell Pollard Odell Pollard of Searcy died March 12, 2015, at the age 87. Odell graduated from the University of Arkansas School of Law in 1950 and operated a law practice in Searcy for the next 55 years. Much of Odell’s life’s work was in the Arkansas political system serving as the Chairman of the Republican Party from 1966-1970 and as the National Committeeman from 19731976. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation.

Eugene G. Sayre Eugene G. Sayre of Little Rock died March 18, 2015, at the age of 73.

He graduated from the University of Kentucky in 1964, married and moved to Dallas, Texas. While in Dallas, he taught junior high school and completed his Juris Doctorate degree in 1968 at the School of Law at Southern Methodist University, where he served as the Leading Articles Editor of the Journal of Air Law & Commerce. Mr. Sayre began his career as a Trial Attorney with the Tax Division of the U.S. Department of Justice. In late 1975, he relocated to Little Rock, entered private practice and represented both corporate and individual taxpayers involved in controversies with the IRS. He was a member of the Arkansas Bar Association.

William “Bill” Stringfellow William “Bill” Stringfellow of Little Rock died December 9, 2014, at the age of 81.

He was serving at chairman of the Southern Arkansas University Board of Trustees.

Stringfellow, a retired insurance executive, was also heading the SAU Presidential Search Committee. A native of Hampton, Stringfellow attended Southern State College (now SAU) from 1951-1952 and served in the United States Air Force from 1953-1957 before returning to Magnolia to complete his degree. He earned a bachelor of business administration degree in 1960 and continued his education at the University of Arkansas School of Law in Fayetteville, earning a juris doctor degree in 1973. In 1995 he earned the education for ministry degree from the University of the South School of Theology in Sewanee, Tenn. He was honored with the Southern Arkansas University Distinguished Alumni award in 2007. Gov. Mike Beebe appointed Stringfellow to the SAU board in February 2011. He was a member of the Arkansas Bar Association.

Thomas E. Tanner Thomas E. Tanner of Maumelle died on February 6, 2015, at the age of 73. He was an attorney for 50 years in Little Rock and Crossett, Arkansas. He attended Little Rock Central High School and Little Rock University. He attended law school at the University of Arkansas at Fayetteville.

Upon graduation, he served in the U.S. Army Reserves and began a long and distinguished legal career that included working as the North Little Rock City Attorney and as a Deputy Prosecuting Attorney. After leaving the Prosecuting Attorney’s Office, Mr. Tanner entered private practice. He founded several title companies in Little Rock, including Quapaw Title Company, and worked as a title attorney for United Built Homes. Mr. Tanner also served as a longtime political aide for former Arkansas Lieutenant Governor Joe Purcell.

Ray Trammell Ray Trammell of Fayetteville died January 9, 2015, at the age of 94. He was retired as General Counsel of the University of Arkansas System and a Professor of Law at the University. His association with the University of Arkansas as student, faculty member and system administrator spanned 45 years. He received a B.A. degree with honors (history and political science) and a J.D. with honors from its School of Law. He was awarded a fellowship by Columbia University, New York, N.Y. and completed the L.L.M (Law) degree with honors there.

Upon graduation from the Law School in 1944 he joined its faculty and rose through the ranks to become a tenured full Professor in 1955. He taught 14 different legal subjects, including the first courses in Oil and Gas Law and in Arkansas Taxation offered by the University. While with the Law School he also served as Assistant to the Dean 1948-1951. He published books on Arkansas Taxation and on Oil and Gas Tax Depletion as well as numerous research articles.

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

Vol. 50 No. 2/Spring 2015 The Arkansas Lawyer

51

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