The Arkansas Lawyer Spring 2016

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Inside: Mock Trial Competition Independent Contractor Status New Venue Statutes Professional Licensing

Vol. 51, No. 2, Spring 2016 online at www.arkbar.com

It’s time to renew your membership the 2016-2017 Bar year Thefor Arkansas Bar Association

The voice of the Arkansas lawyer ArkBar advocates for the interests of lawyers. ArkBar facilitates Association excellence through leadership and resources. ArkBar provides a competitive advantage to members. ArkBar provides education and resources to support Bar excellence. ArkBar promotes access to a fair and impartial system of justice.

Continue to be a part of the statewide professional network by renewing your membership in the Arkansas Bar Association by June 30, 2016. The Arkansas Bar Association is your connection to over 5,000 attorneys across the state. As well as the Association’s active support, members are entitled to a wide range of additional benefits.

Keep Connected to Your Statewide Professional Association. Renew now! www.arkbar.com

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 Haley Heath Burks Judge Brandon J. Harrison Ashley Welch Hudson Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Tasha C. Taylor David H. Williams OFFICERS President Eddie H. Walker, Jr. Board of Governors Chair R. Scott Zuerker President-Elect Denise Reid Hoggard Immediate Past President Brian H. Ratcliff President-Elect Designee Anthony A. (Tony) Hilliard Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Matthew L. Fryar BOARD OF GOVERNORS Arkie Byrd Thomas M. Carpenter Sterling Taylor Chaney Suzanne G. Clark Don R. Elliott, Jr. Frances S. Fendler Buck C. Gibson Amy L. Grimes Paul W. Keith Leslie J. Ligon Jeffrey Ellis McKinley Jerald Cliff McKinney II Wade T. Naramore Laura E. Partlow Kristin L. Pawlik Brant Perkins Robert M. Sexton Derrick W. Smith Brian A. Vandiver Danyelle J. Walker Andrea Grimes Woods LIAISON MEMBERS Brian M. Clary Karen K. Hutchins Judge James O. Cox Jack A. McNulty Judge David F. Guthrie Richard L. Ramsay Stephen A. Hester Judge Casey Jones 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 2016, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 51, No. 2

features

10 A Look at the Arkansas High School Mock Trial Competition By Anthony L. McMullen Cover photo by Michael Pirnique 12 The Arkansas Elder Law Desk Manual By Raymon Harvey

14 Worker Classification: Employee or Independent Contractor By Alec Gaines 34 The Right to Work: The Rise in Occupational Licensing Litigation Comes to Arkansas By Chris Burks 28 Justice William Conway B—The Other Conway Brother By Judge J. W. Looney 32 A Practitioner’s Guide to Arkansas’ New Venue Statutes By Constance Clark 38 Arkansas Statutory Foreclosures—An Abundance of Notice By Courtney Miller

Contents Continued on Page 2

Lawyer The Arkansas Vol. 51, No. 2

in this issue ArkBar News

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Arkansas Bar Association Annual Meeting

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2015-2016 Benefactor and Patron Members

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Disciplinary Actions

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Arkansas Bar Foundation Memorials and Honoraria

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In Memoriam

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Classified Advertising

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columns President’s Report

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Eddie H. Walker, Jr.

Young Lawyers Section Report

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Matthew L. Fryar

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Margaret Alsbrook, Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, John Peskek, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: William Fitzgerald Clark, Bob Estes, Matthew L. Fryar, Michael Scott Hall, Jason M. Hatfield, Brian C. Hogue, Leon Jones, Jr., Joshua D. McFadden, W. Marshall Prettyman, Jr., Sarah A. Sparkman, Rick Woods Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Michael Alan LaFreniere, Candice A. Settle, Samuel M. Terry Delegate District A-4: Sam D. Snead Delegate District A-5: Wade A. Williams Delegate District A-6: John D. Van Kleef Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Carrie E. Bumgardner, Bart W. Calhoun, Kenya Gordon Davenport, Edie Ervin, Caleb Peter Garcia, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Glen Hoggard, Amy Dunn Johnson, Jamie Huffman Jones, Joseph F. Kolb, William C. Mann III, Patrick W. McAlpine, Kathleen Marie McDonald, Jeremy M. McNabb, Chad W. Pekron, John Rainwater, 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: Robert J. Gibson, Hunter J. Hanshaw, Jason Mark Milne Delegate District C-4: Kara Lynn Byars Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Michael L. Murphy Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Kandice A. Bell, Brent J. Eubanks, John P. Talbot Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Lee Douglas Curry Delegate District C-10: George M. Matteson Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: Brian M. Clary, John Andrew Ellis, Law Student Representatives: David Trent Harrison, University of Arkansas School of Law; Eruore O. Oboh, UALR William H. Bowen School of Law

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The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2015), as supplemented (September 2015), carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Securities offered through Voya Financial Partners, LLC (Member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya and the ABA Retirement Funds are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1029-19104-1117 - 2015

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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ArkBar News Arkansas Represents at the ABA House of Delegates Meeting The American Bar Association House of Delegates met in San Diego on Monday, February 8, 2016. Pictured left from l to r: Stephen Hester, Myra Mackenzie-Harris, Harry Truman Moore, Matthew Fryar, Cynthia Nance and Carolyn Witherspoon. The ABA House of Delgates debated and voted on a number of important issues, including the regulation of non-lawyer entities which provide legal services, the adoption of the uniform bar examination, and the addition of diversity and inclusion CLE into states’ minimum continuing education requirements. For more information about the issues considered at this meeting, the votes cast by our state’s delegates, or the resolutions scheduled for the upcoming meeting in August, please feel free to contact any of the above-named delegates.

YLS Members Present “Know Before You Owe” to High School Students and “Managing Student Debt” to Law School Students The Young Lawyers Legal Education Committee has been busy making presentations across the state to both high school and law students about avoiding and managing debt. On February 29, 2016, Skye Martin, Joycelyn Bell and John Rainwater presented the YLS “Managing Student Loan Debt After Law School” presentation at the WilJohn Rainwater at Central High School liam H. Bowen UALR School of Law. On March 1, 2016, John Rainwater and Matt Fryar made the presentation at the University of Arkansas Law School in Fayetteville. Rainwater said that while preparing for the “Managing Student Loan Debt After Law School” presentation, it struck him that while it is important to educate and counsel those with student loans and debt, it is equally important to educate and counsel those who are about to take out Joceyln Bell at Bowen School of Law student loans (high school seniors) and assume debt. He prepared the presentation entitled “Know Before You Owe” and an accompanying handout. Rainwater and Joycelyn Bell presented the program to four classes of juniors and seniors at Central High School on February 25-26, 2016, about financial responsibility in the context of taking and repaying student loans as well as borrowing money with credit cards. They each gave two presentations at the school and received great feedback from the teachers.

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The Arkansas Lawyer

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Arkansas Leaders on Capitol Hill During ABA Day

Association leaders visited Capitol Hill during the American Bar Association’s ABA Day in Washington D.C., April 19-21. Pictured above, top, l to r: ABA Governor and Association Past President Harry Truman Moore, Association President Eddie H. Walker, Jr., Congressman Bruce Westerman, Association President-Elect Denise Reid Hoggard, and Association ABA Delegate Richard L. Ramsay. Pictured above, bottom, l to r: Eddie H. Walker, Jr. and Richard L. Ramsay. The leaders visited with members of Congress about issues important to Arkansans including funding for the Legal Services Corporation, which historically provides grants to the Center for Arkansas Legal Services and Legal Aid of Arkansas.

ArkBar News Oyez! Oyez! ACCOLADES

The Young Lawyers Section Publishes Two New Handbooks on Domestic Violence

Wright Lindsey Jennings attorney Rodney Moore has been inducted as a Fellow of the American College of Trial Lawyers. The Arkansas Drug Court Professionals Association named Troy B. Braswell Jr. of the 20th Judicial District the 2016 Drug Court Judge of the Year. Niswanger Law Firm PLC was recently awarded the Arkansas Litigation Law Firm of the Year for 2016 by Corporate International magazine.

APPOINTMENTS AND ELECTIONS Karen K. Hutchins, executive director of the Arkansas Bar Association, was recently elected vice president of the National Association of Bar Executives. She will assume office on July 1, 2016, and will subsequently serve as president-elect in 2017-18 and become president of NABE on July 1, 2018. Robert L. Jones, III of Conner & Winters, LLP, was recently elected 2016-2017 Secretary-Treasurer of the International Academy of Trial Lawyers. J. Cliff McKinney of Quattlebaum, Grooms & Tull PLLC was appointed to the Old State House Commission. Meredith M. Causey of Quattlebaum, Grooms & Tull PLLC was elected to the Arkansas Blue Cross and Blue Shield Advisory Board. The Arkansas Judicial Discipline and Disability Commission appointed Judy Simmons Henry of Little Rock to the Arkansas Judicial Ethics Advisory Committee. Douglas M. Carson of Daily & Woods, PLLC was selected to be a brief judge for the American Bar Association’s National Moot Court Competition final rounds.

WORD ABOUT TOWN Quattlebaum, Grooms & Tull PLLC announced that Scott M. Lar joined the firm as an associate in the firm’s Northwest office. Amanda Wilson Denton has joined the Little Rock office of PPGMR Law. The law firm of Matthews, Campbell, Rhoads, McClure & Thompson, P.A. of Rogers announced that E. Joseph McGehee has joined the firm as an associate attorney and Mark T. Fryauf, former Circuit Judge for the 19th Judicial Circuit (Benton County) is now of counsel with the firm. PPGMR Law, PLLC announced that Amanda Wilson Denton joined their Little Rock office. We encourage you to submit information for publication in Oyez! Oyez! Please send to ahubbard@arkbar.com.

ArkBar Welcomes New Director of Finance and Administration

Yan Chen

The Arkansas Bar Association recently hired Yan Chen as the new Director of Finance and Administration. “Yan is a welcome addition to our staff,” Executive Director Karen K. Hutchins said. “Her professional background and experience will provide extensive financial oversight for the association.” Yan has a Bachelor’s degree of International Business Law from the University of International Business and Economics in Beijing China, and a Master of Accountancy from University of Central Arkansas. She is a CPA licensed in Arkansas. Besides numbers, Yan likes gardening, cooking, painting and running. Yan lives in Conway with her husband Darwin and two sons Ethan and Calix.

Domestic Violence: A Practical Guide for Attorneys, judges And Court Clerks

The Young Lawyers Section (YLS) recently published a pair of companion handbooks on domestic violence. Written for domestic violence survivors, “Domestic Violence: A Practical Guide For Navigating the Legal System in Arkansas,” is a self-help guide for survivors of domestic violence that explains a survivor’s legal rights and how to get help from the legal system. The handbook will guide people through the civil, domestic, and criminal elements of a domestic violence case. YLS printed 20,000 copies of this handbook and will distribute hundreds of copies of these printed handbooks to every circuit clerk and domestic violence shelter in the state. In conjunction with the survivors’ handbook, the committee also completed “Domestic Violence: A Practical Guide for Attorneys, Judges and Court Clerks.” This Handbook is a guide for attorneys who represent or work with survivors of domestic violence. It is divided into two sections: Domestic Violence in the Civil Context, and Domestic Violence in the Criminal Context, and is available on the Association’s website at http://www.arkbar.com/for-public/legalassistance/legal-pamphlets.

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ArkBar News

William Cain Avant Caroline Helene Beavers William Blake Belvin Simone Antonette Blagg John Walker Wright Brogden Lisa J. Brooks Sydney Lynn Brown John Michael Bynum Megan Chappelear Chancey Devon Combs Jordan Paul Compton Megan Summer Danielson Clinton Len DeWitt Eric Leo Dixon Randal Allen Farmer Tetiana A. Fayman Michael Fincher Dorothy Vaughan Goodwin Charsie Elizabeth Gordon Charles Lee Hardin Alexandra Kendall Harper Katherine Huntley Harris Luke Matthew Henson Terry Lee Hooten Cameron Brooke Housley Laurtaneous Eshai Johnson Meghan Kathleen Joiner Kristopher Robert Benton Jones Madeline Key John Martell Landis Summer Beth Lang Garrett James Lowe Mark Carlton Lucas Michael Austin Lucas

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Catherine Margaret Maness Dustyn Codie Martin Micah Monroe Mathis Michael Cade Mayo Andrew William McClelland Samuel Aaron McFall David Tyler Mills Chelsea Elizabeth Penn Landon Mitchell Reeves Nathanial William Reggish Andres Fernando Rhodes Jeffrey Randall Roeser Lauren Carolyn Rotonda Patrick Joseph Ruettiger Maria Bunting Smedley Courtney Brianne Smith Tyler Allen Squires Michael Dewayne Sutton Benjamin Thomas Townsend Daniel Turklay Stacie Robin Thomas Wassell Jonathan David Michael Welk Megan Lee Wells William Thomas Wisdom James S. Youngblood Jr.

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The following 50year members will be honored with a luncheon and reception ol at the Annual Meetden Ye ing in Hot Springs on June 16, 2016. Association President Eddie H. Walker, Jr., will present each member with a 50-year pin to honor their dedication to the practice.

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On May 6, 2016, Arkansas Bar Association President Eddie H. Walker, Jr., welcomed the new admittees to the Bar. Arkansas Supreme Court Chief Justice Howard Brill administered the Attorney’s Oath of Admission. ArkBar hosted a reception at the courthouse to welcome the newest members to the Association.

Congratulations to Members of the Association Celebrating their 50th Year of Practice

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Congratulations to the New ArkBar Members Admitted to the Practice of Law May 2016

Edwin B. Alderson, Jr. Ralph G. Brodie Judge Charles David Burnett James O. Burnett Robert D. Cabe John C. Calhoun, Jr. Jerry Winston Cavaneau John S. Cherry, Jr. John Ralph Clayton Walter B. Cox Ed Daniel C. Wayne Dowd John F. Gibson, Jr. John R. Graves H. Watt Gregory III Philip Hicky II William L. Hopper Randall W. Ishmael Judge Milam Michael Kinard Judge David N. Laser James M. Llewellyn, Jr. James L. “Red” Morgan Henry Osterloh Herbert L. Ray Judge Curtis E. Rickard Robert D. Smith III David A. Stewart Judge Bill H. Walmsley

PRESIDENT’S REPORT

Reflections By Eddie H. Walker, Jr.

I began my service as President emphasizing the importance of civility among the members of the legal profession, the value of being a member of the Arkansas Bar Association and the significance of relationships. As my year ends I find myself reflecting on the events of the past several months. My belief that civility and professionalism are important to lawyers and judges has been reinforced by the fact that several members have thanked me for emphasizing that civil and professional behavior is critical to the public having a positive impression of who we are. How the public perceives us ultimately determines whether we will be able to maintain the public’s trust and our ability to remain largely a self-regulated profession. Although I have been involved in various Bar Association activities for many years, I have a better appreciation for how much volunteer effort goes into making this Association so valuable to its members and to the public. Hundreds of lawyers, voluntarily, spend dozens of hours each year improving the image of the profession, helping fellow lawyers and serving the public. Last October, the Young Lawyers Section of the Arkansas Bar Association hosted the Young Lawyers Division of the American Bar Association. A city as small as Little Rock would not

“We are the guardians of justice and we give meaning to the existence of the guarantees set forth in the Constitution.“ ordinarily be considered by the American Bar Association as a possible venue for such an important program; however, Arkansas’ Young Lawyers Section has such an impressive history of public service and stellar programming that it was chosen to host the meeting. The event was very successful and enabled lawyers from across the country to experience the congeniality and proficiency of Arkansas lawyers. The Task Force on Professional Liability Insurance performed a very thorough study of the lawyers’ professional liability insurance market and concluded that establishing a relationship with Stephens Insurance would enable Association members to obtain very high quality professional liability insurance coverage at rates substantially lower than those available through the carrier with which the Association had maintained a relationship for many years. Improved affordability of lawyers’ professional liability insurance is not only a direct financial benefit to the Association’s members; it is also a benefit to the public since lower rates should encourage lawyers to maintain coverage and thereby

provide clients improved financial security against the possibility of a lawyer making a mistake that causes harm to the client. The Arkansas Bar Association takes very seriously the responsibility of its members to do everything reasonably possible to encourage and maintain a fair and impartial judiciary. As a result, in response to increased focus on whether Arkansas’ judicial system may need modification, the House of Delegates directed that a task force be appointed in order to make recommendations regarding what, if any, change needs to be made relative to how members of the Judiciary are chosen, automatic recusal issues and other issues that may have a bearing on the actual, or apparent, ability of the judiciary to be fair and impartial. That task force has been appointed; it has 17 members and is comprised of judges, law professors, a legislator, a lawyer from the Governor’s office, lawyers from various geographic parts of the state, lawyers with experience in varied areas of the law and varied life experiences regarding age, race and gender. It is anticipated that the task force will present its recommenda-

Eddie H. Walker, Jr., is the president of the Arkansas Bar Association. He is a partner with Walker, Shock & Harp, PLLC in Fort Smith.

tions to the House of Delegates on June 17, 2016. We should always remain mindful of just how privileged we are to be members of the legal profession. People entrust us with the responsibility of advising them regarding the most important decisions in their lives. Indeed, they often entrust lawyers with their very lives. We are the guardians of justice and we give meaning to the existence of the guarantees set forth in the Constitution. Accordingly, we should hold sacred our responsibility to improve access to justice for all. The volunteer efforts of the members of the Arkansas Bar Association create avenues through which members of the legal profession can improve our skills, facilitate relationships and better serve and protect the public good. It is the relationships that are developed and maintained that allow this great organization to continue to be relevant. When I was sworn in, I thanked those of you who made it possible for me to become President. Now, I thank all of you who made the experience so magnificent. Remain a member! Recruit a member!

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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Savings calculation is based on SoFi borrowers who refinanced between 5/21/14 and 7/2/14. Prior to refinancing, these borrowers had on average a $71,000 loan balance, a rate of 7.07% and a lifetime payment of $99,239, assuming a 10 year term. After refinancing, these borrowers have an average lifetime payment of $87,162 based on a weighted average of new rates received across both types (fixed and variable) and all terms (5,10,15 year) with AutoPay.* If approved for a loan, the fixed or variable interest rate offered will depend on the borrower’s credit history and will be within the ranges of rates listed above. For the SoFi variable rate product, the 1-month Libor index will adjust monthly and the loan payment will be re-amortized and changed monthly. APRs for variable rate loans may increase after origination if the LIBOR index increases. The SoFi 0.25% AutoPay interest rate reduction requires you to agree to make monthly principal and interest payments by an automatic, monthly deduction from a savings or checking account. This benefit will discontinue and be lost for periods in which you do not pay by automatic deduction from a savings or checking account. ***Payment will be issued electronically once you become a SoFi borrower; you have submitted a completed application with documents and your loan has been disbursed. Offer good for new customers only. CFL license #6054612

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YLS REPORT

Graduation By Matthew L. Fryar

I always thought kindergarten graduations were silly ... until I had a kindergartener. Now I see it as a special time to celebrate all that my daughter has accomplished over the past year and to anticipate all that she will learn and do in the future. I’m not ashamed to admit that I’ll probably cry a little when my mini-me walks across that stage in a couple of weeks. Katie’s upcoming graduation has also caused me to think back over the past year as chair of the Young Lawyers Section. When I signed on for this position, I knew it would be a lot of fun and a lot of hard work, both time consuming and rewarding. And I was completely right in my expectations (if I had multiplied each of them by a factor of 10)! I have had a lot of fun! Over the past year, I have travelled with Chair-Elect Greg Northen to American Bar Association meetings in Chicago, San Diego and St. Louis. At each of these, I met new and interesting people, caught up with young lawyer friends from all over the country, and proudly represented my state in both the YLD Assembly and the ABA House of Delegates. ArkBar YLS also hosted an ABA Young Lawyers Division

conference in Little Rock last October. More than 250 young lawyers from across the country came to our beautiful state for four days of programming. Co-chairing that event with Cliff McKinney and Brian Clary is one of the highlights of my year, and I am grateful to all of the young lawyers who pitched in to help. From making dining reservations to picking people up at the airport, it was truly a team effort and a team success! I have worked really hard! YLS hosted three Wills for Heroes events over the past year—Pine Bluff on January 16, Fayetteville on April 9 and Little Rock on April 16. Cumulatively, more than 70 attorneys donated over 350 pro bono hours to provide free estate planning services to approximately 85 police officers, fire fighters and first responders (and their spouses). Planning these events and seeing them through was a lot of hard work, and I extend my thanks to Chris Rittenhouse, Nick Arnold and Kathleen McDonald for all their help in putting these clinics together, as well as to the volunteers who made them possible. My time has not been my own for the past year. In addition to the ABA meetings and Wills for Heroes events discussed above, I have attended all of the ArkBar Board of Governors and House of Delegates meetings, held two YLS Executive Council meetings, visited the U of A Law School with

John Rainwater to present a seminar on student loan debt, worked with local principals to distribute YLS’s new “Know Before You Owe” information sheet for high school seniors, and written four articles for The Arkansas Lawyer. I set forth this list not to complain or to brag on myself, but to illustrate just how much YLS does within and for the Association. I am proud to be able to dedicate my time to our profession and to the Bar Association. Lastly, this year has been more rewarding than I ever expected. After two and a half years, YLS has finished a pair of companion handbooks that I truly believe are going to change lives within our state. Led by Melissa Grisham and Rebekah Tucci, and in collaboration with nine other entities across the state, ArkBar YLS has published “Domestic Violence: A Practical Guide to the Legal System in Arkansas.” Written for domestic violence survivors, this handbook will guide people through all of the civil, domestic, and criminal elements of a domestic violence case. Thanks to the generosity of Wal-Mart, Tyson Foods, and the Arkansas Bar Association Family Law Section, YLS has been able to print 20,000 copies of this handbook. A grant from the ABA YLD gives us the funds to distribute hundreds of copies of these printed handbooks to every circuit clerk and domestic violence

Matthew L. Fryar is the Chair of the Young Lawyers Section. He is a partner with Cypert, Crouch, Clark & Harwell, PLLC in Springdale. shelter in the state. In conjunction with the survivors’ handbook, the committee also completed a handbook for attorneys, judges, and court personnel who handle domestic violence cases and interact with domestic violence survivors on a day-to-day basis. This handbook is available electronically to Association members, and the Administrative Office of the Courts will soon be distributing it to judges, case coordinators, and court clerks across the state. This is the single most defining contribution which YLS has made to the community this year, and I’m proud to be associated with it. While exciting times await my daughter in 1st grade next year, I’ll be matriculating into the role of YLS immediate past chair. Just as Katie is thrilled about all that she’ll be doing and learning next year, I am equally excited about all of the plans and goals that Greg Northen has for our section. It has been an honor to work alongside Greg for the past year, and I know that YLS is in excellent hands as he takes over as chair at Annual Meeting. So I tip my mortarboard to you and wish you well. Thank you for allowing me to serve as the chair of the Young Lawyers Section! 

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mock trial

A Look at the Arkansas High School Mock Trial Competition By Anthony McMullen

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bjection! This testimony is inadmissible character evidence pursuant to Rule 404 and its probative value, if any, is outweighed by unfair prejudice under Rule 403.” These objections, and many more, are made by Arkansas high school students every year in the Mock Trial Competition. High school students act as attorneys and witnesses, simulating a trial in a fictional case. Volunteer attorneys from across the state— members of the Mock Trial Committee, presiding judges, scoring jurors, and attorney coaches—make this competition possible.

Photo by Michael Pirnique

Anthony L. McMullen is an Assistant Professor of Business Law at the University of Central Arkansas and Vice-Chair of the ArkBar Mock Trial Committee.

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The students’ work begins in the fall. Teams prepare with teachers and attorney coaches to litigate both sides of a trial. The students start with raw case materials (witness statements, trial exhibits, pleadings, jury instructions, and applicable law). And they learn basic evidentiary rules and the elements of trial advocacy. In 2014, the committee approved a new competition format. Instead of a single elimination tournament over two weekends, Arkansas teams now compete in three trials during a single weekend in Little Rock. Each team performs both sides of the case. The top four teams move on to the semifinals, with the winners competing for the state championship. The committee has many volunteer opportunities. Beginning in July, committee members promote the competition by attending workshops, recruiting schools, and educating teachers about mock trial and general courtroom procedure. The committee creates a case problem and updates the Rules of Competition. It also secures courtrooms and volunteers to coach teams and judge the competition. The competition itself is held in late February or early March. Committee members work behind the scenes to instruct judges, tabulate results, and resolve disputes. When the competition is over, a subcommittee of experienced trial lawyers and committee members helps prepare the state champions for the national competition. The 2016 case was State of Arkansas v. Dakota Sunflower. The state alleged that the defendant, a high school social studies teacher, illegally threatened to give his/her students poor grades if they did not vote against a local pipeline initiative. Twenty-seven teams from 23 schools competed in this year’s competition. In the end, the team from Springdale Har-Ber High School prevailed in a close round against the senior team from Little Rock Parkview High School. U.S. District Judge Leon Holmes presided over the Championship round, with Bar Association President Eddie Walker and President-elect Denise Hoggard acting as scoring judges. The team is now preparing for the national competition, which will be held on May 13-14 in Boise, Idaho. The Har-Ber High team is taught by Ta-Neisha Marshall and Sean Petersen and assisted by attorneys Bob Estes and Cliff Plunkett. When asked about her team’s experience, Mrs. Marshall stated: The entire process was invaluable. Our students were able to develop and polish their analytical and presentation skills throughout the year in preparation for the highly competitive tournament. The relationships built with our attorney coaches made all the difference in the lives of these kids. Mr. Estes and Mr. Plunkett inspired and continue to inspire our kids to perform in and out of the classroom. They have

taught them a balance of professionalism and passion that no other program could have provided. Being a team composed of a predominantly senior class, they have said, “this has been the greatest experience of my high school career.” I would have to agree. New schools compete each year. The committee is always looking for lawyers to coach these teams. Attorney coaches are mentors and instructors, helping many teams take their competition to the next level. Attorneys can also help the committee’s outreach effort by encouraging their local high schools to participate in the competition. Of the schools participating this year, only two were from the southern half of the state. The committee wants as much of the state represented as possible in the competition. The committee annually recruits attorneys to judge the competition. Each trial is judged by one presiding judge (a former or sitting judge whenever possible) and two scoring judges. This means that, if 36 teams are competing, the committee needs 162 volunteer judges (or less if volunteers can judge multiple rounds). Judging one trial is normally a three-hour commitment. Those interested in judging should

Congratulations to the 2016 Mock Trial Champions—Har-Ber High School of Springdale (l to r): Sean Petersen, Ta-Neisha Marshall, Denise Reid Hoggard, Caroline Eastep, Jacob McDaniel, Anna Cook, Sheridan Ellis, (behind Sheridan) Joel Edmonson, Chase Morgan, Ethan Martinez, Mary Benchoff, Eddie H. Walker, Jr., Kegan Anderson, Judge J. Leon Holmes

look for official announcements starting in late November or early December each year. Volunteering in one of the above capacities allows attorneys the chance to help provide civics education to the next generation of Arkansas citizens. They may even influence an aspiring lawyer. And this service qualifies as pro bono work under Rule 6.1(b)(3) of the

Arkansas Rules of Professional Conduct. For more information about the Arkansas High School Mock Trial Competition, visit www.arkbar.com/armocktrial.Members may also contact Mock Trial Coodinator Crystal Newton (cnewton@arkbar.com) if they are interested in joining the Mock Trial Committee. 

Thank You to the Attorneys & Judges Who Volunteered for the 2016 High School Mock Trial Competition Pamela Renee Abrams Elizabeth Joyce Armstrong Adrienne L. Baker Caroline S. Bednar Miss Kimberley Bennett Will Bond Troy B Braswell, Jr. T. Scott Brisendine Beverly I. Brister Ashlea Brown Thomas E. Brown Judge Waymond M. Brown Jordan Broyles Kimberly D. Burnette Katelyn Burch Busby Elizabeth C. Caldwell Mike Childers Kevin Christian Tracy Lynn Cole Judge Cathleen V. Compton Cory S. Crawford Sarah E. Cullen Tim J. Cullen Lee Douglas Curry Robert L. Depper, Jr. Natalie J. Dickson Dustin A. Duke Khayyam Eddings

George Raff Ernst Edie Ervin Judge Audrey Riemer Evans Ann P. Faitz Stacy Dianne Fletcher Christopher M. Floyd Evelyn D. Gomez Connie L. Grace Shana Woodard Graves Adrienne Morris Griffis Judge Milas H. Hale III Harvey Harris Michael McCarty Harrison Floyd A. Healy Michael B. Heister Samuel S. High Judge Leon Holmes Ben Hooten Johnathan D. Horton James Owen Howe Ashley Welch Hudson Mary Claire Hyatt Seth Hyder Adam Donner Jackson William Owen James, Jr. Alexander Taylor Jones Gregory T. Jones David C. Jung

Michael Kiel Kaiser Dominique King Jennifer Norsokapie Liwo Lizabeth Lookadoo Edwin Lee Lowther III B. Chase Mangiapane William C. Mann Judge D. Price Marshall, Jr. Steven Michael McClelland Cameron Charles McCree Kathleen M. McDonald Mary Catherine McGowan Judge Mary Spencer McGowan Destiny Lynn McHughes Anthony L. McMullen Chris A. McNulty Kurt J. Meredith Giana Marie Messore Hamilton Moses Mitchell Sandy Bailey Moll Barrett Moore Madeline Kurrus Moore Michael S. Moore Donald Ryan Mullenix Nicki N. Nicolo Ali Brady Noland Ross Noland Gregory J. Northen

Bridget Hillebrand Norton D. John Ogles Robert Christopher Oswalt Jimmie Samuel Patterson Constance Brown Phillips Melody H. Piazza Amy M. Pritchard Scott D. Provencher Kendra Khrystal Pruitt Colby Qualls Tucker Raney Michael D. Ray Bourgon Burnelle Reynolds Scott P. Richardson Bonnie Lee Robertson Danielle Elders Robertson Jordan Rogers Caitlin Elizabeth Savage Stephanie A. Seller Michael N. Shannon Jerald August Sharum Shelly Megan Shaw Kayla Lynne Shirey Ellen M. Smith Keesa M. Smith Robin C. Smith Ginger M. Stuart Matthew Suffern

Mrs. Maria Luann Thompson-McSperitt Bruce B. Tidwell Jordan Brown Tinsley James D. Tomlin Geoffrey B. Treece Justice Annabelle Imber Tuck Everett Clarke Tucker IV Brian A. Vandiver Judge Joe Volpe Eddie H. Walker, Jr. Karen V. Wallace Timothy Watson, Jr. Judge Morgan E. Welch, Jr. Matthew D. Wells John Mark White William Zac White Judge Phillip Whiteaker Beau Wilcox Stacy R. Williams Teresa M. Wineland Andrea Grimes Woods Kim Dickerson Young Wayne W. Young Colleen Alexandra Youngdahl

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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The Arkansas Elder Law Desk Manual 2013 Edition By Raymon Harvey

Do you need the Elder Law Desk Manual? When I tell people that my practice focuses on elder law, their age and experience usually dictates their response. Most over 50 have a general idea of what elder law means, especially someone who has placed a parent in a nursing facility. It is a broad and diverse area of practice. It encompasses issues touching on the lives of the elderly and disabled, a population which may include anyone from a 50-yearold dealing with early Alzheimer’s disease to a frail 80-year-old needing nursing home care. It includes things like estate planning, probate, guardianship, government programs (SSI, Social Security Disability, Medicare and Medicaid) as well as a dozen other areas of law. No one lawyer is likely to have expertise in all of the topics. The goal of most elder law attorneys is to know several topics very well and to work with other attorneys who know the others. That is why the Arkansas Bar’s Elder Law Desk Manual is so important. It provides you with information on the broad areas needed to understand this area of the law. Here are some areas that the Elder Law Desk Manual addresses and a brief description of the area of law: Medicaid Planning Nursing home care is expensive. The only way to pay for it is with your assets, longterm-care insurance, or Medicaid. Most people do not have long-term-care, and at $6,000.00 a month for nursing facility care they quickly run out of money. Medicaid

12

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becomes their only option. In order to qualify, however, you must be completely out of money with few exceptions. You are penalized for giving away assets in order to qualify for benefits. The situation gets more complicated if the person needing care is married. No other area of elder law is more complex and impenetrable. Advance Directives Advance directives are documents that state what you would like done if you become incapacitated. The most common advance directives cover financial decisions and healthcare decisions. Guardianship If the person has not prepared an advance directive, the court must appoint a guardian to make financial and healthcare decisions. Housing There are a variety of living arrangements available for the elderly today. They include independent living, senior communities, assisted living, skilled care and a variety of other permutations. What they all have in common is that they involve a transition from a house or apartment. The transition involves many personal, medical, and financial intricacies. Under ideal circumstances, this transition may occur when everybody is healthy and sound. Often, though, the decisions happen in a rush and after dementia or other issues have crept into the picture. Supplemental Security Income (SSI) Supplemental Security Income (SSI) is a federal income supplement program. It is designed to help aged, blind, and disabled people who have little or no income (less

than $733.00 a month) and provides cash to meet basic needs for food, shelter and clothing. Medicare Medicare provides health insurance for Americans aged 65 and older or disabled who have worked and paid into the system. Medicare has four parts: Part A is Hospital Insurance. Part B is Medical Insurance. Medicare Part D covers prescription drugs. Part C health plans, the most popular of which are branded Medicare Advantage, are another way for Original Medicare beneficiaries to receive their Part A, B and D benefits (basically the person opts out of traditional Medicare). Social Security Social Security is primarily retirement payments under the Old-Age, Survivors, and Disability Insurance (OASDI) program. It also covers Social Security Disability Insurance and Supplemental Security Income. Other areas not specifically addressed in the manual are: Estate Planning This involves the preparation of documents necessary to pass your estate to your

Raymon B. Harvey is an attorney in Little Rock whose practice focuses on Elder Law and Special Needs Trusts.

heirs. Typically it involves the preparation of a will or trust agreement. Common goals of an estate plan are to avoid estate tax and probate and to ensure that assets go to the right people. In the area of elder law, protecting the individual or couple while they are living is paramount. Probate Settling a decedent’s estate. Probate involves gathering all of the assets of the estate, paying all of the debts and distributing the balance to the heirs. [Note: The Arkansas Bar Association’s automated document assembly program, ArkBar Docs, contains probate forms for this process; for more information, see www.arkbar.com/ arkbardocs/home.] Nursing Home Neglect Providing care for the elderly is a huge responsibility, and many nursing homes take it seriously. However, when a nursing home does not properly care for a resident medical errors, bed sores, fractured bones, overwhelming infections and death can be the result. Nursing home neglect cases are handled by litigation attorneys, but they are different than routine personal injury cases.

Do you need the Elder Law Desk Manual? If your clients are 65 or older or are disabled, you need this manual. If your clients want to give their home to their children, you need to read this manual. If your client has dementia, you need to buy this manual. Thanks to the Elder Law Section of the Arkansas Bar Association and the authors who volunteered to work on this project: Dick Hatfield, Rebecca Denison, Rebecca

Winburn, Fritzie Moore Vammen, Chad Oldham, Shaneen K. Sloan, Brenda S. Wagner and Karen Baim Reagler. There would be no manual without their considerable efforts. Special thanks to Cathy Underwood who helped push this project to its completion. 

Build your library with handbooks on substantive areas of state and federal law written by expert attorneys and judges. The handbooks can serve as a practical guide and include reference materials, forms, checklists and other resources. Order online today!

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Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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Worker Classification: Employee or Independent Contractor

By Alec Gaines

Alec Gaines is an attorney with Williams & Anderson PLC in Little Rock. He practices in the area of business litigation. 14

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he Department of Labor recently published an interpretation of the Fair Labor Standards Act which provides guidance on how it will view worker classification issues in the coming years. This article is intended to provide a brief summary of that interpretation and provide some hopefully helpful hints in the event you have a client with a worker classification question. If you have a client who wants your advice on whether he or she can classify a category of workers as independent contractors, you can confidently respond with those two words that may still haunt you from law school: “It depends.” There are a few different definitions of “independent contractor” under various laws and your answer will likely depend on why the client seeks guidance. The United States Department of Labor (“DOL”) recently provided some clarity on its interpretation of the law concerning worker classification. That guidance, however, only applies to certain federal laws, including, most importantly for the purposes of this article, the Fair Labor Standards Act (“FLSA”). The FLSA’s provisions regarding minimum wage and overtime compensation, among other protections, apply to workers classified as employees. DOL’s new interpretation does not necessarily apply to other federal and state laws regarding independent contractors. Also particularly important to employers is the definition of independent contractor as interpreted by the Internal Revenue Service (“IRS”) and various state agencies such as the Arkansas Department of Workforce Services (“ADWS”). Guiding your client through the maze of classification laws may seem daunting, but there is a path.

Department of Labor Classification DOL’s Final Strategic Plan for the years 2014-2018 highlighted the problem of worker misclassification and vowed to detect and deter misclassification of employees as independent contractors.1 DOL cited a 2000 study that found as many as 30% of employers misclassify at least some employees as independent contractors.2 According to DOL, the misclassification problem actively contributes to many of the extraordinary issues facing our nation today, including the budget deficit, lack of funding for Social Security and Medicare, and wage inequality.3 On June 15, 2015, DOL released Administrator’s Interpretation No. 2015-1 (the “Memorandum”) that provides guidance to employers on classification issues.4 Citing an alleged increase in worker misclassification, meaning employers that classify workers as independent contractors instead of as employees to “cut costs and avoid compliance with labor laws,” DOL staked its position on the issue of misclassification.5 Pursuant to the FLSA, employ means to “suffer or permit to work.”6 Obviously that is a broad definition, and DOL, along with many courts, has stated that was indeed Congress’ legislative intent.7 To determine whether a worker is an employee, courts have distinguished the common law “control test” and the “suffer or permit” standard of the FLSA by arguing the latter goes much further. To that end, the “economic realities” test was born. The economic realities test requires an analysis of (1) the extent to which the work performed is an integral part of the employer’s business; (2) the worker’s opportunity for profit or loss depending on his or her own managerial skills; (3) the extent of the relative investments of the employer and the worker; (4) whether the work performed requires special skill and initiative; (5) the permanency of the relationship; and (6) the degree of control exercised or retained by the employer.8 The Memorandum asserts that the “control” factor should not be given undue weight, as each factor may be determinative.9 Moreover, the employer cannot simply contract its way out of an employeremployee relationship through, for instance, a written independent contractor agreement.10 Ultimately, the relevant inquiry is whether a worker is in business for him or herself, economically independent from the employer.

(1) Integral Part of Employer’s Business The first factor hinges on the meaning of “integral.” Work can be integral even if it is just one component of the business, and even if performed away from the employer’s worksite.11 This should typically be the easiest factor to analyze. A carpenter performs integral work for a construction company if hired to build a residential frame, a call center worker performs integral work when answering calls from home, and a pickle picker performs integral work for a pickle packaging company when he or she is, you guessed it, picking pickles.12 (2) Opportunity for Profit or Loss To justify independent contractor status, the worker should have the possibility of experiencing a profit or loss on a particular job. The analysis is not whether the worker’s efficiency, or lack thereof, contributes to his or her own profit or losses, but rather an analysis of the worker’s independent business skill.13 This would include whether the worker can hire or fire his or her own workers, purchase or provide his or her own tools or materials, and whether the worker holds him or herself out as being in business independent of the employer. The example provided by DOL is a worker who provides cleaning services.14 If the worker operates a sole proprietorship and works exclusively for one client without an attempt to solicit or advertise for work from other clients, the worker really has no opportunity for loss of investment. On the other hand, if the worker provides cleaning services for many clients, hires helpers, recruits clients, and generally exercises managerial skills over his or her business, the worker can be considered an independent contractor. (3) Investment Comparison This factor generally overlaps with the opportunity for profit or loss. The Memorandum states that the nature and extent of the capital investments by the worker and the employer must be compared. If the investments of the employer substantially outweigh the investments of the worker, then the worker is likely an employee. You must consider whether a worker’s investment in tools and equipment are substantially outweighed by the employer’s investments. Consider, for instance, a rig welder who invests in his own specialized truck and equipment.15 While that investment may be quite expensive, it is likely substantially outweighed by the employer’s

investment at the worksite. In short, investments in tools and equipment are not necessarily a business investment for a worker despite the potential for high costs.16 Look for investments that further the worker’s capacity to expand, reduce costs, and extend his or her market. DOL’s example again concerns the cleaning industry.17 If the cleaning company provides the worker with a vehicle, insurance, and supplies, the worker is investing little to no capital and is likely an employee even if the parties had an independent contractor agreement and the company issued the worker a 1099-MISC each year. On the other hand, if the worker uses his or her own vehicle, advertises and markets his or her services independent of the company, and regularly, as opposed to job-by-job, purchases materials and equipment, the capital investment factor favors independent contractor status. (4) Special Skill and Initiative The key here is looking for specialized business skill, judgment, or initiative, not a worker’s technical skills. An employer may hire the most efficient cable installer in Arkansas, but if the worker uses no businesslike skill or initiative, he or she would likely be considered an employee.18 The example provided by DOL relates to a carpenter providing services for a construction company.19 If the company provides the materials, designs, and sequence of work then it probably indicates an employer-employee relationship. If the carpenter provides handmade custom cabinets for a construction project then it is likely indicative of an employer-independent contractor relationship. (5) Permanency of Relationship The more permanent the relationship between a worker and an employer the more likely the worker would be considered an employee. An independent contractor is typically a worker who provides services on a job-by-job basis with the ability to turn down a project at his or her option without consequences. Contrast this with a worker who provides services for the same employer until he or she quits or is fired. Even though the job was at-will, the lasting relationship between the parties indicates employee status. Lack of permanency will not necessarily solve the problem. You also must consider whether the job itself is transient or seasonal

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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in nature.20 If the lack of permanency is the result of typical industry practice, it will not necessarily indicate independent contractor status. Consider a case out of Florida. Nurses were hired by a temporary health care staffing agency and despite working for more than one staffing agency and having the ability to determine when and where to work, the nurses were considered employees because such practices were standard in the industry.21 For seasonal jobs, the test is not whether the worker returns season after season, but whether the worker provides services for an entire season in particular.22 (6) Nature and Degree of Employer Control Under the common law test, the nature and degree of control generally guided the classification analysis. The Memorandum rejects this notion by stressing that the control factor should not play an oversized role in the classification analysis and should be considered equally with the other factors.23 DOL states that even if there is an absence of employer control over a worker, the worker should be considered an employee if there is economic dependence on the employer.24 Control factors that may indicate an employer-employee relationship include, among others: (1) a set schedule; (2) lack of negotiated pay; (3) supervision; (4) dress code; (5) required training; and (6) worker guidelines. Each of these factors suggests that the worker is not truly independent. The Memorandum provides another example from the nursing industry.25 A staffing agency that requires its nurses attend multi-day training, seek client approval, have specific hours and pay, and provide updates to the company regarding scheduling has an employment relationship. On the other hand, a staffing agency likely establishes an independent contractor relationship with its nurses when the nurses can contact potential clients without any commitment to provide services and the nurses are able to negotiate their own rate of pay and schedule with those clients. Conclusions Regarding the Memorandum The Memorandum concludes that under DOL’s interpretation of the law and the economic realities test the vast majority of workers should be classified as employees.26 While the Memorandum does not carry the precedential weight of case law, it does provide useful knowledge for employers 16

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regarding how the DOL plans to manage misclassification issues in the future. Other Tests There are other classification tests of which you need to be aware that differ from the economic realities test. (1) IRS Classification issues are important to the IRS because businesses are not responsible for payroll or withholding taxes for independent contractors.27 The IRS utilizes a whopping 20-prong test, but the exercise basically boils down to a three-prong “control test” including (1) behavioral control; (2) financial control; and (3) relationshipbased control.28 Behavioral control looks at whether the employer has a right to direct the worker on a particular task.29 This includes whether the employer gives the worker specific instructions on how and when to do the work, which tools to use, whether the worker can independently hire help, and the degree of training the employer requires. Financial control analyzes whether the employer controls the business aspects of the worker’s job.30 Things to look for include whether the worker is reimbursed for expenses, the extent of the worker’s investment, exclusivity of services, opportunity for profit or loss, and method of payment to the worker. Finally, you need to analyze the totality of the relationship between the employer and the worker.31 This would include any written contracts that may define their relationship, whether the worker is provided any benefits, the permanency of the relationship, and the extent to which the work provided is integral to the company. (2) ADWS ADWS reviews classification of workers for unemployment insurance purposes.32 It is clear that ADWS considers it the exception where a worker can legally be classified as an independent contractor.33 Arkansas courts have tended to agree that there is a statutory presumption of employee status that can only be overcome if an employer satisfies the provisions of Ark. Code Ann. § 11-10-210(e).34 To show independent contractor status, an employer must prove (1) the worker is free from control and direction and (2a) the service is outside the employer’s usual course of business or is performed outside

the employer’s place of business or (2b) the worker is engaged in an independent business operation.35 The control factor and independent business operation facts are generally analyzed along similar lines as the DOL and IRS tests. Setting the ADWS test apart is that Arkansas courts have broadly interpreted an employer’s place of business to include those places where the services are performed.36 As an example, a transportation company hired a worker to transport large vehicles across Arkansas and ADWS held the business was required to pay unemployment insurance taxes for the worker.37 The Arkansas Supreme Court affirmed the ruling because the company’s enterprise of transporting vehicles was necessarily performed on the state’s roadways; thus, the state’s roadways were the employer’s place of business.38 Practical Advice for Employers After your lawyerly answer of “it depends” in response to your client’s independent contractor inquiry, the first thing to do is find out why the client is asking the question. You should make sure to impress upon the client that government agencies generally disfavor independent contractor relationships and are actively looking for misclassification cases. If the client is still in your office after the words “increased government scrutiny” flash through their minds, consider the following tips for helping an employer establish an independent contractor relationship with a worker: (1) Go through a checklist of federal and state laws to see if the law is applicable to the employer and if the worker would qualify. Pay attention to industry practice because there are specific industry exclusions to the FLSA and other laws.39 (2) Assess the reason your client wants to establish an independent contractor relationship. If the answer is to avoid costs associated with employees or for head count reasons, consider it a red stop light. If the client wants to transition workers from employees to independent contractors, or vice versa, consider it a yellow caution light because the transition may come under increased scrutiny. (3) Prepare a written contract that specifically describes the work to be done, general deadlines, workplace, and schedule/method of payment. Make the contract for a limited

duration and avoid language and policies that would tend to establish an employment relationship such as a non-compete clause, grant of benefits such as vacation time or insurance, required training, or dress requirement. (4) Collect documentation from the worker that would reflect independent contractor status such as screenshots of the worker’s website or LinkedIn account, business cards, certificates of insurance, copies of professional licenses, copies of advertisements, and copies of corporate documents obtained through the Arkansas Secretary of State. Endnotes: 1. U.S. Department of Labor, Strategic Plan Fiscal Years 2014-2018, available at http:// www.dol.gov/_sec/stratplan/FY20142018StrategicPlan.pdf. The politics behind the Memorandum are a topic for another article. 2. Id. at p. 66. 3. Id. at pp. 81-82. 4. U.S. Department of Labor, Administrator’s Interpretation No. 2015-1, available at http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.htm. The views expressed in the Memorandum are simply the DOL’s interpretation of the law. Courts across the nation may have different interpretations of the law and those views do not necessarily align with those of the DOL. 5. Id. at p. 1. 6. 29 U.S.C. § 203(g). 7. See, e.g., Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 296 (1985) (broad coverage under FLSA essential to FLSA’s goals). 8. Supra note 5 at p. 4. 9. Id. 10. Id. at p. 5. 11. Id. at pp. 6-7. 12. See, e.g., Sec’y of Labor v. Lauritzen, 835 F.2d 1529 (3d Cir. 1985). 13. See Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (11th Cir. 2013). 14. Supra note 5 at pp. 8-9. 15. Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436 (10th Cir. 1998). 16. Dole v. Snell, 875 F.2d 802 (10th Cir. 1989) (collecting cases). 17. Supra note 5 at p. 10. 18. See e.g., Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988). 19. Supra note 5 at p. 11.

20. Supra note 18. 21. Solis v. A+ Nursetemps, Inc., 2013 WL 1395863, at *7 (M.D. Fla. Apr. 5, 2013). 22. Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042 (5th Cir. 1987). 23. Supra note 5 at p. 14. 24. Id. 25. Id. at pp. 14-15. 26. Id. at p. 15. 27. Internal Revenue Service, Publication 15-A, Employer’s Supplemental Tax Guide, available at https://www.irs.gov/pub/irspdf/p15a.pdf. 28. Id. at p. 7. 29. Id. 30. Id. at pp. 7-8. 31. Id. at p. 8. 32. Arkansas Department of Workforce Services, Note to All Businesses: What is Worker Misclassification, available at http://www.arkansas.gov/esd/Employers/ WorkerMisclassification.htm. 33. Id. (“Gaming the System: . . . nearly all [contract laborers] meet the legal definition of employees for [unemployment insurance] tax purposes;” “Unchallenged Crime: Misclassification is lawlessness, not confusion. Most businesses know what they are doing and think they can get away with it”). 34. See O’Dell v. Director, Dep’t of Workforce Servs., 2014 Ark. App. 504, at 2. 35. Ark. Code Ann. § 11-10-210(e) (sometimes referred to as the “ABC test”). This portion of the statute was amended by Act 945 of 2015 to change the requirement that the employer had to satisfy all three subparts. With the amendment, the employer can establish an independent contractor relationship by satisfying subsection (1) and either subsection (2)(A) or (2)(B). 36. See Mamo Transp., Inc. v. Williams, 375 Ark. 97 (2008). 37. Id. 38. Id. at 103. 39. U.S. Department of Labor, Fair Labor Standards Act Advisor, available at http:// webapps.dol.gov/elaws/whd/flsa/screen75. asp (certain exemptions under FLSA apply to various sales jobs, newspaper delivery workers, babysitters, and taxicab drivers, among many professions). 

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Arkansas Bar Association Annual Meeting MAKE PROFESSIONAL CONNECTIONS

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June 15-18, 2016 Hot Springs Convention Center

Build Knowledge This year there will be three full days of substantive law, in addition to “Business School for Lawyers” on Friday. Experts will present the most current information on a wide range of topics throughout the week.

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Build Your Network With over 1,200 attorneys and judges in attendance each year, the ArkBar Annual Meeting is the best event to connect with attorneys and judges from across the state in beautiful Hot Springs.

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Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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The Right to Work: The Rise in Occupational Licensing Litigation Comes to Arkansas

By Chris Burks

Chris Burks is a member of the Sanford Law Firm, PLLC. He concentrates his practice in family and employment law litigation. He represented Plaintiffs in the two constitutional challenges to occupational licensing laws brought in Arkansas that were mentioned in this article. 22

The Arkansas Lawyer

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W

en Shakespeare’s Prince Henry took Sir John Falstaff to task for stealing purses, Falstaff famously protested “Why, Hal, ‘tis my vocation, Hal; ‘tis no sin for a man to labour in his vocation.”1 Governments have been struggling to balance citizens’ rights to practice their vocations with the need to protect consumers from dishonest practitioners ever since. In modern governance, the struggle often takes the form of litigation over occupational licensing. Occupational licensing litigation is a growing area of law that Arkansas attorneys would do well to watch. You should pay attention if: 1) you care about the potential impact on your ability to practice law as you know it; 2) you represent professional clients who need to know the law of their profession; and/or 3) you care about broad constitutional principles leading to just and ordered societal outcomes. Admittedly, occupational licensing doesn’t come across as a very exciting topic. Why does occupational licensing sound boring? Well, for one, attorneys have grown accustomed to relatively stationary occupational boundaries. Put another way, what it means to be licensed as a professional attorney has changed relatively little over the last 50 years, while having changed much before our time.2 These stable boundaries are true to varying degrees for some, but not all, occupations.3 In Arkansas, where dozens of occupations require state licenses, the potential for disputes about government regulation and turf wars between different occupations abounds. We can say now with certainty that occupational licensing is growing. President Obama’s White House issued a comprehensive report in 2015 which found that “[o]ver the past several decades, the share of U.S. workers holding an occupational license has grown sharply.”4 This broad-ranging White House policy report went on to find, among many other observations, that “the current licensing regime in the United States also creates substantial costs, and often the requirements for obtaining a license are not in sync with the skills needed for the job.”5

Regardless of whether the growth in occupational licensing has led to better policy outcomes, it is not as if the very concept of an “occupation” suddenly arose a few years ago. It is not as if we collectively rushed to decide we needed to issue a bunch of new things called licenses. On the contrary, the idea of an occupation is very old. And courts have long concerned themselves with the economic freedom associated with occupations.6 What this then means for today is twofold. First, more people are becoming licensed in already existing occupations. Secondly, there are new occupations for which people are being licensed to practice. All of this is leading to more litigation. By looking at the brief history of occupational licensing generally and in Arkansas, and then by examining specific examples of occupational conflict in Arkansas, we can see the constitutional issues at play and the rise of litigation in the field. Occupational Licensing Nationally Occupational licensing itself is undoubtedly a topic on the rise. The comprehensive 2015 White House report found that more “than one-quarter of U.S. workers now require a license to do their jobs, with most of these workers licensed by the States. The share of workers licensed at the State level has risen five-fold since the 1950s.”7 Where did this growth come from? The White House report has a clear answer: “[a]bout two-thirds of this change stems from an increase in the number of professions that require a license, with the remaining growth coming from changing composition of the workforce.”8 In January of 2015, the respected Brookings Institute published an analysis that found, broadly speaking, “[o]ccupational licensing has been among the fastest growing labor market institutions in the United States since World War II.”9 There are different perspectives on this rise in licensing. Some view occupational licensing as having become too broad. This perspective bemoans that “[d]entists, doctors, lawyers, fortune tellers, and frog farmers are now licensed occupations in either all or some U.S. states.”10 It is clear that, once a licensing program is established, it rarely goes away. The U.S. Bureau of Labor Statistics found in a search “of state legislative audit committee records, CLEAR

“According to the 2012 Institute for Justice study “License to Work: A National Study of Burdens from Occupational Licensing,” Arkansas workers are some of the most burdened in the country by occupational licensing regimes. Arkansas was found to have the ‘2nd most burdensome licensing laws, the 5th most extensively and onerously licensed state’ and ‘52 out of 102 moderate-income occupations licensed—more than all but 10 other states.’”

reports, and various other sources” that there were “only eight instances of the de-licensing of occupations over the past 40 years.”11 Some view the decline in labor unionization to be related to the rise in licensing. For example, “twice as many workers today are covered by licensing as by labor contracts.”12 In a case that illustrates the fault lines on this issue, a divided Texas Supreme Court concurrence opined that “the pervasiveness of licensing seems unrelated to whether a state is labeled ‘red’ or ‘blue’ politically. Occupational regulation seems wholly disconnected from party-specific ideology. In addition, most economic regulations are enacted not by legislatures answerable to voters but by administrative bodies, often with scant oversight by elected officials.”13 Constitutional Touchstones There are a few broad principles that apply to this area of litigation. First, substantive due process. The Due Process Clause of the Fourteenth Amendment protects the right to earn a living in the occupation of a person’s choice subject to government regulation that is rationally related to a legitimate government interest.14 Denial of a license to practice one’s profession can work a deprivation of that liberty interest, if the reasons for the denial offend due process.15 The U.S. Supreme Court has repeatedly declared that the right to pursue a lawful calling “free from unreasonable governmental interference” is guaranteed under the federal Constitution and is “objectively, deeply rooted in this Nation’s history and tradition.”16 Louisiana and Texas have each had occupational licensing schemes recently overturned on substantive due process constitutional grounds.17

Another broad principle that touches occupational licensing is equal protection under the Fourteenth Amendment to the United States Constitution. This right protects similarly situated people from being treated differently, as well as protects differently situated people from being treated the same. Using this analysis, a Louisiana law requiring a person to be a U.S. citizen in order to practice dentistry was found unconstitutional. Also, many state laws requiring licensees to have lived in the state for a substantial period of time have been revoked in court cases.18 Finally, proponents of overturning what they view to be overly burdensome or irrational licensing schemes argue that the Privileges and Immunities Clause of the Fourteenth Amendment protects the right to earn a living in the occupation of a person’s choice. The U.S. Supreme Court long ago rejected such specific analysis in the Slaughter-House Cases,19 and found that the Fourteenth Amendment protected only privileges and immunities which owed their existence to the federal government. However, the rationale of the SlaughterHouse Cases is increasingly being called into question.20 Occupational Licensing in Arkansas The state of Arkansas maintains an online list of links to many of the occupations requiring licenses in Arkansas, from land surveyors to dental assistants.21 According to the 2012 Institute for Justice study “License to Work: A National Study of Burdens from Occupational Licensing,” Arkansas workers are some of the most burdened in the country by occupational licensing regimes. Arkansas was found to have the “2nd most burdensome licensing laws, the 5th most extensively and onerously licensed state” and

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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“52 out of 102 moderate-income occupations licensed—more than all but 10 other states.”22 The report went on to find that: Arkansas licenses a number of occupations that few other states do, such as funeral attendants, psychiatric technicians and residential dry wall installers. Moreover, many occupations are subject to entry restrictions that exceed national averages. Opticians in Arkansas, for instance, must train for more than three years, about a year more than the national average. Fire alarm installers lose 1,095 days to education and experience requirements versus a national average of 486 days.23 Yet there is an underlying rationale for licensing. Even those who severely criticize the current legal landscape of licensing admit that “Government understandably wants to rid society of quacks, swindlers, and incompetents. And licensing is one of government’s preferred tools, aiming to protect us from harm by credentialing certain occupations and activities.”24 The Institute for Justice report did go on to point out some interesting statistics: Thirty occupations take longer to break into in Arkansas than emergency medical technician, most by a considerable margin. The state allows EMTs to work in ambulances after 28 days of training. Massage therapists, on the other hand, are required to complete 117 days of training. Barbers and cosmetologists must obtain 350 days of training.25 As you would expect, there has been litigation and lobbying in Arkansas related to the boundaries of occupational licensing. For example, physicians may balk at efforts by advanced practice registered nurses to be licensed to engage in certain medical work, or certified registered nurse anesthetists might want to be licensed to engage in some of what can only currently be done by physicians in Arkansas. The Arkansas Medical Society lists its opposition to recent bills in the Arkansas Legislature that would have changed the occupational boundaries between those professions.26 The same occu-

24

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pational licensing boundary disputes can be found between some orthodontists and dentists,27 and many other professions that attorneys represent, including past disputes between real estate brokers and attorneys and between car dealers and attorneys.28 Attorneys would do well to pay attention to these areas of law, and the Bar Association Legislative Updates are a good source for such information. Recent Arkansas Litigation a. African Hair Braiders v. Cosmetologists A recent Arkansas occupational licensing lawsuit revolved around African hair braiders suing over being forced to be licensed as cosmetologists instead of being free to practice African hair braiding. Plaintiffs Nivea Earl and Christine McLean contended that they wanted “to provide African-style hair braiding services for compensation” and that “[t]he State of Arkansas, however, prevent[ed] Plaintiffs from lawfully pursuing their chosen livelihood by enforcing arbitrary and excessive occupational licensing laws against hair braiders.”29 The lawsuit went on to allege that: Arkansas requires hair braiders to train for 1500 hours in cosmetology school and take two cosmetology exams, despite the cosmetology curriculum having nothing to do with African-style hair braiding. Braiders who do not—or cannot—comply with Arkansas’s licensing scheme risk severe fines, closure of their businesses, unemployment, and even jail. Accordingly, the State deprive[ed] Plaintiffs of their economic liberty and denie[d] Plaintiffs’ rights under the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment to the United States Constitution.30 The lawsuit against the Department of Health’s Arkansas Cosmetology Technical Advisory Committee argued that “cosmetology isn’t natural hair braiding, natural hair braiding isn’t cosmetology, Arkansas has lumped the two into one package and it just doesn’t make any sense.”31 This hair braider lawsuit followed two court victories in similar cases in California and Utah, and six legislative victories in Arizona, Ohio,

Minnesota, Mississippi, Washington D.C. and Texas.32 Ultimately, this lawsuit was stayed while negotiations about overturning the licensing scheme ensued. The Arkansas Legislature then passed the “Natural Hair Braiding Protection Act,” which became Act 409 of the 2015 Regular Session.33 Nivea Earl and Christine McLean are now free to practice their occupation without the previous regulatory burden. b. Ben Burris v. Arkansas Dental Practices Act A second occupational licensing lawsuit similar to the African hair braider case was also recently started in Arkansas. Dr. Ben Burris sued the state Board of Dental Examiners as a licensed orthodontic dental specialist who wanted to offer low-cost teeth-cleaning. Though he was an orthodontist, state law does not allow specialists like orthodontists to do basic dental work.34 As in the hair braider lawsuit of Earl v. Smith, Plaintiffs alleged in this lawsuit that the State’s “actions arbitrarily deprive[d] [plaintiffs] of their right to pursue the occupation of their choice, in violation of the Equal Protection, Due Process, and Privileges or Immunities Clauses of the Fourteenth Amendment to the U.S. Constitution.”35 Plaintiffs sought “a declaratory judgment that Arkansas Dental Practice Act §§ 17-82305(g)(2) and (3), as applied to the cleaning, X-ray, and other services that [were] offered and to the pro bono dental service programs that [plaintiffs] would like to participate in” violated their constitutional rights.36 Plaintiffs’ arguments that dental specialists should be able to practice outside of their area of specialization was not reached by the United States District Court when the District Court found that the Federal Court should abstain from hearing this dispute. The Eighth Circuit Court of Appeals later held that the District Court was in error regarding its abstention decision.37 However, the case was dropped for business reasons before the District Court could reach the merits of the lawsuit. Plaintiff Ben Burris decided to give up his orthodontic specialty license and become a general dentist so he could offer dentistry services he wanted.38

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Vol. 51 No. 2/Spring 2016 The Arkansas THE JURYLawyer TRIAL 25

Impact on Your Practice: 2015 Occupational Licensing Bill Opposed by Bar Association Concurrent with the rise in occupational licensing litigation, there are also legislative efforts regarding occupational licensing. In the 2015 Arkansas General Assembly, an attention-getting occupational licensing bill was introduced by Representative Richard Womack of Arkadelphia and Senator Bart Hester of Cave Springs. The Arkansas Bar Association and many other professional associations opposed the bill. House Bill 1158 would have shifted the burden in occupational licensing litigation towards the State and away from those seeking to do away with the licensing in whole or in part. As Past Arkansas Bar Association President Brian Ratcliff wrote, the Arkansas Bar Association “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.”39 Ratcliff went on to state that even though an amended version of the bill got out of a House Committee with 11 votes, “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.”40 Even those who were sympathetic to the aims of HB 1158 opined that the “bill is too broad of an approach that will place an additional and potentially costly burden on the state regulatory bodies.”41 Ultimately, it is good to know about occupational licensing litigation and changes for all the reasons discussed above. Whether your perspective ranges from those who think that overreaching regulations hurt the ability of government to enact commonsense regulation, or those who find most government regulations themselves are necessarily overreaching, it is simply important to keep up with this topic. More litigation and changes are sure to come. Endnotes: 1. William Shakespeare, Henry IV, Part I 26

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19 (Barbara A. Mowat et al. eds., 1994). 2. G. Jeffrey MacDonald, The SelfMade Lawyer: Not Every Attorney Goes to Law School, Christian Sci. Monitor (June 3, 2003), http://www.csmonitor. com/2003/0603/p13s01-lecs.html. 3. Occupational Licensing: A Framework for Policy Makers, July 2015, available at https://www.whitehouse.gov/sites/default/ files/docs/licensing_report_final_nonembargo.pdf. 4. Id. at 2. 5. Id. 6. Timothy Sandefeur, The Common Law Right to Earn a Living, 7 Indep. Rev. 1, 69–90, available at https://www.independent.org/pdf/tir/tir_07_1_sandefur.pdf (“As far back as the reign of Edward III, common-law courts concerned themselves with protecting the subject’s right to such economic freedom …. [T]he king’s power to control the economy was limited at common law by a right whose importance must have been obvious in an era when starvation and pestilence were common experiences. The right to support oneself by a lawful calling was central not only to the health of the state but to the lives of its subjects.”). 7. Occupational Licensing, supra note 3, at 3. 8. Id. at 3. 9. Morris M. Kliener, Reforming Occupational Licensing Policies (Hamilton Project, Discussion Paper 2015-1, Jan. 2015), available at http://www.hamiltonproject.org/assets/legacy/files/downloads_ and_links/reform_occupational_licensing_policies_kleiner_v4.pdf. 10. Morris M. Kleiner, Licensing Occupations: Ensuring Quality or Restricting Competition, W.E. Upjohn Inst. for Emp. Res. (2006), available at http:// research.upjohn.org/cgi/viewcontent. cgi?article=1037&context=up_bookchapters. 11. U.S. Bureau of Labor Statistics, The De-Licensing of Occupations in the United States, Monthly Labor Review (May 2015), available at http://www.bls.gov/opub/ mlr/2015/article/pdf/the-de-licensing-ofoccupations-in-the-united-states.pdf. 12. Alan B. Krueger, Do You Need a License to Earn a Living? You Might Be Surprised at the Answer, N.Y. Times, Mar. 2, 2006, at C3. 13. Eugene Voloch, Texas Supreme Court (Somewhat) Reinvigorates “Substantive Due Process” Protection for Economic Liberty,

Wash. Post (June 26, 2015), https://www. washingtonpost.com/news/volokh-conspiracy/wp/2015/06/26/texas-supreme-courtsomewhat-reinvigorates-substantive-dueprocess-protection-for-economic-liberty/. 14. United States v. Carolene Products Co., 304 U.S. 144 (1938); see Martin v. Mem’l Hosp. at Gulfport, 130 F.3d 1143, 1148 (5th Cir. 1997). 15. Martin, 130 F.3d at 1149 (citing Schware v. Bd. of Bar Examiners, 353 U.S. 232, 238–39 (1957)). 16. Greene v. McElroy, 360 U.S. 474, 492 (1959); Washington v. Glucksberg, 521 U.S. 702, 703 (1997); see also William Blackstone, Commentaries on the Laws of England, 427 (7th ed. 1775) (“At common law every man might use what trade he pleased . . . .”). 17. See St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013) (invalidating the Louisiana “casket cartel”); Brantley v. Kuntz, No. A-13-CA872-SS, 2015 WL 75244 (W.D. Tex. Jan. 5, 2015) (invalidating Texas barber-school regulations as applied to African hair braiding). 18. S. David Young, Occupational Licensing, Libr. Econ. & Liberty, http://www.econlib. org/library/Enc1/OccupationalLicensing. html. 19. 83 U.S. 36 (1873). 20. Akhil R. Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 123 n.327 (2000) (“Virtually no serious modern scholar—left, right, or center—thinks [that Slaughter-House] is a plausible reading of the [Fourteenth] Amendment.”). 21. Professional Licensing, State of Arkansas, http://www.arkansas.gov/services/ list/category/business-professional-licensing/ P25. 22. License to Work, A National Study of Burdens from Occupational Licensing: Arkansas, Inst. for Just. Litigating for Liberty (Apr. 24, 2012), http://licensetowork.ij.org/ar. 23. Id. 24. Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015). 25. License to Work, supra note 22. 26. Legislative Update, Ark. Med. Soc’y (May 5, 2015), http://www.arkmed.org/ news/2015/05/ams-physicians-achieveremarkable-legislative-successes/ (“AMS Opposed (Bills Failed after Committee Debate): CRNA Independence (SB

78), APRN Independence and Allowed Prescribing of Full Schedule II (HB 1160), APRN Full Schedule II Prescribing (HB 1165), APRN Payment Parity (HB 1926)”). 27. Burris v. Cobb, No. 4:14CV00319 BSM, 2014 U.S. Dist. LEXIS 157066 (E.D. Ark. Nov. 6, 2014). 28. See, e.g., Pope County Bar Association v. Suggs, 274 Ark. 250, 624 S.W.2d 828 (1981); Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21. 29. Nivea Earl & Christine McLean v. Nathaniel Smith et al., E.D. Ark. 2014, 4:14-CV-00358. 30. Nivea Earl & Christine McLean v. Nathaniel Smith et al., E.D. Ark. 2014, 4:14- CV-00358. Complaint at 1-2. 31. Lawsuit Filed Against State of Arkansas by Local Hairbraiders, Arkansasmatters.com (June 17, 2014), http://www.arkansasmatters.com/news/news/lawsuit-filed-againststate-of-arkansas-by-local-hairbraiders. 32. Natural Hair Braiding Protection Act, Now Law in Arkansas, Inst. for Just. (March 19, 2015), http://ij.org/pressrelease/natural-hair-braiding-protection-actnow-law-in-arkansas/.

33. Ark. Code Ann. §§ 17-26-501 et seq., available at ftp://www.arkleg.state.ar.us/ acts/2015/Public/ACT409.pdf. 34. David Ramsey, Arkansas Requires Cosmetology Licenses for Hair Braiders and Bans Dental Specialists from Doing Basic Dental Work, Ark. Times (July 20 2014), http://www.arktimes.com/ arkansas/arkansas-requires-cosmetologylicenses-for-hair-braiders-and-bans-dentalspecialists-from-doing-basic-dental-work/ Content?oid=3383292. 35. Burris, 2014 U.S. Dist. LEXIS 157066 at *2. 36. Id. at *2. 37. Burris v. Cobb, 808 F.3d 386 (8th Cir. 2015). 38. Alexis Hosticka, Ben Burris Drops

Lawyer The Arkansas

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Lawsuit, Will Surrender Orthodontic License, Arkansas Bus. (Jan 8, 2016), http://www. arkansasbusiness.com/article/109071/burrisdrops-lawsuit-surrenders-specialist-license. 39. Brian H. Ratcliff, President’s Report, A Three Course Meal—The Wine, 50 Ark. Law. 2, 7 (2015), available at https://issuu. com/arkansas_bar_association/docs/lawyer_spring_2015_i/9. 40. Id. 41. Jason Tolbert, Jason Tolbert: Womack’s Anti-Occupational Regulation Bill Is too Broad, Talk Bus. & Pol. (Feb. 17, 2015), http://talkbusiness.net/2015/02/tolbertwomacks-anti-occupational-regulation-billis-too-broad/. 

YOU ARE THE EXPERTS Contact the Association if you have article ideas for The Arkansas Lawyer magazine. Email: ahubbard@arkbar.com http://tinyurl.com/thearkansaslawyermag or call 501-375-4606

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Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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arkansas supreme court historical society

Justice William Conway B —The Other Conway Brother

By Judge J. W. Looney Judge William Conway, PHC2850, Arkansas History Commission

William Conway B (who added the “B” after his name to distinguish himself from another William Conway since neither had a middle name) was born January 14, 1805, in Green County, Tennessee, near the Nolichucky River. His father was Thomas Conway; his mother, Ann Rector Conway. The Conway-Rector connection served both families well, and both featured prominently in the early history of Arkansas. At some stage the family moved to St. Louis where, with the support of the Rectors, the Conway brothers assumed a role in the Arkansas territory. The second oldest son, Henry Wharton Conway, was elected territorial delegate to Congress and was the leader of the powerful political group that emerged and coalesced around the “dynasty” of the Conway-SevierJohnson families connected to Andrew Jackson. Henry Conway was killed in a duel in 1827 with Robert Crittenden, the leader of the opposition group later connected to the Whig Party. A second brother, James Sevier Conway, was the first governor of the state serving 1836-1840. A younger brother, Elias Nelson Conway, was the fifth governor serving 1852-1860. William B did not come to Arkansas with his brothers in the early years but arrived after statehood. William was educated in Bardstown, Kentucky, and read law with John J. Crittenden, the brother of Robert Crittenden. John J. Crittenden was a renowned lawyer engaged in politics in Kentucky as both a senator and governor. He also served as U.S. Attorney General and was nominated to the U.S. Supreme Court but was not selected due to the opposition of the Jacksonian Democrats. Like his brother Robert, he was active in support of the Whig Party. Conway commenced practice in Elizabethtown, Kentucky, before moving to 30

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Arkansas, arriving in the late 1830s. During the first session of the new state legislature he served as private secretary to his brother, the governor. Soon thereafter he was elected circuit judge for the Sixth Judicial Circuit, a position he held for two years. He later served as circuit judge in the Third Judicial Circuit for two years. He was then elected to finish the final two years of Justice Thomas Lacy’s term on the Arkansas Supreme Court. Justice Lacy had resigned in 1845 to be replaced by Edward Cross, who chose not to continue on the court after two years. Conway served in 1847-48 but was not reelected in 1848. At that time an apparent compromise was made among those competing for power to elect Whig David Walker to the court (without his knowledge) in return for Whig support to send Solon Borland to the United States Senate, instead of Ambrose Sevier. This was the first indication of a weakening of the hold of the family dynasty on Arkansas politics, although they retained enough influence to elect Elias Conway as governor in 1852. Conway was considered of “moderate ability” but of “sterling and uncompromising integrity,”1 and his opinions on the court indicate a limited range of interests. Almost all the opinions he wrote dealt with uncontroversial debt or procedural matters and, with two exceptions, offer little in the development of the law. In one of those, Rogers v. Phillips and Wife,2 the court reaffirmed the longstanding rule that marriage suspended the legal existence of the wife during coverture. Frequent absences of the husband and the practice of the wife to conduct business as a femme sole did not remove her disability. The second case, Anderson v. Fowler,3 clarified the law regarding a levy on lands to pay debts. Even though the land was still in the hands of the owner, it was “in custody”

of law, so a second levy cannot be effective until the first was disposed of to determine if a deficiency results. Conway wrote far fewer opinions than his colleagues, Chief Justice Thomas Johnson and Justice Williamson Oldham, and all his opinions were much shorter with little elaboration. Perhaps his greatest contribution was in a case in which he was involved as an interested party. In 1842 a judgment was rendered against him in a suit for debt. Apparently by 1847 the judgment had not been paid, and the judgment creditor sued the state to garnish the wages of Conway as Supreme Court justice. The case was decided after Conway left the court, and in an opinion by Justice C.C. Scott the court determined that the state could not be subject to garnishment. After his service on the court Conway lived until December 29, 1852, when he died at the age of 47. He is buried near his mother in the Mount Holly Cemetery in Little Rock. His tombstone inscription says he “died as a widower without any child.” Endnotes: 1. John Hallum, Biographical and Pictorial History of Arkansas (Weed Parsons: Albany, New York, 1887). 2. 8 Ark. 266 (1848). 3. 8 Ark. 388 (1848). J. W. Looney is Polk County District Judge; Circuit Judge (Retired) for the 18W Judicial Circuit; and Distinguished Professor, Emeritus, University of Arkansas School of Law. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society, contact Rod Miller, rod.miller@ arkansas.gov; Phone: 501 682 6879. 

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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A Practitioner’s Guide To Arkansas’ New Venue Statutes By Constance Clark

The maze of venue statutes in the Arkansas Code left attorneys perplexed and courts faced with the task of trying to sort out the confusion. A new Act has modernized and streamlined our venue laws. Drafting a complaint may be the easy part. Determining the proper county in which to file that complaint—not so easy. That was the case, at least, until the recent passage of Act 830 of 2015, an Act “to clarify and reorganize the general venue statutes for civil actions.”1 In the face of an increasing number of venue statutes and a confusing relationship between older and newer provisions,2 the 90th General Assembly scrapped many of our existing venue statutes and rewrote or renumbered others in an effort to consolidate the majority of this state’s venue provisions into one streamlined chapter and to resolve conflicts which existed under the old scheme. The new provisions became effective on July 22, 2015.3 Historical Considerations It is the General Assembly which, under our Constitution, has the power to establish venue of all actions in our circuit courts.4 The primary purpose of venue statutes is to ensure a convenient, logical and orderly forum for the resolution of disputes.5 An action brought in the wrong county is subject to dismissal,6 so selecting the appropriate venue is a critical decision for plaintiff’s counsel. In 2003, the General Assembly enacted Act 649 of 2003, known as the Arkansas Civil Justice Reform Act. Although the Act focused on tort reform, it also included a comprehensive venue provision, Ark. Code. Ann. § 16-55-213. However, issues quickly arose as to whether this general venue statute impliedly repealed other, specific venue statutes and, if two statutes conflicted, which one controlled. On at least three occasions, the Arkansas Supreme Court has considered whether § 16-55-213 repealed other venue statutes by implication. In Wright v. Centerpoint Energy Resources Corp.,7 the Court harmonized § 16-55-213 with § 16-60-112, which governed venue in actions for personal injury or death, concluding that both statutes fixed venue where the deceased resided at the time the events giving rise to the claim occurred. Nine months later, in Dotson v. City of Lowell,8 the Supreme Court found an irreconcilable conflict between § 16-55-213 and

Constance Clark is a partner at Davis, Clark, Butt, Carithers & Taylor in Fayetteville. 32

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§ 16-60-116(a), which was a general venue provision applicable to “every other action” and allowing suit in any county where the defendant “resides or is summoned.” The Court held that because § 16-55-213 used the past tense word “resided,” thereby fixing venue at the time when the events giving rise to the claim occurred, while § 16-60-116(a) used the present tense word “resides,” the two provisions could not stand together. The newer statute was held to be controlling. Most recently, in HurtHoover Investments, LLC v. Fulmer,9 the Supreme Court came to the same conclusion it reached in Wright and found that § 16-55213 did not impliedly repeal § 16-60-111 because, while the former statute gave the plaintiff who sues on a debt a choice among three options, both statutes permitted the filing of the action in the county where the defendant resided. Without new legislation, it appeared that the Supreme Court would have to decide on a case-by-case basis which of two potentially conflicting venue statutes controlled. The passage of Act 830 represents an important step toward avoiding such piecemeal litigation by clarifying and simplifying our venue statutes. Practitioners should now find it easier to determine where venue lies and disputes over proper venue ought to be fewer. Here is a simplified guide to the new Act. New Default Provision First, Ark. Code Ann. § 16-55-213 is repealed. The general rules governing venue are now codified at Ark. Code Ann. § 16-60-101, which is the new default venue provision. With certain exceptions which will be addressed below, the rewritten § 16-60-101 provides that a civil action shall be brought in either (1) the county in which a substantial part of the event or omission giving rise to the cause of action occurred, (2) the county in which an individual defendant resided, or an entity had its principal office in this state, at the time of the event or omission giving rise to the cause of action, or (3) the county in which the plaintiff resided, or had its principal place of business in this state, at the time of the event or omission giving rise to the cause of action. This new codification clarifies that it is a plaintiff’s or defendant’s residence or principal place of business at the time of the event or omission giving rise to the cause of action which governs the venue determination. The for-

mer statute simply made reference to the county in which the plaintiff or defendant “resided,” without stating at what point in time a party’s residence was determinative. Although, as our Supreme Court noted in Wright, the statute’s use of the past tense suggested that it was the party’s place of residence at some point in time before suit was filed that was controlling, the old statute did not specify, as the new one does, that it is the party’s residence at the time of the event giving rise to the cause of action which will determine venue. Interestingly, the legislature chose to use the phrase “at the time of the event or omission giving rise to the cause of action” rather than the words “at the time of the accrual of the cause of action,” which appeared in portions of now repealed § 16-55-213. In some cases, such as actions for fraud, those

described in §§ 16-60-102–109 and in § 16-106-101. Section 16-106-101 involves actions by and against the state and state boards and officers. Sections 16-60-102– 109 are the reorganized, renumbered and sometimes revised exceptions to the default venue statute which can be summarized as follows: Real property actions. Under the new heading “Local Actions,” civil actions for the recovery of an interest in or for the partition of real property, foreclosure of a mortgage or lien on real property, or for an injury to real property, are now governed by Ark. Code Ann. § 16-60-102. This is a renumbering of the prior statute16 and makes no substantive changes. Actions to recover fines or against public officers. Ark. Code Ann. §16-60-103 provides, generally, that civil actions (1) for

“Choosing the correct forum in which to bring a lawsuit should now be easier than before and, as a consequence, justice for the citizens of Arkansas better served. “

may be two different points in time. If fraud is concealed, the cause of action does not accrue until the fraud is discovered10 even though the fraudulent act which gave rise to the cause of action necessarily occurred at an earlier date. Under the new Act, the date a cause of action accrued is meaningless; only the date on which the event or omission giving rise to that cause of action occurred is important to the venue analysis. Exceptions to the General Rule Even under the new Act, there remain exceptions to the default venue rule. Section 16-60-101(a) excepts from its scope those “specific venue provisions codified in another title of the Arkansas Code,” making it clear that those special venue statutes will trump the default venue rule. Examples of such provisions include those applicable to actions under the Administrative Procedure Act,11 divorce cases,12 adoption proceedings,13 and probate matters,14 just to name a few.15 Section 16-60-101(a) also excepts from the default venue statute the actions

the recovery of a statutory fine, penalty or forfeiture, (2) against a public officer for an act done under color of his office or for neglect of official duty, and (3) on a public officer’s official bond, shall be brought in the county where the cause, or some part of it, arose. The previous codification17 did not state, as the present one does, that it applied only to civil actions. Like the former statute, this statute also makes an exception for actions covered by § 16-106-101. Actions brought in Pulaski County. Civil actions by, on behalf of, or against the state, or a state board, commissioner or officer in his official capacity, must be brought in Pulaski County, as now prescribed by Ark. Code Ann. § 16-60-104,18 except as provided in § 16-106-101, or unless another venue provision, including § 16-60-101, permits the action to be brought either in Pulaski County or another county. By deciding to keep in force both the Chapter 60 and the Chapter 106 venue provisions with regard to actions by and against the state and public officials, the Legislature

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may have missed an opportunity to simplify those confusing and, perhaps, overlapping provisions. Medical malpractice actions. Actions for medical injury are now governed by Ark. Code Ann. § 16-60-105. The substance of this venue provision is unchanged but, instead of being a part of the general venue statute,19 it is now a stand-alone provision. Collection actions against cities, towns, public facilities, boards and counties. The heading of the new Ark. Code Ann. § 16-60-106, “Actions on debt, account, or note,” may prove misleading to practitioners. While the section’s heading implies that it governs venue of all collection actions and the previous statute had that broad application,20 the rewritten version appears to govern only civil actions on a debt, account, or note, or for goods or services, against a city of the first or second class, an incorporated town, a public facilities board, or a county. All such actions must be brought in the county in which the city, town, board or county lies. The vast majority of collection suits will be filed against individuals or companies, and not against 34

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cities, towns or counties, and those suits are now presumably governed by the general venue statute, § 16-60-101. Contract actions by subcontractors or suppliers against nonresident prime contractors or subcontractors. The new Act makes some minor changes in wording but otherwise preserves the existing venue rule with respect to actions against nonresident contractors. This provision is now found in Ark. Code Ann. § 16-60-107.21 Interestingly, despite the fact that they have nothing at all to do with venue, the legislature retained those provisions of the prior statute which addressed the recovery of costs, attorney’s fees and interest and required an affidavit from the foreign corporation stating that all subcontractors have been paid in full prior to receiving payment. Actions against a surety on a contractor’s bond. Now found in Ark. Code Ann. § 16-60-108,22 the proper venue for an action by an insured or a beneficiary against a surety on a contractor’s payment or performance bond is still in either the county where the loss occurred or where the insured or beneficiary resided at the time of the loss. Actions against a public school district. The legislature also retained the existing venue provisions for actions against a public school district or a district’s employee other than those which must be brought in Pulaski County or those for personal injury or death. As before,23 those cases must be brought in the county in which the public school district is situated or has its principal office. The renumbered code section is § 16-60-109. Eliminated Provisions Act 830 eliminated entirely many specific venue provisions, including those which previously governed actions against corporations;24 actions against persons, partnerships or associations which maintain more than one office in the state;25 actions against a railroad, stage line or turnpike company;26 actions against nonresident individuals or foreign corporations;27 actions against persons in a penitentiary or asylum;28 actions for personal injury or wrongful death;29 and actions for damage to or conversion of personal property and for fraud.30 All of these actions are now governed by the default venue provision, § 16-60-101. In certain cases, the elimination of some of the specific venue provisions means that plaintiffs will have less choice as to where

suit can be brought. For example, under former § 16-60-108, an action against a foreign corporation could be brought in any county in which there was property of the defendant. And, under the former § 16-60-106, an action against a railroad company could be brought in any county through which the railroad passed. Now, under the general venue statute, insofar as the defendant’s location is concerned, the only viable option will be the county in which the foreign corporation or the railroad had its principal office in Arkansas at the time of the event giving rise to the cause of action. In other cases, plaintiffs will now have more available options for venue. For instance, a suit against an inmate of the state penitentiary or a person confined to a facility for treatment of a mental disease may now be brought, if the plaintiff chooses, in the county where the plaintiff resided at the time the event giving rise to the cause of action occurred. Previously, with certain exceptions, suits against such defendants were required to be brought in the county in which the defendant resided prior to confinement. Also, personal injury and wrongful death actions are no longer required to be brought either in the county where the accident occurred or in the county where the person injured or killed resided at the time of the injury. Such actions may now be brought in the county where the defendant resided at the time the event giving rise to the cause of action occurred, as well as where a substantial part of that event occurred or where the plaintiff resided at the time of the triggering event. Take note that as now written, it is the plaintiff’s residence which is controlling in determining venue, not the residence of the person who was injured or killed. Lastly, Act 830 struck Ark. Code Ann. § 16-60-116, subsection (a) of which contained the catch-all provision that “Every other action may be brought in any county in which the defendant or one (1) of several defendants resides or is summoned.” Section 16-60-116(a) was declared repealed by implication in Dotson v. City of Lowell,31 and has now been stricken by Act 830. Section 16-60-117 was also eliminated by Act 830. That statute provided that in an action deemed local in nature—that is, which may be brought only in one or more particular counties in the state—summons may be served on the defendant in any coun-

ty in the state. Undoubtedly, the legislature thought the matter of service of summons is better addressed by Ark. R. Civ. P. 4. Conclusion Passage of this comprehensive new venue Act does not guarantee that disputes will no longer arise as to the proper county in which a suit must be filed. There are still scattered throughout the Code various specific venue provisions which have not been repealed and which, according to the language of § 16-60-101(a), will continue to be effective. However, by enacting Act 830 of 2015, the Legislature has made significant progress toward eliminating many of the inconsistencies in the old scheme which proved problematic for practitioners. Choosing the correct forum in which to bring a lawsuit should now be easier than before and, as a consequence, justice for the citizens of Arkansas better served. Endnotes 1. See Subtitle to House Bill 1252. 2. For a thorough critique of the old venue system and proposals for reform, see Note, An Uncomplicated Process? The Deficiencies of Arkansas’ Venue Scheme As Demonstrated By Dotson v. City of Lowell, 63 Ark. L. Rev. 883 (2010). 3. In the absence of an emergency clause, an Act takes effect 90 days after adjournment of the legislative session in which it was enacted. Ark. Const. amend. 7. 4. Ark. Const. amend. 80, § 10. 5. Wright v. Centerpoint Energy Resources Corp., 372 Ark. 330, 276 S.W.3d 253 (2008). 6. Ark. R. Civ. P. 12(b)(3). 7. Wright, supra note 5. 8. Dotson v. City of Lowell, 375 Ark. 89, 289 S.W.3d 55 (2008). 9. Hurt-Hoover Investments, LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696. 10. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999). 11. Ark. Code Ann. §§ 25-15-201–214. 12. Ark. Code Ann. § 9-12-303(a). 13. Ark. Code Ann. § 9-9-205(c)(1). 14. Ark. Code Ann. § 28-40-102(a). 15. See Watkins, A Guide to Arkansas Venue, 1995 Arkansas Law Notes 83 at p. 90 for an extensive discussion of miscellaneous venue provisions scattered throughout the Arkansas Code. 16. The prior statute was Ark. Code Ann.

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§ 16-60-101 and was titled “Actions brought where subject of action situated.” 17. The prior codification was Ark. Code Ann. § 16-60-102. 18. Actions which must be brought in Pulaski County were previously governed by Ark. Code Ann. § 16-60-103. 19. Venue of actions for medical injury was previously set forth in Ark. Code Ann. § 16-55-213(e). 20. The previous version of this statute was Ark. Code Ann. § 16-60-111. 21. The former codification was Ark. Code Ann. § 16-60-114. 22. The former statute was Ark. Code Ann.

§ 16-60-115. 23. The prior provision was Ark. Code Ann. § 16-60-119. 24. Formerly Ark. Code Ann. § 16-60-104. 25. Formerly Ark. Code Ann. § 16-60-105. 26. The former Ark. Code Ann. § 16-60106 and § 16-60-107. 27. Formerly Ark. Code Ann. § 16-60-108 and § 16-60-109. 28. Ark. Code Ann. § 16-60-110. 29. Ark. Code Ann. § 16-60-112. 30. Ark. Code Ann. § 16-60-113. 31. Dotson supra note 8. 

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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Arkansas Statutory Foreclosures —An Abundance of Notice

By Courtney Miller

Courtney Miller is an attorney practicing at Wilson & Associates, PLLC.

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Arkansas enacted the Statutory Foreclosure Act in 1987, providing mortgage servicers and lenders the ability to foreclose without filing a lawsuit. To comply with the Act, mortgage servicers and lenders must satisfy specific notice requirements. This article discusses the notice requirements required by the Act, along with some additional federal notice requirements. Arkansas is one of many states that have a statutory foreclosure act, allowing lenders to foreclose without filing a lawsuit. Arkansas enacted its Statutory Foreclosure Act (“the Act�) in 1987.1 Arkansas also allows for judicial foreclosures, but many lenders choose to avail themselves of the statutory foreclosure process when foreclosing upon residential properties because it is often quicker and less expensive than a lengthy court case. While lack of due process has often been used as an argument against statutory foreclosures, the constitutionality of the Act has been upheld by the Arkansas Supreme Court.2 Moreover, the notice requirements of the standard security instrument and the Act in combination with the notice requirements of the Consumer Financial Protection Bureau (CFPB) result in debtors receiving numerous letters regarding their default, the foreclosure process, and possible options to avoid foreclosure. Arguably, debtors now receive so many notices that they may start opting to simply disregard or ignore many of them. In Parker v. BankcorpSouth Bank,3 the Arkansas Supreme Court decided that no state action is involved in the Arkansas statutory process, and thus there can be no constitutional due process violation. In the case, the debtor alleged that the Act violated procedural due process because the notice requirement failed

to give an individual notice of what to do in the event he or she wanted to contest the propriety of the foreclosure action. Because there is no state action or involvement, the court found there could be no due process violation.4 Despite the ruling in Parker disposing of a due process violation, a common argument against statutory foreclosures continues to be a lack of adequate notice. Upon a close examination of the many notices received by debtors upon default and during the foreclosure process, this argument falls short. In fact, an argument could be made that debtors in a statutory foreclosure in Arkansas receive more notices than debtors in a typical judicial foreclosure action. In a typical statutory foreclosure in Arkansas, the first notice the borrower receives in the mail is a demand letter, also referred to as a breach letter, which advises the debtor of the default and provides a specific amount of time to cure the default. If not timely cured, the letter advises the debt will be accelerated and the full amount immediately due. There is no statutory guidance on the requirements of the demand letter in Arkansas. Therefore, the terms of the debtor’s security instrument govern. The standard security instrument allows the borrower approximately 30 days to cure the default before acceleration. If the default is not timely cured, the debt is accelerated, and foreclosure commenced. The first notice the borrower typically receives after acceleration is what is commonly referred to as a Fair Debt Letter, pursuant to the Fair Debt Collection Practices Act.5 This letter is typically the first communication from the trustee firm conducting the foreclosure for the mortgage servicer. The letter provides the reason for default, the amount of the debt, and the total amount currently due on the loan as of the date of the letter. It also advises the borrower is afforded 30 days from receipt of the letter to dispute the validity of the debt. If the debtor timely disputes the debt, the debt must be validated by the mortgage servicer prior to proceeding with the foreclosure sale. While the Fair Debt Letter allows 30 days to dispute, many mortgage servicers and their foreclosure counsel will make every effort to provide the debtor proof of validation even when the dispute is not received timely. Arkansas’s Statutory Foreclosure Act also requires the lender to send the debtor a packet of information at least 10 days

“By requiring mailing of the Notice of Default by both first class and certified mail to the debtor and junior lienholders, Arkansas’ notice requirements are better than those in many other statutory foreclosure states.”

prior to initiation of the foreclosure action.6 The packet must be mailed via standard mail to the debtor at either the property address or the debtor’s mailing address, and must include the following information and documents: (1) the name of the holder and physical location of the original note; (2) information, including the phone number and internet address, regarding the availability to the debtor of each program for loan modification or forbearance assistance offered; (3) a copy of the note with all required endorsements; (4) a copy of the mortgage or deed of trust, and if in the possession of the mortgage company, each assignment of the mortgage or deed of trust; (5) and if the default is for nonpayment, a copy of the payment history showing the date of default.7 The Arkansas legislature amended the Act in 2011 to require this packet be sent prior to initiation of the foreclosure. It provides the debtor with the documents and information most often requested before the foreclosure is even initiated. This packet is not required to be sent to debtors when pursuing a judicial foreclosure. The Act also requires a Notice of Default and Intention to Sell be filed.8 The Notice of Default must be recorded in the property records, and must be mailed to the debtor and to junior lienholders of record. It must include a bold warning as follows: “You may Lose Your Property If You Do Not Take Immediate Action.” It must provide the time, date and place of sale; the recording information of the deed of trust or mortgage to be foreclosed; the names of the parties to the mortgage or deed of trust; the legal description and street address of the property; the default for which the foreclosure is made; and the name, address and phone number of the party initiating the foreclosure. It must be mailed within 30 days of its recording, via certified mail and first class mail.9 The notice must also

be published in the newspaper for four consecutive weeks prior to sale, and be posted both online and at the county courthouse.10 The Act also requires the trustee or attorney-in-fact conducting the sale on behalf of the mortgage servicer to record an affidavit confirming compliance with the Act’s mailing and publication requirements.11 By requiring mailing of the Notice of Default by both first class and certified mail to the debtor and junior lienholders, Arkansas’ notice requirements are better than those in many other statutory foreclosure states. Arkansas’ Statutory Foreclosure Act provides additional notice requirements when a debtor is denied for loan modification or forbearance assistance. The Act requires the mortgage servicer certify to its trustee or attorney-in-fact conducting the foreclosure that each debtor who applied for loan modification or forbearance assistance was notified that he or she did not meet the criteria for loan modification or forbearance assistance offered. The notification must be sent to the debtor by certified and first class mail at least 10 business days before the foreclosure sale.12 In addition to the notice requirements of the Arkansas Statutory Foreclosure Act, the CFPB imposes its own set of notice requirements upon mortgage servicers. The rules implemented by the CFPB aim to provide consumers with better tools and information when facing difficulty with mortgage loan obligations, and provide another layer of protection in the foreclosure process. The CFPB’s regulations require mortgage servicers to include information about delinquency in a borrower’s monthly statement if the borrower’s account becomes more than 45 days delinquent. This information must include the date the borrower became delinquent, the amount required to bring the loan current, and the risks of failing to bring the loan current, including the risk of foreclosure.13 Servicers are also required

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to send written notice to borrowers no later than the 45th day of delinquency. This notice must include a statement encouraging the borrower to contact the mortgage servicer, and must include examples of loss mitigation options which may be available to avoid foreclosure as well as information about housing counseling.14 With so many notices sent to a debtor facing statutory foreclosure in Arkansas, it is hard to make an honest “lack of notice” argument against the process. Debtors are provided default information on numerous occasions, including information regarding their right to dispute the debt and how to pursue loss mitigation options. They also receive copies of their note, deed of trust or mortgage, and payment history showing the default. The Notice of Default is not only sent via regular mail, it is also sent via certified mail, posted online and at the county courthouse, and published in the newspaper. By the time of the foreclosure sale, an average debtor facing statutory foreclosure in Arkansas will receive no less than four separate notices, in addition to notices required by the CFPB and investor requirements. With so many notice requirements at both

the state and federal level, a lack of notice argument against statutory foreclosures in Arkansas simply doesn’t stand up against the facts. Endnotes: 1. Ark. Code Ann. § 18-50-101. 2. Parker v. BankcorpSouth Bank, 369 Ark. 300, 253 S.W.3d 918 (2007). 3. Id. 4. Id. at 307-311, 253 S.W.3d at 923-925. 5. 15 U.S.C. § 1692g. 6. Ark. Code Ann. § 18-50-103. 7. Id. 8. Ark. Code Ann. § 18-50-104. 9. Id. 10. Ark. Code Ann. § 18-50-105. 11. Ark. Code Ann. § 18-50-106. 12. Ark. Code Ann. § 18-50-104. 13. 12 C.F.R. § 1026.41. 14. 12 C.F.R. § 1024.39. 

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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions On April 6, 2016, the Arkansas Judicial Discipline and Disability Commission issued the Final Scheduling Order in RE: District Court Judge O. Joseph Boeckmann, Jr., JDDC Case No. 14-310, 312, 313, 314. The full press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.

Attorney Disciplinary Actions

Final actions from January 1 - March 31, 2016, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http://courts.arkansas. gov and 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 “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SURRENDER: GILLEAN, JACK W., Bar No. 83073, of Hot Springs, Arkansas, on February 11, 2016, petitioned the Supreme Court to surrender his Arkansas law license, his petition filed and available in Case No. D-16-131, on the basis of his felony convictions in Faulkner County Circuit Court in 2014 for offenses of commercial burglary which were affirmed on appeal. By per curiam issued March 3, 2016, at 2016 Ark. 91, the Supreme Court accepted his surrender and ordered him barred from the practice of law in the State of Arkansas. LYNCH, JOE T., Bar No. 88132, of Hot Springs, Arkansas, on January 15, 2016,

petitioned the Supreme Court to surrender his Arkansas law license, his petition filed and available in Case No. D-16-43, on the basis of his acknowledgment of his conduct in two Committee cases which led to a panel decision and order to direct that disbarment proceedings be initiated against Lynch. The Petition contains the two panel Findings & Orders which set out the basis for the referral to disbarment proceedings. By per curiam issued February 11, 2016, at 2016 Ark. 56, the Supreme Court accepted his surrender and ordered him barred from the practice of law in the State of Arkansas. INITIATE DISBARMENT INTERIM SUSPENSION:

WITH

BLOODMAN, TERESA L., Bar No. 2005055, with a post office address in Maumelle, Arkansas, was placed on interim law license suspension and a panel directed that disbarment proceedings be initiated against her for her conduct in nine Committee cases by an Order of Interim Suspension and a Findings & Order filed March 21, 2016. The Petition for Disbarment was filed April 1, 2016, in the Supreme Court and available in Case No. D-16-301. INTERIM SUSPENSION: PILKINTON, JAMES H., JR., Bar No. 73094, of Hope, Arkansas. A Petition for Interim Suspension with information demonstrating that Pilkinton posed a substantial threat of serious harm to the public or the lawyer’s clients was filed by the Executive Director with the Committee and was granted. The Order of Interim Suspension was filed with the Supreme Court on March 28, 2016. SUSPENSION: KHOURY, NAIF SAMUEL, Bar No. 75070, of Van Buren, Arkansas, on a referral from Circuit Judge Stephen Tabor of Sebastian County, by Committee Findings & Order in Case No. CPC 2014-021, filed February 9, 2016, after a hearing, sanctioned Khoury with a sixmonth license suspension, $500 fine, and

$400 costs, for violations of AR Rules 3.3(a)(1), 8.4(a), 8.4(c), and 8.4(d). Khoury represented Dennis Osborne and a mandatory appearance was scheduled for December 11, 2013. Osborne appeared, but Khoury did not. The court set the matter aside and requested court personnel to locate Khoury. Court personnel contacted Joshua-Paul Anderson to locate Khoury. Anderson personally found Khoury in town but was told by Khoury to inform the court that Anderson did not find Khoury. Anderson did what Khoury asked. Khoury later appeared in court and was questioned about his location when he was scheduled to be in court. Khoury denied notice of the hearing and attempted to leave the courtroom. At a hearing, the court was informed that Anderson did find Khoury but that Khoury asked Anderson to inform the court that Khoury could not be located. The court issued a show cause order and scheduled a hearing where testimony was taken by witnesses present during the proceeding. After a hearing, Khoury was found to be in contempt of court and fined

Vol. 51 No. 2/Spring 2016 The Arkansas Lawyer

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DISCIPLINARY ACTIONS $500 to be paid by no later than January 27, 2014. Khoury did not do so, and a hearing was held on the failure to comply with the court’s order. Khoury paid the fine on February 6, 2015. REPRIMAND: CRUZ, KATHY A., Bar No. 87079, of Hot Springs, Arkansas, on a referral from Richard D. Taylor, United States Bankruptcy Judge, in Committee Case No. CPC 2015-091, by Findings & Order filed January 25, 2016, was reprimanded for her violations of AR Rules 1.1, 3.1, 3.3(a)(1), 3.3(a)(3) and 8.4(c). Jonathan Young was a party to a divorce action and was ordered to pay child support, restitution, alimony, and attorney’s fees and costs. Young filed for bankruptcy. His ex-wife, Stephens, filed for relief from the automatic stay to pursue her remedies in state court. Cruz then entered her appearance for Young. Cruz and Stephens’ attorney entered an order allowing Stephens to seek state

court remedies to continue throughout the court and a hearing was held where Young bankruptcy case. After an appeal to the appeared pro se. The state court found Arkansas Court of Appeals which affirmed Young to be in willful contempt of court the trial court’s award, Young converted his but reserved the issue of restitution subject case to a Chapter 13 matter. A Chapter 13 to the pending bankruptcy plan. Young was plan was submitted which did not reference directed to secure a stay in bankruptcy court the child support, restitution, alimony, by a date certain, post a bond for the past and attorney’s fees awarded by state court. due alimony, or surrender to the Garland Young was in arrears in the amount of County Sheriff ’s Office. Young did neither $9300, all but $500 of which was accrued and a subsequent hearing was held. post-petition. Stephens requested assurance At that hearing, Young testified that he that the child support, restitution, alimony, was making all payments to the trustee, and attorney’s fees would be paid or she that Stephens could file a claim with the would file a contempt motion in state trustee, and that he had confirmed with court. Cruz filed a modification of the plan Cruz that the stay from bankruptcy court Hamlin which characterized the arrearage as “past was still in effect. Young was again foundHamli offering mediation, offering mediat due alimony” to be paid during the life of in contempt and jailed. Cruz represented thr the plan and that Young would continue Young on appeal to the Arkansas Court to make alimony payments directly to of Appeals. Following a decision ofwith theJ.P. Jaynes, with J.P. Jayn Stephens as an unsecured claim. Young Court of Appeals, Cruz filed an adversary Ch visit our website, w had not made any payments at that point proceeding in bankruptcy court alleging visit our website LLC in time. Stephens filed another objection willful violation of the stay by Stephens Dand ispute Rinesolution , llC Offering mediation, arbitration dispute resolutions services as the bankruptcy plan did not address theHamlin in seeking to collect, part, the postH amlin Dother ispute R esolution , llC throughout the mid-South since 1992 offering petition mediation, arbitration and other dispute resolution services issues of the past due alimony. Stephens alimony which resulted in Young’s offering mediation, arbitration and other dispute throughout the mid-South since 1992 resolution servic requested a show cause order in state incarceration. Cruz asserted that since Stephens throughout the mid-South 1992

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DISCIPLINARY ACTIONS had not received payment on the arrearages as she had not filed a proof of claim with the trustee and that Young was current in all of his domestic obligations after the filing of the bankruptcy plan. Judge Taylor issued Cruz an Order to Appear and Show Cause. Following a hearing where Cruz testified and her counsel was present, Judge Taylor found Cruz to have violated Bankruptcy Rule 9011 and that she should be suspended for a period of six months from practicing law before the United States Bankruptcy Courts of Arkansas and fined $1,000. Cruz appealed the decision to the United States Bankruptcy Appellate Panel for the Eighth Circuit which affirmed the violation of Bankruptcy Rule 9011. Cruz appealed that decision to the United States Court of Appeals for the Eighth Circuit which affirmed the decision of the Bankruptcy Appellate Panel. CAUTION: GRIGGS, RONALD L., Bar No. 72046, of El Dorado, Arkansas, in Committee Case No. CPC 2016-007, by Consent Findings & Order filed March 18, 2016, was cautioned for violations of Rules 1.1 and 8.4(d) and assessed $50 costs. Griggs represented a client on a child custody/ support matter in Union County DR2013-641. The court issued an order in favor of the opposing party, and Griggs filed a Motion for New Trial. The court never ruled on Griggs’ motion, which on the 30th day was deemed denied. Griggs filed a Notice of Appeal. Griggs filed a Motion to Extend Time to File the Record, and the court granted the motion and extended time. Griggs should have filed the record with the appellate clerk on or by November 12, 2015. Griggs tendered the record to the Clerk on November 30, 2015, but the record was not accepted as being untimely. Griggs filed a Motion for Rule on Clerk, stating “it appears that the mistake in calculation of the latest possible due date for the record to be lodged arose because counsel for Appellant used the date of the Notice of Appeal and counted seven months forward.” The Arkansas Supreme Court

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discrimination case. After the United States District Court dismissed Butler’s federal claims with prejudice in March 2012, but dismissed the accompanying state claim without prejudice, Steele appealed to the United States Court of Appeals for the Eighth Circuit, which affirmed the decision on March 5, 2013. Steele filed a lawsuit in state court on March 26, 2014. The defendants filed a motion to dismiss and a hearing was held on September 5, 2014. Steele underwent surgery on September 15 and was hospitalized. On September 17, 2014, the state court issued an order dismissing Butler’s claim. Steele filed a notice of appeal for Butler on October 22, 2014, which was five days late. Steele filed a motion for rule on clerk, which the court denied on March 5, 2015, causing Butler to lose her right to a state appeal. 

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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.375.4606

Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period February 1, 2016 through April 30, 2016.

In Memory of Virginia “Ginger” Atkinson Rosalind and Kirby Mouser

In Memory of Justice Ray Thornton Charlotte and Justice Robert Brown Mike Wilson

In Memory of Donald E. Bishop Don A. Eilbott Jan and Jim Sprott

In Memory of Albert Matthew Francis Witte Jennifer and Randy Coleman

In Memory of Robert Cohen II Hardin, Jesson & Terry, PLC

In Memory of Joe Davis Woodward Roscopf & Roscopf, P.A.

In Memory of Bob Coleman, Sr. Hayden and Gordon Rather

In Memory of Tilden P. “Chip” Wright III Hardin, Jesson & Terry, PLC Richard N. Watts

In Memory of Craig Barrett Downing Jeffrey and Lester McKinley In Memory of Roy Gean, Jr. Hardin, Jesson & Terry, PLC In Memory of Chief Justice Jim Hannah H. David Blair Nancy and Judge John N. Fogleman Rosalind and Kirby Mouser Judge John M. Pittman Donald C. Pullen In Memory of Chief Justice Bradley D. Jesson Julie and Robert D. Cabe Nancy and Judge John N. Fogleman Hardin, Jesson & Terry, PLC Carolyn and Justice David Newbern

Honoraria, Scholarship Contributions and Gifts Sebastian County Bar Association Scholarship Fund Sebastian County Bar Association Foundation President Judge James Cox and Executive Director Ann Dixon Pyle appreciate a generous contribution to the Sebastian County Bar Association Scholarship Fund presented to the Foundation by SCBA President Aubrey Barr during the Sebastian County Bar Association lunch meeting on April 18, 2016.

In Memory of Hayes C. McClerkin Julie and Robert D. Cabe Marjem and John P. Gill In Memory of Donald S. Ryan Richard N. Watts In Memory of Al Schay Judge Cathi Compton and Judge Bill Wilson

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Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work.

IN MEMORIAM John David Bechtold, of North Little Rock died January 26, 2016, at the age of 71. He was a retired attorney from Jefferson City, Missouri, for over 40 years, and he considered himself the “oldest rookie lawyer” in Arkansas. He was licensed in Arkansas in 2014 where he was a member of the Arkansas Bar Association Young Lawyers Section based on his date of admission in Arkansas. Donald E. Bishop of Harrison died on March 12, 2016, at the age of 68. Don practiced law in Harrison for 30 years. Two of his favorite clients were the Area Agency on Aging of Northwest Arkansas and the North Arkansas Regional Medical Center, where he found great joy and satisfaction as in-house counsel. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. Bill J. Davis of El Dorado died February 12, 2016, at the age of 88. Mr. Davis attended the University of Arkansas before his employment with Monsanto Chemical Company. He later was admitted to the Vanderbilt University Law School where he received his Juris Doctorate. He was a member of the Arkansas Bar Association and the Arkansas Trial Lawyers Association. He also served in the U.S. Navy with the submarine corps. Robert Manley Eubanks III of Little Rock died on April 15, 2016. Educated in Arkansas, Bob attended the University of Arkansas. He graduated from the University of Arkansas Law School. He served as Pulaski County Deputy Prosecuting Attorney until his appointment by Bill Clinton as Arkansas State Insurance Commissioner. He then joined the Mitchell Law firm. In 1994, he was elected Mayor of Cammack

Village. James C. Hale, Jr., of Proctor died February 23, 2016, at the age of 78. Mr. Hale was an attorney and a Crittenden County Prosecuting Attorney for 45 years. He was a member of the Arkansas Bar Association. Richard Thomas of Malvern died March 6, 2016, at the age of 60. He graduated from BYU and the University of Arkansas, receiving his Juris Doctorate. He first practiced law in San Diego, California. After moving to Arkansas, he served as an attorney for Supreme Court Chief Justice, Jim Hannah. Ray Thornton died April 13, 2016. He attended Yale University, graduating in 1950 with a degree in international relations and engineering. He then studied law at the University of Texas for one year before receiving his commission in the United States Navy and reporting for duty during the Korean War. Ray saw combat on the aircraft carrier Philippine Sea. At the end of the war, Ray returned home to Arkansas to attend the University of Arkansas School of Law in Fayetteville. Ray was elected Attorney General in 1970 and served one term. In 1972, he was elected to the U.S. House of Representatives, where he served the Fourth Congressional District for three terms. In 1980, he was chosen as President of Arkansas State University in Jonesboro and President of the University of Arkansas in 1984. In 1990 Ray left UA to make a successful run for the U.S. Congress as the representative for Arkansas’ Second Congressional District. In 1996, he announced his bid for a seat on the Arkansas Supreme Court. He drew no opposition, and served eight years. After his retirement from the Supreme Court, Ray was the first Public Service Fellow for the University of Arkansas at Little Rock William H. Bowen School of Law. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation.

John Powell Woods Jr., 94, of Siloam Springs died February 18, 2016, at the age of 94. Powell was a veteran of the U.S. Army where he served in the Northern Solomons in the Asiatic-Pacific Theater of Operations in WWII. He graduated law from the University of Arkansas and practiced law under his father’s law office (Daily & Woods) in Ft. Smith before moving to Siloam Springs in the latter part of the year in 1958. He was a member of the Arkansas Bar Association. Joe Davis Woodward of Magnolia died March 3, 2016, at the age of 85. He attended Southern State College and graduated from the University of Arkansas. Mr. Woodward practiced law in Magnolia since 1955, served as the Prosecuting Attorney for the city of Magnolia and was elected as the Prosecuting Attorney for the 13th Judicial District in the 1960s. He served in the United States Army where he was a Jag Lawyer during the Korean War. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. Tilden P. “Chip” Wright III, 73, of Fayetteville died February 27, 2016, at the age of 73. He attended Georgia Tech from 1960 to 1962 and then the University of Arkansas at Fayetteville, graduating with a B.S.B.A. in 1964. He was commissioned in the United States Air Force in 1964 and received an honorable discharge in 1968 as a Captain, Regular Air Force. Chip received a J.D. with High Honors in 1971 from the University of Arkansas School of Law at Fayetteville. He served on the Arkansas Supreme Court Committee on Jury Instructions, Civil, from 1986 to 1997 and was a Fellow in the American College of Trial Lawyers, as well as a member of the American Bar Association, the Arkansas and Washington County Bar Associations. In September 2006, he retired from the active practice of law, as a senior partner in Davis, Wright, Clark, Butt & Carithers, PLC.

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