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Vol. 49, No. 3, Summer 2014 online at www.arkbar.com
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2014-2015 Arkansas Bar Association President Brian H. Ratcliff and his wife, Karen
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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Keith L. Chrestman Karen Sharp Halbert Judge Brandon J. Harrison Ashley Welch Hudson Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Brian H. Ratcliff Board of Governors Chair Anthony A. Hilliard President-Elect Eddie H. Walker, Jr. Immediate Past President Jim Simpson Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Jessica S. Yarbrough BOARD OF GOVERNORS Thomas M. Carpenter Suzanne G. Clark Don R. Elliot, Jr. Frances S. Fendler Amy Freedman Buck C. Gibson Amy L. Grimes Denise Reid Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Kristen L. Pawlik Brant Perkins John C. Riedel Gwendolyn Rucker Jerry L. “Jay” Shue, Jr. Brian A. Vandiver Danyelle J. Walker LIAISON MEMBERS Judge Gary M. Arnold Jack A. McNulty Brian M. Clary Harry Truman Moore Judge Van A. Gearhart Richard L. Ramsay Karen K. Hutchins Charles D. Roscopf
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, firstname.lastname@example.org. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2014, Arkansas Bar Association. All rights reserved.
Lawyer Vol. 49, No. 3
10 2014-2015 Arkansas Bar Association President Brian H. Ratcliff By Anna Hubbard Cover photo by W.I. Bell
14 Starting and Growing a Law Practice in Challenging Economic Times: It’s Not Rocket Science By John E. Tull III 18 Starting and Growing a Solo Practice: It’s Harder than Rocket Science By David H. Williams 28 Unbundled Legal Services: A Revolution Whose Time Has Come By Amy Dunn Johnson 34 Ten Tips on How to Manage Staff in a Law Firm of Any Size By Dede Govia 36 ArkBar Docs By Cathy Underwood 40 Experience—Words of Wisdom on Leadership By Wayne Boyce 44 William King Sebastian—Justice and Senator By J.W. Looney 46 Compassion Fatigue and the Toll it Takes in Life and Work By Sarah Cearley, Phd, LCSW Contents Continued on Page 2
Lawyer The Arkansas
in this issue ArkBar News
Vol. 49, No. 3
ArkBar 116th Annual Meeting
ArkBar Governance Report
Arkansas Bar Foundation Memorials and Honorarium
columns Presidentâ€™s Report
Brian H. Ratcliff
Young Lawyers Section Report
Jessica S. Yarbrough
Your Name in Print For information on submitting articles for publication, go to http://tinyurl.com/ thearkansaslawyermag or email email@example.com
Arkansas Bar Association
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HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. Vasser Delegate District A-2: Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Bob Estes, M. Scott Hall, Jason M. Hatfield, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Sarah A. Sparkman Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Colby T. Roe, Samuel M. Terry, Candice A. Settle Delegate District A-4: Open Delegate District A-5: Wade A. Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Jason W. Earley, Edie Ervin, Caleb Peter Garcia, Kenya J. Gordon, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson, Jamie Huffman Jones, Dominique King, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney, Chad W. Pekron, Shaneen K. Sloan, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Shana R. Woodard, Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Keith L. Chrestman, Robert J. Gibson, Jason Milne Delegate District C-4: Jobi J. Teague Delegate District C-5: Matthew Coe, Albert J. Thomas III Delegate District C-6: Michael L. Murphy, Andrea G. Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, John P. Talbot, Jessica S. Yarbrough Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: Sterling Tanner Chancey, J. Philip McCorkle Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: John Andrew Ellis, Brian M. Clary Law Student Representatives: Tiffany Nicole Godwin, University of Arkansas School of Law; Dominique King, UALR William H. Bowen School of Law
The Arkansas Lawyer
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
ARKBAR NEWS Applications for the Next Leadership Academy due August 31, 2014
2014-2015 Arkansas Bar Association Committee Chairs President Brian H. Ratcliff appointed the following volunteer members to serve as committee and task force chairs. Thank you to all committee members who volunteer their time, talent and expertise to the Association.
Members of the 2013-2014 Leadership Class at their January meeting at the Bar Center Take Leadership to the next level with ArkBarâ€™s Leadership Academy. The Academy is an exciting program designed to enhance the knowledge and skills of participating attorneys and produce higher level leaders with skills that can transform the community and revolutionize the legal profession. Applications for the next class are due August 31, 2014. Go to www.arkbar.com/pages/LeadershipAcademy.aspx for more information. Congratulations to the 2013-2014 graduating class: Brian Wade Albright, Sarah Baber, Ryan P. Blue, Misty Wilson Borkowski, Joel B. Carter, Carl F. Cooper III, Tony Anthony DiCarlo III, Matthew L. Fryar, Frank Stewart Headlee, Samuel S. High, Kathleen Marie McDonald, Becky A. McHughes, Joseph Wayne Price II, John Rainwater, Sara Rogers, Ginger M. Stuart, Jordan B. Tinsley
Visitors from Kosovo Gathered at the Bar Center
Visitors from Kosovo met at the Arkansas Bar Center on June 26 as part of their Open World Program tour of Little Rock that focused on justice policy and legislation. Chief Justice Jim Hannah, Association Director Karen Hutchins and Past President Fred Ursery spoke to the group about the Arkansas Bar Association and its role in the legal community and the Arkansas judiciary. 4
The Arkansas Lawyer
Administrative License Suspension Task Force: Jim Simpson Annual Meeting: Paul W. Keith Arkansas Bar Commission on Diversity: Shana Woodard Graves and Niki T. Cung Arkansas Bar PAC: Bob Estes Audit: Vicki S. Vasser Continuing Legal Education: Brian M. Clary Editorial Advisory Board The Arkansas Lawyer: Jim Julian Editorial Board for Handbooks: Matthew L. Fryar Finance: Shaneen K. Sloan Governance: Aaron L. Squyres Investment: Tom D. Womack Judiciary: Richard F. Hatfield and John F. Stroud Jurisprudence and Law Reform: Tom Curry Law Related Education: Leslie J. Ligon Law School: Ralph Edwin Wilson Lawyers Assisting Military Personnel: Fritzie M. Vammen Lawyers Helping Lawyers: Joel M. DiPippa Leadership Academy: Mark W. Hodge Legal Forms: Carrie E. Bumgardner and James E. Crouch Legislation: Teresa M. Wineland Long Range Planning: Gwendolyn Rucker Member Benefits: Brandon K. Moffitt Mock Trial: Jordan Brown Tinsley Paralegal: Amy Dunn Johnson Past Presidents: Glenn Vasser Personnel: Denise Reid Hoggard Professional Ethics: Brad L. Hendricks Task Force on Professional Liability Insurance: Larry W. Burks Uniform Laws: Brant Perkins and Elisa M. White Website/Technology: Patrick Lewis Women in the Profession: Denise Reid Hoggard and Evelyn E. Winston
ARKBAR NEWS Filing Petitions Due October 31, 2014 For 2016-2017 President of the Arkansas Bar Association
Oyez! Oyez! ACCOLADES Vincent Morris received the National Legal Aid & Defender Association’s (NLADA) 2014 Innovations in Equal Justice Award. The NLADA honored Friday, Eldredge & Clark with the Beacon of Justice Award in recognition of its pioneering volunteer work with Legal Aid of Arkansas and an Arkansas Delta-based medical-legal partnership. Arkansas Business selected Patrick L. Spivey, Fuqua Campbell law firm, for inclusion in the 2014 “Forty Under 40” class. Daniel Beck, Quattlebaum, Grooms, Tull & Burrow PLLC, and Erin Brogdon, Wright, Lindsey & Jennings LLP, graduated from the Leadership Greater Little Rock Class XXIX.
APPOINTMENTS AND ELECTIONS Brad Hendricks has been appointed to the Arkansas Supreme Court Committee on Civil Practice for a three-year term. U.S. District Judge G. Thomas Eisele recently was recognized with an endowment named in his honor at the University of Arkansas at Little Rock. The fund is officially named the G. Thomas Eisele Endowment for the Study of the History of the United States Federal Courts in Arkansas. Robert William Schroeder III, Patton Tidwell Schroeder & Culbertson LLP, Texarkana, has been nominated by President Barack Obama for a judgeship on the U.S. District Court for the Eastern District of Texas. Kenneth Gallant, UALR W.H. Bowen School of Law, has been elected as an associate member of the International Academy of Comparative Law.
WORD ABOUT TOWN The Davis Law Firm announced that K. Drew Devenport and Andrew D. Curtis joined the firm as associates. Rosalind M. Mouser recently spoke on “Effective Collections and Bankruptcy” at the Commercial Lending School conducted by the American Bankers Association at SMU.
ArkBar 2014-2015 Section Chairs
Fall CLE Catalog Available
Administrative: Drake Mann Agricultural: Harrison Pittman ADR: Laura Partlow Construction: John Scott Debtor/Creditor: Annabelle Patterson Elder Law: Aaron Heller Environmental Law: Ross Noland Family Law: Lisa Ballard Financial Institutions: W. Lance Owens Government Practice: Joel DiPippa Intellectual Property: Joel Carter Int’l & Immigration: Misty Borkowski Labor & Employment: Kim Coats Natural Resources: Mark Robinette Probate & Trust: Lori Holzworth Real Estate Law: Grant Cox Solo, Small Firm & Practice Mgmt.: Will Allison Section of Taxation : Adam Crow Young Lawyers Section: Jessica Yarbrough
The Fall CLE Catalog is now available. See insert in this issue and online at www.arkbar.com. Package pricing available with the CLE Pass. For only $375, the CLE Pass allows you to register for up to 12 hours of CLE between July 1, 2014 - June 30, 2015. The CLE pass can be used by any member for any in-person event excluding CNA, Annual Meeting, Mid-Year Meeting, Best of CLE, webinars and any seminar over 12 hours. The average savings for two sixhour seminars is $125. Register online at www.arkbar.com
The Presidentelect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position is rotated each year among the three state Bar Districts. The next President-Elect will come from Bar District B. Nominating petitions must be filed with the Secretary at the Association’s office no later than October 31, 2014. The petitions must be signed by at least 75 Association members. The petition signers must include at least 25 signatures from Association members residing in each of the three state Bar districts of the Association. The member elected this fall will assume the office of President-Elect at the June 2015 Annual Meeting in Hot Springs and will become the Association President in June of 2016.
Carroll Conference Center
J. Phillip Carroll Memorial at Rose Law Firm Rose Law Firm recently dedicated its conference center as the Carroll Conference Center in recognition of ArkBar Past President Phillip Carroll’s public and professional service. Mr. Carroll, who died March 9, 2013, practiced continuously with the firm from 1950, except for a period of military service.
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
ARKBAR NEWS Meet the 2014-2015 ArkBar Officers
PRESIDENT Brian H. Ratcliff PPGMR Law, PLLC, El Dorado
PRESIDENT-ELECT Eddie H. Walker, Jr. Walker, Shock & Harp, PLLC, Fort Smith
BOARD OF GOVERNORS CHAIR Anthony A. Hilliard Ramsay, Bridgforth, Robinson and Raley LLP, Pine Bluff
TREASURER Shaneen K. Sloan Hyden, Miron & Foster, PLLC, Little Rock
SECRETARY F. Thomas Curry McMillan, McCorkle, Curry & Bennington, LLP, Arkadelphia
YOUNG LAWYERS SECTION CHAIR Jessica S. Yarbrough McKissic & Associates, P.L.L.C., Pine Bluff
PARLIAMENTARIAN Leon Jones, Jr. Morton & Jones PLC, Fayetteville
6 The Arkansas Lawyer www.arkbar.com
A THREE COURSE MEAL— APPETIZER
BY BRIAN H. RATCLIFF
For those who do not know me, I love to cook and eat fine food. Cooking is relaxing to me as it lets me wind down after a long day. It allows me to plan and create, orchestrate harmony, and manage contrast. Appetizers are concentrated, focused on flavors and nuances, often meticulously packaged with great care to presentation. I have found that in many meals the appetizer is actually the best part. Some of my favorite appetizers to prepare and eat are: barbecue shrimp with rosemary biscuits, grilled fresh figs with mascarpone, honey drizzle and rosemary, and finally a summer caprese with heirloom tomatoes and home grown basil. foie gras on toast points with jam. And, I love to share meals with others. Considering my bar presidency this year as one long meal together, let me introduce you to the appetizers on our menu and allow me to offer you a few tidbits... A trio of task forces has been set in place to assist in finding solutions to some very important issues in the legal profession today. Mr. Larry Burks chairs one such task force charged with reviewing our current malpractice insurance and making recommendations as to whether we should continue our current relationship or forge a new relationship with another carrier. The bottom line is that we want a high quality product at an affordable price for our members. Larry and his task force have interviewed five companies, and we look forward to their report later this year. The second task force has been appointed to review Rule 7 of the Rules Governing
Admission to the Bar. Rule 7 deals with the suspension of an attorney’s license for failing to pay dues to the Court. As you are aware, the Supreme Court of Arkansas declared part of this rule unconstitutional as it failed to give due process before license suspension. We anticipate a petition to the Court for a rule change. This task force is chaired by Immediate Past President Jim Simpson. The Task Force on Closing a Solo Practice rounds out the trio and places a spotlight on issues surrounding end-of-practice details. Stark Ligon, Executive Director of the Office of the Committee on Professional Conduct, informed the Association that his office receives numerous calls requesting guidance on what to do when a solo practitioner dies or can no longer practice due to illness. Who can open the office? Who can look at the files? Does an estate have to be opened in the case of death? This task force hopes to develop a process for this scenario which could involve a rule change or possibly a handbook to follow when this happens. Next on the smorgasbord is a request to the Lawyers Helping Lawyers Committee to consider the difficult issue of lawyers who become ineffective due to age or health and risk a disservice to the client. We need to know how to address this type of impairment while still maintaining the dignity of the attorney. Joel DiPippa chairs this committee. Dr. Sarah Cearley, Executive Director of the Judges and Lawyers Assistance Program and wife of Past President Bob
Cearley, will also serve on the committee. The hardest-working section of the Association is the Young Lawyers Section, chaired by Jessica Yarborough. Here are a few small plates that they are working on at this time: Wills for Heroes (drafting wills free of charge for law enforcement and fire fighters), Minority Outreach (a road show to help minorities understand requirements for law school), and mentoring videos (a series of “how to” videos to assist new lawyers with real life problems). Finally, our YLS received national recognition when their newsletter titled In Brief was awarded first place in the Newsletter category by the American Bar Association in August 2013. Chefs like to try out a new recipe on the menu as an appetizer special. We are doing this too, and in 2015 the Association’s Mid-Year meeting returns to Little Rock. Come gather around the table with fellow attorneys, legislators, and other colleagues from the legal profession at the February 19 and 20 meeting. The Capital Hotel and the Clinton Presidential Center serve as the backdrop for a full course of programs and entertainment that is sure to please even the most discerning attorney. It is always a good sign when there are so many tempting appetizers on the menu. As you peruse this list, I encourage you to find one that will suit your pallet. When you do, dig in. As President of the Arkansas Bar Association, I thank you for the opportunity to serve. Bon Appétit.
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
NEWS Charles D. Roscopf Elected Arkansas Bar Foundation President Charles D. Roscopf, of Helena, began his term as President of the Arkansas Bar Foundation Board of Directors on July 1, 2014. Chuck Roscopf is with the firm of Roscopf & Roscopf, P.A. where he has practiced since 1984. He is also Managing Partner of East Arkansas Title Co., LLC. After receiving his BSBA from the University of Arkansas at Fayetteville, Roscopf earned his Juris Doctorate Degree from the University of Arkansas School of Law. He has been a Fellow of the Arkansas Bar Foundation since 1996, is a Sustaining Fellow, and has served the Foundation as a member on the Board of Directors, as Secretary-Treasurer and Vice President, and on the Trust and Special Projects Committees. Roscopf has served the Arkansas Bar Association in leadership roles as a past member of the Board of Governors and House of Delegates and as Parliamentarian. He has been active in his community as a member of the Phillips County Bar Association, the Helena Rotary Club, and the DeSoto School Board, serving these organizations as a past president and as a member of the Board of the Phillips County Community Foundation. He is past Chair of the Arkansas Supreme Court Continuing Legal Education Committee and served as City Judge in Marvell, Arkansas. He and his wife, Ann, reside in Helena.
8 The Arkansas Lawyer www.arkbar.com
NEW Business Associations Handbook Now Available The Arkansas Bar Association is pleased to announce the publication of the all new Business Associations Handbook: Corporations, Limited Liability Companies, and Partnerships—the first update to the Corporations handbook since 1988! This helpful handbook contains both summary and detailed information on the three most widely-used entities in Arkansas, including choiceThank you to volunteers pictured of-entity considerations, steps in formaleft to right for their work on the tion and dissolution, nonprofit corporanew handbook: Robyn Allmendinger, tions, corporate governance, taxation, Bonnie Johnson (front), Paul Parnell, and intellectual property issues; an entire chapter is devoted to federal and Bryan Duke and John Griffee state securities laws, written by Professor Fendler, author of Private Placements and Limited Offerings of Securities: A Guide for the Arkansas Practitioner. The handbook also contains many forms commonly used in connection with these business associations, including forms for formation, bylaws, operating agreements, and other governance documents, forms of amendments and restatements, minutes of shareholder/director/member meetings, sample shareholders’ agreements and much more! Get your copy today! For more information on ordering go to www.arkbar.com under the “For Attorneys” link or contact Michele Glasgow at 501-3754606 or email@example.com.
Members Celebrating 50 Years of Practice
50-year members were honored with a reception and luncheon at the Association’s Annual Meeting on June 12, 2014.
Congratulations to members of the Association celebrating their 50th year of practice in Arkansas: Judge Harry Francis Barnes, William C. Bridgforth, Paul Dean Capps, Edward Ralph Cotham IV, Ben W. Frank, Martin Greeson Gilbert, Searcy W. Harrell, Jr. (posthumously), Scott Hunter, Ken Jones, Vernon E. Jordan, Jr., Charles Matthews, Judge James M. Moody, William L. Patton, Jr., David H. Pryor, Allen P. Roberts, William B. Roberts, Herbert C. Rule III, Don M. Schnipper, William Farrar Sherman, Thomas E. Tanner, William P. Thompson, James R. Van Dover, John W. Walker, James R. Wallace, Edd N. Williams, Jr.
SERVICE WITH PASSION AND PURPOSE BY JESSICA S. YARBROUGH I am honored to carry the torch as the 2014 – 2015 Chair of the Young Lawyers Section (YLS), building upon the firm foundation laid by so many outstanding individuals. YLS is committed to serving our community and our profession. It is a great privilege to be a part of the legal profession and to be afforded opportunities that are not available to most. However, in order to be great leaders, we must first become committed servants. (Matt. 20:28 MSG). We must be committed to a cause greater than ourselves: service with passion and purpose. This summer, soccer fans all over the world created a unified front to support the cause of their teams in the battle to win the 2014 FIFA World Cup.™ That single desire was to win. Supporters of the U.S. soccer team, irrespective of background or social status, were united as one. Belief ignited an endless flame as millions chanted, “I believe that we will win!” Just as those fans became a unified body, we must allow a fire to be ignited within our Association so that we may continue to make a positive impact on those around us. As members of the Bar and YLS, we are leaders, but will become even greater leaders as we blaze new trails in service. YLS has and will continue to provide ample avenues for involvement in community and professional enrichment. By seizing these opportunities, young lawyers are bound to experience personal, professional and social fulfillment. Individuals who desire to get involved should take note of the following committees: Citizenship Education: YLS is committed to providing civics education programs and literature to the community and will implement the iCivics program, developed by Justice Sandra Day O’Conner. This is a fun and interactive tool tailored for students. Adult programing will be made available in the form of voter registration initiatives during this election year.
In October, YLS will sponsor a workshop at the University of Central Arkansas that will highlight the rights of small business owners. The legislative initiative is in motion as YLS has recently presented bills to the House of Delegates. One bill seeks to deter revenge porn, while another promotes limited immunity for minors who report a medical emergency when involved in under-aged drinking. The committee will continue to develop relevant legislation that will be of benefit to Arkansans. Communications: Arkansas is known across the country for the outstanding YLS Newsletter, In Brief, having previously received American Bar Association recognition. Thanks to Brooke Moore, In Brief Editor-in-Chief, we have been able to continue the excellence and expand participation among young lawyers by encouraging substantive articles and articles of interest. This year, YLS will establish its own “Winner’s Circle” to recognize volunteers for their notable contributions. Disaster Relief: In the aftermath of tornadic weather across central Arkansas, YLS members were readily available to offer assistance to residents. Thanks to Matt Fryar and his dedication to the completion of the Disaster Relief Handbook, attorneys are now well equipped to be of assistance to residents in need in the event of a natural disaster. Legal Education: Mentoring among lawyers is a great necessity. YLS is continuing to develop innovative ways to maximize the mentoring program and provide incentives to lawyers who participate in this worthwhile effort. The New Admittee Survival Guide is made available to new lawyers at each swearing in ceremony. Practice tools are also being developed so that young lawyers have a quick reference to various practice tips.
Minority Outreach: College students across the state of Arkansas have grown to anticipate the YLS, “What I Wish I Knew Before Law School” panel. This year, we will continue the road tour and expand resources by creating a law school application guide that will provide answers to frequently asked questions for those considering law school. Pro Bono: Members are currently working diligently to update various handbooks, including 18 And Life To Go. This past year, YLS partnered with Habitat for Humanity in a combined effort with Wills for Heroes, and established the “Build-a-Will” project, in which members provided wills for recipients of Habitat houses. This committee will partner with other civic organizations, such as Rotary, Kiwanis and Lions Clubs, and local fraternities and sororities to ensure effective community impact. Recruitment and Social: There are many membership benefits within the Association. YLS will carry on in its efforts to recruit attorneys who have not realized those benefits. We will remain connected to both law schools and welcome new admittees into the profession so that there may be a seamless transition through the leadership pipeline. Building new relationships and maintaining friendships is the key to a strong Association. Together, let us carry the torch that burns bright with passion and purpose. Let us believe that we will win. Win for our profession. Win for our community. However, the prize is much more than a gold cup. It is an intangible prize that changes lives and is perpetuated throughout generations. I encourage you to unite for a cause greater than yourself. I look forward to a prosperous year.
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
2014-2015 Arkansas Bar Association President Brian H. Ratcliff
The Arkansas Bar Association has Brian H. Ratcliff’s full attention this bar year. In fact, the Association has already benefited from the countless hours he has devoted to the Association since he began his legal career. With the issues facing the Bar during the upcoming legislative session, the Association is fortunate to have the leadership of this hard working and dedicated attorney from El Dorado. Photo by W.I. Bell, Article by Anna Hubbard
Brian was sworn in as the 117th president of the Arkansas Bar Association on June 13, 2014. The swearing-in ceremony by Chief Justice Jim Hannah took place during the Association’s annual meeting at the Hot Springs Convention Center. Although Brian’s entire legal career has been geared toward serving as the Association’s president, it was not a decision that he made lightly. As a devoted husband to his wife Karen, he ensured that she was on board with him taking the helm. Along with her unwavering support, he has the support 10
The Arkansas Lawyer
of his new law partners at PPGMR Law, PLLC along with the support of Association leaders. Brian’s appreciation of the Association’s strong and proud heritage began with his first clerkship in law school when he clerked for the Shackleford, Shackleford & Phillips, P.A. law firm in El Dorado. The year was 1986 and Dennis Shackleford had recently completed his term as president of the Association. Later that year, he clerked for Bill Wilson who also had just completed a term as president. Shortly
after in 1988, Brian worked a year in the Goodwin, Hamilton & Moore law firm in Paragould with Harry Truman Moore who later became president of the Association. Brian later joined the Shackleford Law Firm in 1989 and remained there until this past spring when that firm became part of PPGMR Law in El Dorado. “The timing was very good. It’s hard to be president of the Bar Association and give it the time it needs with a two-person law firm,” he said. Brian’s partner at PPGMR Law, Julie
Greathouse, said, “Brian jokes that he knew we must really be interested in him and El Dorado when we approached knowing how much time he would dedicate to his bar presidency in lieu of billing. The truth is, we had been interested in both Brian and an El Dorado office for years and knew we had a better shot at him in a year when he needed us too. Most of us had prior experience working with Brian and knew he was a great lawyer, but he is also a fine person whom we are all proud to call our partner.” Brian’s former law partner Dennis Shackleford gave him his blessing shortly before passing away this February. “Dennis told me that life is about changes, and if I thought this change was good for me then it was fine with him,” Brian said. In addition to working with such great mentors as the late Norwood Phillips and the late Dennis and Marshall Shackleford, he also considers his longtime friend and former partner of 17 years, Teresa Wineland, a mentor. Teresa attests to Brian’s ability to serve the Association well as president. “Brian has been preparing to lead the Bar Association since he joined our firm in El Dorado in 1989,” Teresa said. “Our mentor and partner, Dennis Shackleford, Bar President 1982-1983, made sure we understood the importance of service to the profession and put the full support of the firm behind us in our Bar activities. Dennis would be so proud to see Brian now following in his footsteps, providing strong leadership to the Bar Association, applying his unfailing work ethic to promotion of the Association and profession, and putting his amazing knowledge of Roberts Rules of Order to good use. As they travel the country this year, Brian and Karen will be outstanding representatives of the Association and the Arkansas Bar.”
Brian’s steadfast commitment to the Association over the past 26 years is impressive. He said that Dennis Shackleford taught him that you treat the Bar Association as you would a client. “You respond as they call, and you set aside time for your Bar work just like you would for a case.” Harry Truman “H.T.” Moore encouraged Brian to get involved with the Young Lawyers Section (YLS) his first year of practice. “We were tickled when Brian accepted a job with us in Paragould,” H.T. said. “Because he was from El Dorado, I had called Dennis Shackleford, who was one of my mentors when I was in the YLS leadership track and Dennis was in the Presidential track in the ‘Big Bar.’ Dennis told me he would have hired Brian, but he didn’t have a place for him, so I should hire him and to get him involved in Bar work. I did both. When Dennis later had an opening, it was a great opportunity for Brian to return home, and I strongly suspected that Brian would become a leader in our bar. Did he ever.” “There are two really good reasons why I’m so glad that Brian is serving as our President,” H.T. said. “First, I know he will do an outstanding job. Second, it will give Linda Lou and me a chance to visit with him and Karen at ABA meetings, especially since Brian is a great ‘foodie’ and always does a good job of researching the restaurants in host cities.” When Brian contacted the chair of YLS, Rosalind Mouser, and asked her how to get involved, she suggested that he run for an executive council position that was open in
Karen and Brian Ratcliff Photo by W.I. Bell his district. He showed up for the election at the annual meeting in Hot Springs not realizing that he had an opponent, Scott Morgan. Scott, who is now his law partner at PPGMR Law, won the election. Since he still wanted to get involved, in 1988 former Associate Director Judith Gray tasked Brian with working on a Senior Citizens Handbook, his first big project for the Association. He co-chaired the committee with Chuck Roscopf, who is currently serving as president of the Arkansas Bar Foundation. In 1993, Brian was elected chair of YLS and has continued in leadership roles in the Association ever since. He chaired and served on numerous committees touching many aspects of the Association. He has chaired the Membership, House, Lawyer Referral Service and Arkansas FindaLawyer committees. Brian has also served on the Finance and Audit committees and chaired the Annual Meeting in 2004. He is a tenured member of the House of Delegates and served a three-year term on the Board of Governors. He has received three Golden Gavel awards and the Frank C. Elcan II
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
award for his work in the Association. “He was single and all the other members Brian was closely involved with the plans of the firm were married,” Brad added. “The for moving and remodeling the new Bar spouses nicknamed him Ferris Bueller as he Center. He served on the House Committee resembled Matthew Broderick while drivfrom 2002-2009 and the Design Committee from 2004-2007. Those experiences along with serving as president of the Arkansas Bar Foundation in 2008-2009 give Brian a unique perspective. “I am very pleased with how the Bar center turned out,” he said. “I love the building and am glad that members seem to be using it and enjoying it.” Brian is a partner at PPGMR Law, PLLC and manages the El Dorado office where his practice focuses on Brian and Karen with Brian’s father Herman civil litigation defense. Like most and brother Bennett at the swearing-in attorneys, he also has a general law practice serving friends and family in ceremony El Dorado. As a young attorney, he started out on jury trials with minor motor vehicle accidents and even represented a client on death row. Now, with a push toward mediation, it is harder for younger attorneys to get that kind of trial experience, he said. “Sending nasty letters, noticing depositions and posturing in the presence of clients does not make a good lawyer,” Brian advises young attorneys. “You can be a good litigator and Brian and Karen with the chefs at Ferron Rice still be civil and get along,” Mill in Verona, Italy Brian has remained close to his Paragould friends. Even though they now live in different parts of the state, the friends make concerted efforts to get together. The Bar Association events also help bring the group together. One of these long-time friends, Brad Broadaway, testifies to Brian’s strong work ethic. “Brian and I were hired by the same small Paragould firm right out of law school,” Brad said. “Brian would show up for work before any of the Brian and Karen with Valerie at a wine tasting partners and leave with the last one at the end of the day. But, we were so green that we couldn’t even find some courthouses in the area. We were handling small insurance subrogation ing his sports car. Now, he no longer looks cases, municipal court criminal matters, and like Ferris Bueller, rarely handles real estate examining abstracts. One day, Brian called matters, and doesn’t have intoxicated clients the firm concerned that his DWI client had in court. He is busy handling multi-millionshowed up for court intoxicated. They don’t dollar lawsuits, traveling with his lovely wife, teach you how to handle that kind of thing and is president of the Bar Association. The in law school.” folks in Paragould are proud to call him one 12
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of their own.” Paragould attorney Roger Colbert echoed Brad’s support of Brian. Roger serves on the House of Delegates and was proud to watch Brian preside over his first meeting as president. “It is gratifying to watch someone that you grew up with since law school attain this position,” Roger said. “This is something that he has earned, and he will be an excellent Bar Association president. He has worked toward this for years.” Brian and Karen have been married for 15 years. They graduated El Dorado High School together in 1981, but did not reconnect until 1996. “I would not have been mature enough for Karen at that time,” Brian laughingly said. “Karen was much more mature than me, so it was good to go off to college first.” Brian earned his undergraduate degree in economics/business from Hendrix College in 1985 and his Juris Doctor from the University of Arkansas at Little Rock School of Law in 1988. He was born in Borger, Texas, and lived in three other states before settling in El Dorado in tenth grade. His father, Herman Ratcliff, retired as an engineer for Phillips 66. He and Brian’s mother, Betty Jo, a retired teacher, still live in El Dorado. He has one brother, Bennet, who lives in New York. It is important to Brian to have interests outside of the law office. He loves to cook and on any day, for fun, you can ask him what he cooked for dinner the night before. He enjoys trying new recipes and watching the Food Network. For several years, he has prepared steak dinners with bananas foster or cream brulee for dessert at the Association summer leadership retreats. “One of the scarier things I ever did was a cooking demonstration for a Baptist church women’s group,” he said. “After I agreed to do this, I started thinking, here I am going to tell a bunch of women who have been cooking longer than I have been alive how to cook.” The ladies were won over by the baked baby pumpkins stuffed with risotto and biscotti. He is also a wine connoisseur and takes pleasure in knowing where a bottle of
PROFILE What is something about you that would surprise people to know? I lived in Wyoming for seven years. I could snow ski before water ski and ice skate before roller skate. Favorite meal to cook: Steak—any way Favorite dessert: Bananas foster Favorite cooking gadget: Food processor A phrase to sum me up: Hard working and dedicated Why do you love your career: It is very stimulating mentally. I’m always learning and doing something new. wine comes from and pairing it with food. On a recent vacation with Karen to Italy, he had the opportunity to cook with chefs in Rome (Diane Seed), Florence (Sharon Oddson), and Verona (Gabriele Ferron). Their European vacation had even more meaning because they visited their former exchange student, Valerie Sovignet, who lives in Bourg-Argental, France. Brian and Karen affectionately call her their “adopted daughter.” “We have been close with Valerie ever since she stayed a year with us in 2005,” he said. “She has been back several times to visit and we have traveled places together. She has taken us through vineyards in France. Last year, we took her for an American wine experience in Napa and Sonoma. We have been able to debunk some of the American anti-French attitudes.” Gardening nicely complements his cooking passion. He grows herbs for his kitchen and also has over 40 rose bushes that he nurtures. He enjoys duck hunting with his dad and golden retriever, Lady. Their black lab, Noel, despite being found in cold water on a hunting trip as a puppy, turned out to be a better companion for Karen than a hunting dog. Brian plays basketball to stay in shape even though Karen warns him each time he goes out “to be careful playing with those young guys.” In addition to representing his church, First Methodist of El Dorado, on various legal matters and serving on committees, he has twice portrayed the unruly disciple, Peter, in the play “The Last Living Supper.”
Brian served as president of the Union County Bar Association in 1998 and president of the Arkansas Association of Defense Counsel in 2001. In 2008 he was selected to be a member of the American Board of Trial Advocates. “Brian is a wonderful example to all of us on the necessity of community involvement, a task already of great importance to me,” Julie Greathouse said. “He and Karen tirelessly serve so many worthy endeavors with the kind of grace we all hope to display. He hasn’t once whispered a complaint about the fullness of his plate in an age and profession where ‘busy-ness’ is sometimes mislabeled as a virtue.” Like all strong leaders, Brian knows the importance of surrounding himself with capable and talented people. He has selected Teresa Wineland to lead the Legislation Committee. This is no small task for a Bar year in the course of a legislative session. “Based on the last legislative session, it could be very pressing,” Brian said. “It is very important that the Association not alienate members, and I am very cognizant of that. Teresa and I have been through thick and thin together, and I trust her judgment.” Teresa is ready for the task. “I appreciate Brian’s confidence in appointing me to this most important position at this critical time,” she said. “He has my commitment that the committee will work diligently and closely with the legislature during the upcoming session in an effort to protect and
further the interests of the Association, the profession, and the legal system.” Another important issue facing the Association this year is looking at the Association’s malpractice insurance carrier. Little Rock attorney Larry Burks is chairing a task force to review the options and make recommendations. “This is a monumental task and we want to make sure we do what is best for the Association,” Brian said. Past President Jim Simpson is chairing another task force to review Rule 7 of the Rules Governing Admission to the Bar. Brian will work closely with the task force on this issue of attorney license suspension for failing to pay dues to the Court. “The Supreme Court declared part of this rule unconstitutional as it failed to give due process before license suspension,” he said. “We anticipate a petition to the Court for a rule change.” Regardless of the many distractions that may appear this year, Brian will remain centered on his commitment to the Bar Association and the legal profession. He is confident that while being president is a major commitment, he will have the support of committed and talented individuals all working together to achieve the goals of the Association. “It is not the Bar Association president’s job to micromanage,” he said. “You’ve got good people, and good committees, and if you can’t trust those people to do a good job, then there are bigger problems.”
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
STARTING AND GROWING A LAW PRACTICE IN CHALLENGING ECONOMIC TIMES IT’S NOT ROCKET SCIENCE
BY JOHN E. TULL III
Introduction My good friend David Williams is authoring a companion article to this one and is focusing on starting a solo practice, so I will direct this paper to starting and growing a practice within a law firm environment. As we all know, there is no one right way to build a practice; in my experience, it is a combination of a multiplicity of efforts that leads to building a successful practice because it is the combination of efforts which leads to exposure with a number of potential clients and referring attorneys. Choose a Firm That Fits You When I was a young lawyer, most firms in Arkansas, regardless whether in a larger or smaller city, were in a growth mode, and, therefore, most law students had options when they graduated from law school— joining a law firm, affiliating with a solo practice, becoming an assistant prosecutor or public defender, or clerking for a judge. This situation has changed. Today, many well-qualified law school graduates struggle to find a position as they exit law school and begin their practice. But choosing the right “fit” is still important. Many law firms have an area of practice that constitutes the 14
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majority of their work and on which their reputation is based. Each law firm and every lawyer there has his own unique personality and expectations. While any job offer brings both relief and excitement, the lawyer-tobe should take a moment and consider all options before accepting an offer on the spot. Take an objective view of the offered opportunity to ensure it is a fit for your unique personality and goals. First, ask whether there is someone at the firm who will take the time to mentor you. The practice of law is full of pitfalls and land mines; having an experienced lawyer help you
recognize them and review your work is an important and valuable commodity for a new lawyer. Other questions to consider in determining “fit”: Do I want a firm that has an intense, demanding practice, or would I prefer a very regular work schedule? Do I want to travel, or would I prefer not to? Do I like to write, or do I prefer to interact with people, or both? Will I have client contact? Is the area of law something that fits my personality and life views? Do I see myself associated with this firm long term, or is my expectation that I will gain some experience and change jobs or start my own practice?
It Is Your Reputation—Protect It The most important commodity you possess during your professional career is your reputation. Your reputation for honesty, good work, timeliness, creative thinking, skill in the courtroom, and on and on. The reputation you establish as a young lawyer will follow you for your career, so be cognizant of it in your dealings with lawyers in your firm, opposing counsel, judges, and clients. Establish yourself in your firm as one who provides quality work product and does not just complete a task halfway and produce substandard work for an older lawyer to clean up. If you are unclear about an assignment or have difficulty completing it, address this with the person who assigned the project before you turn in your work product. The lawyer who assigned the project can perform the work but tasked you with it for a reason; it is actually more work for the assigning lawyer to clean up someone else’s work product than simply do it in the first place. Turn in the work project within the time frame requested, and give the attorney ample time to review and revise before it has to be submitted. If you are late, you are adding stress to the assigning lawyer and placing that person in a bind. Other lawyers are an important source of referrals; your relationships with opposing counsel and counsel representing similarlysituated clients is an important source of future business. In the age of email as the primary mode of communication, it is easy to adopt an overly aggressive or even snarky tone in your communications with opposing counsel. While it may provide personal short-term satisfaction, there is little longrange benefit. First, it does not accomplish anything in terms of moving the matter to a resolution, and, secondly, you are ensuring that the opposing attorney will share his dealings with you with his fellow attorneys. Lawyers refer cases to lawyers they like, who they know will provide quality work to the potential client. In email communication, speed is often deemed more important than careful thought and appropriate communication. Do not hit send until you have thoroughly proofed and re-proofed your reply and you are certain your message is accurate and appropriate, considering all factors. Always be polite and professional.
Existing clients are an important source of both return business and referrals. A client desires excellent, timely work at a fair price. Clients expect their lawyer to be responsive and to move their matter to as quick a resolution as possible. If you provide quality work for the client, you can expect return business, and, when the client is asked for a referral, your name will be provided. If your client is not happy with your service, you can be guaranteed the client will tell other people about the client’s displeasure, too. Market Within Your Firm Visit with members of your firm and share your experience and the area of law in which you desire to focus your practice. Ask for help in meeting potential clients and in sharing your skill set with fellow lawyers outside the firm. Make sure your colleagues know what you do and how you can help them and their clients. Learn the same things about your colleagues and use their services when it benefits your clients. Be a team player. Work on Your Relationships The successful practice of law is about relationships with your clients and with other lawyers. Nurture those relationships. Establish relationships with your clients that are more than simply communicating via an impersonal email exchange. Call your client
when you need to have a substantive discussion. Use your phone conversation with your client to establish a relationship outside of the immediate matter you are working on for the client. Ask the client to lunch. If the client is out of town, but is a significant source of current business and a potential source of future business, invest in a trip to visit the client. Showing a client that you care about his or her work and business never ceases to benefit your relationship with that client. Most of your future work is likely to come from repeat business from existing clients, so the better relationship you establish, the more comfortable you can be that the work will continue. Establish a Relationship with Lawyers Within Your Firm and Outside Your Firm Establish a relationship with lawyers you work with. Do not be concerned with any age difference. You are all lawyers and are working together with the same goals in mind. In your office, invite them to lunch or an after-work meeting and talk about something other than work. As you work with lawyers in other firms, invite them to lunch or for an after-work get together. If you are out of town working with lawyers, invite them to lunch, and, if an overnight stay is involved, make the effort to organize a dinner. The more relationships you establish, the greater the opportunity for referrals when a lawyer at another firm has a conflict. Make Your Client Happy Of course, a good result is the best reason for a client to assign you more work and to refer friends and acquaintances to you, but good communication can be as important to a client as a good result. If you receive a call from a client or a prospective client, return the call that same day. If you are unable to
JOHN E. TULL III is a founding member of Quattlebaum, Grooms, Tull & Burrow PLLC. In over 100 jury trials, he has served as lead counsel on behalf of large and small businesses and individuals.
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“The most important commodity you possess during your professional career is your reputation. Your reputation for honesty, good work, timeliness, creative thinking, skill in the courtroom, and on and on.”
return the call, ask your assistant or another attorney to call the client and let him know that you will return the call as quickly as possible. Do not wait for the client to ask for a status update; as developments occur in the case or if it has been several weeks since you have communicated with the client, call or send a status report. If the client has requested periodic reports pursuant to a specified format, make certain the format is followed and the report is timely submitted. If you are filing a substantive pleading for a client, provide a draft for the client to review and comment on with sufficient time before the due date. Even if the client is not a lawyer or someone regularly involved in litigation, his or her input is still helpful, and your draft will be appreciated. Do not wait until just before the pleading must be filed to provide a draft for review. A last second review which forces the client to drop everything he is working on so he can review and comment is no way to create a positive impression. In tough economic times, clients are even more concerned with the cost of litigation, and it is common today for a client to request a budget at the time of the engagement. Do not intentionally inflate your budget for contingencies. If it becomes clear that the existing budget will be insufficient, update the budget and provide an explanation as to why the budget should be increased. Most risk-averse clients are more inclined to attempt to settle litigated matters at the earliest opportunity. There may be strategic reasons for not making a settlement overture immediately upon suit being filed against the client or immediately after filing a suit, but it is not inconsistent with your strategy to convey to opposing counsel that your client desires to keep the lines of communica16
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tion open during the litigation and to visit settlement if the appropriate opportunity arises. Bill the client regularly, and take the opportunity when sending a bill to provide a short update about the matter. When the matter is concluded, write or call the client and express how much you enjoyed working with him or her, and express your hope you can provide assistance in the future. Market Yourself The best marketing a young lawyer can do is through the quality of the lawyer’s work. Lawyers recognize when another lawyer has made an extraordinary effort on a project or task, be it at a deposition, in a brief, or in court. Lawyers want to refer a client in a conflict situation to another lawyer who will provide a high quality representation. If a referral is made, at the conclusion of the matter, thank the client and be certain to return the client to the referring lawyer with best wishes. There are situations when a client will choose to change lawyers from the referring lawyer, but a lawyer who enjoys referrals from other lawyers must never attempt to take a client from a referring lawyer. When your representation is concluded, take the time to contact the referring lawyer to apprise him or her that the referred matter is concluded and show your appreciation. Volunteer to speak or write articles for law publications and trade publications. There is a trend among firms to send monthly newsletters to clients and prospective clients. As long as the articles are short, and provide practical tips for the lay person, or provide an update on changes in laws that affect the client, there is a good chance a client will actually review the newsletter. You can target specific clients by writing directly to them or forwarding a helpful article or case with which they might not be familiar. A short, practical seminar directed to lay persons on legal issues relevant to the client’s business is another opportunity to both market yourself and to strengthen the relationship with a client. The old-school business card remains an effective marketing tool. A follow-up note after providing your business card is a helpful tool for future contact and work. Join legal organizations that are linked to areas of law in which you are interested. But carefully target those organizations that you believe will help build your practice because, between the dues and attending meetings,
you may be facing a substantial investment by you or your firm. If you join an organization, do not view it as a paid vacation and simply show up for the meetings; become active in committees of the organization and volunteer at every opportunity. By working on committees and subcommittees, there is a much greater opportunity to establish relationships with lawyers with similar practices who will serve as a referral source. The Arkansas Bar Association, the American Bar Association, DRI, ATLA, and many other organizations offer excellent opportunities for establishing relationships that will help build a law practice. Attending out-of-state seminars offers another opportunity to meet lawyers or inhouse counsel who practice in similar areas of the law. Prior to attending the meeting, review the attendee list and identify lawyers or in-house counsel who have businesses in Arkansas. Introduce yourself and follow up when you return with a personal note. Civic and trade organizations provide other opportunities for meeting business leaders who are a referral source. Do not join an organization merely as a marketing vehicle; identify an organization whose mission meets your desire to provide civic service in your community. If you join an organization, be active and take a leadership position. It will take time and commitment, but the personal reward more than offsets the time and commitment and provides an opportunity to establish new relationships with business leaders in the community. Internet and Social Media Marketing It is the rare firm or organization that does not have a website in today’s marketplace, and it is the rare prospective client who does not visit your website before contacting you. Be creative on your website in providing information about yourself and your background. Use videos where possible to showcase your experience and expertise. Do not let your website grow stale; revisit and update your website on a regular basis. Add information and write timely articles. An increasing number of firms have a presence on Facebook and on Twitter. Google+, Twitter, Instagram, YouTube, Linkedin, Tumblr, Pinterest, and other evolving social media provide an opportunity to reach a broader market. You can use these social media to direct readers to your website or an attached video.
Use Your Time Wisely According to the American Bar Association, the typical lawyer works around 2,500 hours per year, with approximately 1,400 being billable hours and 1,100 being nonbillable hours. The nonbillable hours include training, legaleducation management, research, and marketing. Budget time for marketing your practice at the beginning of the year and identify specific marketing during the year. At mid-year, check your actual marketing with your budget. Turn Down Work It is difficult to turn down work, as all lawyers wonder where their next file will come from, but you must learn to say, “No.” Turn down nonprofitable work or work in an area where you do not have expertise or simply do not want to spend your time. If this results in extra time, use that time to write an article, go visit clients, or pursue other marketing possibilities. You will regret taking work you do not really want. All work is not desirable work. Take Time for Yourself and Your Family Burnout is an occupational hazard for the busy lawyer. It is easy to have all of your time consumed by billing, managing your practice, and marketing. It is difficult to turn off your mind when you need to leave the office. You must find a balance among family, personal time, and work. Take vacations and allow yourself to recharge. Leave the cell phone and the iPad off or use them for entertainment purposes only when on vacation, or check them only infrequently, not every few minutes. If an emergency develops, your office will know how to contact you. You really can take two weeks off and your practice will not disappear. Conclusion There are many more ways to build a practice than I have mentioned above. Building a successful practice requires a combination of the steps I have mentioned, together with other efforts which will enhance your reputation and build a quality practice. ■
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STARTING AND GROWING A SOLO PRACTICE It’s Harder than Rocket Science
BY DAVID H. WILLIAMS
Introduction John Tull and I were asked to do companion articles on starting, growing and managing a law practice. John approached his article from his experience with a large firm environment. My experience and environment has been all basically as a solo. This article is adapted from a seminar presentation I have been making the past several years of the same title. My practice began at a time when lawyer advertising was first approved by the Supreme Court. There was not much specializing then, so we did everything: divorces, bankruptcy, wills and estates, personal injury, contracts, whatever walked in the door. As time went by, I gravitated towards exclusive personal injury for the plaintiff, and have been doing that for the past 25 years. I have learned 10 lessons about how to be successful at practicing law as a small or solo plaintiff’s firm. These are lessons I often learned the hard way. But, those are the lessons best learned.
legal remedy. A lot of problems don’t have an economically feasible legal remedy. We need to learn to evaluate potential claims the way we learned how to identify issues in law school. In my area of personal injury, I have to consider whether there was a duty owed, a duty breached, an injury proximately caused by the breach, damages resulting from the injury which were proximately caused by the breach, and a place or way to collect those damages. If I don’t have all those things, I don’t take the case. You can save yourself a lot of money by considering these elements on the front end, as every hour you spend on a case that is missing one or more of these elements is money down the drain. You didn’t go to law school to learn to solve everyone’s problems; to right every wrong; to seek redress for every insult. You went to law school so you could practice our profession, render a service, and be paid for it. Lesson 1: Don’t take cases you can’t make money on.
1. I’m not a Nonprofit Corporation What does that mean? I’m not talking about a type of legal entity. I’m talking about how to make money practicing law, and paying your bills, and paying for your
2. Case Evaluation There is no substitution for experience. We learn best by and through experience: the law, the rules, the lawyers, judges and juries. Experience is a great teacher. It comes
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kids’ education, and having some hopeful chance at retirement. You are a for-profit enterprise. We do our best work by learning not to take on business that we have no business taking on. Not every problem has a
with a real-life lesson. We get better with practice. Spend time identifying the issues. Again, back to law school, use that skill set you learned. The time you spend on the front end evaluating your case is money in the bank. It will teach you to turn away losing propositions, and to recognize winners. Learn as much as you can about the judge, the jury and the jurisdiction your case will be heard before and in. You can have a great case that may not be so great if you don’t learn your audience. What’s the likelihood of settlement of the case? Time is money. If you have a potential multimillion-dollar case that is going to require preparing for and going to trial and having to go up on appeal before you see a nickel, you better consider whether you have the staying power to take on that case. Also, I use an excel spreadsheet to estimate profitability of contingent fee cases. It allows me to enter the estimated settlement value or range of a case, then insert the estimated number of hours of work for each person in my firm working on a case, and then figure my hourly fee at the various levels and stages of investigation and trial preparation to see the potential profitability at those various stages, if the case settles. It’s a visceral way to see that a case that has a potential jury verdict value of $1,000,000 may require hiring experts, taking depositions, and going to trial before you realize that value. And, that after figuring in all the time put into developing the case, you’ve made $37.50 an hour. Not a profitable endeavor. One you should turn down, especially if your law practice costs you $235 an hour to break even. I have spreadsheet and formula that I use to determine the hourly cost of my law practice adopted from a March 1991 article in the ABA Journal titled “Fees to Profit By.” 3. Types of Practice—Types of Cases The type of law practice you have as opposed to the one you would like to have is more often dictated by circumstances rather than by our individual direction. However, you need to have a plan. The questions you need to be asking yourself are: What kind of practice do I want to have? What am I suited to do? What cases can I make money handling? What cases can I lose money handling? Are those pharmaceutical and medical device cases? Class actions? Medical mal-
practice? Car wrecks? Speciality cases such as plane crashes, insurance coverage, business torts, and non-competes, arbitration? Do I enjoy trial work or hate it? These are things we all need to think about early and often. When taking cases on, and I am talking about plaintiffs’ cases, because that’s what I do, I consider the risk and reward. How much time and money will the case take to work up properly, and what are the chances of success? It is a lot like real estate development or joint venturing on a business deal. Depending on my comfort level with the amount of up-front expense, the amount of labor, the division of labor, the skill set required for the case, and the realistic potential value of the case, I routinely associate with other lawyers who give my client the best chance of success which most often means an early, expeditious, fair and reasonable settlement. We try cases, of course. But, going to trial is all about finding out who wins and who loses. It is the final solution, if no other reasonable solution presents itself. Sometimes lawyers or adjusters will miss the mark on case evaluation, and a case will go to trial. Someone may hit a home run. Someone may strike out. It’s a risk. You don’t want to wake up one day and realize, “I’m 60 years old. I’ll be 70 in 10 years. What the heck have I been doing?” All of which leads to the next topic:
4. Business Plan Like doctors, lawyers spend a lot of time learning their profession, but very little time learning how a profession has to operate like a business in order to make money and deliver the service. Just like businessmen and women have plans, we as lawyers need to have a business plan: a fiveyear, 10-year, 20-year, end-of-game plan. As a solo practitioner, there is no retirement program other than the one I create. If I don’t think about an end game and then act on it, it’s not going to happen. I know an attorney who early on in his career took his fee on a big case by way of an annuity. He directed the insurance carrier for the defendant to take his fee that he would have realized, and buy an annuity with it. He did that a number of times over the years, and today, that attorney receives several nice annuity checks in the mail each month. Wish I had thought of that earlier in my career. I had a marketing, public relations firm address this issue of having a business plan many years ago when I went to Dallas to interview them, and ended up with me being the one who got interviewed. I was asked about my five-year, 10-year, 20-year, and my “get-out number.” I told them I didn’t have one, or any, and what the heck was a “get-out number?” I was getting up every day and going to the office and doing my best to feed the bulldog. The practice of law can be pretty intense, as we all know, and so task-detailed that it is hard for most of us to set aside time to just think about where it is we are headed and how we are going to get there. So, the “get-out-number” is how much money we need to retire on. Is it one million, two, three, or more? Or is it less? What can we live on? And, for how many years? I think you start there and then work backwards. If you are in private practice and do this calculation or estimate and
DAVID H. WILLIAMS is a solo practitioner in Little Rock. His practice focuses on the areas of personal injury, product liability, tractor-trailer crash, plane crash, medical device and pharmaceutical actions.
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
“I think we need to keep an eye to the future and be ready and adaptable to changes in the practice of law. We need to be nimble enough to make necessary changes, and try to make ourselves less vulnerable to economic downturns and political attacks on the jury trial.” think, “there is no way I am going to be able to do this,” then better to know now than later, and have an alternate plan in the works. Private practice has its benefits. You are our own boss. There is a lot of freedom in that. You get to choose what you do. What kind of clients you represent. But, there is no corporate, federal or state, government sponsored and funded retirement. You’re it. 5. How to Get Business. What type of Plan? What kind of Lawyer? In my simple way of thinking there are two ways to get business: (a) direct to consumer and (b) peer to peer. Television and Internet advertising are the most common forms of direct to consumer plans for getting business. No doubt about it, lawyer advertising changed the face of the practice of personal injury law when it came on the scene in 1979. Small town lawyers with general practices used to associate lawyers on their occasional products or complex personal injury cases. There used to be a regular coffee break each morning, when a lawyer, his banker, and his accountant would meet and talk about the day and about business. Not so much anymore. With the advent of lawyer advertising, the referral system was, to a large extent, replaced with the direct hire. Injured people now get a lot of their information from the television or from the Internet. So, the question became how one was going to get business, if not by direct advertising. Peer-to-peer marketing is good old-fashioned lawyer-to-lawyer advertising. It’s all about building successful relationships. Putting the right people together 20
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doing the job they do best. Some lawyers are better than others at thinking on their feet. Some lawyers are better at strategy and war room stuff. Some lawyers are better at motion and appellate practice, and oral argument. Every case needs a lawyer who has a view of the big picture; a lawyer who can try the case; and, a lawyer who can handle the pretrial motion practice, jury instructions, and arguments on the law, and most importantly, making and preserving a record for appeal. That’s not to say that one lawyer doesn’t have the skills to do some of each of these things. It’s just that complex cases need a team where each of these skill sets is represented. Peer-to-peer marketing to other lawyers involves some print advertising, some social media contact, some direct personal contact, and a good deal of volunteering within our profession and the community. 6. How to Get Business—Direct to Consumer or Peer to Peer? As stated, we need exposure within the professional community. Join and be active in our professional organizations. Be a part of our community. Teach at CLE. Be willing to speak to organizations about the law and the importance of the jury trial and an independent judiciary. Get out and socialize with fellow lawyers. If a lawyer enjoys working with us, if we can keep a sense of humor and perspective about things, then that good experience will bring return business. If we do a good job, work up cases meticulously, and achieve early settlements as a result, lawyers will appreciate that and look to bring us business in the future. 7. Referral, Association, and Joint Venturing Thinking outside the box and inside the ethical rules is a simplistic way of putting it, but the business models for working with other lawyers is limited only by those two things. If a lawyer does not want or have the time or the type of practice to allow him or her to reinvent the wheel, then either referring the case to the right lawyer or associating that lawyer is the obvious way to go. Referral generates a fee for the referring lawyer with less involvement in the case. If the lawyer wants greater involvement, then association is a good choice. The originating lawyer stays more directly involved and shares a percentage of the expenses and the workload. The only caveat here is that the
expenses have to be timely paid, or else the originating lawyer ends up basically borrowing money from us, and the quality of the work each lawyer produces has to be equal. The originating lawyer has to have the skills to be able to take an effective deposition, and do the other trial preparation work equally skillfully. Joint ventures usually involve lawyers or firms with equal skill sets and financial ability to share work and expenses on cases with higher than usual risk but higher than usual reward. Evaluating these cases accurately on the front end is imperative. You better be on the money on the law, on the return, and on the cost. A mistake can be costly. It can be hard to recover from a loss if the risk is not adequately spread. If this sounds a lot like investment banking or real estate development, that’s because there are some good lessons to be learned and parallels to be drawn. Get your fee sharing agreements in writing (an email will do). Know the ethical rules in the state in which your case will be tried or governed by regarding fee sharing agreements. 8. The Internet I have seen the Internet from the beginning. It’s crazy to imagine what has taken place in the last 20 years. To go from typewriters, to keyboards, to magnetic cards, to floppy discs, to cloud storage and all the availability of information now is truly amazing. I think most all lawyers who once had or still have listings in the Yellow Pages or Martindale-Hubbell need to have a website. Business does come from the Internet. It may replace present day traditional and accepted ways or portals for obtaining business. But it also helps to confirm and support a client’s decision to hire you. I have an active website, and Facebook and Twitter accounts. I try to keep fresh information on them weekly. I have a quote of the day on my website regarding the Founding Fathers’ affirmations of the right to a jury trial and an independent judiciary. We try to keep new information coming in regarding community activities or accomplishments, sometimes just fun events that I or my staff have done. But, the goal is to keep people “liking” it and “friending” us. I have a website manager who is paid to take care of those things, and keep up with new trends. I think we need to keep an eye to the future and be ready and adaptable to changes in the practice of law. We need to be nimble enough to make
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• • • • • • • • • • • •
necessary changes, and try to make ourselves less vulnerable to economic downturns and political attacks on the jury trial. 9. Don’t Petunia on the People who Write the Checks This one is real simple. There is always someone on the other side of me who will decide whether to write a check in settlement of the case. We can have professional and advocacy-related disagreements and competition, but there is absolutely no reason to engage in personal, ad hominem attacks on our opposition because we think we are right and they are wrong. You see this in sports and politics all the time. You have to play that team again, or that player, or get that politician’s vote on the next issue. There is no sense, ever, in burning bridges. Example: I had a case with another lawyer once where we had settled at mediation for a six-figure number. Our client did have an expert bill outstanding that needed to be paid. It was less than three thousand dollars. However, the expert had somehow rubbed the claims manager for this self-insured defendant the wrong way. The claims manager said the whole settlement was off if he had to write that expert a check. I wasn’t sure what to do. My co-counsel, who was a lot quicker on his feet than me, quickly offered an alternative: How about the claims manager write the check to our client, and then let her pay the expert? “Sure,” said the claims manager. “As long as I don’t have to put that expert’s name on a check, that will work. Yeah.” So, don’t petunia on the people who write the checks! 10. Figure out Your Management Style and then Go Fix it I don’t know about you, but my undergraduate business and finance degree did 22
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not prepare me to be a good manager of people. Hiring, firing, retention, training, and all that goes with it was not anything I had a clue about. I had to learn the hard way. Hiring, firing and training costs money. Turnover costs money. Finding good people and rewarding and retaining them makes you money. So, spend some time, no . . . a lot of time . . . learning what human resources professionals know, and that is how to manage people. In a small firm or solo practice, we work with each other every day, every hour. We need good people skills. Your staff needs to know what is expected of them, and reminded occasionally. It’s not a lecture, but just a reminder of when things get off the track, this is the way we do it. Honesty is important, and it’s easy to say to be honest with people, but it requires skill to be honest with someone in a tactful and diplomatic way. It’s our law firm. We have a right for things to be done the way we want them done. We have a right to have people who work for us who will do things the way we want them done, no matter how they might have done things elsewhere. But, it needs to make sense to our employees that our way is a logical way. It doesn’t have to be the most logical way, or the way that seems most logical to them, but until proven otherwise, you are the boss and that is the way it is. Be firm. Be fair. Be honest. Be considerate. Be a good boss. Reward employees for good work and hard work. Time is money. Good, happy employees who feel like they are making a difference each day they come to work will help you make money. A poll conducted of 4,000 salaried employees asked them, “What are you looking for from your employer?” Guess which were the top five answers?
Making use of my abilities Fringe benefits A Sense of Accomplishment A Feeling of Achievement Pay A Feeling of Belonging Doing Challenging Work A Sense of Competence Recognition for Good Work Appreciation from Others Job Security Promotion and Advancement
If you guessed that promotion, fringe benefits, appreciation from others were the top vote getters, you are wrong. The top vote getters were “a sense of accomplishment”; “recognition for good work”; and, coming in at number three was “pay.” Yes. Pay was number three. People want a job where they feel like they are accomplishing something and that their good work is recognized. Remember this (but pay them too!) and you’ll be a better boss. It saves money, too. Conclusion Study the principles upon which successful businessmen and women base their careers. Study a little Eastern philosophy. If you see other lawyers who you admire or whose practices you admire, buy them lunch or drinks or pick up the phone and ask them what they do. They don’t mind talking about it, I guarantee. It’s flattering. Read the paper. Study trends. Pay attention to which businesses are doing well and which are failing. A down economy can affect the personal injury business. You may think that it should not. But, when the economy is down, people don’t have the disposable income to engage in the activities that can result in injury. They don’t have health insurance so they can’t afford to go to the doctor. If they have a job and health insurance and are injured, they don’t go to the doctor because they are afraid of losing their job. Everyone is affected. So, you have to be prepared to endure. You need a good business model for your practice not only for today but for the future. And, when times call for a change, you need to be able to recognize that change and adapt your practice. We need a vibrant economy for our civil justice system to work, and we need good lawyers who can endure when times are bad. ■
Civil Probate and Domestic
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
HOT SPRINGS CONVENTION CENTER
The Arkansas Bar Association held its 116th Annual Meeting and Joint Meeting with the Arkansas Judicial Council at the Hot Springs Convention Center June 1114, 2014. Over 1,200 attorneys, judges and guests attended the four-day meeting that was complete with CLE seminars, receptions and award ceremonies. See the complete photo gallery online at ace.arkbar.com/AnnualMeeting/ photogallery
2013-2014 Association President Jim Simpson and 2014-2015 Association President Brian Ratcliff
2014 JUNE 11-14th
Annual Meeting Chair David Fuqua, Keynote Speaker Mark M. Oâ€™Mara and Jim Simpson
Jim and Karen Simpson and 2013-2014 Arkansas Bar Foundation President Laura Hensley Smith
Judge Larry Vaught, Nancy Fogleman, Mary Guthrie, Susan and Judge John Dan Kemp, Judge Sam and Leanne Bird, Judge David Guthrie
Linda Womack, Susan and Mississippi Bar Association President Guy Mitchell, Patti and Jim Julian, Tom Womack
ABOTA Masters inTrial: John Tull, Judge Jay Moody, Jr., Kathleen Gallagher, John Rodman, Bruce Hurley, Michelle Browning, Steve Quattlebaum and Steve Quigley
Gwen and 2014-2015 Association President-Elect Eddie H. Walker, Jr. 24
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Arkansas Judicial Council President Judge Robert and Pam Edwards
Michael Moore and J. Shepherd Russell III
2014 Annual Sponsors
Bob Estes, Matthew Hass, David Williams, Andrew Russell, George Wise
top row l to r: James M. Scurlock, LaceeKee L. Badders, Dale B. Duke, Carla L. Miller; bottom row: Geoffrey D. Kearney, Michael R. Lipscomb, Andrew J. Russell III, Valerie L. Goudie, Patricia Wallace, James R. Wallace and H.C. “Jay” Martin
Mike Rainwater, Thom Diaz, John Rainwater, Denise Hoggard, Bob Sexton
Alie Koile, Jessica Poynter and Kimberly Eden
Arkansas Bar Foundation Arkansas Bar Patron & Benefactor Members Arkansas Trial Lawyers Association AY Magazine Bushman Court Reporting Civil Litigation Section Colbert & Scurlock, LLP Coplin, Hardy & Stotts PLLC Cornerstone Settlements Services, LLC CourtHouse Concepts, Inc. Cross, Gunter, Witherspoon & Galchus, P.C. Cypert, Crouch, Clark & Harwell, PLLC Dover Dixon & Horne PLLC Family Law Section Financial Institutions Law Section Friday, Eldredge & Clark LLP Frost, PLLC Fuqua Campbell, PA Hamlin Dispute Resolution, LLC Hilburn, Calhoon, Harper, Pruniski & Calhoun, LTD Hot Springs Convention Center Images James Law Firm Kirby & Rosalind Mouser Labor and Employment Law Section Legal Directories Publishing Co. LexisNexis Magna IV Communications Mainstream Technologies, Inc. Matthews, Campbell, Rhoads, McClure, & Thompson, P.A. McMath Woods, P.A. PPGMR Law, PLLC Quattlebaum, Grooms, Tull & Burrow PLLC Rainwater, Holt, & Sexton, PA Ramsay, Bridgforth, Robinson and Raley LLP Regions Insurance Group, Inc. Regions Private Wealth Management Rose Law Firm Simmons First National Bank TCPrint Solutions Tort Law Section Wallace, Martin, Duke & Russell, PLLC William A. Martin Windstream Womack, Phelps & McNeill, P.A. Wright, Lindsey & Jennings LLP Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
2013-2014 Arkansas Bar Association Award Recipients Bumgardner
Garland W. Binns, Jr., Dover Dixon & Horne PLLC, Little Rock, received a Presidential Award for his work coordinating the Legal Run Around 5k for many years. Carrie E. Bumgardner, Hyden, Miron & Foster, PLLC, Little Rock, received a Presidential Award for her work as co-chair of the Legal Forms Committee. Harold J. Evans, Williams & Anderson, PLC, Little Rock, received a Presidential Award for his work as co-chair of the Arkansas Bar Commission on Diversity. David M. Fuqua, Fuqua Campbell, PA, Little Rock, received a Presidential Award for his work as chair of the 2014 Annual Meeting. David Allen Grace, Hardin & Grace, P.A., North Little Rock, received the CLE Outstanding Contribution Award. Brad L. Hendricks, Brad Hendricks Law Firm, Little Rock, received a Presidential Award for his work as chair of the Professional Ethics Committee. Paul W. Keith, Gibson & Keith, PLLC, Monticello, received a Presidential Award for his work as chair of the CLE Committee. 26
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Kathleen M. McDonald, Beacon Legal Group, Little Rock, received a Presidential Award for her work planning the Wills for Heroes event. J. Cliff McKinney, Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, received the Frank Elcan II award for his outstanding contributions to the Young Lawyers Section. Harry Truman Moore, Goodwin Moore PLLC, Paragould, received a Presidential Award for serving as Co-Chair of the Judiciary Committee for many years. Aaron L. Squyres, Wilson & Associates, PLLC, Little Rock, received a Presidential Award for his work as chair of the Legislation Committee. Jordan B. Tinsley, Tinsley & Youngdahl, PLLC, Little Rock, received a Golden Gavel Award for his work as chair of the Mock Trial Committee. Vicki S. Vasser, Matthews, Campbell, Rhoads, McClure & Thompson, P.A., Rogers, received the Judith Ryan Gray Outstanding Young Lawyer Award. John Vines, Wood, Smith, Schnipper, Clay
& Vines, Hot Springs, received a Presidential Award for his work coordinating the golf tournament at the annual meeting for many years. Eddie H. Walker, Jr., Walker, Shock & Harp, PLLC, Fort Smith, received a Presidential Award for his work as chair of the Law School Committee. Outstanding Local Bar Associations: â€˘Pulaski County Bar Association â€˘Sebastian County Bar Association Arkansas Bar Foundation writing awards: J. Chad Owens received the award in the best legal writing category. Jack A. McNulty received the award in the best general writing category. Bob Estes received the award in the best general writing category. The Young Lawyers Section awarded three Awards of Excellence to: Matthew L. Fryar Joseph Wayne Price Sarah A. Sparkman
Arkansas Bar Foundation and Arkansas Bar Association 2013-2014 Annual Joint Award Recipients
Outstanding Lawyer Award
C.E. Ransick Award of Excellence Chief Justice Jim Hannah, Brian and Karen Ratcliff
Michael Huckabay, Sr.
Frank B. Sewall
of the Huckabay Law Firm, Little Rock, in recognition of excellence in the practice of law and outstanding contributions to the profession.
of Arkansas Blue Cross and Blue Shield, Little Rock, received the award in recognition of outstanding contributions to the profession.
Outstanding LawyerCitizen Award
James E. Crouch of Cypert, Crouch, Clark & Harwell, PLLC, Springdale, in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct.
Equal Justice Distinguished Service Award
Kim and Harold Evans
Harry A. Light of Friday, Eldredge & Clark LLP, Little Rock, received the award in recognition of his commitment to and participation in equal justice programs, including pro bono efforts through legal services programs. Harry Truman Moore with his artwork on display in the exhibit hall
James H. McKenzie Professionalism Award
Joseph Hickey of Thomas, Hickey, & Shepherd, LLP, El Dorado, received the award in recognition of sustained excellence through integrity, character and leadership to the profession and the community.
Special Award of Merit
Dâ€™lorah Hughes Associate Professor of Law, University of Arkansas School of Law, Fayetteville, received the award for her distinguished service and accomplishments to the profession.
Emily and Clara McIlawin Sprott and Jim and Jan Sprott
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
Unbundled Legal Services: A Revolution Whose Time Has Come
BY AMY DUNN JOHNSON The legal profession is in a state of unprecedented change. Experts predict that in the next 20 years, we will see the emergence of a legal industry that is radically different than the current establishment.1 A variety of factors are at play, including ones that threaten to disrupt legal business models that rely on the billable hour and the “all-or-nothing” approach to legal representation. Among these forces are: (1) the widespread availability of technology; (2) the inability of average Americans to afford prevailing fees for legal representation; (3) inadequate supply and distribution of attorneys who work in locations and practice areas where demand for low-cost legal services is high; and (4) a growing do-it-yourself (DIY) movement among the general public. A Changed Landscape Information Technology During the last decade, we have seen an explosion of information technology and its capacity not only to automate previously inefficient processes, but also to allow lawyers to practice in ways that simply were not possible in the past.2 One clear example is the near-extinction of book-based legal research in favor of computer-assisted research. This particular development has proven to be helpful to the profession, allowing for access to legal resources—anywhere, anytime—that are updated almost instantly.3 Other technologies have the potential to fundamentally alter the way that law is practiced.4 For example, automated document assembly technology allows for the generation of polished, customized first drafts of legal documents with user-provided
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answers to a set of questions; what once took hours to do can now be completed in a matter of minutes.5 Average Citizens Who Cannot Afford Legal Fees The growth in the number of low- to moderate-income Americans means that standard, full-service representation for routine matters is increasingly beyond what average citizens can afford. One in four Arkansans now lives at or below 125% of the federal poverty level, which is generally considered the financial eligibility standard for civil legal aid.6 An additional 17% of our state’s population lives between 125% and 200% of the federal poverty level, meaning that nearly half of Arkansans, if faced with a civil legal problem, would likely have to choose between paying for a basic necessity and paying an attorney.7 Our current legal market’s primary source of help for poor and near-poor individuals in non-fee-generating civil matters is legal aid and pro bono volunteers. These delivery systems are essential for Arkansas’s most vulnerable citizens; however, they are meeting only a fraction of the current need. Our state’s two legal aid providers—the Center for Arkansas Legal Services (CALS) and Legal Aid of Arkansas (LAA)—provide high-quality representation and assistance to as many as 15,000 Arkansans a year, despite having only 64 attorneys and paralegals statewide.8 In addition, 71% of Arkansas-licensed attorneys reported having performed some pro bono services in 2013, whether through legal aid or on their own.9 Still, CALS and LAA turn away half of all qualified clients who call for help
due to resource limitations.10 No organized source of support is available to moderateincome families who do not qualify for legal aid. It is therefore unrealistic, given current demand and resource limitations, to expect that we can provide a lawyer for every poor person, much less every person of modest means, who needs one. Inadequate Access to Lawyers One might think that a 431% increase in the number of new attorneys who have entered the workforce in the last 50 years11 would have resulted in the public having better access to legal representation. That is not the case—particularly among poor, rural communities, which face acute shortages in the number of practicing lawyers. For example, Arkansas’s 25 most rural counties average fewer than one practicing attorney per 1000 residents.12 The numbers are even more stark for the poor: for every legal aid attorney, there are approximately 17,568 income-eligible Arkansans.13 Meanwhile, recent law graduates are finding themselves unemployed or underemployed
AMY DUNN JOHNSON, is the Executive Director of the Arkansas Access to Justice Commission.
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
and law schools are seeing significant declines in enrollment.14 Growing DIY Movement Recent research from the Arkansas Access to Justice Commission suggests that Arkansans who cannot afford legal services are resorting to self-help in growing numbers. A 2011 study conducted in partnership with the Clinton School of Public Service suggests that unrepresented litigants initiate between four and 10 domestic relations cases, while nine in 10 do not have an attorney appearing for the respondent.15 Financial and housing cases are almost universally initiated by an attorney, with nine in 10 having no lawyer to defend the matter.16 Not surprisingly, litigants left to flounder without representation in these lifealtering predicaments lose confidence in the justice system as a whole, making them less likely to comply with court orders or even rely on courts to resolve legal problems.17 This problem is not unique to Arkansas. The Cardozo Law School-based “Justice Index” indicates that more than 80% of litigants nationally appear without a lawyer in such important civil matters as debt collection, child custody and support, foreclosures, and evictions.18 The American Bar Association’s 2014 World Justice Project Rule of Law Index shows the United States ranking 65th out of 100 countries for access to and affordability of civil legal services and the lowest among all industrialized nations surveyed.19 The trend toward self-representation is not only indicative of the growing inability of average Arkansans to afford legal representation, but it is also the result of a flourishing DIY movement among the lay public occasioned by the widespread availability of information on the Internet.20 Consumers now feel empowered to handle their own personal and professional transactions, from selling real estate to purchasing airline tickets. They understand that if they handle some of the legwork involved in these transactions, they can procure products and services at more affordable prices. They can research their options and gather information about the cost and quality of what they are purchasing. The legal profession is now finding itself subject to these same forces.21 Regrettably, lawyers have done little to respond to these trends. Instead, non-lawyer document service companies such as LegalZoom, Nolo, and Rocket Lawyer have stepped in to fill the void. LegalZoom alone 30
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boasts two million users over the past 12 years, earning it hundreds of millions of dollars.22 These companies are responding to a clear and significant demand from the public for affordable legal help. They are, however, no substitute for the skilled counsel of a trusted attorney. Until we as lawyers offer a viable alternative, we run the risk of becoming irrelevant.23 A Private Market Solution The most realistic solution for attorneys desiring to adapt to these trends is to consider incorporating unbundled legal services into their practice. Often referred to as “limited scope representation,” or “a la carte legal services,” this model of delivering legal services has been implemented in other states—Alabama, Alaska, Mississippi, and Montana, for example24—but few, if any, Arkansas attorneys have actively developed this business model. Unbundling is the delivery of legal services where various tasks associated with a legal matter are broken down so that the attorney represents the client only for a clearly defined part of the client’s needs, and the client accepts responsibility for handling the remainder until its conclusion.25 Arkansas Rule of Professional Conduct 1.2(c) authorizes Arkansas attorneys to provide this form of representation. That rule provides that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Common examples include document drafting for nonlitigation matters, “ghostwriting” pleadings for a specific case, limited court appearances, organizing discovery materials, drafting contracts, and legal coaching.26 Unbundling allows clients—who would likely avoid consulting a lawyer at all—to obtain the services they want and need for aspects of the case that require legal expertise, and otherwise handle the more routine aspects themselves. It also opens up to lawyers a market that has previously been nonexistent or unprofitable. Many clients who are unable or unwilling to pay $1,000 for an uncontested guardianship would be willing to pay $200 to consult with an attorney to prepare for the hearing and, as a result, be equipped to effectively complete the matter. The attorney will have been able to provide a valuable service at the equivalent of her hourly rate without acquiring an account receivable. Unbundling is not appropriate for all cases; complex child custody cases and criminal cases
do not lend themselves to this form of representation.27 Furthermore, unbundling cannot be a substitute for full representation in cases where the legal issue is simply too complex or the client is incapable of understanding or participating in the representation. Such matters—if they involve a person of limited means—will be most appropriate for handling by a legal aid or pro bono attorney. Attorneys who deliver unbundled legal services are subject to the same ethical obligations as attorneys who handle legal matters from start to finish. Unbundled legal work should be performed diligently and competently; it is not second-rate service, nor is it limited liability.28 Many attorneys express concern over whether unbundling increases malpractice exposure. Provided that an attorney who offers limited scope representation follows recommended best practices—such as a good client intake process, conflicts screening, written engagement agreement, written confirmation of completion of a matter, and good customer service—insurers generally consider unbundling to present no additional risk.29 Other concerns about unbundling include how to handle communications with a pro se litigant who is represented by counsel for part, but not all, of a case; the extent to which ghostwriting is permitted and whether it should be disclosed to the court; and whether judges will honor limitations on the scope of representation and allow withdrawal. A number of other states have addressed these concerns by adopting modifications to their rules of professional conduct and civil procedure to provide clear guidance on these matters.30 The Arkansas Access to Justice Commission approved a plan in 2013 to address the legal needs of self-represented litigants, and unbundling was a key recommendation to come out of that report.31 Since that time, the Commission has created a Task Force on Self-Represented Litigants to implement the report’s recommendations, including the promotion of unbundling in Arkansas. The Task Force is developing proposed amendments to existing rules of professional conduct and rules of procedure to provide clearer guidance on limited appearance, ghostwriting, and communications between attorneys and pro se litigants. The Task Force will seek input from the bench and bar regarding these recommendations in the coming months. Unbundling is not a cure-all for everything that ails the present-day legal market. But it is
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
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a substantial step in the right direction. Endnotes: 1. See, e.g., Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (2013). 2. Id. at 13. 3. See Sanford N. Greenberg, Legal Research Training: Preparing Students for a Rapidly Changing Research Environment, 13 Legal Writing 241, 261 (2007). 4. In management theory, distinctions are drawn between “sustaining” and “disruptive” technologies. See, e.g., Susskind, supra note 1, at 39. “Sustaining” technologies, such as computer-assisted legal research, sustain and enhance the research that lawyers once did using books. “Disruptive” technologies, much like digital camera technology that replaced chemical photo processing, fundamentally challenge prevailing business models. Automated document technology is generally considered to fall in the latter category. Id. at 40. 5. Susskind, supra note 1, at 41. 6. According to the U.S. Census Bureau’s 2012 American Community Survey, 737,852 Arkansans live at or below this threshold. U.S. Census Bureau, Poverty Status in the Past 12 Months, 2012 American Community Survey 1-Year Estimates, http://factfinder2. census.gov/faces/tableservices/jsf/pages/ productview.xhtml?pid=ACS_12_1YR_ S1701&prodType=table (last visited May 23, 2014) (hereinafter “American Community Survey”). For a family of four, 125% of the 32
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federal poverty level amounts to just over $29,000. See U.S. Dep’t of Health & Human Services, 2014 Federal Poverty Guidelines, http://aspe.hhs.gov/poverty/14poverty.cfm (last visited May 23, 2014). 7. See American Community Survey, supra note 6. 8. 2013 Annual Justice Partners Report, http://www.arkansasjustice.org/annualreports (last visited May 23, 2014). 9. These numbers are based on the most recent aggregate data compiled from selfreports submitted by attorneys who were returning their Annual IOLTA Compliance Statements to the Clerk of the Arkansas Supreme Court. Results are on file with the author. 10. 2013 Annual Justice Partners Report, supra note 8. 11. ABA, Be the Change, http://www.americanbar.org/groups/leadership/office_of_the_ president/legal_access_jobs_corps/video1.html (last visited May 20, 2014). 12. See Lisa Hammersley, More People Acting as Own Lawyers, Losing, Ark. DemocratGazette, at A1 (Mar. 16, 2014). 13. This calculation is based on a total of 737,852 Arkansans whose income is within 125% of the federal poverty level, according to the 2012 American Community Survey cited in note 6, divided by 42 full-time equivalent attorneys who work for CALS or LAA. 14. See Hammersley, supra note 12. Employment Summary Reports generated for the 2013 graduates of the UALR Bowen School of Law and the University of Arkansas
School of Law for 2013 indicate that about 62% of 2013 Arkansas law school graduates are employed in jobs that require a juris doctor. See ABA Section of Legal Education & Admissions to the Bar, Employment Summary, http://employmentsummary.abaquestionnaire.org/ (last visited June 2, 2014). 15. See Chanley Painter, Exploring the Problem of Self-Represented Litigants in Arkansas Civil Courts, at 16 (2011), www.arkansasjustice.org/ research (last visited May 19, 2014). A total of 50,899 domestic relations cases were filed in Arkansas in 2011. 2011 Arkansas Judiciary Annual Report at 27, https://courts.arkansas. gov/sites/default/files/2011%20Annual%20 Report.pdf (last visited May 19, 2014). 16. Painter, supra note 15, at 16. 17. See Christina Llop, Addressing the Needs of Self-Represented Litigants in Alabama Courts 13 (May 2009), http://alabamaatj.org/wp-content/uploads/2013/08/Alabama-Final-ReportSRL-Services.pdf (last visited May 19, 2014). 18. National Center for Access to Justice at the Cardozo Law School, The Justice Index, http://www.justiceindex.org/findings/self-represented-litigants/ (last visited May 19, 2014). The study’s composite index ranks Arkansas 37th in the nation on indicators related to the degree to which state courts have adopted best practices for dealing with self-represented litigants, Arkansas ranks 48th. 19. World Justice Project Rule of Law Index, http://worldjusticeproject.org/rule-of-lawindex (last visited July 21, 2014). 20. See Stephanie Kimbro, Limited Scope Legal Services 1 (2012). 21. Id. at 14-17. 22. See LegalZoom, www.legalzoom.com (last visited May 19, 2014). 23. See Jordan Furlong, Foreword to Kimbro, supra note 20. 24. See, e.g., Mont. R. Civ. P. 4.2, 4.3, 11(b); Mont. R. Prof’l Conduct 1.2(c), 4.2(b), 4.3(b). 25. Kimbro, supra note 20, at 4. 26. Kimbro, supra note 20, at 4-5. 27. Kimbro, supra note 20, at 6. 28. M. Sue Talia, Roadmap for Implementing a Successful Unbundling Program, http://www. courts.ca.gov/partners/documents/Roadmap. pdf (last visited May 21, 2014). 29. See, e.g., Kimbro, supra note 20, at 34-35. 30. See, e.g., Mont. R. Civ. P. 4.2, 4.3, 11(b); Mont. R. Prof’l Conduct 1.2(c), 4.2(b), 4.3(b). 31. John M. Greacen, Services for SelfRepresented Litigants in Arkansas: A Report to the Arkansas Access to Justice Commission (July 26, 2013), www.arkansasjustice.org/research (last visited May 21, 2014). ■
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PRESERVE Vol. 49 No.3/Summer 2014 The Arkansas Lawyer 33
THE JURY TRIAL
PRACTICE TIP Ten Tips on How to Manage Staff in a Law Firm of Any Size
BY DEDE GOVIA Being an attorney certainly has its challenges. You worry about your long days, your billable hours, and your search for new clients. Beyond these professional challenges, though, you also have to manage your office, and managing your staff can easily take up a large part of your day. Your staff should be one of your biggest assets, but turning them into an asset takes proper management. The following are a few tips to optimize your management of staff, regardless of the size of your firm. Respect the Position Nonattorneys deserve to be treated with as much respect as your attorney colleagues. Just because your staff members do not have a law degree does not mean their role in the firm is without value. In fact, without staff positions, you would not have the support you need to do your job effectively. When there is a great deal of turnover in the support staff positions, we routinely see higher burnout for attorneys. Showing respect can go a long way in helping staff enjoy their jobs, all while making your job easier. Respect the Person Have you ever heard that you can tell a lot about people by the way they treat their waiter? The same is true when it comes to how bosses treat their staff. Treating staff with respect is the best way to ensure quality work. If employees feel like they are being treated disrespectfully, they will not do their best work. Don’t be condescending, don’t be rude, and don’t have unrealistic expectations. In other words, be nice—genuinely nice all the time and not just when you need something. Trust me—your staff talk, and when you are respectful, people will work harder for you. Lead by Example This should go without saying, but people find it easier to work for people they
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respect. Don’t yell and scream at your staff and then get upset when they don’t treat you or others with respect. Let them see you performing at your best so they will want to do the same. People work harder for people they like and respect. Clearly Communicate Goals and Expectations When people don’t meet your expectations, tell them. When they do, tell them that, too. Address a problem when it first arises—not after it escalates. Ask for Ideas Giving staff the freedom to express their ideas will improve efficiency. After all, they most likely know a few tricks that can make your life easier. Of course, not every idea has to be adopted, but when staff feels like their ideas matter, they become more loyal and develop a sense of ownership. Make Time for Training on the Front End Don’t be too busy to train your staff on the way you like to have your work done. When a new employee starts working for you, take time to go over your expectations so that you don’t have to waste time fixing avoidable mistakes. Careful training is an investment that will pay off. Say Thank You Yes, some employees want a pat on the back and a check in hand, but others are just as flattered by a simple thank you or public recognition. When employees do a good job, tell them. If you win a case you couldn’t have won without them, tell them. If their work saved you from pulling an allnighter, tell them. Better yet, tell the whole staff how much that one person or several people helped you. It inspires others to do the same, and your entire practice will be better for it.
Give Feedback More than Once a Year Do not wait until the evaluation process to provide feedback. An individual may not know that improvement is needed and will continue to make the same mistakes until they are told otherwise. On the flip side, if positive feedback is warranted, give it! Acknowledging good work will improve morale and encourage quality work. Positive feedback is positive reinforcement. No one should EVER be surprised during their annual review. Do Better than “Fair” Sometimes it’s easy to recognize all staff with the same percentage raise, or to give everyone the same bonus. However, if one person consistently hits deadlines, meets goals, stays late until the job is done, and exceeds expectations but others do not, rewarding all of them evenly does everyone a disservice. It demotivates the person who is going above and beyond and rewards the person who isn’t giving his or her all. So while it may look fair from a distance, really examine if you are giving rewards based on behavior or just because people are showing up. Utilize Your Resources If your law firm has a human resources professional, employ that person in a strategic role, not just an operational one. Your HR professional should know your firm vision and strategies and should use this knowledge to determine appropriate staffing needs, match the right person for the right job, and provide counsel to address issues while focusing on the current/future business model. Keep your HR professional informed of any staff issues and trust him or her to handle the staff problems accordingly. Just be sure to support his or her decision. Dede Govia is the Director of Human Resources at Wright, Lindsey & Jennings LLP.
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425 West Capitol Avenue, Suite 3300 | Little Rock, Arkansas 72201 | frostpllc.com Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
CREATING DOCUMENTS WITH ARKBAR DOCS BY CATHY UNDERWOOD
ARKBAR DOCS IS A LIBRARY OF OVER 180 LEGAL DOCUMENTS compiled, endorsed and copyrighted by the
Arkansas Bar Association that have been automated using HotDocs. These templates ask questions and automatically create customized documents based on the answers given. ArkBar Docs retains client information to make future documents easier and more efficient. This annual subscription service will save time, effort and money in the production of repetitive documents and forms. ArkBar Docs includes lots of time saver features. It allows you to create multiple documents at one time, so you only have to enter the information once. It contains drop-down boxes for frequently-entered information, which saves data entry time. The templates never change, so you donâ€™t have to spend time proofing and re-proofing. It allows you to save your answer files, so the next time you prepare documents for that client, the form will CATHY UNDERWOOD is an attorney/ auto-populate with any data youâ€™re already entered. ArkBar Docs will be legal editor in Little Rock, Arkansas, and a full-time periodically updated, and updating your copy is easy. Any time an update instructor in the paralegal prois available, you will see a flashing yellow icon in the lower righthand gram at Pulaski corner when you launch the program. Click on it, and it updates autoTechnical College. matically. For a complete list of available forms, visit http://ace.arkbar.com/ She has served as a consultant for arkbardocs/formlist. the Arkansas Bar To learn more about using ArkBar Docs, register for our next webinar on Association for the Wednesday, August 27, at 11:00 a.m. The webinar is free. Please RSVP to past 30 years. firstname.lastname@example.org. 36
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Documents are created in ArkBar Docs in three easy steps: 1. Choose your form 2. Answer the questions 3. Click to send to your word processor
1. Choose your form Let’s look at the Petition for Appointment of Temporary Guardianship, which is located under the Guardianships folder. When you double-click to open it, a dialog box will appear that asks if you want to use an answer file that you have already created, or start a new answer file. If you have already prepared documents for this client, and saved the answer file, simply click on the appropriate answer file and all the information you have previously saved will be available for this document. If this is the first time you’ve worked on documents for this client, click on “New Answer File.”
2. Answer the questions Now we simply answer the questions. Notice the question that asks for the gender of the incapacitated person. Once you answer this question, the document automatically populates with the correct form of his/her, he/she, etc.—a great time saver! Click through each category, and answer the questions provided. If you are using a previously-saved answer file, many of the answers will already be answered.
3. Click to send to your word processor When you have answered all the questions, click on “End of Interview,” and this is the screen you’ll see. Notice in our example it advises we have three unanswered questions. If we click on the first option, we are taken directly to the first unanswered question. If we’re done with the document, click on the second option to send it to your word processor. The document is now a Word file (or WordPerfect, if that is the option you chose when you installed ArkBar Docs). It can now be edited, printed, or saved, just as any Word document. When you close the assembly screen, you are even prompted to save the document. Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
ARKBAR GOVERNANCE REPORT ARKBAR’S HOUSE OF DELEGATES WRAP UP ANNUAL MEETING
BY KAREN K. HUTCHINS President Jim Simpson chaired the Association’s House of Delegates meeting during the 116th Annual Meeting held at the Hot Springs Convention Center in June. The House took action on several items. The House adopted an advertising policy which will apply to both publications and the Association’s website. It provides guidelines on advertising content. Prohibited content includes political or religious ads, ads for illegal activities, and ads that offer programs or services that are in direct competition with the Association’s offerings. Copies of the policy are available through the Association’s office. Shana Woodard, Co-Chair of the Arkansas Bar Commission on Diversity, presented a recommendation from the Board of Governors to adopt a set of “Diversity Principles.” Ms. Woodard explained that this was one of the important goals set forth in the Association’s Strategic Plan. The House voted unanimously to adopt the principles.
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The House of Delegates districts selected representatives to the Legislation Committee and House Advisory Committee. The Legislation Committee representatives elected were: Kristen Pawlik (District A), Cliff McKinney (District B), and Sterling Taylor Chaney (District C). The House Advisory Committee representatives elected were: Josh McFadden (District A), James Hathaway (District B) and Roger Colbert (District C). Tom Curry was re-elected to serve as Secretary and Shaneen Kelleybrew Sloan was re-elected to serve as Treasurer. The 20142015 Board of Governors Chair is Anthony A. Hilliard, the Parliamentarian is Leon Jones, and Paul Keith will serve as the 2014-2015 Annual Meeting Chair. The House voted to adopt the Association’s 2015 Legislative package which included six proposed bills. The topics addressed by the bills include: online access to the Arkansas statutes; attorney exemption from the Arkansas
Title Insurance Act; reorganization of the venue statutes; limited liability for minors; criminalization of the unlawful distribution of images; and the Uniform Partition of Heirs Property Act. Chair Don Hollingsworth presented recommendations from the Governance Committee for an amendment to the Association By-Laws to increase the Legislation Committee from nine to 11 voting members. The motion was approved unanimously. The Association’s Mid-Year Meeting will enjoy new programming and events as it moves to the Capital Hotel in Little Rock on February 19 and 20, 2015. The House of Delegates meeting will be held on Friday, February 20, at the Double Tree Hotel in Little Rock. Join us for a wide variety of CLE and a grand reception at the Clinton Center.
KAREN K. HUTCHINS, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
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425 West Capitol Avenue, Suite 3300 | Little Rock, Arkansas 72201 | frostpllc.com Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
EXPERIENCE Words of Wisdom on Leadership from Past ArkBar President, Wayne Boyce
BY WAYNE BOYCE
When Past Presidents of the Arkansas Bar, Donna Pettus and Rosalind Mouser, asked me to write about my being Bar Prez a few years ago, I was bollixed. Donna’s letter asked me to “include encouragement or advice or tall tales or real tales or reflections... What was it like? What did you gain from the office? Perhaps what you wish you had done but didn’t. Any reflections you feel useful or inspiring or appropriate.” I have always tried to do anything asked of me by the Bar, but I knew I needed help. I found what I needed at the Bar Center where the always competent and helpful staff guided me to all the files and records of “My Bar Year.” The summer of 1978 was a red-hot political season. Not only was Governor David Pryor running against Ray Thornton and Jim Guy Tucker to fill the U.S. Senate vacancy caused by the death of John L. McClelland the year before, but Attorney General Bill Clinton was making a race against a full field in his first try for governor. None of this was nearly as important to a new Bar Prez as was the proposed Amendment 58 that would create a shiny new appellate court for Arkansas. As President-Elect of the Bar, I had done what anyone faced with big problems ought to do; I went to a good lawyer. Phil Carroll, my debate colleague at the University, agreed to be my Chairman of the Executive
Committee. My thought was that since I lived in Newport while Little Rock was the center of legal and political activity, the Bar ought to have a top leader in the Capitol City. That proved to be correct, and I am eternally grateful to Phil for making my Bar year successful. It seemed that everywhere Phil and I went at that June Bar meeting, we encountered the Chief Justice and one or more of the Supremes wanting to speak first on behalf of proposed Amendment 58 to create an inferior appellate court that would take much of the too-heavy load off the top court. While Phil and I agreed a new court would be a good thing, nothing could persuade the judges to restrain themselves. The Justices reasoned rightly that 2,000 lawyers had a lot more political clout than seven judges. The Bar leaders urged the lawyers to advise their clients to vote “Yes” on the new Court of Appeals. All that summer we encouraged the lawyers and they urged their clients to vote “For” on the new court. On November 7 at the general election the new Court of Appeals was approved by a whopping 2 to 1 out of the nearly half million votes cast. Shortly after the election, Phil and I met with the Supreme Court in their conference room to discuss drafting the necessary enabling legislation. One after another said they were too busy to think about that.
WAYNE BOYCE served as President of the Arkansas Bar Association in 1978-1979.
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Despite our urging that the Legislature would be meeting in a few weeks, they demurred. Ultimately Phil Carroll said, “Well, we understand how busy you are. That is why we worked so hard to pass Amendment 58. But we can handle that; we will just get Dean Robert Leflar down from Fayetteville and a few other good lawyers and draft the legislation ourselves.” Thereupon the Court reversed itself. Suddenly they had time to start at once drafting their ideas for the legislation. In February, the Arkansas Legislature passed a bill which Governor Clinton signed into law creating the brand new Arkansas Court of Appeals. I had been doing Bar work a long time before I was elected Bar Prez. Gaston Williamson appointed me to his Executive Council in 1968. I hope this honor was inspired by the work I had done on the Arkansas Penitentiary Study Commission by the appointment of Bar Prez Maurice Cathey in 1967. Winthrop Rockefeller always thought I was a Republican because he signed my commission, but I have always been a staunch Democrat. Over that 10 years between 1968 and 1978, I saw that the work of a bar president was threefold: you finished some bar projects others had started years before; you started some projects that you hoped someone else would finish in years to come; you were fortunate indeed to start and finish even one project within the 12 months you were bar president. Amendment 58 and the creation of the Court of Appeals was my one project. Colonel C.E. Ransick was the Executive Secretary of the Bar. He had been the Chief Justice of the nation’s highest military court. He discovered on retirement that his young
family’s education required him to seek additional compensation, and the Arkansas Bar was fortunate enough to employ him. He was a great asset to the Bar, and an invaluable aide to me. He never lost his military bearing and precision, but once a decision had been made, he followed orders like any good soldier. Jack Deacon may have been the Bar Prez who hired him. Col. Ransick always called him “Mr. Deacon.” After working with him closely for several weeks, Deacon said, “Colonel, we have gotten pretty well acquainted; why don’t you call me Jack like my other friends do.” “Very well, Jack,” the Colonel, replied. “What shall I call you?” Deacon asked. “Just call me Colonel,” he said. I had watched Henry Woods do a marvelous job of getting favorable action on the Bar’s bills by the Legislature. Henry and perhaps others were responsible for getting some structure for the Bar package, the legislation the Bar especially wanted to pass. Henry had been involved in Arkansas politics and government so long that he didn’t need a lobbyist to help, but I did. Jim “Catfish” Rhodes had been employed to lobby the Bar package and look out for our interests. “Looking out for our interests” has an ominous sound to it, but one must understand the great truth embodied in the aphorism, “A politician is like a cockroach. It’s not how much he eats that matters. It’s what he falls into and messes up.” One of Catfish’s big jobs was to keep the cockroaches out of the cornmeal. I knew 1979 was going to be my legislative year, and I was forever appreciative of the structures that had been established by my predecessors. It is not enough for one to have good work done before him; to be his most effective the Bar Prez needs to know what those structures are and how to use them most effectively. In 1978 the various committees and interested lawyers had presented for inclusion in the package nearly 100 bills. These had gone through the Bar Legislation Committee chaired by David Blair, scrubbed, sanitized, combined and ultimately presented to the Executive Council for further scrutiny before going before the House of Delegates for approval or rejection. In September of 1978, I presented the 45 surviving measures to the House. Thanks to an innovation suggested by Charlie Carpenter, I ran a docket call on all of them, set aside those on which there was no controversy and then conducted an item-by-item consideration of the 17 remaining. The thing
D DAVIS, CLARK, BUTT, CARITHERS & TAYLOR, PLC is pleased to announce that
K. Drew Devenport and Andrew D. Curtis have joined the firm as associates. K. Drew Devenport was raised in Kansas City, Missouri. He graduated from Rockhurst University with a Bachelor of Arts in Political Science and Business Administration. In 2012, he received his Juris Doctor degree from the University of Arkansas School of Law. In law school, he served as both a student-attorney and research assistant in the Immigration Clinic. Since his graduation from law school, Drew has concentrated on representing clients on a wide variety of immigration issues, ranging from family-based immigration applications to representing clients in the Immigration Court located in Memphis, Tennessee. His main focus within the firm continues to be immigration law where he provides a variety of immigration services and representation to the local community. Drew practices in the firm’s Springdale immigration office. Andrew D. Curtis grew up in Wickes, Polk County, Arkansas. He received his Bachelor of Arts degree Summa Cum Laude from Ouachita Baptist University where he was a Pew Scholar. He took a Master’s degree in History from the University of Arkansas before attending the University of Arkansas School of Law where he received his Juris Doctor degree, Cum Laude in December 2013. While obtaining his Master’s degree, Andrew interned with McLarty and Associates in Washington, D.C. In law school, Andrew served as a member of the Journal of Food Law and Policy and the Jessup International Moot Court Competition Team; as well as a student-attorney in the Transactional Clinic. In addition to his successful clerkship at the Davis Law Firm, he interned with Washington County Circuit Judge Joanna Taylor, Wal-Mart, and the Office of the Arkansas Attorney General. Andrew will work in all areas of the firm’s general practice.
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that made me feel good about this was we got it all done in 2 hours and 15 minutes. I had completely forgotten that feat of parliamentary performance until I recently read the minutes of that House meeting. I hate draggy meetings. I especially hate those where people repeat what has already been well said. Even worse are the speakers who, intoxicated by the exuberance of
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their own verbosity, leave the subject entirely and soar off in foggy clouds of verbiage. There are parliamentary ways to cut this down. Every Bar Prez ought to reread Roberts Rules of Parliamentary Procedure a time or two. Much of the time of the Bar Prez is consumed in trips out of state to meetings of the bar in other states, especially other states
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
that belong to the Southern Conference of Bar Associations, and to the meetings of the American Bar. It was at a meeting of the ABA that I received the Award of Merit to the Arkansas Bar for the work ArkBar had done in writing and publishing the “Systems,” a series of loose-leaf notebooks that were part outline, part form book, part course guide for various fields of law. A lot of work went into those books and the ABA thought Arkansas had led the whole country in an innovative way to better law practice. I had nothing to do with the envisioning, creation or publication of the Systems. I simply was the Bar Prez-Elect at the Chicago meeting who received the award on behalf of the Bar in the absence of then President Walter Niblock, and got my picture taken with the President of the American Bar. In like manner, I learned about Interest on Lawyers Trust Accounts at some ABA meeting. I brought this idea back to Arkansas as a way to fund Legal Services for the indigent. The project bounced around for several years before it took its present form as a way to help finance some needed legal service for those who weren’t being served by the profession. I enjoyed the traveling to other states where I was made an Admiral of the Kansas Navy, an Honorary Citizen of Mississippi, and a Kentucky Colonel. The latter title was awarded only after taking an oath to never drink anything but bourbon whiskey, which pledge I took with my fingers crossed. Because Arkansas is so similar to the other southern states, I thought the Southern Conference was the most helpful. The other southern states have our problems, limitations and resources, and the solutions they have essayed can enlighten the path for us. Besides, Southerners give better parties and have more fun. I heard other Bar Presidents groan about how the best job in the bar was being Past President. I never felt that way. I enjoyed every minute of it. I really hated for it to end. Well, that is not quite true. There were times when even I had my patience tried. At some meeting of the American Bar for Officers and Executives Colonel Ransick and I were sitting near the back of the hall with
a couple of hundred other Big Bar Leaders. The idiots in charge of that program in a misguided effort at novelty fixed the format so that instead of giving information from the stage to the crowd, they asked questions from the stage for the audience to answer. Novel is okay for 15 minutes, but this charade had gone on over an hour. It was approaching the cocktail hour. I was bored by people giving impromptu answers. “Alright,” the endless master of ceremonies said, “here is another one. I need a prosecutor to field this one. A citizen comes into your office and complains about his neighbor making so much noise with his amplified electric guitar that he can’t stand it. You tell him you’ll think about it. Later the same day the neighbor with the loud electric guitar comes in and complains about his annoyed neighbor’s dog that is ruining his shrubbery by urinating on it. He wants you to stop it. And the question is, What do you do about it, Mr. District Attorney?” Nobody rose to answer. He repeated it and waited. Having been a prosecuting attorney, I finally took the mike. “The answer is: tell him to put his electric guitar in his shrubbery. With any luck the dog will urinate on the electric guitar, and that will short circuit both of them.” The laughter broke up the house. I went back to my seat despite the questioner’s pleas for more dialogue with me. The meeting ended, and Col. Ransick acted like he didn’t know me. It was at a later session of this same ABA meeting in Chicago that I heard a Delegate from Ohio give a report on the desperate condition of “No Fault Insurance.” This plan hatched up by the liability insurance companies would require everyone to carry a policy of insurance to cover his own damages regardless of how innocent he was and how miserably guilty the party who ran over him was. Obviously this meant lots of new premium dollars for the insurance companies, elimination of a field of law practice, reduced income for the trial bar, and great injustice upon the traveling public heartlessly hurt by the careless driver. The speaker was almost wild eyed as he assured the lawyers that, “The No Fault train is going full throttle for the crossing and
it is only five minutes till midnight.” The Bar had appointed Bobby McDaniel a one-man committee to do what he could to derail No Fault. At the first meeting of the Executive Council in the summer of 1978, Bobby reported that he and similar delegates from other states had met in Chicago, planned their strategy, descended en masse on Washington, called on every Congressman and Senator and expressed the vigorous opposition of the Bar to this legislation. No Fault was derailed and never heard from again. I was very impressed by Bobby McDaniel. I was also impressed by the powerful use of one-man committees. To the Congressmen, 50 lawyers descending on the Hill must have looked like the French charging the Bastille. I never hesitated to call on Arkansas’s delegation and vigorously express the position of the Arkansas Bar. My old college friend Dale Bumpers and my neighbor Kaneaster Hodges were in the Senate; Took Gathings, Wilbur Mills, Oren Harris and John Paul Hammerschmidt were in the house. John Paul, the lone Republican, had the best staff and unfailingly and quickly answered all my mail. Some of the others had to be stimulated by telephone. My Bar Year was a wonderful experience. My wife, Phyllis, was an invaluable assistant. If an event called for some new role for her, she always said, “Don’t worry. Judith and I will work it out,” and they did. Judith Gray was a great friend to both of us, and I appreciated so much what she did for Phyllis and for me. Donna Pettus’s letter suggesting I write this asked me to name the thing of which I am the most proud. That’s easy. I am most proud of the lawyers of Arkansas. Lawyers are the best company. The most fun to talk to, party with, listen to. They are the leaders of their communities and collectively of the state. They are responsible, trustworthy and honorable. They are widely read, experienced in the ways of the world, and interesting companions. Only a few take themselves seriously enough to become pompous judges, and even most judges are pretty good company. Being President of the Arkansas Bar Association is the best job in the world. ■
Weekly Case Summaries of significant Arkansas Supreme Court and Arkansas Court of Appeals decisions provided each week to members only in the weekly e-bulletin. 42
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ARKANSAS SUPREME COURT HISTORICAL SOCIETY
William King Sebastian —Justice and Senator
BY J.W. LOONEY Justice Sebastian
William King Sebastian, for whom Sebastian County is named, was one of the state’s most interesting political figures. He is better known for his service as a United States senator than as a justice on the Supreme Court, but in his relatively short time on the court he was involved in resolving some of the most contentious issues to reach the early court. Sebastian was born in Centerville, Hickman County, Tennessee, in 1812 and attended Columbia College in Tennessee graduating in 1834. He came to Arkansas from Tennessee in 1835 at age 23. He settled first in Monroe County then moved to Helena where he practiced law and served as prosecuting attorney in 1836-1837 and Circuit Judge from 1840-1843. There he also prospered as a cotton planter, married Amelia Dunn in 1838, and reared five children. When Justice Townsend Dickinson’s term ended on the court in 1842, he was replaced by George W. Paschal who took office in 1843 but served only about six months before resigning to move to Texas. Sebastian was appointed by Governor Archibald Yell to serve until the legislature could meet. He served the remainder of 1843 and all of 1844. Although he wished to continue on the court, the legislature selected Williamson S. Oldham for the seat. Sebastian was elected to the Arkansas Senate in 1846 and then selected by the legislature in 1848 to fill the seat of Chester Ashley in the United States Senate, defeating Oldham in the balloting. He was subsequently elected for two additional terms. Based on the secession of Arkansas from the Union and his failure to attend a special session of Congress on July 4, 1861, he was expelled from the Senate July 11, 1861. He did not resign from the Senate and apparently gave some thought to returning as the war progressed, apparently encouraged by President Abraham Lincoln to do so. In the end he chose to remain in Helena for a 44
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time, then moved to Memphis. One of Sebastian’s important opinions on the court was the third and final decision on the question of whether the state owed any obligation to Thomas Williamson, who, along with Senator Ambrose H. Sevier, had been appointed commissioners to sell bonds of the Arkansas Real Estate Bank in Washington.1 Sebastian, joined by Justice Thomas Lacy, with Chief Justice Ringo dissenting, relieved the state of responsibility by refusing to change the original decision as set out by Justice Townsend Dickinson in July 1842. Later in the year the court pronounced that the corporate existence of the Real Estate Bank had ceased since it had failed to exercise its franchise as chartered.2 In an era which historian Lawrence Friedman has characterized as “extreme fussiness,” where courts often elevated form over substance, Sebastian recognized the necessity of careful analysis. We would not permit matters of form to be disregarded when their observance protects any legal and important right or privilege. In such case, form is substance, and so intimately connected and blended together that one cannot be invaded without impairing or destroying the other.3 The particular case involved an indictment for murder in which the language used was “against the peace and dignity of the people of the State of Arkansas” rather than the mandated “against the peace and dignity of the State of Arkansas.” While recognizing the importance of form, Sebastian thought this slight deviation was but a “redundancy of words” and an “excess in form” which was “subsidiary to the ends of justice.” Justice Ringo, always concerned with technicalities, would have reversed on the basis of failure to comply precisely with the constitution.
Courtesy of Library of Congress Prints and Photographs Division
Sebastian died May 20, 1865, in Memphis in failing health, insolvent and a widower. His home in Phillips County, within the federal lines, had apparently been sacked and destroyed by federal soldiers. He was buried in the Dunn Family Cemetery in Phillips County. Following the war his children petitioned the Senate to revoke the expulsion and submitted numerous affidavits of acquaintances of Sebastian who testified to his loyalty and his opposition to secession. In 1877 the Senate revoked his expulsion and his children were paid compensation. Endnotes: 1. Real Estate Bank v. Rawdon, 5 Ark. 558 (1844). 2. State v. Real Estate Bank, 5 Ark. 599 (1844). 3. Anderson v. State, 5 Ark. 445 (1844). Further Reading: 1. John Gerald Mula, “The Public Career of William King Sebastian.” M.A. Thesis University of Arkansas (1969). 2. “Petition of the Children and Only Heirs of the Late Senator William K. Sebastian of Arkansas.” Miscellaneous Documents of the Senate of the United States, 43rd Congress. 3. “William King Sebastian (1812-0865).” The Encyclopedia of Arkansas History and Culture. Judge J.W. Looney is a Circuit Judge, 18-W Judicial Circuit (Polk and Montgomery Counties) 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, Arkansas Supreme Court Historical Society: 501-682-6879.
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
Compassion Fatigue and the Toll it Takes in Life and Work
BY SARAH CEARLEY, PhD, LCSW
We humans are hard-wired for empathy. Stirrings emerge in the first hours and days of life. From those first moments we learn about the world around us by mirroring our caregivers. Beginning in infancy we understand at a deep, subconscious level how another person feels. Research also tells us that when we review evidence or observe behavior, as you do in your law office or courtroom, our mirror neurons fire just as if we were actually experiencing the event rather than just observing it.1 Those of us who enter helping professions are primed to care about the people we help. Armed with knowledge of the law and the skills to work within the legal system, a lawyer is impelled by his hard-wired empathy to do the best job he can for his clients who have suffered. You might say, “This is a good thing, right?” I would respond, “Yes it is. But there is a downside.” Lawyers and judges who are not aware of the phenomenon of compassion fatigue and the toll it can take are at risk of debilitating mental, emotional, physical, and professional problems. One way to protect yourself is to learn about compassion fatigue and its symptoms, and acquire the tools to deal with it. First, a description: compassion fatigue is the cumulative physical, emotional, and psychological effects of continual exposure to traumatic or distressing stories or events of others when working in a helping capacity where demands outweigh resources.2 Continuing exposure to a client’s or a victim’s trauma through personal interaction or 911 tapes, photos, videos, or testimony erodes our 46
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resilience like running water wears down a rock. We see the environmental forces in the work of (to name a few) prosecutors, lawyers who practice in the areas of criminal defense, domestic violence, malpractice and personal injury, social security disability entitlement, family law, and the judges who preside over these kinds of cases. The symptoms of compassion fatigue parallel those of PTSD and can be similarly clustered into the areas of re-experiencing, avoidance and numbing, and persistent arousal.3 The significant difference is in the nature of the stressor, which can be primary (e.g., experiencing a serious threat to self or sudden destruction of one’s environs), or secondary (e.g., experiencing a serious threat to a traumatized person or sudden destruction of a traumatized person’s environs).4 Warning signs include having intrusive thoughts from disturbing case material; being hyper-vigilant, jumpy or easily startled; exhaustion from working too much and getting too little “me time”; having difficulty sleeping; noticing increased pessimism and irritability; isolating from others; becoming less productive and caring less about work; and losing faith in humanity. A lawyer may notice that he just doesn’t care anymore, or certainly not like he used to. Physical symptoms such as muscle tension, hypertension, headaches, appetite changes, or gastrointestinal problems are most likely present as well. Recent research in Wisconsin comparing public defenders and their administrative staff identified personal risk factors for law-
yers, including type A personality, perfectionism, high cognitive intelligence, a competitive nature, reliance on the rational, and a tendency toward idealism. In addition, researchers point out professional characteristics of lawyers and judges that influence vulnerability to compassion fatigue: do not show weakness; deny, defend, and deflect vulnerability; remain emotionally detached; be achievement oriented. Faced with seemingly overwhelming odds for developing this potentially catastrophic state of being, what can a lawyer or judge do to protect herself? Happily, the tools are available. The lawyer can find a safe, knowledgeable person with whom he or she can debrief difficult cases. She can choose a new tension reducing strategy—mindful breathing, practicing yoga, running, walking, or riding a bike. The judge can choose a small step toward balance in one area at a time— going to bed early one night a week; leaving work early one day a week. Perhaps harder to do, but equally as effective, would be to spin fewer plates, to squeeze in less rather than more. Protective buffers also include
SARAH CEARLEY, PhD, LCSW, is the Executive Director of the Arkansas Judges and Lawyers Assistance Program.
humor, friendship, hobbies, vacations, and a healthy team environment with supervision and support. One can find outside resources to help when going it alone is hard. You can access information on compassion fatigue through the ABA link http://www.americanbar.org/ groups/lawyer_assistance/resources/compassion_fatigue.html. You can also look into the Professional Quality of Life Measure, ProQOL.org, Dr. Beth Hudnall Stamm, PhD, Developer and Director. “The ProQOL is the most commonly used measure of the negative and positive affects of helping others who experience suffering and trauma. The ProQOL has sub-scales for compassion satisfaction, burnout and compassion fatigue.” If you see that your profile fits this issue, it may be time to call for help. If you suspect that you may be suffering from compassion fatigue, and want a safe, confidential, free counselor to talk with about it, please call, text, or email Arkansas JLAP. This program exists solely for the purpose of helping Arkansas’s judges, lawyers, their family members, and law students with issues such as this one. In fact, we see clients from all around the state for problems
From the ordinary to the most complex, no appeal is too small or large Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court
related to mental health, trauma, substance abuse, and aging. Protecting you, we protect the public. When you contact us, you will be met with empathy, safety, and unconditional positive regard. To learn more about JLAP go to our website, www.arjlap.org or contact Sarah Cearley, PhD, LCSW, 501-920-6896, email@example.com or Laura Laser, LCSW, 501-765-1673, firstname.lastname@example.org. ENDNOTES 1. Buddy Stockwell, Awareness is first step in combatting compassion fatigue, Around the Bar, May 2013, at 14. 2. Molvig, Dianne, The Toll of Trauma, Wisconsin Lawyer, December 2011, at 1-7. 3. Figley, C. (Ed.), Compassion fatigue: Coping with secondary traumatic stress disorder in those who treat the traumatized (1995). 4. Peter G. Jaffe, Claire V. Crooks, Billie Lee Dunford-Jackson, and Judge Michael Town, Vicarious Trauma in Judges: The Personal Challenge of Dispensing Justice, Juvenile and Family Court, Fall 2003, at 2.
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
DISCIPLINARY ACTIONS Attorney Disciplinary Actions Final actions from April 10, 2014, through June 30, 2014, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line 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.] DISBARRED: HEATHER P. HOGROBROOKS, Bar No. 92029, of Memphis, Tennessee, was disbarred by Order of the Arkansas Supreme Court on June 26, 2014. The Arkansas Board of Law Examiners (Board) referred Hogrobrooks
to the Committee on Professional Conduct (Committee). Hogrobrooks filed a Petition for Readmission with the Board in 2003, 2007, and 2008. In 2003, the Board denied her application. She filed a notice of appeal of the Board’s decision, but the appeal was dismissed for her failure to file a brief that complied with the Supreme Court Rules. In 2007, she filed a second petition for readmission which was denied by the Board. In 2008, when Hogrobrooks informed the Board that she wanted to appeal, she was informed she had to pay the costs of completing the record, which she refused to pay. Immediately thereafter, she filed a third petition for readmission in 2008. The Board denied the application and referred the matter to the Committee, with the record of its proceedings. The record showed that Hogrobrooks had applied to take the Tennessee Bar Exam on four occasions. On each occasion Hogrobrooks failed to fully disclose to the Tennessee officials her disciplinary history in Arkansas. In Arkansas she was reprimanded in two separate matters in 1997, both involving appeals; suspended from the practice of
law in 1998 for a period of six months in an appellate matter; reprimanded in 1998; suspended from the practice of law in 2001 for a period of one year in a matter where she failed to conduct discovery and failed to file a timely request for a jury trial; and reprimanded in 2003 for her conduct in an appellate matter. The Committee directed the Office of Professional Conduct (Office) to initiate a disbarment action against Hogrobrooks. The Petition for Disbarment was filed in the Arkansas Supreme Court in June 2012, as Case No. D-12-459. After appointment of Special Judge John Cole, trial was held on August 22, 2013. On November 22, 2013, the Special Judge issued his Findings of Fact, Conclusions of Law, and recommendation of the sanction of disbarment with the Supreme Court. Hogrobrooks was to file a brief by January 20, 2014. On December 30, 2013, she filed a Motion for Extension of Time to file her brief, which was granted to March 6, 2014. She failed to file a timely brief. On March 17, 2014, she tendered an untimely and non-compliant brief. On June 4, 2014, the Office filed a Motion for
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DISCIPLINARY ACTIONS Judgment on the Pleadings and for Entry of Final Order of Disbarment. On June 26, 2014, the Arkansas Supreme Court issued its per curiam granting the Motion, and disbarred Hogrobrooks, stating she failed to file a brief in compliance with the court rules and by failing to file a brief, the Court was limited to the findings of fact and conclusions of law issued by the Special Judge, who found Hogrobrooks violated Arkansas Rules of Professional Conduct 1.1, 3.1, 3.3, 8.4(c), 8.4(d). The Special Judge found that Hogrobrooksâ€™ conduct was serious misconduct and that the following factors listed in Section 19 of the Procedures were present: 19.A(1), (2), (3), (4), (5), and (10), and aggravating factors 19.B(1), (2), (3), (4) and (5). The Court ordered Hogrobrooksâ€™s name removed from the registry of attorneys licensed to practice law in the state of Arkansas. The pleadings, the Findings of Fact and Conclusions of Law, and the per curiam can be found on the Arkansas Supreme Court website or Court Connect website as Ligon, Director v. Hogrobrooks, Case No. D-12-459, or at 2014 Ark. 317. SURRENDER: DUSTIN D. DYER, Bar No. 2003082, of Benton, Arkansas, in Supreme Court Case No. D-14-344, on April 18, 2014, petitioned to surrender his law license, in lieu of going through attorney discipline proceedings. The Supreme Court accepted his surrender by per curiam issued May 1, 2014, removing his name from the registry of Arkansas licensed attorneys and barring him from the practice of law in Arkansas. Dyer entered a guilty plea in United States District Court Case No. 11CR-129 (ED/AR) on February 28, 2014, to the felony offense of use of a telephone to obtain controlled substances, and as a verbal addendum to his plea agreement and disposition order stated to the court he would surrender his Arkansas law license.
REPRIMAND: JAMES BRUCE BENNETT, Bar No. 81014, of El Dorado, Arkansas, in Committee Case No. CPC 2014-014, by Consent Findings and Order filed May 29,
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two occasions in 2006. Thereafter, Traylor attempted to contact Bennett, with no success until 2012. In 2012, Traylor called the State Farm claim representative and was informed that her claim had been closed in 2007. Traylor then contacted Bennett and set up an appointment with him to discuss her case. The first appointment was not kept. They did meet on the second appointment. On October 25, 2013, Bennett was contacted by the Office of Professional Conduct (OPC) regarding Traylor’s grievance against him. On December 9, 2013, Bennett replied by letter to Ms. Moorehead-Traylor’s allegations against him, denying representing Traylor on the matter, and stated he had returned her paperwork to her along with a letter advising her of his disinterest in representing her on the matter. Bennett also denied that Traylor had signed a contract for his representation on the store fall claim. On December 16, 2013, Bennett sent OPC a second letter, admitting he had lied in his first written response to OPC, and that he had falsified an April 7, 2006, letter. He admitted that he had taken Traylor’s case, they had signed a contract for his services, and that her case “fell though the crack.” CAUTION:
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2014, for his representation of Ms. Sheila Moorehead-Traylor in a personal injury matter, was Reprimanded and assessed costs for admitted violations of Rules 1.3, 1.4(a) (3), 1.4(a)(4), 8.1(b), and 8.4(c). In early August 2005, Traylor met with Bennett to discuss his representing her on a personal injury matter, where in 2004, she had fallen at a local store and sustained injuries. On September 8, 2005, for the store, 50
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State Farm wrote Traylor stating all medical billings received as of that date related to her injury had been paid and that in the absence of any other bills they were closing the case. Traylor did not agree with this and hired Bennett, providing him with the letter. On March 27, 2006, Traylor signed a contingency fee contract with Bennett against the store. Bennett took no action on her claim. Traylor met with Bennett on
JOHN MARSHALL MAY, Bar No. 2000039, of Harrisburg, in Committee Case No. CPC 2014-004, by Findings & Order filed May 27, 2014, on a complaint generated from an appellate file, was Cautioned for violations of Rules 1.3 and 8.4(d) and assessed costs. May represented Troy McCulley as retained counsel in a Poinsett County criminal case where a jury convicted McCulley. May filed a timely notice of appeal and designation of record, but he did not lodge the record and requested no extension prior to the expiration of the 90-day deadline. New counsel for McCulley filed a Motion for Rule on Clerk, and the Supreme Court remanded the matter back to circuit court to determine if May was asked to perfect the appeal. After a hearing, May was found to have been requested to file the appeal. The Supreme Court granted the Motion for Rule on Clerk and stated that “failure to perfect this appeal appears to lie with McCulley’s trial counsel, Attorney John May.”
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
The Arkansas Lawyer
DISCIPLINARY ACTIONS JACOB S. POTTER, Bar No. 2011144, of Texarkana, Arkansas, was Cautioned and assessed costs in Committee Case No. CPC 2014-010 by Findings & Order filed May 27, 2014, on a Complaint arising from a domestic relations matter filed by Theresa Lynn Reynolds. Reynolds responded to an advertisement by Potter for a free consultation, as she believed her husband was about to file for divorce. Reynolds advised Potter that she did not want a divorce as she did not have any money, did not have a job, and had no place to live. Reynolds advised Potter that she only wanted answers to questions she had concerning marital property and whether she could receive spousal support. Reynolds’s received the answers to her questions and was told if she wanted to file divorce Potter would need $165.00. Reynolds left the office but did not sign a fee agreement and did not pay Potter any fees or expenses. Potter filed a Complaint for Divorce on Reynolds behalf. Reynolds called the Miller County Circuit Clerk to see whether her husband had filed for divorce and was told that he had not but that she had. Reynolds went to the clerk’s office and obtained a copy of the complaint and went to Potter’s office. Potter told Reynolds it was an honest mistake and he would have the divorce case dismissed. The case was dismissed on January 6, 2014, but Reynolds was not notified that it was dismissed until notified by the Office of Professional Conduct. Potter was found to have violated Arkansas Rules 1.2(a), 1.3, 1.4(a)(3), 8.4(c), and 8.4(d). DEE ANN SCRITCHFIELD, Bar No. 99070, of Bentonville, Arkansas, in Committee Case No. CPC 2014-012, by Consent Findings and Order filed April 18, 2014, regarding her representation of Marcie Treadwell in an appeal, was Cautioned and assessed costs for violations of Rules 1.1, 1.3, and 8.4(d). Treadwell’s parental rights were terminated on October 3, 2013. Her notice of appeal was required to be filed no later than October 24, 2013. Scritchfield did not file the notice of appeal until October 25, 2013. On January 7, 2014, Scritchfield filed a Motion to File Belated Notice of Appeal in Court Case No. CV-14-22. In the motion, Scritchfield also requested to be relieved as counsel for Treadwell, acknowledged that she received the signed notice of appeal
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from her client in a timely manner, but failed to file the notice with the court in a timely manner. The Supreme Court granted the request to file belated notice of appeal, but denied without prejudice the request to be relieved as counsel. The court found Scritchfield had not complied with Ark. R.
Civ. P. 64, in that she had not served her client, Treadwell, or the Arkansas Public Defender’s Commission with a copy of her motion to be relieved. The appeal is still pending with Scritchfield as Treadwell’s counsel.
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period April 1, 2014, through June 30, 2014:
In Memory of William C. “Bill” Adair Justice Annabelle Imber Tuck
In Memory of Robert L. “Bob” Roddy Jim Simpson
HONORARIUMS AND SCHOLARSHIP CONTRIBUTIONS
In Memory of Gary P. Barket Jennifer and Randy Coleman Justice Annabelle Imber Tuck
In Memory of Richard Sforzini Cypert, Crouch, Clark & Harwell PLLC
Arkansas Association of Women Lawyers Scholarship Arkansas Association of Women Lawyers
In Memory of Samuel I. Bratton B. Jefferey Pence In Memory of John Logan Burrow Cypert, Crouch, Clark & Harwell PLLC In Memory of John A. “Jack” Davis III Designated to the John A. “Jack” Davis III Scholarship Jessica H. Davis Sandra and Richard Lusby Jack A. McNulty Jim Simpson In Memory of John T. “Jack” Lavey Silas H. Brewer Diane R. Carroll Justice Annabelle Imber Tuck In Memory of John E. Miller Hayden and Gordon Rather In Memory of Judge James G. Mixon Ben F. Arnold Susan and Judge Ben Barry* Cypert, Crouch, Clark & Harwell PLLC Debtor-Creditor Bar of Central Arkansas, Inc. Jack W. Gooding Richard S. McIlroy Northwest Arkansas Debtor/Creditor Bar Justice Annabelle Imber Tuck *designated to the Sebastian County Bar Association Scholarship In Memory of Ralph Murray Phillips County Bar Association 54
The Arkansas Lawyer
In Memory of Dennis L. Shackleford Designated to the Shackleford/ Phillips Scholarship Mr. and Mrs. Rick Beard Richard L. Bell Jessica H. Davis Charles Frierson III Mitchell, Williams, Selig, Gates & Woodyard, PLLC Karen and Brian Ratcliff Justice Annabelle Imber Tuck Frances Wharton In Memory of William H. “Bill” Trice III Jennifer and Randy Coleman B. Jeffery Pence Hayden and Gordon Rather Fred Ursery In Memory of John E. Tull, Jr. Hayden and Gordon Rather In Memory of Roxanne Tomhave Wilson Designated to the Roxanne Tomhave Wilson Scholarship Dorothea R. Tomhave In Memory of William H. L. Woodyard III Charlotte and Justice Robert Brown Hyden, Miron & Foster, PLLC B. Jeffery Pence Hayden and Gordon Rather Fred Ursery Mike Wilson
Rose Law Firm Scholarship Rose Law Firm Charitable Trust U. M. Rose Scholarship Rose Law Firm Charitable Trust In Honor of David Solomon designated to the David Solomon Scholarship Gill Owen Ragon, P.A. Phillips County Bar Association Wright Lindsey & Jennings LLP Scholarship Wright Lindsey & Jennings LLP
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. Contributions may be sent directly to: Arkansas Bar Foundation 2224 Cottondale Lane Little Rock, Arkansas 72202
IN MEMORIAM Samuel Isaac Bratton Samuel Isaac Bratton of Little Rock died on June 5, 2014, at the age of 69. He earned a BA degree from Hendrix College and a JD from the University of Arkansas School of Law in Fayetteville. Bratton worked with Jim Guy Tucker and Bill Clinton as an Assistant Attorney General. He began working in the Governor’s Office after Clinton was elected governor in 1978. He was Chief Counsel for Legal and Financial Policy for Clinton and served in that capacity until he was appointed Chairman of the Arkansas Public Service Commission (PSC) by Clinton in 1989. He was Chairman of the PSC from 1989 through 1997 and was a Commissioner from 1997 through 2001. He was Counsel to the Commissioners from 2001 until 2003. Ronald E. Bumpass Ronald E. Bumpass of Fayetteville died on June 22, 2014, at the age of 66. He was a graduate of the University of Arkansas (cum laude) and the University of Arkansas School of Law. He practiced law in downtown Fayetteville for 39 years, was an adjunct professor of political science at the University of Arkansas and worked nationwide as a federal arbitrator. Clyde Dickens Calliotte Clyde Dickens Calliotte, formerly of Little Rock, died on June 9, 2014, in Winchester, Massachusetts, at the age of 94. She graduated co-valedictorian of her class from the University of Arkansas Law School. She served as Assistant Attorney General; as law clerk for several justices of the Arkansas Supreme Court; as Master in Chancery; as law clerk for Judge Pat Mahaffey of the Eighth Circuit Court of Appeals; as the first Director of Consumer Protection in the Arkansas Attorney General’s Office and as Reporter of
Decisions for the Arkansas Reports. Judge Dorothy Yancy Howard Judge Dorothy Yancy Howard of North Little Rock died on May 10, 2014, at the age of 97. She received her LLB Degree from LaSalle University. Licensed to practice law in Arkansas and Federal District Courts in 1947, Mrs. Howard was one of 69 persons taking the Arkansas Bar Exam, along with three other women. Twenty-nine passed the exam, including all four women. In 1950, Mrs. Howard was appointed Standing Master in Chancery for Pulaski County Courts by Judges Murray O. Reed and Guy Williams. Judges continued to appoint Mrs. Howard until her retirement in 1990. Edward Moore Penick Edward Moore Penick, Sr., of Little Rock died on June 14, 2014, at the age of 92. He joined the Army Air Corps and received his pilot’s wings in September 1942. He served 22 months in China with General Chennault’s 14th Air Force Group, the Flying Tigers, where he received two Distinguished Flying Crosses, two Air Medals and the Purple Heart. He was also awarded the Chinese Government’s Brave Aviator Award and the Chinese Victory Medal. Released from active duty in December 1945, he held the rank of Major and Squadron Commander. He was recalled to active duty in 1951 in the Korean War and trained to fly B-50 bombers. Penick returned to University of Arkansas to receive a degree in banking and finance in 1946 and a Doctorate of Laws degree in 1948 from the University of Arkansas School of Law. He did post graduate work at Stonier Graduate School of Banking, Rutgers University and School of Finance and Public Relations at Northwestern University. Penick first joined Worthen Bank in 1939. He joined the Board of Directors in 1951 and was appointed President, CEO, and Chairman from 1974 to 1983. After he left Worthen
Bank he worked for Eichenbaum Liles and Heister law firm. He served as an Arbitrator with the National Association of Security Dealers and the New York Stock Exchange. He retired in 1996. William Henry “Bill” Trice III William Henry “Bill” Trice III of Little Rock died April 10, 2014, at the age of 67. He earned a BA and JD from the University of Arkansas. He began his law career as Deputy Prosecutor for Pulaski County before entering into private practice with Senator Max Howell and Dale Price. He represented the Arkansas State Medical Board since 1989, as well as the Arkansas State Board of Dental Examiners and Arkansas State Board of Optometry since 1991. Bill served in Active Duty and the Reserves of the United States Army and the Arkansas Army National Guard from which he retired as a Lieutenant Colonel after 26 years. William Henry Lee Woodyard III William Henry Lee Woodyard III of Little Rock died on April 26, 2014, at the age of 68. He attended Vanderbilt University before earning his BA and JD from the University of Arkansas in Fayetteville. His legal career began as a law clerk to Arkansas Supreme Court Associate Justice George Rose Smith. After his clerkship, he joined the Arkansas Insurance Department as an attorney and became Deputy Commissioner and Chief Counsel. In 1976, he was appointed Insurance Commissioner of the state of Arkansas and he served in that position until Dec. 31, 1982. Upon leaving the Insurance Commissioner position, Bill joined the firm of Mitchell, Williams, Selig, Jackson and Tucker in February 1983, and founded the firm’s Insurance Regulatory Practice. In 1991, the firm officially changed its name to Mitchell, Williams, Selig, Gates and Woodyard, P.L.L.C. as it is known today. The information contained herein is provided by the members’ obituaries.
Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
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Vol. 49 No.3/Summer 2014 The Arkansas Lawyer
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