The Arkansas Lawyer Summer 2021

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Lawyer

The Arkansas

A publication of the Arkansas Bar Association

2021-2022 Arkansas Bar Association President Bob Estes

Vol. 56, No. 3, Summer 2021


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

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2021, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 56, No. 3

features 10 2021-2022 Arkansas Bar Association President Bob Estes By Anna Hubbard Cover Photo by Mike Pirnique

16 We Hold Three Truths: A Constitution Day Cerebration By Leon Holmes 22 Civil Right to Counsel for Indigent Parents in Contested Adoptions By Amie K. Wilcox 30 Understanding Human Trafficking Laws and Liability By Annie B. Smith 38 2021 Legislative Update By Jay Robbins

40 Beyond Opioids By Helen Gratil

Contents Continued on Page 2


Lawyer The Arkansas Vol. 56, No. 3

in this issue ArkBar News

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ArkBar 2021-2022 Officers and BOT At Large and and Liaison Members

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ArkBar YLS Executive Council ArkBar Annual Award Recipients

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Joint Award Recipients Disciplinary Actions

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Arkansas Bar Foundation

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In Memoriam

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columns

President’s Report Bob Estes

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Young Lawyers Section Report Payton C. Bentley

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Board of Trustees

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

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ArkBar News Third Annual Spend a Day with a Judge Contest The Legal Related Education Committee for the Arkansas Bar Association hosted its third Annual Spend a Day with a Judge contest. The contest, available statewide to all high school students, typically has both an essay contest and a courtroom artist contest. The theme for the essay competition parallels the American Bar Association’s Law Day Theme. Law Day is celebrated annually on May 1st nationwide. This year’s theme was “Advancing the Rule of Casto Cummings Vangoor Law—Now.” Contest winners are selected in a blind selection process, and are judged based on content, word choice, grammar, and mechanics. Top winners receive prizes which can include cash prizes, a gavel, and/or a certificate and, most importantly, the students get to “spend a day with a judge.” Contest winners: 1st place: Eva Casto, Maumelle High School; 2nd place: Kenzie Cummings, Bauxite High School; 3rd place: Ananya Vangoor, Bentonville West High School; HM: Cassidy Dodson, Alma High School; HM: Miki Bragg, Home Schooled Arkansas Supreme Court Chief Justice Dan Kemp spoke with the top three winners on Law Day. Due to the pandemic, this year’s “Day with a Judge” was held via zoom.

Teacher's Law School

The Legal Related Education Committee presented the Teacher's Law School virtually on August 6, 2021. Thank you to the following volunteers for making the annual event another success: Beverly Brister, Chad Cumming, Dr. Angela Webster, Kandice Bell, Dr. Jay Barth, Anthony McMullen, and Courtney Salas-Ford. The program is geared toward civics and law-related topics with instruction from Arkansas lawyers and authors and fulfills six hours of professional development, including one Arkansas History hour.

ArkBar offers free job postings for employers.

arkbar.com/jobs 4

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ArkBar 2021-2022 Section Chairs Membership in one or more of the ArkBar's Sections offers you the opportunity to connect with members in your areas of practice. As a member of a section of the Arkansas Bar Association, you will have access to a section community. This community includes: discussions, resource library, and section member directory. Thank you to the following members for leading the sections this year! Administrative Law: J. G. (Gerry) Schulze Agricultural Law: Coleman V. Taylor Business Law: J. Don Overton Construction Law: Ashlea Brown Corporate & In-House Counsel: Will Foster Criminal Law: Lauren Mary Anne Elenbaas Debtor/Creditor: Vanessa Cash Adams Elder Law: Maya Goree Environmental Law: Stuart Larson Spencer Family Law: Brook A. Ware Government Practice: Vincent C. Henderson Health Law: Gabrial D. Mallard Hispanic Lawyers: John Douglas Cortes International & Immigration Law: Misty W. Borkowski Juvenile Justice & Child Welfare: Glen Hoggard Labor & Employment: Melissa McJunkins Duke Natural Resources Law: Shane E. Khoury Probate & Trust: Ashleigh Dale Phillips Real Estate Law: J. Cliff McKinney II Section of Taxation: Adam Reid Solo, Small Firm & Practice Mngt.: William P. Allison Workers’ Compensation Law: Evelyn E. Brooks Young Lawyers’ Section: Payton C. Bentley New this year! Discounts with Section Dues If your section hosts a minimum three-hour CLE in-person seminar or live webinar during the 2021-22 bar year, as a member of that section you will be entitled to a $25 discount on registration for that seminar or webinar. On-Demand CLE and Annual Meeting are excluded. Join at https://mx.arkbar.com/ FORATTORNEYS/Sections.aspx


Oyez! Oyez!

President’s Award Presented to Paul W. Keith

ACCOLADES Cynthia Nance, dean emeritus and the Nathan G. Gordon Professor of Law at the U of A School of Law, received the University of Iowa Hancher-Finkbine Alumni Medallion 2021. APPOINTMENTS AND ELECTIONS The United States District Court for the Western District of Arkansas appointed Christy Comstock as United States Magistrate Judge for the Western District of Arkansas. Edie R. Ervin has been named the next United States Magistrate Judge for the Eastern District of Arkansas. Sarah Keith-Bolden of Quattlebaum, Grooms & Tull PLLC has been named a Fellow of the Litigation Counsel of America. Joseph R. Falasco of Quattlebaum, Grooms & Tull PLLC has been elected a Fellow of the American Bar Foundation. Milton Fine has been promoted to chief administrative law judge for the Arkansas Workers’ Compensation Commission in Little Rock. Ed McClure, a partner at Matthews, Campbell, Rhoads, McClure & Thompson, P.A., has been elected to the Arkansas PBS Foundation Board of Directors. WORD ABOUT TOWN Hall Booth Smith, P.C. announced that Patrick B. Feilke joined the firm as a partner as the firm opens a new office in Little Rock. Caleb Hollinger joined Friday Eldredge & Clark LLP in Little Rock as an associate. Kutak Rock announced that attorney L. Kyle Heffley has joined the firm’s national litigation practice group as of counsel and will be resident in the firm’s Rogers office. Kevin Orr has been hired by Centennial Bank of Conway as the senior vice president-trust manager at the bank. David F. Slade of Carney Bates & Pulliam, PLLC has been elected as a partner in the firm. Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd. rebranded to Hilburn & Harper, Ltd. Megan Wells and Kate Davidson have been named partners at Hilburn & Harper Ltd. Wilson & Associates announced that Kate Lachowsky-Khan and Heather Martin-Herron were named partner and Nicole Murray was named Associate Partner. Bill Kincaid, a campus attorney, has been named acting chancellor at the University of Arkansas, Fayetteville.

Submit your Oyez! news to ahubbard@arkbar.com. Look for the Oyez feature with photos in ArkBar new Monthly Electronic Member Newsletter. Visit arkbar.com/for-attorneys/publications/member-newsletter.

ArkBar President Bob Estes presented the President’s Award to Immediate Past President Paul Keith for his service to the association as president for the 2020-2021 bar year. Annual Meeting Awards Ceremony

2020-21 Arkansas Bar Foundation President Judge Cindy Thyer and 202021 Arkansas Bar Association President Paul Keith presented the Foundation and Association Joint Awards during the virtual ceremony of the Annual Meeting.

ArkBar 2021-2022 Committee Chairs ArkBar President Bob Estes appointed the following members to serve as committee chairs. Thank you to all committee members who volunteer their time, talent and expertise to the Association. Arkansas Bar Commission on Diversity and Inclusion: Kandice A. Bell Annual Meeting: Kristin L. Pawlik Arkansas Bar PAC: Brent J. Eubanks Audit: Carla G. Spainhour Continuing Legal Education: Ralph E. "Win" Wilson, III Editorial Advisory Board - The Arkansas Lawyer: Anton Leo Janik, Jr. Finance: Brant Perkins Judiciary: Bob Estes

Jurisprudence and Law Reform: David Biscoe Bingham Legal Related Education: Beverly I. Brister Law School: Harry A. Light Legislation: George M. Rozzell Mock Trial: Adrienne Morris Griffis and Anthony L. McMullen Past Presidents: Brian H. Ratcliff Personnel (Arkansas Bar Association): Mark W. Hodge Practice Closure Task Force: Stark Ligon Professional Ethics: Brad L. Hendricks

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Arkansas Bar Association 2021-2022 Officers and Board of Trustees Liaison and At-Large Members The Arkansas Bar Association began its 2021-2022 bar year on July 1, 2021. President Bob Estes and the ArkBar officers welcome you and thank you for your membership. The Arkansas Bar Association is your statewide professional network—your connection to over 5,000 lawyers across the state. Thank you to all of the Board of Trustees who are listed on Page 2 of this issue. Watch for a special feature on the Board of Trustees in the September issue of the Member Newsletter. OFFICERS

AT-LARGE

Bob Estes President Law Offices of Bob Estes Fayetteville

Joe F. Kolb President-Elect j.kolb Little Rock

Glen Hoggard Secretary Hoggard Law Firm Little Rock

Brant Perkins Treasurer The Perkins Law Firm, P.A. Jonesboro

Brent J. Eubanks Parliamentarian Humphries, Odum & Eubanks, Little Rock

LIAISON MEMBERS

Karen K. Hutchins Executive Director

AT-LARGE

Curtis E. Hogue Arkansas Bar Foundation President

Denise Reid Gregory J. Northen Hoggard Cross, Gunter, Rainwater, Holt & Witherspoon & Galchus, Sexton P.C., Little Rock Little Rock Delegate to the ABA Delegate to the ABA

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The Arkansas Lawyer

Paul W. Keith Immediate Past President Gibson & Keith Monticello

www.arkbar.com

Dean Theresa M. Beiner UA Little Rock Bowen School of Law Ex Officio

Dean Margaret Sova McCabe University of Arkansas School of Law Ex Officio

Judge Hamilton H. Singleton Arkansas Judicial Council President Camden

Payton C. Bentley YLS Chair The Clark Law Firm Fayetteville

ArkBar’s Mission Statement: To support attorneys; advance the practice of law; advocate for the legal profession; foster professionalism, civility, and integrity; and protect the rule of law.


PRESIDENT'S REPORT Bob Estes is the President of the Arkansas Bar Association. He is a solo practitioner in Fayetteville.

The State of the Association It is my honor and privilege to serve as your president for the 2021-22 bar year. I want to thank Paul Keith for his dedication and hard work. Paul has been a mentor and a friend. This year, we will work together to continue Paul’s efforts to serve the goals of this Association: to advance the administration of justice and to foster and maintain high ideals of integrity, learning, competence and public service. I look forward to working closely with the new officers of the Association: President-Elect Joe F. Kolb, Secretary Glenn Hoggard, Treasurer Brant Perkins, YLS Chair Payton Bentley and Parliamentarian Brent Eubanks. As President of the Arkansas Bar Association, I want to thank you for your membership. Your leadership and support are invaluable to our profession. I believe it is important for lawyers and judges to work together to lead efforts that support the profession and protect the rule of law. We know that your time is valuable, and we want you to get the most out of your membership. We were so pleased to hear from our friend Judge Bruce Anderson who let us know the value that he finds in our new member benefit Practice Link. “I consider the subscription I get to Affinity Consulting (Practice Link and Affinity University) through my bar association membership to be very valuable. I watch a lot of their webinars and especially enjoy the capability to view recorded webinars. I have also bought a couple of their books,” Judge Anderson said. Practice Link offers over 150 training videos on many different legal software as well as the Microsoft suite of products. Please take the time to explore these resources that are

available as part of your membership at https://www.arkbar.com/practice-link. A great example of this association working together is our practice handbooks on substantive areas of law. These books are available in print, pdf and as part of the Fastcase legal research tool. Thank you to the Cumulative Supplement Committee for updating “Handling Appeals in Arkansas” and to the joint committee of the Real Estate Law and Natural Resources Law Section for updating “Standards for Examination of Real Estate Titles in Arkansas.” These committees put in a great deal of work each year to keep these important books updated for us. Go to www.arkbar.com/for-attorneys/publications/ practice-handbooks to view the library and order your copies. Members receive a substantial discount on these handbooks, so remember to contact Michele Glasgow at the Arkbar for your discount code before placing your order. We are excited this year to offer a new affiliate membership for legal support staff. Affiliate membership is open to anyone working for and supervised by an Arkansas Bar attorney member, whether that person is a paralegal, legal secretary or office manager. This will be a great way to provide more training opportunities for those who support us in our law practice and make things more efficient for our attorneys. More information on this program can be found at https://www.arkbar.com/forattorneys/paralegal. Thank you to our Committee and Section leaders for agreeing to serve and support the Association this year. Please see the list of chairs on pages 4-5 of this

magazine. The Arkansas Bar Commission on Diversity and Inclusion plans to continue the great work that it started lasted year, including the results of their survey. Our sections have already been active this bar year and have a great lineup of Fall CLE starting in October. See the CLE Calendar listed on the inside cover of this magazine to view the schedule. You can view the agendas and register on CLE CENTRAL at www. pathlms.com/arkbar. Just this month a task force has been hard at work filming a new civics video to update the previous Level Playing Field video. Many justices, judges and leaders in the legal community worked to engage students as they explained the importance of our justice system in this new civics video. Please plan to help us present this to schools in your area of the state as soon as it is finalized. We are also pleased to announce the 2nd Public Service Academy sponsored by the Arkansas Bar Association and the University of Arkansas Clinton School of Public Service, in association with UA Little Rock Bowen School of Law and the University of Arkansas School of Law, for member lawyers and law students who are interested in public service in any capacity. The Public Service Academy will be limited to approximately 25 diverse, statewide participants including law students. Applications for the Public Service Academy are due September 3rd and can be found at www.arkbar.com/cle--events/public-serviceacademy. Your Arkansas Bar Association is important. It is it essential. It is the members of this Association who advance the administration of justice and improve our communities. ■

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YOUNG LAWYERS SECTION REPORT

Another Fantastic Year Ahead At the 123rd Annual Meeting in June, the Young Lawyers Section celebrated a great year under the leadership of Chris Hussein. I sure hope we see more of Chris in leadership roles within the Arkansas Bar Association in the future. Despite the challenges of COVID-19, the Young Lawyers Section was recognized by the American Bar Association’s Young Lawyer Division as a 2021 Star of the Quarter for our Record Sealing and Name Change Clinic. The Young Lawyers Section stepped up and created innovative ways to stay connected and to serve our communities through virtual social hours and clinics. In the face of a virtual world, we were able to help over 100 Arkansas families through our Record Sealing Clinic, the Wills for Heroes Clinic, and Name and Gender Marker Change Clinic. This could not have been accomplished without the goodwill of our members to volunteer for our service clinics. Thank you to all our volunteers! I am confident with the Executive Council we have in place this year that can build on the strong foundation of the previous years. • Will Ogles of Little Rock serves as the Chair-Elect. • Caroline Kelley of Rogers serves as the Treasurer and Secretary. • District A Representatives are Kelsey Boggan of Fayetteville, Ezra Smith of Fayetteville, and Alexandra Benton of Batesville. • District B Representatives are Zach Trail of Little Rock, Wesley Watts of Little Rock, and Andrew Norwood of Little Rock. • District C Representatives are Robert Riley of Jonesboro, Colin Heaton of

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

Hot Springs, and William Harris of Hot Springs. At-Large Representatives are Frank Jenner of Little Rock, Lauren Spencer of Little Rock, and Elizabeth Richardson of Conway.

A special thank you goes out to Samantha Vital of Fayetteville, Robbie Wilson of Little Rock, and Ray Slaton of Little Rock, for completing their three-year term as District Representatives. The Young Lawyers Section is better because of your valued contributions! As we look to the future, we are hopeful that we can gather in person for social events again as soon as this Fall. We have many social events in the works in each district throughout Arkansas. We want to reach all our members. We are excited to be thinking about some tailgating events at Razorback football games in Fayetteville and in Little Rock. We are also planning some social events with the Law Schools to get them involved early on and show the community connection and benefits of becoming a member of the Arkansas Bar Association and the Young Lawyers Section. The YLS Christmas Party is another event that we have been deprived of the last year. We are hopeful that will be brought back this year in full force. There will also be receptions at the Mid-Year and Annual Meetings again. Fellowship with each other is long overdue and needed! The Young Lawyers Section recognizes the importance of working with other sections to help promote diverse involvement in the Arkansas Bar Association. As such, the Young Lawyers Section will be partnering with the International and Immigration Section to create a $500 Immigration

Law Bar Scholarship to be presented to a graduating 3L Law Student who is engaged and interested in the area of Immigration Law at a YLS Happy Hour. This event will be held in the spring of 2022. We are also in the beginning stages of planning our community outreach events for this year. The virtual nature of the last year was challenging in a multitude of ways, but it has also provided a framework for the Young Lawyers Section to offer virtual clinics that can serve a vastly larger segment of our community across the state than our in-person clinics. A mix of in-person and virtual clinics could be a way forward for the Young Lawyers Section reaching all corners of the state and remains a consideration in our planning. We look forward to continuing the Record Sealing Clinic, the Wills for Heroes Clinic, and the Name and Gender Marker Change Clinic. We are brainstorming more clinics and service events and welcome input from our members. I look forward to another fantastic year for the Young Lawyers Section. We cannot make any of this happen without the goodwill, support, and contributions from our members. Please consider volunteering for one or more of our service clinics this year. If there is an event you would like to see, a service event you are interested in the Young Lawyers Section putting on, or if you just want to get more involved, please do not hesitate to reach out to me or one of your District Representatives. There will be more information coming out about the Young Lawyers Section calendar for this year. Make sure to keep an eye on the YLS Facebook page as well as the YLS listserv with the Bar Association’s ACE community for future updates. ■

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Bob Estes was sworn in as the 124th President of the Arkansas Bar Association on June 18, 2021.

President

Bob Estes Article by Anna Hubbard Photos by Mike Pirnique

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Working Together “Is your Arkansas Bar Association important? Is it essential? Absolutely yes!” Bob said after being sworn in as the 124th President of the Arkansas Bar Association. “It is the lawyers and judges, members of this Association who advance the administration of justice and foster and maintain these high ideals. “We do more than write contracts and try cases. Lawyers give a voice. This is true when we advocate. We speak for plaintiffs and we speak for defendants. We help people. Lawyers change lives. Lawyers bring justice. Lawyers restore hope. Lawyers improve our communities. Lawyers matter. “It is us together and not alone – our Arkansas Bar Association offers the experience to advance the administration of justice and to foster and maintain high ideals of integrity, learning, competence and public service so essential to our purpose as lawyers and judges.” As a young boy growing up across the street from a prominent lawyer in North Little Rock, Bob began to have thoughts of one day being a lawyer. In addition to playing with his brothers at the home of Terrell Marshall, who was president of the association in 1951-1952, Bob regularly read the U.S. Supreme Court opinions that his father, a lieutenant colonel in the U.S. Army, ordered from the U.S. Government Printing Office. “In the 5th grade I told my mom I wanted to be a lawyer. I began to get the idea that lawyers were special. Not that they were important, but that lawyers were special. Lawyers could make things happen. Lawyers could make a difference. "I had no idea what lawyers did, I had no idea how you even became a lawyer, but I got


"Without integrity you are nothing. Your word is your bond. "

Bob and his daughter Sarah Estes and Chief Justice Kemp the notion and idea that maybe I could be a lawyer and maybe I can make a difference.” Over his 46-year career fighting for his clients, Bob has made a difference. He has been involved in major verdicts that resulted in unsafe consumer products being removed from the market. He has been in solo practice for the past 30 years focusing his practice on litigation. “Anything that happens in the courtroom,” he said. Starting out as a deputy public defender for the fourth judicial district, Bob was almost immediately assigned to a case on appeal to the Arkansas Supreme Court. Thus, he began his courtroom career arguing a capital felony murder case in the same courtroom at the Arkansas State Capitol where he was sworn in as president of the association this year. Bob’s good friend, John Barry Baker of Fayetteville, was the public defender who hired Bob as deputy public defender. “One of the good things about being a public defender, you get thrown in the fire right away,” John said. “Bob was up to the task.” John and Bob, who are the same age, have been friends ever since those early days. John said he had been out of law school for a few years before Bob because of Bob’s military service after college. “He served in Vietnam, and he was in the thick of it, in actual combat.” John carries in his wallet a copy of a saying that was handed down from Bob’s grandfather to his father and then to Bob. “We are here to produce, provide and protect,” John said. “That is what Bob has focused his life on—producing, providing and protecting. He is a Christian. He has

never been extremely involved in church work, but his law practice is his church work; it is his ministry.” Seasoned litigators can relate to how Bob recalls every detail of his first big case along with the hundreds of other cases he has tried. When asked what advice he would give to new attorneys starting out, Bob said, “Stay away from what is harmful and seek out what is good and just and profitable. Without integrity you are nothing. Your word is your bond. That person who is your adversary today may be the very person who you depend upon for counsel, advice, friendship and fellowship tomorrow. Be respectful. Be kind. “Your time and advice are all you have to sell. You will be known by the people you represent in your community more than by your accomplishments. Choose your clients carefully and choose your cases carefully.” Josh McFadden of Fayetteville tried one of his first cases against Bob. “As in many legal cases, the clients on both sides were quite upset by the circumstances in which they found themselves and the legal issues were complicated,” Josh said. “However, Bob and I were able to advocate for our clients, while negotiating a unique resolution that satisfied the interests of both sets of clients. “The best way to describe Bob in that case, and generally, is calm and dignified. No matter how contentious an issue may be, Bob approaches opposing counsel with dignity and respect. His approach is a testament to his respect for the practice of law.” Another one of Bob’s longtime friends, retired Judge Kim Smith of Fayetteville,

recalls his days in the courtroom with Bob. “Bob was a fierce adversary in many trials we had when we were both just out of law school,” Kim said. “I was a deputy prosecutor and Bob was a deputy public defender; later, Bob was in private practice when I was the elected prosecutor. Bob was an excellent trial attorney and one of the most ethical attorneys I have ever dealt with. His word was his bond. He is a man of great integrity.” Advancing the Administration of Justice Bob has been a member of the association since he was in law school. Upon his graduation, he was approached by Fayetteville attorney Walter Niblock, past president of the association in 1977-1978, who encouraged Bob to join. “He came to see me and told me I needed to join the Arkansas Bar Association and that I needed to participate,” Bob said. “He appointed me to two committees. From that day forward I have been involved in the association in one capacity or another.” Bob’s long service to the association has included roles on all governing bodies including the YLS Executive Council, House of Delegates (Tenure), Executive Council and Board of Governors. His leadership roles include chairing the ReDistricting Task Force, the Practice Closure Task Force, the PAC Executive Committee, and the Legislation Committee, for which he was awarded a Golden Gavel. He is a Fellow of the Arkansas Bar Foundation which has honored him with the Arkansas Bar Foundation writing award. He has served in three cases as a Special Associate

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Photo from the Swearing-In Ceremony at the Old Arkansas Supreme Courtroom Front row from left: Margaret Elizabeth "Meghan" Estes, Elaina Henley, Bob Estes, Abbott Alexander Estes, Hannah Louise Estes, Eve Caroline Estes, Abram Charles Estes; Back row from left: Robert R. "Robbie" Estes III, Margaret Elizabeth "Peggy" Estes, Robert R. "Jake" Estes IV, Sarah Elizabeth Estes, Fernando Lopez and Matthew Price Estes Not pictured: John Michael Estes

Justice on the Supreme Court of Arkansas. He currently serves on the Arkansas Supreme Court Committee on Civil Practice and is a past president of the Arkansas Trial Lawyers Association. He has been a member of several Fayetteville city and community boards and commissions. Past President Brian Rosenthal of Little Rock was one of the lawyers who encouraged Bob to run for President. “Bob Estes brings a level of professionalism and gratitude to all he touches,” Brian said. “He has led important statewide bar initiatives such as redistricting by being fair and inclusive. Our profession and bar will greatly benefit with Bob as our 124th President.” Immediate Past President Paul W. Keith of Hamburg is proud to pass the gavel to Bob. “Bob and I share the belief that lawyers are uniquely qualified to be the guardians of the rule of law and that the rule of law is all that stands between us and anarchy,” Paul said. “He will be remembered as a great President of our Association.” A Son of the Greatest Generation Bob was the first person in four generations of his family not to work for the Kansas City Southern Railroad, and he was the first person in his family to graduate college. His father and mother were of the “greatest generation” and met at the railroad when his father returned home on military leave to find “a cute brunette” doing his job for him. 12

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“Women filled in and kept this country going during World War II,” Bob said. “My parents met in the fall of 1943, married in the spring of 1944, and dad left the next morning for Europe.” Born in Baton Rouge, Bob moved to North Little Rock in the third grade when his father was transferred to Little Rock. Bob’s dream to become a lawyer followed him through junior high and high school, but not so much during college where he earned a Bachelor of Science in business administration in 1969 from the University of Arkansas. It wasn’t until he came back from active duty in Vietnam that he felt the law calling again. “When I was in Vietnam, that was a seminal experience; I began to see that without a rule of law there is chaos. Where there is chaos there is destruction. Where there is chaos and destruction people can’t grow. People can’t flourish. People can’t reach their full potential. So, perhaps being a lawyer is something I should think about.” Bob enlisted in the United States Army in the fall of 1968 as a Private E1. His father had enlisted as a private, so that is what Bob did. He went on active duty after college graduation, served over a year in Vietnam, and was discharged as an E5 in 1972. He went to law school after returning home and graduated from the University of Arkansas School of Law in 1974. He also earned an MBA from the University of Arkansas in 1983. In addition to writing poetry, Bob enjoys hiking the Arkansas Ozarks and fly fishing

in the rivers, creeks and streams of northern Arkansas and southern Missouri with his family. He is also an avid gardener. Bob has four children and eight grandchildren. Legacies His youngest child, daughter Sarah, said she grew up gardening with her father and now has her own garden. “I was able to preserve a little bit of my dad’s legacy,” she said. “His parents had a garden. I remember as a kid picking blueberries from his parents' garden. Gardening always reminds me of him and of his mom and dad.” Bob instilled his love of reading and poetry in Sarah as well. She said he read to her every night before bed. “He would read me a book of my choice, a book of the Bible, or some good portion of the Bible and then a couple of poems,” she said. “At five years old I was able to recite some poems because he read them to me all the time.” Bob’s dedication to his family even while maintaining a demanding career has made a big impact on her life. “I’ve learned a lot from him,” she said. “The hard work and dedication to everything. His diligence and hard work is shown in work and in family and gardening—in everything.” Bob's son Matthew said the same thing about his dad’s devotion to his family. “He taught by example how important it is to have a high level of integrity in your professional life, how important it is to work hard and never let your family life suffer because of that. He taught me that family always comes first.”


In addition to teaching Matthew to fly fish, Bob taught him the importance of taking care of yourself. “Some of my earliest and best memories are going to the gym with him,” Matthew said. “He would pick me up after a long day at the office and we would go to the gym for an hour or so. He taught that if you don’t take care of your body then your mind is going to go, too. And you won’t be able to do the things that you love to do.” Guardians of the Rule of Law One of Bob’s goals as president of the Arkansas Bar Association is to lead the association in its efforts to support the rule of law, which was the theme of his inaugural address (printed on this page). Another one of his goals is to promote collegiality among lawyers and civility in the practice of law. ArkBar’s Executive Director Karen K. Hutchins has seen how Bob can bring people together. “Bob is so well known in the legal community that he can simply pick up the phone or walk down the street to start conversations about developing an idea or resolving an issue,” Karen said. “He understands the value of getting to know someone new, and he listens to their concerns and point of view. He values others and uses that sense of respect to create community and civility that brings us together.” As President, Bob wants to ensure that lawyers find value in supporting their association and that their membership provides opportunities for experiences that they will enjoy. “Bob is well aware that a lawyer’s time is valuable, so it is important to him that our members’ time spent supporting the Association creates a value for their practice or the profession,” Karen said. “This includes time working together to create a civil working environment, or to provide services that improve the administration of justice and support the rule of law. He has often stated ‘This is not time for a tea party but time to work toward a resolution.’” Bob concluded his inaugural address with, “As I begin to serve each of you as President of your Arkansas Bar Association, I strive to serve you well, advancing and accomplishing the purposes of our Association.” ■

From Bob's Inaugural Address: The rule of law is that set of principles insuring an orderly and just society. It is our social contract, based on the idea that each and every one of us are accountable to the law. Expression, freedom and liberty are all dependent on the rule of law. It is the glue that binds us. It is the principle under which all persons, institutions and entities are accountable to laws publicly promulgated, equally enforced and independently adjudicated by an independent bar and an independent judiciary. The rule of law only has meaning when there is an independent judiciary and an independent bar free from undue influences and reprisals. It is the foundation for our basic and fundamental rights. It demands equal justice. It exists when the laws are equally and impartially enforced. No one is above the law and everyone is obligated equally to obey the law. Key to the rule of law is our commitment to apply the law to everyone—to government, to individuals and to entities. Everyone is treated equally under the law. It requires everyone be held accountable to the same law. It is the foundation for our basic and fundamental rights. We cannot have commerce, peaceful discourse and interactions with one another without the rule of law. Lawyers play an integral part in maintaining the rule of law. This is true when they advocate on behalf of the state, the accused, the injured, those who are in disputes and conflicts and those who hold minority opinions. The rule of law is to be applied in a fair and equal manner to everyone no matter where they come from, no matter what their background and no matter what they look like. It is to be applied equally and fairly to everyone. The public nature of the rule of law and the public nature of the judicial process implemented by an independent bar and an independent judiciary is critical. The rule of law protects from the reign of tyrants and the vice of republics. The only civilizations that have prospered and thrived over time have been those civilizations that have emphasized the rule of law. When the rule of law prevails, there is equal justice and ordered liberty. When it does not prevail there is chaos, confusion, despotism and lawlessness. Vol. 56 No. 3/Summer 2021 The Arkansas Lawyer

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2021-2022 Public Service Academy Why to Run; When to Run; How to Run Supporting the Service-Minded Lawyer at Every Step Little Rock November 12-13, 2021 Fayetteville February 18-19, 2022 The Arkansas Bar Association and the University of Arkansas Clinton School of Public Service, in association with UA Little Rock Bowen School of Law and the University of Arkansas School of Law, announce the 2nd Public Service Academy for member lawyers and law students who are interested in public service in any capacity.

applications due september 3 available at www.arkbar.com/cle--events/public-service-academy

ArkBar LEGAL LEADERS ArkBar Legal Leaders is a program that recognizes legal firms and organizations who support all of their attorneys being involved in the legal profession by being members of the Arkansas Bar Association.

View the list of Legal Leaders at arkbar.com/ for-attorneys/leaders

Thank you to our Legal Leaders! 14

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Upcoming Events on CLE CENTRAL October 6: Administrative Law (1-hour webinar) October 15: Labor & Employment (3-hour webinar) October 20: Legal Writing (1-hour webinar) October 29: Government (3-hour webinar) November 3: Tax (1-hour webinar) November 9-12: Mid-Year Meeting (Virtual) November 17: Construction Law (2-hour webinar)

On-Demands Always Available at www.pathlms.com/arkbar

MID-YEAR

MEETING FAMILY LAW – 3 HOURS TAX LAW – 6 HOURS PROBATE & TRUST – 6 HOURS ELDER LAW – 6 HOURS NEW! APPELLATE LAW – 2 HOURS Now Virtual November 9-12, 2021

MORE INFORMATION COMING SOON www.arkbar.com/midyearmeeting/home

Vol. 56 No. 3/Summer 2021 The Arkansas Lawyer

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We Hold Three Truths: A Constitution Day Cerebration1

By Leon Holmes

O

ur constitution is the oldest written constitution in the world. It was written in 1787 and went into effect in 1789. No other country had a written constitution like it at that time. Two countries—Poland and France—adopted written constitutions in 1791. Neither lasted a year. Of more than 160 written constitutions in effect in the world, only 13 were adopted before World War II. Our constitution has not only endured, it has also made possible a vast nation of free persons with unparalleled prosperity. America has become home to immigrants from all over the globe. More than 40 million people who live in the United States were born elsewhere. People of every color, from every continent, come to America to make it home. Our constitution has made that possible. Three truths are central to our Constitution. First, the Constitution is based on a true understanding of human nature. The Constitution and the Declaration of Independence are based on the same fundamental principles, so I will begin with the Declaration: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed[.] These principles are best understood in light of the great chain of being. In the chain of being, man stands between God and the beasts. The difference between God and man is such that God can rule men without their consent. Likewise, the difference between men and beasts is such that men can rule beasts without their consent. No such difference exists, however, between one man and another. Because all men share a common human nature, none is superior in such a way that he is entitled by nature to exercise political rule or mastery over other men. As Jefferson said 10 days before his death, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” Nevertheless, men are prone to murder, rob, or enslave others, which is to deprive others of their natural rights to life, liberty, and the pursuit of happiness. Government is necessary to protect those rights, but government itself may become a threat to those rights. The framers wrote the Constitution based on of this understanding of human nature. At the heart of the Constitution is the doctrine of separation of powers and checks and balances, which Madison explained in Federalist 47: “The accumulation

Leon Holmes has been a member of the Arkansas Bar Association for nearly 40 years. He writes from Little Rock. 16

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of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced as the very definition of tyranny.” In Federalist 51, Madison wrote that it was essential to the preservation of liberty that the powers of government be separated into different departments: Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. Here, Madison restates the Declaration’s understanding of human nature. Government is necessary because men are not angels—which is a way of saying men are prone to abuse others. But government is comprised of men, not angels, and can threaten the unalienable rights that it should protect. Consequently, when establishing a government, it is necessary to provide means for controlling not only the governed but also the government, which means separating the powers of government into different departments which can check each other. But this is not the whole truth regarding human nature. In Federalist 10, Madison said that a republican form of government can control the effects of faction in part by delegating powers to a small number of elected citizens “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.” Here is another aspect of human nature: men can attain some measure of wisdom and virtue. Some men attain wisdom in a greater degree than others; some are more patriotic than others; and some love justice more than

others. The republican form of government enhances the possibility but does not guarantee that those who govern will have wisdom and virtue in a greater degree than most. In Federalist 57, Madison said: The aim of every political Constitution is or ought to be first to obtain for rulers, men who possess most wisdom to discern, and most virtue to pursue the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous, while they continue to hold their public trust. The electoral college initially was intended to be a small number of persons elected for their knowledge of national leaders with sufficient wisdom and virtue to serve as President. Likewise, the Constitution initially provided that State legislatures would elect Senators, partly to help elect Senators of wisdom and virtue. The Constitution includes minimum age requirements for Representatives, Senators, and the President, to enhance the likelihood that persons of maturity and experience will be elected. In Federalist 55, Madison summarized the view of human nature underlying the Constitution: “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.” We turn now to one of the most enduring questions in philosophy. Thrasymachus, in Plato’s Republic, said that “the just is nothing other than the advantage of the stronger.” Likewise, Thomas Hobbes said that right and wrong, justice and injustice do not exist outside of civil society because “[w]here there is no common power, there is no law; where no law, no injustice.” The founders rejected the views of Thrasymachus and Hobbes. The second truth central to the Constitution is that goodness and justice are prior to and transcend the political order; they represent

standards by which the political order—or any human conduct—can be judged. The Declaration appeals to “the Laws of Nature and of Nature’s God” and proclaims that all men are created equal and endowed by their Creator with unalienable rights. To say that all men are endowed by their Creator with unalienable rights is to say that all men have rights that are prior to and transcend the political order—rights that the government is obligated to respect and protect. Whereas the Articles of Confederation required approval of all 13 States for any amendment, the Constitution was to go into effect when ratified by nine States. In Federalist 43 Madison addressed this question: if nine or more States but less than 13 were to ratify the Constitution—which would in effect dissolve the Confederation, leaving some in the Union and some out— what would be the relationship between the States that were in the Union and those that were not? According to Hobbes, there would be no common power and therefore no law between them, which would mean that there would be no justice or injustice in their relations with one another. Madison said, however, “Although no political relations can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled.” Madison’s statement that the claims of justice would subsist between the States that ratified the Constitution and those that did not directly contradicts Hobbes. In Federalist 15, Madison said that government has been instituted because “the passions of men will not conform to the dictates of reason and justice, without constraint.” By connecting reason and justice, Madison says that justice is not the interest of the stronger, nor whatever the government decrees, even if the decree is the result of a majority vote. If that were true, justice would be the product of the will, which in effect is what Thrasymachus and Hobbes assert. “Justice is the end of government,” Madison said in Federalist 51, and “the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.”

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One of the purposes of the Constitution, according to the preamble, is “to establish justice.” But justice was not and has not been perfectly established, as the framers recognized. Here is the third truth central to the Constitution: Temperance in the zeal for justice, prudence in accepting imperfection, and humility are essential to liberty. After proclaiming the right of revolution, the Declaration says, “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient reasons; and, accordingly, . . . mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” In other words, men have the natural right to revolt when government reaches some level of injustice, but prudence dictates that men endure much injustice before exercising that right. On the last day of the convention, Benjamin Franklin said: I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: for having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects . . . It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. I agree to this Constitution with all its faults, if they are such. I doubt whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of judgment, their local interests, and their selfish views. From such an assembly can a perfect production be expected? In Federalist 37 Madison said “that a faultless plan was not to be expected.” In Federalist 85 Hamilton said that it would be “the extreme of imprudence” to engage in “the chimerical pursuit of a perfect plan. I never expect to see a perfect work from 18

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imperfect man.” We are fallible. Our minds are finite, and our reason influenced by our passions, our prejudices, and our self-interest. The founders recognized as much. The Constitution was presented to the States for ratification by conventions composed of delegates elected especially for that purpose. In some of the most important States, the election was particularly close. In New York the vote was 30 to 27. In Virginia the vote was 89 to 79. In Massachusetts the vote was 187 to 168. In Rhode Island— two years after the Constitution went into effect—the vote was 34 to 32. Having argued that the proposed constitution was fundamentally flawed and would lead to tyranny, the antifederalists nonetheless accepted the outcome of the elections adopting it, thus establishing an essential element of the American constitutional tradition. That element was tested by the election of 1800, the first bitterly partisan federal election in U.S. history. The Federalists were defeated by the Republicans following a campaign as heated and vitriolic as any in our time. The Federalists lost but accepted the outcome of the election. Our tradition has been to follow this example set by the founding generation. At least until recently, the only exception has been the election of 1860, when a segment of the population who denied the truth of the Declaration refused to accept the election result. This tradition requires temperance in the pursuit of justice, prudence in accepting imperfection, and humility in recognizing our own fallibility. The three central truths of the Constitution are: humans are prone to evil but capable of wisdom and virtue; goodness and justice are prior to and transcend the political order; and democracy requires temperance, prudence, and humility. The Catechism of the Catholic Church says, “Ignorance of the fact that man has a wounded nature inclined to evil gives rise to serious errors in the areas of education, politics, social action, and morals.” Pope John Paul II has said that “the organization of society according to the three powers— legislative, executive and judicial . . . reflects a realistic vision of humankind’s social nature, which calls for legislation capable of protecting the freedom of all. To that end,

it is preferable that each power be balanced by other powers and by other spheres of responsibility which keep it within proper bounds. This is the principle of the ‘rule of law,’ in which the law is sovereign, and not the arbitrary will of individuals.” Pope John Paul’s logic here is precisely that of the Federalist papers. The Pope also said: It must be added that totalitarianism arises out of a denial of truth in the objective sense. . . . If one does not acknowledge transcendent truth, then the force of power takes over, and each person tends to make full use of the means at his disposal . . . to impose his own interests or his own opinion, with no regard for the rights of others. . . .Thus, the root of modern totalitarianism is to be found in the denial of the transcendent dignity of the human person who, as the visible image of the invisible God, is therefore by his very nature the subject of rights which no one may violate—no individual, group, class, nation or State. Not even the majority of a social body may violate these rights[.] Moreover, “[w]hen people think they possess the secret of a perfect social organization that makes evil impossible, they also think they can use any means, including violence and deceit, in bringing that organization into existence.” The Catechism and Pope John Paul II teach that limited government—government that is not totalitarian—needs three things: first, a true understanding of human nature; second, a recognition that standards of morality transcend the political order; and third, a recognition that perfection cannot be achieved in this fallen world. These are three truths on which the United States Constitution was founded. Endnote: 1. The definition of cerebration is a noun that means the thought process. An earlier version of this essay was delivered as a Constitution Day lecture at Wyoming Catholic College. ■


Congratulations, Joe, on being elected Arkansas Bar Association's President-Elect!

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Arkansas Bar Association Young Lawyers Section Executive Council 2021-2022 Favorite hobby: Golfing or laying by my pool Favorite ArkBar Benefit: Building life-long professional and personal relationships with my peers. Favorite app: TikTok William J. Ogles Chair Elect

Payton C. Bentley Chair

Dover Dixon Horne PLLC

Clark Law Firm, PLLC

Favorite hobby: Tennis Favorite ArkBar Benefit: The bar conventions. I always enjoy seeing friends, former classmates, and colleagues. Hoping they can resume in person next summer! Favorite app: Podcast app

Caroline Kelley Secretary/Treasurer

Favorite hobby: Reading. Currently, I

Alexandra C. Benton District A Rep. Blair & Stroud

Kelley Law Firm

Favorite hobby: Yoga Favorite ArkBar Benefit: I love the case updates since my area of practice really relies on higher court decisions. Favorite app: Instagram Kelsey L. Boggan District A Rep.

Ezra J. Smith District A Rep.

Leslie Copeland Law & Mediation

Wales Comstock

Favorite hobby: Selling Vintage Electronics Favorite ArkBar Benefit: Weekly Case Summaries Favorite app: Dispatch Justice Elizabeth L. H. Richardson At-Large Rep. Attorney at Law

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Favorite hobby: Golfing and boating on Lake Hamilton Favorite ArkBar Benefit: reading the case summaries from the Court of Appeals and Arkansas Supreme Court every week Favorite app: is that phone app or appetizer? Twitter (maybe too much)- if phone; Gadwall’s Grill cheese dip- if the appetizer.

am enjoying The Women of Chateau Lafayette by Stephanie Dray. Favorite ArkBar Benefit: The Arkansas Lawyer magazine. It keeps me informed of developments in the profession as well as bar activities and the accomplishments of other members. Favorite app: Spotify. I have a curated playlist for every occasion and mood.

Favorite hobby: Reading history. I am currently working my way through a book on Roman law that is really interesting. Favorite ArkBar Benefit: The opportunity to serve on committees covering topics I am interested in. Working with the legislation committee during the last session was a fascinating look into lawmaking in Arkansas. Favorite app: It would have to be Spotify. I am always listening to a podcast.

"I look forward to another fantastic year for the Young Lawyers Section. We cannot make any of this happen without the goodwill, support, and contributions from our members."—Payton C. Bentley, YLS Chair


Young Lawyers Section

Andrew P. Norwood District B Rep. Denton & Zachary, PLLC

Zachary R. Trail District B Rep.

Favorite hobby: Hunting, fishing, and spending time with my wife (Ashley) and two sons (Henry & Oliver). Favorite ArkBar Benefit: My favorite ArkBar benefit is The Arkansas Lawyer Magazine, because it obviously features amazingly talented young lawyers! Favorite app: My favorite app is “Date Calculator,” so I can easily calculate my upcoming deadlines.

Favorite hobby: Playing golf and watching the Razorbacks. Favorite ArkBar Benefit: The comradery between lawyers within such a small community. It’s a benefit most lawyers around the country don't have. Favorite app: Twitter is probably my favorite, unfortunately. You just have access to so much information.

Favorite hobby: Golfing Favorite ArkBar Benefit: How helpful Arkbar is in contacting and networking with other attorneys. Favorite app: Apple Podcasts Wesley B. Watts District B Rep.

Branch, Thompson, Warmath & Dale, P.A.

Favorite hobby: Playing golf and softball Favorite ArkBar Benefit: The wide range of CLE opportunities Favorite app: Twitter William Thomas Harris, IV District C Rep. Heaton & Harris LLP

Wright, Lindsey & Jennings LLP

Favorite hobby: Fishing and Golf Favorite ArkBar Benefit: Connecting with other attorneys Favorite app: Major League Fishing

Robert T. Riley District C Rep.

Colin C. Heaton District C Rep.

Womack Phelps Puryear Mayfield & McNeil, P.A.

Heaton & Harris LLP

Favorite hobby: Cooking Favorite ArkBar Benefit: The top quality CLE's Favorite app: YouTube (great place to learn new recipes) Frank is pictured with his wife, Kelli Frank W. Jenner At-Large Rep. Pulaski County Attorney's Office

Favorite hobby: Hunting Favorite ArkBar Benefit: The ability to connect with so many lawyers who have such a wealth of knowledge. Favorite app: Audible! I love to read and do not have much time for pleasure reading these days. Audible fixes that.

Favorite hobby: Spending time with my dog, Rosebud Favorite ArkBar Benefit: The myriad of CLE opportunities Favorite app: Calm Lauren Spencer At-Large Rep. Barber Law Firm PLLC

Vol. 56 No. 3/Summer 2021 The Arkansas Lawyer

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Civil Right to Counsel for Indigent Parents in Contested Adoptions: An Argument for Due Process and Equal Protection When Parental Rights Are Terminated in Private Civil Actions

By Amie K. Wilcox

A

n indigent birth parent who seeks to protect her parental rights is not entitled to appointed counsel in only one instance—if she objects in a private adoption. Act 599 of 2021 gives her the right to counsel if she consents to the adoption. And Ark. Code Ann. § 9–27–316(h) provides a right to appointed counsel in dependency and neglect proceedings brought by the state. However, the indigent birth parent who desires to contest a private adoption and protect her rights has no right to assistance of counsel. That issue, which the Arkansas Supreme Court declined to address in Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580, continues to present itself in Arkansas courts, and the courts of other states have addressed the issue in the constitutional context of due process and equal protection. This article suggests the time has come to address it in Arkansas, particularly given the adoption of Act 599. The Development of the Right to Counsel The Due Process Clause of the Fourteenth Amendment to the United States Constitution states: “No state shall . . . deprive any person of life, liberty, or property, without due process of law.” Likewise, Section 8 of the Arkansas Constitution provides: “No person shall . . . be deprived of life, liberty or property, without due process of law.”1 The Supreme Court determined in Lassiter v. Department of Social Services of Durham County that whether due process requires the appointment of counsel in a parentaltermination proceeding is a matter for the trial court to determine on a case-by-case basis, subject to appellate review.2 In making such determination, the trial court must utilize the balancing test articulated in Mathews v. Eldridge.3 These factors weigh (1) the private interests at stake, (2) the government’s interest in the matter, and (3) the risk that the procedures used will lead to an erroneous decision. In Lassiter, the Court observed that the parent’s interest is one of utmost importance, as is the state’s interest in the welfare of the child. These factors comprise the judicial scale that balances the factors’ net weight against the presumption that there is a right to appointed counsel only where an issue of fundamental fairness is at stake comparable to the loss of the individual’s personal liberty.4 In analyzing the Mathews factors, the Lassiter Court recognized “a parent’s desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful

Amie K. Wilcox is an attorney at Friday, Eldredge & Clark LLP in Little Rock. She practices healthcare regulatory law and was named a 2021 Outstanding Pro Bono Attorney by Legal Aid of Arkansas. 22

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countervailing interest, protection.’”5 In cases involving the termination of parental rights, this interest is not simply infringed upon; it is obliterated. The Court noted that the state would share the indigent parent’s interest in obtaining a just and accurate decision in the best interest of the child. The Court also recognized the state’s pecuniary interest—particularly if providing funding for the indigent parent’s counsel. However, the Court confirmed that interest “is hardly significant enough to overcome private interests as important” as those in a case where a parent’s rights are subject to termination. Finally, the Court noted that strong consideration should be given to the risk that a parent will be erroneously deprived of his or her child because the parent was not represented by counsel. In particular, the Court noted that indigent parents “are likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are, at the hearing, thrust into a distressing and disorienting situation. That these factors may contribute to overwhelm an uncounseled parent is evident . . . .”6 The Supreme Court later applied these factors in Turner v. Rogers, re-articulating the constitutional due process requirements and the responsibility of the trial court to address such.7 As noted by the Arkansas Supreme Court in Bearden v. State Dep’t of Human Servs., Arkansas has codified certain state-conferred statutory rights to counsel outlined below, which are distinct from any due process right to counsel.8 The Bearden court affirmed that the due process right to counsel arises if the circumstances of the particular case indicate that fundamental fairness requires the appointment of counsel, as determined utilizing the Mathews factors. Arkansas guarantees the right to counsel in dependency-neglect cases brought by the state: In all dependency-neglect proceedings that set out to remove legal custody from a parent or custodian, the parent or custodian from whom custody was removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is

indigent and counsel is requested by the parent or custodian.9 Notably, even a putative parent has the right to appointed counsel in these proceedings where the court finds on the record that the putative parent is indigent.10 Act 599 now additionally provides that parents whose consent is required for adoption “shall have limited, independent legal representation” for the purposes of executing the consent to adoption or withdrawing the consent to adoption.11 The consenting parent is able to waive this right by affidavit. Act 599 highlights the inequity faced by parents who do not consent to a private adoption. The right to counsel exists for indigent parents fighting for their children in dependency and neglect proceedings and for parents who are consenting to a private adoption, but not for parents who choose to contest the termination of their parental rights in a private adoption. Yet the parental interests at stake are the same. Since the Supreme Court’s decision in Lassiter, courts across the United States have examined whether an indigent parent has an absolute right to appointed counsel in parental rights termination cases based

on procedural due process.12 A number of jurisdictions have ruled in favor of appointed counsel for indigent parents in private adoption proceedings.13 These decisions have not only been based on due process, but also equal protection.14 Many state supreme courts have ruled that providing counsel to parents in stateinitiated termination proceedings, but denying it in private terminations, is a violation of equal protection. In Arkansas, the likelihood that the absence of the right to counsel for indigent parents in contested private adoption proceedings violates equal protection is now stronger given the new rights available to indigent parents who consent to private adoptions. With this expansion, it is becoming increasingly unlikely that the State of Arkansas can successfully show a legitimate government interest furthered by such differential treatment. Lucas v. Jones The Arkansas Supreme Court has not directly addressed the right to counsel for indigent parents in private adoptions, having declined to do so in Lucas v. Jones based on procedural considerations. The underlying facts of Lucas highlight the

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compelling parental interests that underscore the necessity for a right to counsel for indigent parents in all parental termination proceedings. Lucas entered into an agreed order of permanent guardianship, allowing her adoptive parents to assume custody of her daughter, J.J., on April 23, 2008. At the time of the guardianship order, J.J. was nearly three years old. Lucas’s parents sought to adopt J.J. two years later, alleging that Lucas had, without justifiable cause, neither visited nor provided support for the child in over one year. Lucas was transparent in the adoption proceedings that while she is an alcoholic, she had been sober at all times relevant to the adoption proceedings. Lucas filed a pro se answer to the petition for adoption, denying the material allegations. Lucas and her parents offered conflicting testimony as to whether Lucas had called or attempted to visit the child, whether Lucas was threatened to stay away from the child, and whether the appellees refused to let Lucas speak to or visit the child. Lucas filed a motion for continuance, in which she requested a continuance to allow her time to seek an attorney. The motion for continuance stated in relevant part: Defendant respectfully requests that this Court continue this matter in order for Defendant to seek legal counsel. Defendant has requested legal aid from Legal Aid of Arkansas and received a response dated February 7, 2011 (a copy attached hereto). Defendant was advised to request the Court to have an attorney appointed by the Court. . . . If Defendant needs to provide additional information or documentation please advise.15 Lucas attached a letter received from a lawyer with Legal Aid of Arkansas, who was not able to accept her request for representation. The letter included the following: Since this is an action to terminate your parental rights there may be arguments that you are entitled to have an attorney appointed for you. I would strongly suggest that you ask 24

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the judge to give you an appointed attorney. If the judge goes through with the adoption without giving you an appointed attorney you could recontact us as that is a matter we might very well wish to litigate further.16 The court entered an order denying the motion for a continuance without comment. A hearing on the petition for adoption was then held on November 16, 2011, at which the adoption was granted over Lucas’ objection. As raised by counsel on appeal, Lucas’ motion for continuance could only be read as Lucas pursuing the recommendation to request appointed counsel when viewed fairly in the context of an unrepresented person attempting to preserve a fundamental parental right to which the constitutional rights of due process and equal protection attach.17 Counsel argued that Lucas did request appointed counsel and that the circuit court effectively denied her request in denying her motion for continuance.18 The Arkansas Supreme Court determined that because Lucas’ stated reason for the delay was so that she could “seek” counsel, not obtain the appointment of counsel, the equivocal nature of her statements did not amount to a clear request for representation by an attorney. Thus, the court declined to address the constitutional issues raised. If the Lucas court had construed and accepted Lucas’ statements for what they were, a request for appointed counsel, and applied the Mathews factors as required by Turner and Lassiter, the resulting analysis should have established that Lucas’ right to counsel was required by her constitutional right to due process. As reflected by her counsel on appeal, a “review of the hearing transcript reveals a determined mother trying to save her parental rights but without the knowledge or acumen to do so.”19 The state of the law remains unchanged for similarlysituated parents, despite the recognition of the right to counsel in other states. Next Steps Toward a Judicial Ruling on the Right to Counsel So how can the issue of a right to counsel reach the Arkansas Supreme Court for decision? The Arkansas Lawyer is not directed at indigent parents and it is unlikely that this

article will find its way to them. Rather, the first step is for the bench and bar to have this issue in mind when the factual scenario presents itself. Turner v. Rogers allows a court to address the issue sua sponte and even appoint pro bono counsel to advance the issue of the right to appointed counsel in a limited scope representation permitted by Arkansas Rule of Professional Conduct 1.2(c). Whether appearing pro se or represented by an attorney, the indigent party must make a clear request for appointed counsel. As Lucas illustrates, a request for a continuance to seek counsel, even coupled with a letter from a Legal Aid lawyer advising the party of a right to appointed counsel, is not sufficient.20 Therefore, a statement must be made like the following: I am indigent and cannot afford to pay a lawyer. I request that counsel be appointed for me under my constitutional rights of due process and equal protection guaranteed in the United States and Arkansas Constitutions. Based on Turner, a trial judge can clarify what a pro se party is asking, but it is imperative that the party or appointed lawyer obtain a ruling on the request for counsel to preserve the issue for appeal. Because Arkansas does not have a plain error rule,21 Lucas instructs that the failure to obtain a ruling at the trial court level can be fatal. A Legislative Solution Although the protection of constitutional rights is the province of the courts and not the legislature,22 various states have addressed the right to counsel in private adoption proceedings by legislative act. Yet, even when the legislature speaks, for example on the right to counsel in dependency and neglect cases, but does not extend the right to counsel to private adoption proceedings, some courts avoid the constitutional issue and say that the matter of a right of indigent parents to counsel in private adoptions is for the legislature.23 Accordingly, one immediate way to establish a right to counsel for indigent persons whose parental rights are being terminated in a private adoption is to create the right by statute as was done with


a limited focus by Act 599. This could be easily accomplished by expanding Act 599 to apply to contested adoptions. Conclusion “Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents.”24 In a state committed to constitutional due process and equal protection, indigent persons whose parental rights are subject to termination in a private adoption should not be treated differently than the same persons in dependency and neglect proceedings brought by the state or from indigent parents who are consenting to the adoption. In the end it is the state, acting through its courts, that is terminating parental rights. Meaningful access to justice through a right to counsel should not depend on the nature of the proceeding or whether or not the parent chooses to fight for his or her fundamental right to parent. Endnotes: 1. Ark. Const. art. 2, § 8. 2. Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 101 S. Ct. 2153 (1981), reh’g denied, 453 U.S. 927, 102 S. Ct. 889 (1981). 3. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). 4. Lassiter, 452 U.S. at 31. 5. Id. at 27 (quoting Stanley v. Illinois, 405 U.S. 645, 651). 6. Id. at 30. 7. Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507 (2011). 8. Bearden v. State Dep’t of Human Servs., 344 Ark. 317, 324-325, 42 S.W.3d 397, 401-402 (2001). 9. Ark. Code Ann. § 9-27-316(h)(1)(B). 10. Id. at § 316(h)(4). 11. See Act 599 (notably, this right to counsel does not apply in stepparent, grandparent, or pro bono adoption proceedings). 12. See Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 92 A.L.R.5th 379 (2001). 13. See, e.g., In re K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of Meaghan, 461 Mass. 1006, 961 N.E.2d 100 (2012); In re Jay, 197 Cal. Rptr. 672 (Cal. Ct. App. 1983); O.A.H. v. R.L.A., 712 So. 2d 4 (Fla. Ct. App. 1993);

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G.C. v. W.J., 917 So. 2d 998 (Fla. Ct. App. 2005); In re K.L.P., 763 N.E.2d 741 (Ill. 2002); Matter of Adoption of K.A.S., 499 N.W.2d 558 (N.D. 1993); Zockert v. Fanning, 800 P.2d 773 (Or. 1990); O.A.H. v. R.L.A., 712 So. 2d 4 (Fla. Ct. App. 1998); G.C. v. W.J., 917 So. 2d 998 (Fla. Ct. App. 2005). 14. See e.g. In re Adoption of Meaghan, 461 Mass. 1006, 961 N.E.2d 100 (2012). 15. Brief of Appellant at Add. 8, Lucas v. Jones, 2012 Ark. 365 (emphasis added). 16. Lucas, 2012 Ark. 365 at 3 (emphasis added). 17. Id. at 2. 18. Reply Brief of Appellant at 1-2, Lucas, 2012 Ark. 365. 19. Brief of Appellant at 9, Lucas, 2012 Ark. 365. 20. See also Gordon v. Draper, 2013 Ark. App. 352, at *7, 428 S.W.3d 543, 546 (“Because that question was not an explicit request for counsel, he failed to preserve the issue for appeal”). 21. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). 22. “The question of what procedures are

necessary to protect a right is a question of constitutional law for a judge, not a question to be determined by state legislatures.” Cabinet for Health & Family Services v. K.S., 610 S.W.3d 205, 213 (Ky. 2020) (citing Cleveland Bd of Ed. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (“the right to due process is conferred, not by legislative grace, but by constitutional guarantee”)). 23. E.g., Johnson v. Hauck, 344 Ga. App. 848, 854, 812 S.E.2d 303, 308 (2018). 24. Linker-Flores v. Arkansas Dep’t of Human Services, 359 Ark. 131, 137, 194 S.W.3d 739, 744 (2004); see also In re Adoption of Parsons, 302 Ark. 427, 431-32, 791 S.W.2d 681, 683 (1990) (“Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. We have long given careful protection to a natural parent’s rights”). ■

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ArkBar Annual Award Recipients 2020-2021 Arkansas Bar Association President Paul W. Keith presented the awards in a virtual ceremony during the Annual Meeting. Go to www.arkbar.com/annualmeeting/home to view the video.

Presidential Awards of Excellence

Golden Gavel Awards

Golden Gavel Awards

Joe F. Kolb, j. kolb, Little Rock, for several years of service as treasurer

Adrienne Morris Griffis,

G. S. Brant Perkins, The

Dover Dixon Horne PLLC, Little Rock, for her work on the Virtual Mock Trial Competition

Perkins Law Firm, P.A., Jonesboro, for his work as chair of the By-Laws Drafting Sub-Committee

Pulaski County Bar Association for years of

Christopher M. Hussein,

Brian M. Rosenthal, Rose

Legal Aid of Arkansas, Springdale, for his work as Young Lawyers Section Chair for the past two years

Law Firm, Little Rock, for his work on the ABCDI Survey and work on the Sponsorship Committee

Aaron L. Squyres, Wilson &

Anton Leo Janik, Jr.,

George M. Rozzell, Miller,

Associates, PLLC, Little Rock, for several years of service as parliamentarian

Mitchell Williams, Little Rock, for his work as the chair of the Editorial Advisory Board

Butler, Schneider, Pawlik & Rozzell, PLLC, Fayetteville, for his work on the Sponsorship Committee

service to the legal profession

Sarah C. Jewell, McMath

Golden Gavel Awards Kandice A. Bell, Office of Governor Asa Hutchinson, White Hall, for her work as ABCDI Chair Beverly I. Brister, The Brister Firm, Benton, for her work on the Constitution Day Video Lillian Dee Davenport, Simmons Wealth Management, Little Rock, for her work as Mid-Year Coordinator

Woods, P.A., Fayetteville, for her work as Annual Meeting Co-Chair

Vanessa Cash Adams, Jamie Huffman Jones, Friday, Eldredge & Clark LLP, Little Rock, for her work as Annual Meeting Co-Chair

Prof. Lynn Foster, UA Little Rock William H. Bowen School of Law, for her work as chair of the Legislation Committee

26

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ARlaw Partners, PLLC, Little Rock, for planning the 2021 Debtor/Creditor Conference

Jennifer L. Zwiegers, Joseph F. Kolb, j. k o l b, Little Rock, for his work on the ABCDI Survey

Arkansas Electric Cooperatives, Little Rock, for Co-Planning the Environmental Law Conference

Sarah Murphy McDaniel, Deepali Lal, UA Little Rock William H. Bowen School of Law, Little Rock, for her work on the ABCDI Survey

Brent J. Eubanks, Humphries, Odum & Eubanks, Little Rock, for his work as PAC Chair

CLE Awards

Mackie, Wolf, Zientz & Mann, P.C., Little Rock, for planning the 2021 Debtor/Creditor Conference

Lindsey Emerson Raines, Jessica Virden Mallett, Law Offices of Peter Miller P.A., Little Rock, for her work as Chair of Sponsorship Committee

Anthony L. McMullen, University of Central Arkansas, Conway, for his work on the Virtual Mock Trial Competition

Friday, Eldredge & Clark LLP, Little Rock, for planning the 2021 Debtor/Creditor Conference

Stuart Larson Spencer, Mitchell Williams, Little Rock, for Co-Planning the 24th Environmental Law Conference


Maurice Cathey Award

Legislative Awards

Bill Waddell, Friday,

David Allen Grace, Hardin

Eldredge & Clark LLP, Little Rock, for contributions to The Arkansas Lawyer magazine

& Grace, P.A., North Little Rock

Anthony A. Hilliard,

Frank C. Elcan Award

Ramsay, Bridgforth, Robinson & Raley LLP, Pine Bluff

Christopher M. Hussein, Legal Aid of Arkansas, Springdale, for his commitment and dedication to the Young Lawyers Section

Judith Ryan Gray Young Lawyer Service Award Payton C. Bentley, Clark Law Firm, PLLC, Fayetteville, for outstanding contributions to improve the administration of justice and promoting the public welfare on behalf of YLS

Young Lawyer Section Awards of Excellence

Glen Hoggard, Attorney at Law, Little Rock

Robert M. Honea, Hardin, Jesson & Terry, PLC, Fort Smith

Lauren White Hoover, Lacerra, Dickson, Hoover, & Rogers, PLLC, Little Rock

Angela M. Mann, Mann & Kemp, Little Rock

Alexandra C. Benton, Blair & Stroud, Batesville, for her work taking the lead on the Domestic Violence Handbook update and YLS trivia night

J. Don Overton, The Overton Firm, LLC, Little Rock

Ray Slaton, Hyden, Miron & Foster, PLLC, Little Rock, for his work on the Wills for Heroes project

Judge Herb T. Wright, Circuit Judge, 6th Judicial District, Fourth Division

Legislative Awards Matthew C. Boch, Dover Dixon Horne, Little Rock

Celebrating 50 Years Congratulations to the following members who have been admitted to the practice of law in Arkansas for 50 years:

Judge Samuel N. Bird Larry W. Burks Jerry L. Canfield George Randall (Randy) Coleman, Jr. Thomas (Tom) A. Daily Al J. Daniel, Jr. John C. Everett Larry Froelich Stephen A. Geigle Sam Gibson John C. Gregg Robert L. Hart, Jr. Donald B. Kendall Jerry Mazzanti Jack A. McNulty J. Conley Meredith Jim Roger Nash Bobby Lee Odom Eudox Patterson Jerry Dean Patterson David J. Potter Lonnie A. Powers Robert J. Reid J. Mark Spradley George Edwin Steel Boyd A. Tackett, Jr. Allyn (Lynn) Tatum David S. Taylor Byron Thomason William M. Warren John Dewey Watson Timothy F. Watson, Sr.

Arkansas Bar Foundation Writing Awards Carol Goforth, University of Arkansas School of Law, Fayetteville

Legal Category: Luke Burton, "Qualified Immunity-

General Category: Bill Waddell, "Privilegium"

An Attorney's Primer" published in the Summer 2020 issue of The Arkansas Lawyer

published in the Winter 2021 issue of The Arkansas Lawyer

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Arkansas Bar Foundation and Arkansas Bar Association Joint Awards The Arkansas Bar Foundation and the Arkansas Bar Association selected the following recipients to honor this year because of their outstanding contributions.

Outstanding Lawyer Award PAUL D. McNEILL, RMP LLP, Jonesboro, in recognition of excellence in the practice of law and outstanding contributions to the profession

C.E. Ransick Award of Excellence SHERRY P. BARTLEY, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, in recognition of outstanding contributions to the profession

Equal Justice Distinguished Service Award JUDGE AMY DUNN JOHNSON, Circuit Judge, 6th Judicial District, 15th Division, in recognition of commitment to and participation in equal justice programs, including pro bono efforts through legal services

Outstanding Jurist Award JUDGE JOYCE WILLIAMS WARREN, Little Rock, in recognition of exceptional competency, efficiency and integrity on the Bench and exemplary service to the administration of justice

Outstanding Local Bar Association: Sebastian County Bar Association

Thank you for a successful 123rd Arkansas Bar Association Annual Meeting Joint Meeting with the Arkansas Judicial Council RD 123 ANN UAL

MEETING

This event could not have been possible without all of the incredible support from all of our sponsors, speakers and volunteers. Thank you to all of the sponsors listed on the inside cover of this issue. Annual Meeting Co-Chairs: Jamie Huffman Jones and Sarah C. Jewell Program Planners: Family Law: Adrienne Griffis and Brooke Ware; Business Law: J. Cliff McKinney II; Criminal Law: Brian Clary; Zoom Facilitator: Cathy Underwood

From ArkBar President Paul W. Keith's welcome to the 2021 Annual Meeting: Much has changed since that first meeting. Construction on the Arkansas State Capitol that we have known all of our lives would begin in 1899 and continue until 1915. The first mass-produced automobile—the Ford Model T—was 10 years in the future. Those attending the first meeting came by train, horse or horse and buggy. This year, we travel to the Annual Meeting at the speed of light and return to our homes and offices just as fast. The downside is that we won’t be able to shake hands and slap backs. But we can temporarily leave the meeting and take a call or meet with a client. Whether we arrive by locomotive or by fiber optic cable, the result is the same. We renew old acquaintances and make new ones. We learn something that makes us better lawyers. And we celebrate one another’s accomplishments. What a great time to be alive.

Mark your calendar to attend the 124th Annual Meeting in Hot Springs June 15-17, 2022! 28

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Understanding Human Trafficking Laws and Liability

By Annie B. Smith

D

espite widespread public attention to human trafficking, it is still commonly misunderstood. Myths abound and those who spread them—as well as ominous conspiracy theories—make human trafficking harder to address.1 It is critical for judges and lawyers to be well-informed and to rely on reputable sources for accurate information about this serious form of exploitation.2 There are two types of human trafficking: sex and labor.3 Federal human-trafficking-related crimes are found in Chapter 77 of the U.S. Criminal Code.4 In Arkansas, the crime is referred to as “trafficking of persons.”5

Annie Smith is an Associate Professor of Law and the Director of the Civil Litigation & Advocacy Clinic, Human Trafficking Clinic at the University of Arkansas School of Law. 30

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The Many Forms of Human Trafficking Examples taken from federal human trafficking prosecutions illustrate the broad range of abuses that this form of extreme exploitation entails and the diverse settings where it occurs. In one instance, staffing agency owners used false promises to get foreign nationals to incur recruitment-related debts, secure temporary work visas, and travel to the United States.6 The traffickers compelled these guestworkers to work in country clubs and hotels using threats of arrest and deportation, knowing the serious economic and legal harms they would face in their home country if their debts went unpaid. In a case involving minors, traffickers recruited Central American teenagers, promising them educational and employment opportunities.7 The traffickers smuggled the teens into the United States and forced them to live in abysmal conditions on a farm and to work for virtually no pay.8 The traffickers used threats of deportation and harm to the teens' families to control them.9 In another case, a U.S. national with an intellectual disability was compelled by his manager to work at a restaurant.10 He worked for nearly 100 hours each week for no pay.11 The trafficker beat, burned, and yelled at the man, and demeaned him with racial slurs.12 In a sex trafficking case, an adult initiated a sexual relationship with a teenager and eventually made her advertise and engage in commercial sex acts.13 In another case, a trafficker sought out homeless women with histories of trauma


and drug addiction.14 He used sexual assault and other forms of violence, threats, as well as access to heroin to compel them to engage in commercial sex acts. He also recorded the women engaged in sex acts and threatened to make the recordings public. Each of these cases involved the use of threats, coercion, or physical force to compel a person to engage in labor, services, or commercial sex acts. Note, however, that any time a minor engages in commercial sexual activity, they are a victim of human trafficking—no force, fraud, or coercion of any kind is required.15 Criminal and Civil Liability for Human Trafficking Individuals and entities can be held criminally liable for engaging in human trafficking crimes or knowingly benefitting from participating in ventures that do.16 Under Arkansas law, trafficking of persons is a Class A felony;17 patronizing a victim of human trafficking is a Class B felony;18 and both are Class Y felonies when the victim is a minor.19 Convicted organizations are subject to dissolution or reorganization, revocation or suspension of licenses, permits and other approvals, and other equitable relief.20 Law enforcement can seize vehicles and other conveyances without process where there is probable cause to believe they were used in the commission or attempt of trafficking.21 Human traffickers face substantial civil liability under federal and state law as well, including for attorney’s fees and costs, treble damages, and punitive damages.22 Liability extends beyond individuals who directly engage in the trafficking conduct to those who knowingly benefit from participating in a venture that does.23 Human Trafficking Litigation in Arkansas Human trafficking litigation in Arkansas remains sparse.24 Included below is a sampling of the Arkansas cases that have alleged human trafficking.25 Labor Trafficking Prosecutions of labor trafficking are nearly nonexistent in Arkansas. This author is aware of just one—State v. Chen—a case involving a Jonesboro restaurant owner accused of rape and human trafficking of

an employee.26 Chen allegedly housed the employee in his apartment and beat her multiple times, prevented her from using the phone while speaking English, and raped her. Chen was charged with rape and two counts of trafficking of persons. He later pled guilty to attempted theft of services and battery in the third degree and was sentenced to 364 days and ordered to pay $3,000 in restitution as well as an additional amount in fines and fees. Consistent with national trends, civil lawsuits alleging labor trafficking occur much more frequently than prosecutions in Arkansas.27 In one case, Mexican guestworkers brought a lawsuit against their employer alleging that he subjected them to inhumane living conditions on his Lonoke County farm, confined them in a metal shed when they were not working, prohibited them from leaving the farm without supervision, confiscated their passports, threatened them with blacklisting and deportation, and terminated one for consulting an attorney.28 The case settled for an undisclosed amount. In another case brought by guestworkers, South African nationals filed suit against their agricultural employers alleging that, among other abuses, the employers threatened them with arrest, deportation and blacklisting, tracked their movements when they were away from the farm, verbally abused them, and refused to reimburse their substantial travel costs as a means of compelling work.29 Plaintiffs’ employment on defendants’ Crittenden County farm lasted for approximately one month and the case ended in a $35,000 settlement. Children raised in Tony Alamo’s Foukebased cult brought a lawsuit against him and others alleging that they were forced to perform unpaid work for the cult and related entities, including landscaping, cooking, roofing, and soliciting donations.30 Plaintiffs alleged they were assaulted, starved, exposed to assaults of others, verbally abused, and prevented from securing government identification. Although a portion of the trafficking claims were dismissed when the court held that critical amendments to the federal law did not apply retroactively, one claim survived a motion for summary judgment.31 Plaintiffs

settled with some defendants and dismissed others, including Alamo. At the time of the lawsuit, Alamo was already serving a 175-year sentence for numerous counts of transportation of a minor with intent to engage in criminal sexual activity.32 Plaintiffs in another labor exploitation case brought a class action alleging that they were subjected to human trafficking when they were compelled to perform dangerous unpaid work for a plastics company as a condition of their court-ordered participation in an allegedly substandard substance abuse recovery program in Decatur.33 While the court dismissed plaintiffs’ trafficking claims, it ordered defendants to pay roughly $1,100,000 in wage-related damages.34 Sex Trafficking Sex trafficking is much more commonly prosecuted than labor trafficking. In one case, Damion Gunnells was charged with trafficking of persons when he allegedly recruited and transported an individual to involuntarily engage in commercial sex.35 He was also charged with assault in the second degree for allegedly dragging his then-girlfriend by her hair into a Springdale hotel room, as well as with drug-related charges. Media reports indicate that the victim was initially Gunnell’s girlfriend, and he forced her to engage in commercial sex acts, including by beating her and threatening her family and friends.36 Law enforcement was alerted when a hotel employee reported their concerns. Gunnells pled guilty to drug-related crimes and promoting prostitution in the second degree—a misdemeanor—and was sentenced to 36 months. Latosha Lee was convicted of trafficking of persons when she accepted a small amount of methamphetamine in exchange for providing her teenaged daughter to a man for the purposes of engaging in sex.37 According to court records, Lee’s daughter met the man on Facebook when he commented that she was pretty; they later met and engaged in sexual activity. Although Lee repeatedly tried to prevent her daughter from seeing the man and engaging in sexual activity with him, she eventually permitted her to spend several hours with him in exchange for drugs. Her 10-year sentence was upheld on appeal.

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In another case involving a minor, Muhammed Arif was arrested for allegedly offering to pay a minor money in exchange for a sex act while giving her a ride home from his Searcy business.38 The minor allegedly recorded their conversation and shared it with law enforcement.39 Several civil lawsuits alleging sex trafficking have been filed in Arkansas in recent years. In one, an alleged sex trafficking survivor pseudonymously filed suit against a Little Rock hotel as well as related entities and individuals alleging that she was held in the hotel for several months and forced to engage in numerous commercial sex acts.40 Notably, plaintiff did not allege that defendants directly engaged in the sex trafficking themselves but rather that they knowingly benefitted from it. Plaintiff alleged that the phones were disconnected in the hotel rooms, numerous keys were simultaneously issued to a single room, traffickers and others regularly passed through the hotel lobby in view of hotel staff, and that the hotel floor dedicated to sex trafficking was extremely noisy. Among other things, she also alleged she was beaten and choked repeatedly by the trafficker, that the hotel never responded to her screams for help, that staff looked away when she was nearby, and that the hotel manager resided in the hotel, participated in the sex trafficking activity, and instructed staff not to contact law enforcement. The case settled for an undisclosed amount. Implications for Arkansas Attorneys Attorneys whose practice may intersect with human trafficking might consider employing the following strategies if they do not already. As a general matter, trafficked individuals should be counseled about their right to bring civil lawsuits against their traffickers and to receive restitution if there is a federal prosecution. If they are not U.S. citizens, they should be promptly referred to skilled immigration counsel. Clients should also be advised about relevant affirmative defenses if they are prosecuted for crimes that occurred as a result of their exploitation and also informed of criminal record sealing options if convicted. Ideally, an attorney would advocate for a trafficked individual throughout any criminal investigation 32

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and prosecution of their traffickers. If the individual is interested, referral to appropriate social services is strongly recommended. Labor and Employment: Plaintiff-side employment attorneys—particularly those representing employees in high-risk sectors41 —might consider screening for human trafficking when presented with wage and hour violations, discrimination, injuries, or other workplace concerns.42 Attorneys who represent employers or work in-house on compliance matters might counsel clients about the risk of criminal and civil liability should they knowingly benefit from participating in a venture that engaged in human trafficking.43 Permitting under-capitalized labor contractors or unscrupulous recruiters to operate without meaningful oversight, for example, likely places clients at greater risk of liability for human trafficking as well as wage and hour and other violations of the law. Immigration: Immigration attorneys representing clients who have experienced domestic violence, engaged in commercial sex work, or experienced labor exploitation might screen them for human trafficking. Trafficked individuals should be counseled about the private right of action and, if interested, referred to counsel experienced with such matters.44 Family Law: Human trafficking can present in a variety of ways in the family law context. In some circumstances, as illustrated by State v. Lee, minors are trafficked by family members. Cases involving child sex abuse and other forms of domestic violence should be evaluated for human trafficking. Attorneys handling adoptions should be aware that coercing pregnant birth mothers to offer a child for adoption is now clearly recognized as a form of human trafficking under Arkansas law.45 In addition to physical force, prohibited coercion includes threats that the birth mother or another person will be sued, deported, or subjected to reputational harm.46 Adoption attorneys who do not already do so must ensure the practices of their staff and others they collaborate with do not constitute human trafficking. Criminal: Human trafficking victims sometimes participate in crimes while

being victimized and all too commonly face prosecution themselves. Fortunately, an affirmative defense is now available for certain crimes, including prostitutionrelated crimes and most drug crimes, where a trafficked individual can show they engaged in the criminal conduct as a result of their trafficking.47 In light of this recent change to Arkansas law, criminal defense attorneys should screen clients who were in vulnerable or exploitative situations to determine whether they were victims of human trafficking at the time of the alleged crime. Finally, prosecutors have an important role in preventing further harm to trafficking victims. They can help to ensure the law enforcement agencies they collaborate with are equipped to identify and investigate all forms of human trafficking. They can also exercise prosecutorial discretion and decline to charge trafficked individuals who committed crimes as part of their exploitation. Integrating knowledge of human trafficking laws into Arkansas attorneys’ practice is critical to addressing human trafficking in the state. Among other things, attorneys can help trafficked individuals to be aware of their rights and have access to the legal remedies to which they are entitled and to prevent further harms, including arrest, incarceration, and prosecution. Endnotes: 1. See How Unproven Trafficking Stories Spread Online and Why Stopping Them Matters, Polaris Project (July 22, 2020), https://polarisproject.org/blog/2020/07/howunproven-trafficking-stories-spread-onlineand-why-stopping-them-matters/ (explaining the harmful consequences of conspiracyrelated human trafficking reports for trafficked individuals and the organizations that serve them). 2. Reputable sources include the Human Trafficking Legal Center, Coalition to Abolish Slavery and Trafficking, and The Freedom Network. The National Human Trafficking Hotline also offers basic information. 3. Some cases involve both sex and labor trafficking. 4. 18 U.S.C. § 1590; 18 U.S.C. § 1591.


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5. Ark. Code Ann. § 5-18-103 (2013 & Supp. 2019). 6. Florida Couple Sentenced in Forced Labor Conspiracy to Exploit Filipino Guest Workers, U.S. Dep't of Just. (Dec. 10, 2010), https://www.justice.gov/opa/pr/floridacouple-sentenced-forced-labor-conspiracyexploit-filipino-guest-workers. 7. Leader of Human Trafficking Organization Sentenced to Over 15 Years for Exploiting Guatemalan Migrants at Ohio Egg Farms, U.S. Dep't of Just. (June 27, 2016), https://www.justice.gov/opa/pr/leaderhuman-trafficking-organization-sentencedover-15-years-exploiting-guatemalanmigrants. 8. Id. 9. Id. 10. South Carolina Man Sentenced to 10 Years in Prison for Forcing Man with Intellectual Disability to Work at Restaurant, U.S. Dep't of Just. (Nov. 6, 2019), https:// www.justice.gov/opa/pr/south-carolinaman-sentenced-10-years-prison-forcingman-intellectual-disability-work. 11. Id. 12. Id. 13. West Palm Beach Man Sentenced to Prison for Sex Trafficking of a Minor and Child Pornography, U.S. Dep't of Just. (May 2, 2019), https://www.justice.gov/ opa/pr/west-palm-beach-man-sentencedprison-sex-trafficking-minor-and-childpornography. 14. Vermont Man Who Exploited Opioid Addictions of Young Women Convicted of Multiple Counts of Sex and Drug Trafficking and Related Offenses, U.S. Dep't of Just. (May 10, 2019), https://www.justice. gov/opa/pr/vermont-man-who-exploitedopioid-addictions-young-women-convictedmultiple-counts-sex-and. 15. See 18 U.S.C. § 1591(a); see Ark. Code Ann. § 5-18-103(a)(4) (2013 & Supp. 2019). 16. 18 U.S.C. §§ 1589–1591. 17. Ark. Code Ann. § 5-18-103(c) (2013 & Supp. 2019). 18. Ark. Code Ann. § 5-18-104(b) (2013). 19. Ark. Code Ann. § 5-18-104(B)(2) (2013); § 5-18-103(C)(2) (2013 & Supp. 2019). 20. Ark. Code Ann. § 5-18-105 (2013). 21. Ark. Code Ann. § 5-5-202(B)(2)(E) (2013 & Supp. 2019). 34

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22. Ark. Code Ann. § 16-118-109 (2016); 18 U.S.C. § 1595. 23. Ark. Code Ann. § 5-18-103(A)(2), (7) (2013 & Supp.. 2019); 18 U.S.C. § 1595(A). 24. In 2019, Arkansas ranked 32nd in the United States for the number of active federal criminal prosecutions with just five cases. 2019 Federal Human Trafficking Report, Arkansas State Summary, Human Trafficking Institute, https://www. traffickinginstitute.org/wp-content/ uploads/2020/08/Arkansas-2019-StateSummary.pdf. 25. Additional Arkansas sex trafficking prosecutions include: State v. Henry, No. 72CR-15-1174A (Washington Cnty. Cir. Ct. filed Jun. 17, 2015) (plea entered Jan. 27, 2016); State v. Carter, No. 66FCR-1715 (Sebastian Cnty. Cir. Ct. filed Jan. 5, 2017) (plea entered Mar. 8, 2017); State v. Hall, No. 72CR-17-2549 (Washington Cnty. Cir. Ct. filed Sept. 7, 2017) (case closed May 31, 2019); United States v. Handy, No. 09-CR-00052 (E.D. Ark. Mar. 15, 2010); United States v. Harris, No. 12-CR-00154 (E.D. Ark. Apr. 26, 3014); United States v. Roy, No. 13-CR00010 (E.D. Ark. Jun. 7, 2013); United States v. Kimble, No. 13-CR-00319 (E.D. Ark. filed Nov. 6, 2013); United States v. Smith, No. 14-CR-00121 (E.D. Ark. filed May 13, 2014); United States v. Wells, No. 14-CR-50047 (W.D. Ark. filed Aug. 13, 2014); United States v. Johnson, No. 4:15CR-00141 (E.D. Ark. May 25, 2016); United States v. Winston, No. 15-CR-20020 (W.D. Ark. Mar. 9, 2016); United States v. Deffenbaugh, No. 15-CR-00002 (E.D. Ark. Apr. 27, 2017); United States v. Lester, No. 15-CR-20033 (W.D. Ark. Sept. 9, 2016); United States v. Gibson, No. 15-CR-50043 (W.D. Ark. Jan. 28, 2016); United States v. Steward, No. 15-CR-50072 (W.D. Ark. Sept. 23, 2016); United States v. Williams, No. 16-CR-50016 (W.D. Ark. Dec. 22, 2016); United States v. Atkins, No. 4:18-cr00454 (E.D. Ark. May 14, 2021); United States v. Isom, No. 4:19-CR-00577 (E.D. Ark. filed Oct. 3, 2019); United States v. George, No. 4:19-CR-00498 (E.D. Ark. Sept. 3, 2019); United States v. Harris, No. 4:20-CR-00327 (E.D. Ark. filed Oct. 14, 2020). 26. State v. Hexin Chen, No. No. 16JCR-

18-168 (Craighead Cnty. Cir. Ct. filed Feb. 2, 2021). 27. See, e.g., Ramos-Madrigal v. Mendiola Forestry Serv., LLC, 799 F. Supp. 2d 958 (W.D. Ark. 2011); Kolbek v. Twenty First Century Holiness Tabernacle Church, Inc., No. 4:10-CV-04124, 2011 WL 5188424 (W.D. Ark. Oct. 31, 2011); Fouche v. ICE, No. 3:21-CV-00050-BSM (W.D. Ark. filed Mar. 2, 2021). 28. Cuarenta-Ramos v. Jack Odom D/B/A Odom Farms, No. 4:09-CV-00368-SWW (E.D. Ark. May 14, 2010). 29. Van Rensburg v. Robert Hood D/B/A Hood Brothers Farms, No. 3:19-CV-00008DPM (E. Dist. Ark. Jan. 14, 2019). 30. Griffin v. Alamo, No. 4:14-CV-04065SOH (W.D. Ark. Dec. 21, 2016). 31. Id. 32. United States v. Hoffman, No. 4:08-CR40020-HFB-BAB (W.D. Ark. Sept. 24, 2015). 33. Fochtman v. DARP, Inc., No. 5:18-CV5047, 2018 WL 3148113 (W.D. Ark. June 27, 2018). 34. Id. At the time of publication, defendants’ appeal to the Eighth Circuit was pending. 35. State v. Gunnells, No. 72CR-19-3369 (W.D. Ark. filed Apr. 1, 2019). 36. Allison Wise, Springdale Hotel Manager Helped Rescue Trafficked Woman, Police Say, KHBS/KHOG (Dec. 6, 2019) https:// www.4029tv.com/article/springdale-hotelclerk-helps-rescue-trafficked-woman-policesay/30144570. 37. Lee v. State, 2019 Ark. App. 343, 583 S.W.3d 395. 38. State v. Arif, No. 73CR-19-788 (White Cnty. Cir. Ct. filed Nov. 12, 2019). 39. At the time of publication, the case was scheduled for trial. United States v. Arif, No. 4:20-CR-00035-DPM (E.D. Ark. filed Feb. 4, 2020). 40. Doe v. Seven Stars Hotel Group, D/B/A Quality Inn and Suites, No. 4:19-CV00834-BRW (E.D. Ark. Nov. 25, 2019) (see third amended complaint). Additional civil suits that allege sex trafficking include Doe v. Patel Legacy Hotels, LLC D/B/A America’s Best Value Inn, No. 60CV-21-619 (E.D. Ark. filed Jan. 25, 2021); Doe v. Stone Hospitality, No. 60CV-20-3346 (Pulaski Cnty. Cir. Ct. filed Jun. 10, 2020); Risser v. Fleming, No. 60CV-21-376 (Pulaski Cnty.


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Cir. Ct. filed Jan. 18, 2021); Doe v. Fleming, No. 60CV-21-1526 (Pulaski Cnty. Cir. Ct. filed Mar. 2, 2021); Corissa Withrow v. Fleming, No. 60CV-20-7395 (Pulaski Cnty. Cir. Ct. filed Dec. 29, 2020). 41. High risk sectors include construction, domestic work, hospitality, and agriculture, but labor trafficking can occur in most industries. 42. Lawyers should anticipate that it can take time, trust, and stability for a trafficked individual to fully share their experiences and that it will almost certainly require multiple interviews. Among other things, some trafficked individuals may not realize that the exploitation they experienced was human trafficking, may be reluctant to share or to accuse their traffickers, may have priorities unrelated to legal matters, and may struggle to provide coherent, wellorganized, thorough explanations of their experiences as a result of the impacts of trauma. 43. See Ark. Code Ann. § 5-18-103(a)(2), (7) (2013 & Supp. 2019); 18 U.S.C. § 1595(a). 44. The author is willing to assist with screening and referral of such cases to attorneys experienced with civil litigation on behalf of trafficked individuals and to serve as a resource on human trafficking matters generally. She can be reached at abs006@ uark.edu. 45. See Ark. Code Ann. § 5-18-103(a) (6) (2019); An Act to Establish Safe Harbor Provisions for Victims of Human Trafficking; And to Establish an Affirmative Defense, No. 1106, 2021. 46. Id. Additional requirements designed to protect pregnant mothers from exploitation in adoption matters were also enacted, including An Act to Amend the Law Concerning Consent to Adoption and Relinquishment of Parental Rights During the Adoption Process; Concerning the Report of Expenditures Related to an Adoption; and For Other Purposes, No. 599, 2021. 47. See Ark. Code Ann. § 5-2-210 (2021). ■

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2021 Legislative Update By Jay Robbins The Arkansas Bar Association is your advocate at the state Capitol, and because of your help and support we had a successful 2021 legislative session. The Regular Session of the 93rd General Assembly convened on Monday, January 11, 2021, and recessed on Friday, April 30, 2021. During the 2021 Regular Session, the legislature filed 1,675 bills, passing 66% of the filed bills. The Association worked full time to monitor every piece of legislation affecting justice and the legal profession. The Association could not have done it without the help and support of the Legislation Committee, chaired by Lynn Foster. This year’s Legislation Committee also consisted of Payton Bentley, Taylor Chaney, Bob Estes, Jason Hendren, Glen Hoggard, Karen K. Hutchins, Jamie Huffman Jones, Paul Keith, Joe Kolb, Cliff McKinney, Blake Montgomery, Ezra Smith, and Aaron Squyres. This committee reviewed every bill filed and every amendment made, and worked tirelessly throughout the session to protect the practice of law and the administration of justice. The Legislation Committee supported 15 bills and opposed 15 bills or constitutional amendments. Of the 15 bills the Association supported, 10 were signed into law. Of the 15 bills or constitutional amendments the Association opposed, two were signed into law. The Legislation Committee could not have done it without the backing of the entire membership. The committee sent over 650 bills to over 30 different sections within the Association for input and consideration. Many thanks to all the members who reviewed bills, provided comments, and testified on behalf of the Association. The Arkansas Bar Association’s Legislative Package One of the primary priorities of the 38

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Association is to assist in the enactment of laws and improve the legal system in Arkansas. The Association’s 2021 legislative package included the five proposed bills listed below. Each proposal was submitted by the Jurisprudence and Law Reform Committee and approved by the Board of Trustees. Four of the five proposals were passed by the legislature and signed by the governor. The non-candidate expenditure bill, HB1899, passed the House Judiciary Committee, but could not garner the support of the entire House of Representatives. Uniform Limited Liability Company Act (ULLCA) – Act 1041 ULLCA, SB601, was sponsored by Senator Dismang. According to the Uniform Law Commission, the ULLCA permits the formation of limited liability companies, which provide owners with the advantages of both corporate-type limited liability and partnership tax treatment. The 2011 and 2013 amendments, enacted as part of the Harmonization of Business Entity Acts project, updated and harmonized the language in this Act with similar provisions in other uniform and model unincorporated entity acts. Uniform Fiduciary Income & Principal Act (UFIPA) – Act 1088 UFIPA, HB1693, was sponsored by Representative John Maddox. According to the Uniform Law Commission, the UFIPA is a revision of the former Uniform Principal and Income Act with a new name to differentiate the act from its three predecessor versions. While older trusts often had clear delineation between income and principal interests, modern trust accounting requires flexibility. Trustees now tend to invest for the greatest total return, and then adjust between interest and principal to produce a fair result for all the beneficiaries. UFIPA recognizes this trend toward totalreturn investing and includes unitrust

conversion rules to allow even older trusts to take advantage of modern investment trends. UFIPA gives estate planning attorneys additional flexibility to tailor a trust for each client’s needs and includes a new governing law section to help avoid jurisdictional disputes. Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act (UCRUDIIA) – Act 420 UCRUDIIA, HB1645, was sponsored by Representative Dalby and Senator Ballinger. According to the Uniform Law Commission, the UCRUDIIA addresses the disclosure of private images of nudity or sexual conduct without consent. The UCRUDIIA creates a civil cause of action, protects victims’ identities, and provides various remedies. Power of Attorney Technical Correction – Act 356 HB1455, an act to amend the law concerning the conveyance of real property by power of attorney, was sponsored by Representative Collins and Senator Ballinger. Non-Candidate Expenditure – HB1899 The non-candidate expenditure bill, HB1899, was sponsored by Representative Collins and Senator Tucker. HB1899 was an act to protect public confidence in the integrity of appellate judicial elections, require the disclosure and reporting of non-candidate expenditures pertaining to appellate judicial elections and empower citizens to compel transparency from persons making non-candidate expenditures. HB1899 passed the House Judiciary Committee, but was unable to receive the needed support of the entire House of Representatives. Jay Robbins is the Director of Government Relations for the Arkansas Bar Association.


Legislative Resources The next Regular Session of the General Assembly will convene in January 2023. Members, Sections, and Committees of the Association are encouraged to participate in the development of the Association’s legislative package. Proposed legislation should be submitted in bill form and address issues concerning matters of jurisprudence and procedure, including reforms of the substantive law, and improvement in practice and in administration of the Courts. Proposed legislation must be submitted by January 31, 2022. The Association’s by-laws charge the Jurisprudence and Law Reform Committee with reviewing proposed bills and reporting their findings to the Board of Trustees. The Association’s package for the 2023 Session of the Arkansas General Assembly will be adopted at the June 2022 meeting of the Board of Trustees. Lastly, please consider becoming a supporting member of the nonpartisan political action committee. The Arkansas Bar PAC is your opportunity to be the change you wish to see. Becoming politically involved is the best way to ensure your voice is heard and that you are part of the solution. ■

Governor Asa Hutchinson

Speaker of the House Matthew J. Shepherd

Lieutenant Governor Tim Griffin

Attorney General Leslie Rutledge

Senator Bob Ballinger

Senator Stephanie Flowers

Senator Trent Garner

Senator Clarke Tucker

Representative Andrew Collins

Representative Nicole Clowney

Representative Carol Dalby

Representative Jimmy Gazaway

Representative Ashley Hudson

Representative John Maddox

Thank you!

Arkansas Lawyer Constitutional Officers and Legislators of the 93rd General Assembly Representative Gayla H. McKenzie

Representative Kendon Underwood

Representative David Whitaker

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Beyond Opioids

By Helen Gratil Substance use disorder (SUD) is a public health issue that challenges our traditional way of thinking about drug addiction. As lawyers, we are trained to look at illicit drug use or substance misuse as damaging evidence against the adverse party. That practice has sent people who are sick to prison, overworked our prosecutors and public defenders, drained the resources of the courts, devastated families by fatal overdoses, bankrupted households, and subjected generations to a cycle of adverse childhood experiences that nearly guarantees a path of criminal behavior or victimization and solidifies endemic poverty in our landscape. The practice did not solve the problem but spread it across multiple sectors. At legal aid we receive generations of traumatized families in the aftermath of our punitive practice against people with SUD. Our local legal aid programs, Center for Arkansas Legal Services (“The Center”) and Legal Aid of Arkansas (“Legal Aid”), came together to begin shifting Arkansas’ SUD paradigm where treatment and support are paramount to punishment by creating Beyond Opioids, a project that pivots the use of civil legal interventions to help cure the opioid epidemic and other substance use disorders. Beyond Opioids is a consortium of SUD providers led by The Center and Legal Aid.1 We provide legal, prevention, treatment, and recovery services to our shared clients. Our story’s backdrop was a lunch in Jonesboro. Managing Public Defender of the 2nd Judicial District, Brian Miles, asked Lee Richardson, Executive Director of Legal Aid, about possibly sending legal aid attorneys to help his clients charged with drug-related offenses who need support in addressing the stressors that led them to his docket. They are financially distraught, have complicated familial relationships, often homeless or in deplorable housing conditions, and 40

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overwhelmed by life’s demands. They are arrested and their driver’s licenses are suspended, adding a layer of stress to their already traumatized condition. They are cut off from their children, triggering a downward spiral of hopelessness that often leads to overdose that is, at times, fatal. Legal Aid set in motion an 18-month inquiry on the needs and challenges they face relating to SUD. When the compelling assessment came, The Center joined the mission to lead our legal community to treat SUD in our practice as a public health issue as opposed to a moral and personal failing. We found that over 80% of our clients are impacted by substance use disorder, a significant portion of whom have a pending, drug-related criminal charge. Our clients with a pending possession charge often wait more than one year to get through the criminal justice system. In between, the lack of SUD treatment services leads them to spiral, picking up more charges and making it impossible for them to resolve their cases. Through Beyond Opioids’ consortium, we can intervene and offset the stress brought on by the arrest. The punitive approach to SUD finds its roots in the stigmatization of illicit drug use and prescription misuse. This stigmatization normalizes prejudicial attitudes beyond our justice systems and opens avenues for further discrimination. In addition to making arrests for drug use with no initial offer of treatment, we create barriers in our laws that exacerbate the traumatic roots of SUD. Poor people with SUD are barred from federal public housing, creating a swelling population of people who are SUD-sick and homeless. We also know that racial disparities that exist in the criminal justice system also impact perceptions and treatment of those with SUD. Families struggling with SUD need a revolutionary change in addressing the public health issue and we seek members of

our legal community to join us in paving that road to curing the opioid and other drug crises in Arkansas. Our legal community is in a special position to reverse the impact of our historical relationship with SUD. It could be as simple as looking at a person under the lens of trauma that they’ve endured when they are in front of you to be judged and sentenced. We could open up diversion programs and include legal aid attorneys as members of our Drug Court teams. When we arrest people for possession, we could intentionally get them through the system more quickly and give them treatment on the front end. We can reduce offenders’ restrictions in Drug Court. We can create agreements between the Parole Department and Drug Courts to allow parolees access to services. Beyond Opioids is an open space to figure out ways to break the legal barriers for families needing help. To volunteer or help shape our strategy as champions of justice, please contact Beyond Opioids Director, Helen Gratil, at hgratil@ arkansaslegalservices.org or (479) 326-7027. Endnote: 1. Beyond Opioids was made possible by a $2.2 million grant by Health Resources & Services Administration (HRSA), the federal agency focused on improving health care to people who are geographically isolated and economically or medically vulnerable. The project launched on 1 September 2020 and will be funded by HRSA through 31 August 2023. ■ Helen Gratil is the Beyond Opioids Director


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Attorney Disciplinary Actions Final actions from April 1 – June 30, 2021, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online through the Judiciary website by checking under “Opinions and Disciplinary Decisions” using the following link: https://www.arcourts.gov/professional-conduct/opinions [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

REPRIMAND: VAN ES, TODD A., of Centerton, ABN: 2008202, in Committee Case No. CPC 2020-030, on a complaint by former client Joshua Lambert, by Findings & Order issued April 20, 2021, for violations of AR Rules 1.2(a), 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 8.1(b); and, in consideration of his prior disciplinary record, was Reprimanded, fined $1,000.00, assessed costs of $50.00, and ordered to pay $930.00 in restitution for his conduct in the matter. For failing to file a response to the Complaint, he was separately reprimanded and fined an additional $1,000.00. Lambert hired Van Es to represent him in a probate matter and Van Es failed to provide any services for which he was paid. MAY, QUENTIN ELLERY, of Little Rock, ABN: 2006034, in Committee Case No. CPC-2020-027, on a complaint by former client Larry Thomas Moorhead, by Findings & Order issued April 21, 2021, for violations of AR Rules 1.3, 1.4(a) (3), 1.4(a)(4), 8.1(b), and 8.4(c); and, in consideration of his prior disciplinary record, was Reprimanded, fined $2,500.00, and ordered to pay $5,000.00

in restitution for his conduct in this matter. Moorhead hired May to represent him in a civil matter and May failed to provide any services for which he was paid. CAUTION: OLDHAM, CHAD R., of Jonesboro, ABN: 2002058, in Committee Case No. CPC-2021-012, on a complaint by Cara Ashley Woodward, by Consent Findings & Order issued June 18, 2021, for violation of AR Rule 5.3(b), was Cautioned, fined $1,500.00 and assessed costs of $50.00. Oldham employed Bethany Barnes, a convicted felon, as a paralegal and fiduciary administrator for his office and other businesses. Barnes embezzled, converted, or misappropriated funds belonging to Oldham’s legal clients and Oldham’s related businesses. Barnes admitted to her criminal conduct upon discovery of her conduct and reimbursed Oldham’s clients and related businesses. Barnes was able to engage in her conduct by using a stamp of Attorney’s signature. Barnes was charged with theft and forgery and entered a guilty plea. ■

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

Curtis E. Hogue Elected Arkansas Bar Foundation President Curtis E. Hogue, of Fayetteville, began his term as President of the Arkansas Bar Foundation Board of Directors for the 2021-22 bar year following the Annual Foundation Meeting on June 9, 2021. He earned his B.S. Degree from Ouachita Baptist University and his Juris Doctorate from the University of Arkansas School of Law in Fayetteville. Curtis has practiced law since 1980 and is a shareholder with the Law Firm of Hall Estill. He practices primarily in the Litigation and Divorce and Family Law arenas. Within his practice, he also conducts both civil and domestic mediations and is a certified guardian ad litem. Curtis has been a Fellow of the Arkansas Bar Foundation since 1989 and is a Sustaining Fellow. He has served the Foundation on the Board of Directors, as Secretary-Treasurer and Vice-President of the Board and currently as a member of the Trust, Annual Awards and Development Committees. He is a former President, Secretary and Board member of the W. B. Putman American Inns of Court; a Tenured Member of the Arkansas Bar Association House of Delegates; and he has been appointed an Associate Justice on the Arkansas Supreme Court. Curtis and Ede, his wife of 45 years, are proud parents of three children and six grandchildren. Their sons Brian and David are attorneys practicing in Fayetteville and their daughter Erin Parr is an LCSW living in Portland, OR.

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Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period May 15, 2021, through July 31, 2021. In Memory of Annette Applebaum-Baim Judges Bill Wilson and Cathi Compton

In Memory of Don Schnipper Silas H. Brewer

In Memory of Christopher Barrier Jennifer and Randy Coleman Jeffrey and Lester McKinley Sally and Jim McLarty Hayden and Gordon Rather Brian Rosenthal

In Memory John Andrew Simmons Don A. Eilbott

In Memory of Robert Cabe Don A. Eilbott Mike Wilson In Memory of Rogers Cockrill Jennifer and Randy Coleman Hayden and Gordon Rather In Memory of Julian B. Fogleman Joe M. Rogers In Memory of William “Tom” Harper Joe M. Rogers In Memory of Donald H. Henry Sherry P. Bartley Patti and Charlie Coleman Jennifer and Randy Coleman In Memory of Paul “Rand” Hightower ASPC Leadership Team Mica and George Duncan Pat B. Mosier In Memory of Bob Leslie B. Jeffery Pence In Memory of John Edward Moore Donald C. Pullen In Memory of Frank Newell Stephen Engstrom Donald C. Pullen Judges Bill Wilson and Cathi Compton In Memory of Allen P. Roberts Silas H. Brewer Joe M. Rogers In Memory of Jim Shaver Charles D. Roscopf Jan and James D. Sprott Judges Bill Wilson and Cathi Compton Mike Wilson

In Memory of Mrs. Gerry Eilbott Soltz Designated to the R. A. Eilbott, Jr. Scholarship Fund Jennifer and Randy Coleman Taylor and Linda Lewis Eubank Don and Cathy Feild Hicks Alan R. Humphries Joanne and Stanley Kay Mr. and Mrs. Jimmie D. McKissack Robin and Randy McNulty Staff of Old State House Museum Cynthia and Jeff Purnell Lisenne Rockefeller Kitty and Bill Rubenstein Billie and Skip Rutherford Debbie W. Shea Mary Ross Taylor Mr. and Mrs. Kenneth W. Theis Charlie Whiteside and Cappy Ware Whiteside

Save the Date Howlin' Hour Arkansas Bar Foundation Fourth Annual Friendraiser Wednesday, October 13, 2021 Call 501.801.5670 with questions

Arkansas Bar Foundation grant applications for law-related projects are due Friday, October 8, 2021.


in memoriam William Christopher "Chris" Barrier of Little Rock died July 3, 2021, at the age of 78. Chris was a graduate of Hendrix College and Duke University Law School. He practiced law for over 50 years with the Mitchell Williams Law Firm in Little Rock, helping it grow from eight to over 90 lawyers in five offices. He served on and chaired numerous Arkansas Bar Association sections and committees and its governing bodies and was a regular award-winning seminar speaker. He published literally hundreds of columns, law review articles, practice pointers and book reviews, primarily on real estate law. He was recognized as an outstanding pro bono lawyer by Central Arkansas Legal Services, and for his humanitarian efforts by Hendrix and the Arkansas Bar Foundation. He also published and illustrated scores of casual and travel pieces, editorial cartoons and Gridiron playbills. Joseph Thomas Clements, Jr., of Little Rock died on November 1, 2020. A Professional Engineer and Attorney, he retired from the U.S. Army Corps of Engineers in 1996, and later as Executive Director of the Arkansas State Board of Registration for Professional Engineers and Professional Land Surveyors in 2007. The Honorable Vicki Shaw Cook of Hot Springs died December 18, 2020. Vicki graduated from Oklahoma State University and Bowen School of Law. As an attorney in private practice, she was recognized for her willingness to provide pro bono representation to people in need. She served as a juvenile public defender, helping young people who could not afford legal services.

A trailblazer, Vicki was first appointed and then elected multiple terms to the position of judge for the Eighteenth Circuit East in Garland County. Vicki spent the rest of her professional life in this position, presiding from 1992 to 2015. Donald Howard Henry of Maumelle died July 5, 2021, at the age of 75. Don graduated from the University of Arkansas at Fayetteville with a Bachelor of Science in 1967. After college, Don became a Captain in the United States Air Force where he served as a navigator on KC-135s in the Vietnam War. After his service, Don graduated in 1975 from the University of Arkansas at Fayetteville. Don was a partner at the Little Rock law firm of Mitchell Williams, where he practiced law as a litigator for the rest of his career. R. Christopher Lawson, 54, died on April 1, 2021. Chris graduated from Ouachita Baptist University and earned a Juris Doctorate from the Washington & Lee University School of Law. Chris was a partner at the Little Rock law office of Friday, Eldredge & Clark. In 2004, Chris moved his practice to the firm's Fayetteville office. A lifelong supporter of public education, he was proud to join Fayetteville Public Schools as General Counsel in July 2017. Richard Blake Marsh of Warren died December 24, 2020, at the age of 65. Blake was a successful practicing attorney and owner of Tri County Title Co. in Warren.

Frank Baucum Newell of Little Rock died May 6, 2021, at the age of 76. Newell was a deputy prosecuting attorney, a deputy attorney general, a member of the state Public Service Commission and an administrative law judge for the state Workers Compensation Commission. He earned a bachelor of arts degree in English at Columbia University in New York City and a law degree in 1969 from the Columbia University School of Law. He retired in 2019 from the Barber Law Firm. Douglas Scott Robertson of Conway died April 22, 2021, at the age of 60. He graduated from Hendrix College and the University of Arkansas School of Law. Doug was a valued core member of Whisenhunt Investments for over 25 years. James Levesque "Jim" Shaver, Jr., of Wynne died May 27, 2021, at the age of 93. He served as President of the Arkansas Bar Association in 19821983. He served in the United States Navy during World War II. He graduated from the University of Arkansas School of Law at Fayetteville and earned his attorney's license in 1951. He entered the practice of law with his father, Bex Shaver, in the law firm of Shaver & Shaver in Wynne, one of East Arkansas' most prestigious law firms. In 1955, Mr. Shaver was elected to the Arkansas House of Representatives and served continuously until his retirement in 1994. He received the Arkansas Bar Association's Award of Merit and Award of Excellence in 1990. He served as legal counsel for the St. Francis Levee District from 1971 until his retirement in 2000. The information contained herein is provided from the members' obituaries.

Vol. 56 No. 3/Summer 2021 The Arkansas Lawyer

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