The Arkansas Lawyer Winter 2023

I love LawPay! I’m not sure why I waited so long to get it set up. – Law Firm in Ohio

EDITOR

Anna K. Hubbard

EXECUTIVE DIRECTOR

Karen K. Hutchins

PROOFREADER

Cathy Underwood

EDITORIAL BOARD

Luke K. Burton

Haley M. Heath

Ashley Welch Hudson

Anton Leo Janik, Jr.

Jim L. Julian

Kimberly D. Logue

Drake Mann

Gordon S. Rather, Jr.

William A. Waddell, Jr., Chair

Brett D. Watson

David H. Williams

Nicole M. Winters

OFFICERS

President

Joe F. Kolb

President-Elect

Margaret Dobson

Immediate Past President

Bob Estes Secretary

Glen Hoggard Treasurer

Brant Perkins

Parliamentarian

Brent Eubanks

YLS Chair

William J. Ogles

BAR ASSOCIATION STAFF Executive Director

Karen K. Hutchins

Executive Administrative Assistant

Michele Glasgow

Director of Government Relations

Jay K. Robbins

Director of Education & Operations

Kristen Frye

Director of Finance & Administration

Staci Clark

Membership Administrator Janet K. Marshall Office & Data Administrator

Cynthia Barnes Publications Director

Anna Hubbard Professional Development Content Coordinator

Client Threat of Suicide: Ethical Response Actions By

per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2023, Arkansas Bar Association. All rights reserved.

Cover Photo of ArkBar Legislative Advocacy at work; from left: Representative Carol Dalby, Senator Clarke Tucker, ArkBar Lobbyist Jay Robbins, ArkBar President Joe Kolb

District A1: Geoff Hamby, Jason B. Hendren, Timothy R. Scott

District A2-A3: Matthew Benson, Evelyn E. Brooks, Jason M. Hatfield, Michelle Rene' Jaskolski, 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, Steven P. Harrelson, Michael M. Harrison, Anton L. Janik, Jr., Jamie H. Jones, Victoria Leigh, B. Chase Mangiapane, 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, Casey Rockwell, Emily M. Runyon, Carter C. Stein, Jessica Virden Mallett, Danyelle J. Walker, Patrick D. Wilson, George R. Wise

District C5: Joe A. Denton, John Tyler Henderson, Todd C. Watson, William Z. White

District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, Ryan M. Wilson

District C7: Kandice A. Bell, Laurie Bridewell, Sterling T. Chaney, Taylor A. King

Delegate District C8: Carol C. Dalby, Amy Freedman, Connie L. Grace, Wm. Blake Montgomery

At Large Members: Joseph F. Kolb, Margaret Dobson, Bob Estes, Glen Hoggard, Brant Perkins, William J. Ogles

Ex-officio Members: Brent Eubanks, Judge Mackie Pierce, Judge Chaney W. Taylor, Edward T. Oglesby, Dean Cynthia Nance, Dean Theresa Beiner, Denise Reid Hoggard, Eddie H. Walker, Jr., Christopher Hussein, Karen K. Hutchins, Jay K. Robbins

Board of Trustees

Now is the time.

The ABA Retirement Funds Program (“Program”) is an employer-sponsored retirement plan designed specifically to address the retirement needs of the legal community. The Program is structured to provide affordable pricing whether you are a sole practitioner or a large corporate firm.

We have leveraged our size to bring together some of the most respected financial services providers in the retirement industry. Through the unique culture created between the ABA Retirement Funds Program and our Program partners we aspire to help every law firm, lawyer, and legal professional secure their financial future.

The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2022) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Registered representative of and securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Arkansas Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services.

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ArkBar's Past Presidents Met for Dinner

ArkBar's Past Presidents met for a dinner on February 9, 2023, at YaYa's Bistro in Little Rock. left to right back row: Brian Rosenthal (2019-20), Ron Harrison (2000-01), Jim Sprott (2006-07), Tony Hilliard (2017-18), Jim Julian (2010-11), Eddie Walker (2015-16), Judge Billy Roy Wilson (1984-85), Lamar

ArkBar's Mid Year 2.0 was a Success!

ArkBar hosted its Mid-Year meeting at the Aloft Hotel in Little Rock February 8-10, 2023. The meeting “Mid Year 2.0” featured three days of continuing legal education (CLE) with a focus on the transactional tracks—tax law, probate and trust and elder law. Thank you to all of speakers, planners, attendees, sponsors and exhibitors for making the meeting a success!

• Silver Sponsor: Simmons Bank Private Wealth

• Tax Law Track Sponsor : Lax, Vaughan, Fortson, Rowe & Threet, P.A.

• Young Lawyers Section hosted a reception on February 9 at the Flying Saucer in Little Rock

• Tax Law Planners: Nicole Gore, Rose Law Firm; Wade Bowen, Mitchell Williams, PLLC; Hannah Van Horn, RMP LLP

• Probate & Trust Law Planners: Katie Watson Bingham, Friday, Eldredge & Clark, LLP; David Bingham, Mitchell Williams, PLLC; Robert B. Beach, Lax, Vaughan, Fortson, Rowe & Threet, PA.

• Elder Law Planners: Laura Johnson, Cross, Gunter Witherspoon & Galchus, P.C.; Trae Norton, RMP LLP; Ashley Stepps, Rippy, Stepps & Associates

Coffee Chats

We enjoyed visiting with everyone at the statewide Coffee Chats. Thank you to everyone who participated to help us learn how to provide more value to our members. Thank you to Membership Value Task Force Chair Jamie Jones for hosting the chats!

Pettus (1993-94), Bob Estes (2021-22) and Fred Ursery (2004-05); left to right front row: Denise Hoggard (2016-17), Tom Womack (2011-12), Paul Keith (2020-21), Brian Ratcliff (2014-15), Carolyn Witherspoon (1995-96), and Donna Pettus (2009-10).

Joe Kolb, Crystal Smith, Jamie Jones

Frank LaPorte-Jenner, Karen Hutchins, Kelli LaPorte

ACCOLADES

Steven W. Quattlebaum of Quattlebaum, Grooms & Tull PLLC was installed as National President of the American Board of Trial Advocates. Cynthia Nance, dean of the U of A School of Law, received the Association of American Law Schools Section on Women in Legal Education’s Ruth Bader Ginsburg Lifetime Achievement Award. Carolyn Witherspoon, Cross, Gunter, Witherspoon & Galchus, P.C. received the American Bar Foundation’s Distinguished Life Fellow Award. McDaniel Wolff, PLLC, announced that partner Dustin McDaniel received the 2022 Francis X. Bellotti Award from the National Association of Attorneys General in Washington, D.C.

APPOINTMENTS AND ELECTIONS

The Arkansas Supreme Court selected Kyle Burton as Clerk of the Supreme Court and Court of Appeals. Judge Cindy Thyer and Judge Wendy Wood began their term on the Arkansas Court of Appeals on January 1, 2023. John D. Flynn was elected Mayor of Bella Vista in December for a four-year term starting January 1.

WORD ABOUT TOWN

Andrea G. Woods has joined Vestas – American Wind Technology as Corporate Counsel, Legal Offshore. McDaniel Wolff, PLLC announced the appointment of Jim Phillips to Partner and Brittany Webb to Litigation Associate. Cross, Gunter, Witherspoon & Galchus, P.C. announced Ross E. Simpson has joined the firm as an Associate Attorney. The Board of Directors of Hilburn & Harper, Ltd., Attorneys at Law, announced that Sara Cate Moery has been elected into partnership. Wright Lindsey Jennings announced Quinten J. Whiteside as its new chief operating officer. The firm also announced that two attorneys have been elected into partnership: Nicholas D. Hornung and Jessica Pruitt Koehler Quattlebaum, Grooms & Tull PLLC announced that Sarah Keith-Bolden and Scott M. Lar have become managing members of the law firm and Meredith M. Causey and Philip A. Elmore have been named members. The firm also announced that Aaron C. Cochran has joined the law firm as an associate. Rose Law Firm announced the creation of Rose Group Advisors, a new business strategy and corporate development firm, in partnership with Little Rock attorney Chad Causey and former Arkansas State Representative Joe Jett. Hall Booth Smith, P.C. announced that Dalton Huerkamp joined the firm as an associate in its Rogers office. Matthews, Campbell, Rhoads, McClure & Thompson, P.A. in Rogers announced that Mallory A. Sanders and Mason Reynolds have joined the firm. Friday, Eldredge & Clark announced Taylor A. Stockemer and Kael K. Bowling as their 2023 Partner Election. The firm also announced that Kat Hodge joined the firm as Senior Counsel in the Labor and Employment Litigation Practice Group.

Kristin Pawlik elected the new ArkBar President-Elect Designee

The Arkansas Bar Association (ArkBar) is pleased to announce Kristin L. Pawlik as the new President-Elect Designee. Pawlik, of Fayetteville, Arkansas, was elected without opposition at the close of nominations on January 31, 2023. Kristin is a partner at Miller, Butler, Schneider, Pawlik & Rozzell, PLLC in Northwest Arkansas. She litigates family law, criminal defense, and employment matters, primarily in Northwest Arkansas. A native of Bentonville, she obtained her undergraduate degree from the University of Arkansas and her Juris Doctor from the University of Arkansas School of Law.

ArkBar honored Kristin with a Golden Gavel award last year for her work as co-chair of the 2022 Annual Meeting and a Golden Gavel Award in 2017 for her work as chair of the Legislation Committee. She has been elected to serve ArkBar District A as a Trustee, and previously served on ArkBar’s Board of Governors and the House of Delegates. In 2017, she was chosen to represent the Arkansas Bar Association on the Arkansas Access to Justice Foundation Board where she continues to work for access to legal services for low-income Arkansans. Kristin is certified to represent the best interests of children as a domestic relations Attorney Ad litem and regularly accepts felony criminal conflict appointments from the Public Defender Commission. She was appointed by both Governor Mike Beebe and Governor Asa Hutchinson to serve as Chair of the Arkansas Commission on Child Abuse, Rape and Domestic Violence. She is a past President of the Benton County Bar Association, as well as a member of the Arkansas Trial Lawyers Association and the Arkansas Association of Criminal Defense Lawyers. Kristin is immediate past chair of the University of Arkansas Law Alumni Society and an alumna of Delta Delta Delta Sorority. Kristin and her husband, Aaron Holmes, are the parents of three boys, and they attend St. Joseph Catholic Church in Fayetteville.

Kristin joins the Association’s leadership track composed of President Joe Kolb, President-Elect Margaret Dobson and Immediate Past President Bob Estes. She will assume the office of President-Elect at the June 2023 Annual Meeting.

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In the Stretch— Building a Better Association

We are more than halfway through the 2022-2023 bar year and in the stretch to building a better, more resilient, and more sustainable association.

Our focus remains on four key areas: creating membership value, improving twoway communication between the association and the lawyers it serves, encouraging engagement at all levels, and making efficient use of limited resources.

Our efforts are paying off. With our renewed focus on member engagement and communication, we have reversed our trend of declining membership. I am thrilled to report we have 277 more members this year than we had last year. Thanks goes to our Board and staff who really worked extra hard this year to reach out to attorneys across the state and encourage them to take advantage of all the benefits the association has to offer.

I am also excited to report the Board has moved to cement those gains in the coming years. It approved the recommendation of the Membership Value Task Force, led by Jamie Jones, to engage The Institute for Association and Nonprofit Research to design and conduct a professional qualitative and quantitative survey of all our members to ask what they need and want from the association. The effort will ensure the association provides value and remains relevant over time.

The survey will roll out this spring. Based upon the results, the task force will present to the Board in June a slate of recommendations for programmatic changes which will ensure members get the value they want from the association and continue to renew their membership year after year.

Membership is important because—well, we are a membership association. But also because the association relies on membership dues to fund its member services.

Equally important is making sure the association is using its limited resources efficiently and to the best advantage of our members. The Board is actively addressing efficiency issues as well.

Earlier this year, the Board charged the Program Review Task Force with drafting a policy for consideration by the Board to evaluate both existing and new programming. The goal is to ensure each program provides value and is an effective use of resources. The task force, through its Chair Aaron Squyres, presented its report and recommendation to the Board in January.

The policy under consideration calls for the creation of a standing committee to annually review all programing. If adopted, the committee will evaluate each program using a mix of objective and subjective criteria—such as how well the program serves the mission of the association, its hard and soft costs, its potential funding sources, the number of members served, the impact on the profession and/ or the community, and the like. After its review, the committee will make a recommendation to the Board. The Board will then make a final determination of whether to adopt/continue the program, alter it, or discontinue it.

The Board will vote on the task force’s proposal at its March 31 meeting. You can review a copy of the proposal at https://qrco. de/bdifKz.

I am also pleased to report that the Finance Committee, under the leadership of Treasurer Brant Perkins, is hard at work on the 2023-2024 annual budget. The Association’s policies call for the Board to adopt an annual budget at its spring meeting and, as a matter of principle, the budget for each year should be balanced.

Recognizing some unique challenges related to the pandemic, last year the Board approved a $248,000 deficit budget. This year, leadership is committed to presenting a budget that is both realistic and balanced.

That will be particularly difficult, however, given the lingering effects of the pandemic, increased operational costs due to high inflation, decreased demand for CLE, and increased maintenance related to the Bar Center. The Finance Committee and the Board will have to make tough choices related to dues, programming, and operations. But I am confident the recommendations of the committee and the decisions of the Board will be sound and will move the association closer to greater stability and sustainability.

I would also like to mention, in January, trustees met and voted to approve a slate of proposed amendments to the association’s constitution, bylaws, and policy manual. The amendments were drafted by the Governance Drafting Committee, under the leadership of Chair Tim Cullen, to provide for greater transparency in the association's elections and legislative advocacy and greater efficiency and effectiveness in governance and management. I encourage you to review the proposed constitutional amendments on your 2023 election ballot, distributed in February, and vote in favor of their adoption.

I am so impressed with the work the Board is doing. We have a superb leadership group and an active Board working together to tackle some tough issues. We are making progress. I am confident with their leadership and with our renewed focus on member engagement, identifying and providing greater value, ensuring our programming is relevant and an effective use of resources, we can build a better, stronger, more sustainable association. ■

Joe F. Kolb is the President of the Arkansas Bar Association. Kolb is the principal member of the law firm j. k o l b in Little Rock.

YLS Winter Report

William J. Ogles is the Chair of the Young Lawyers Section. He is an attorney at Wright, Lindsey & Jennings LLP

We’ve made it through another holiday season as well as another trip around the sun. As your vacations come to a close, and everyone returns to their daily grind, we turn the page to 2023. By now you have certainly noticed that when you get off work it is dark outside [until we come to our senses and pass permanent Daylight Savings Time, looking at you 94th General Assembly of the Arkansas State Legislature]. Hence, this time of year is known as the “dark months.” We understand it is easy to lose motivation during this time, after all, football is over, the ducks have left the Delta, and it’s not quite warm enough to get 18 holes in. As you scroll through your new year’s resolutions looking for opportunities to give back, network, or just seek fellowship, look no further than the Arkansas Bar Association’s winter calendar.

Before everyone set their outof-office emails, on November 10, 2022, YLS co-sponsored a Free Legal Answers clinic with the Arkansas Access to Justice. This event was incredibly successful, thanks to all the attorney and law student volunteers that made it possible.

As previously announced, the YLS is preparing for its Wills

for Heroes event again this year. We are grateful to ArkBar member Patrick Murphy with SimpleWill for sponsoring this event that provides wills, powers of attorney, and living wills to our police, fire department, first responders, and veterans. It will be held on Saturday, April 1, 2023. Given the success of the previous clinics being virtual, this year’s clinic will also be virtual. As per tradition, the Chair Elect Caroline Kelley (CKelley@mwlaw.com) will be leading this event. This event, although born out of the global pandemic COVID-19, continues to be a staple for our organization. The number of heroes that we can assist depends on the number of attorney volunteers. No prior experience in this practice area is required. Be on the lookout for this volunteer opportunity in the coming weeks, and reach out to me or Caroline for more information.

YLS held a fun happy hour event at the Flying Saucer during the association’s MidYear Meeting 2.0 on February 9. It was great to see everyone. On May 4, 2023, YLS will be co-sponsoring a social event for new attorneys and 3Ls, at the Railyard in Little Rock. Lastly, during the Annual Bar meeting in Hot Springs, YLS will be

hosting its mixer on Thursday, June 15, 2023 at Oaklawn. We look forward to another unforgettable evening.

Although it remains dark and dreary outside, you can see the Young Lawyers Section continues ahead. I encourage all of you to get involved, stay involved, and come see us in the coming months.

You can reach Will Ogles at Wogles@wlj.com and 501-3710808.

Ballots Due March 18, 2023 for ArkBar 2023 Elections

Board of Trustees Candidates

Ballots were distributed for Board of Trustee positions representing District B. District B voters will receive a ballot to elect 11 Trustees (10 seats due to expiring terms and one vacant seat). Also on the ballot are the proposed amendments to the Association’s Constitution as approved by the Board of Trustees at the Special Meeting of the Board held January 25, 2023.

Pursuant to ArkBar's Constitution, Petitions for Board of Trustees, Secretary, and President were due to be filed by January 31st. Secretary Glen Hoggard certified the following Petitions:

Board of Trustees

A1/2 Lindsey Vechik

A1/2 William Prettyman

A2,3/2 Sarah Jewell

A2,3/2 Chris Hussein

A4/1 Kelsey Bardwell

B10 Richard Bright

B10 Randall Bynum

B10 Tom Carpenter

B10 Bob Edwards

B10 John Andrew Ellis

B10 Bobby Forrest

B10 Michael Goswami

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B10 Jim Jackson

B10 Jamie Jones

B10 Victoria Leigh

B10 Molly McNulty

B10 Meredith Moore

B10 Andrew Norwood

B10 John Ogles

B10 Aaron Squyres

C5/1 Bill Arnold

C6/1 Ryan Wilson

C7/2 Kandice Bell

C7/2 Robert Bridewell

C8/1 Amy Freedman

2024-25 President

Kristin Pawlik

Senator Clarke Tucker District 14

Representative Ashley Hudson District 75

Representative John Maddox District 86

Representative Jimmy Gazaway District 31

Representative Andrew Collins District 73

Speaker of the House Matthew J. Shepherd District 97

Senator Stephanie Flowers District 8

Representative Carol Dalby District 100

Representative Nicole Clowney District 21

Representative Rebecca Burkes District 11

Representative Kendon Underwood District 16

Representative David Whitaker District 22

Representative Matt Brown District 55

Lawyer Legislators

Attorney General Tim Griffin Lieutenant Governor Leslie Rutledge

Lawyer Constitutional Officers

Barriers and Hurdles to the Advancement of Women Lawyers and Lawyers of Color

By Shana Woodard Graves

I. Introduction

During the past couple of years, you haven’t been able to log onto LinkedIn or any other social media, or read any business or career magazine or journal without bumping into the phrase “Diversity, Equity, and Inclusion” or “DEI.” Recently, this movement has been expanded to include belonging, lengthening this buzz phrase to DEIB. There has been much debate about how employers can make their efforts in the DEIB space meaningful and more than words. Despite this increased attention to and focus on DEIB by companies and firms across the country, women lawyers continue to feel the effects of inequity in the distribution of meaningful opportunities and resources in the workplace. A 2020 American Bar Association report notes: “White men continue to monopolize access to the prime work assignments, to the best mentors and sponsors with access and influence, and to insider information about the inner workings of the firm, often realized through socializing and relationship-building that continues to happen in maledominated spaces, such as the golf course.”1

Still many companies and firms have not addressed the two key impediments faced by women lawyers: (a) unequal access to the experiences that are building blocks for success, and (b) negative gender stereotypes and implicit biases. Women report being four to eight times more likely to be overlooked for advancement, denied a salary increase or bonus, treated as a token representative for diversity, lacking access to business development opportunities, perceived as less committed to her career, and lacking access to sponsors.2

This article will explore how biases lead to the exclusion of women lawyers from activities that are critical for gaining “access to success” and how that exclusion hinders the expansion of DEIB in the legal profession.

Here are some statistics presented by the National Association of Women Lawyers in 2021:

• Only 22% of all Firm Equity Partners are women and 32% of non-equity partners are women

• Leadership Roles—12% Firm Managing Partner (up from 5% in 2010); 28% sit on a firm’s Governance Committee; and 27% hold a Practice Group Leader Role

• Pay Gap—2% of women make up the highest compensated attorneys at a firm, which is down from 8% in 2005 and 3% in 20163

Interestingly in the ABA’s study while women make up about 38% of the legal profession they hold nearly one-third of all federal judgeships, and they make up 41% of all state supreme court justices.

As reported in the American Bar Association’s 2020 Profile of the Legal Profession, only 5% of attorneys in the United States are African American.4 As a recent NALP report concluded: “The percentage of partners who are women or minorities has increased at least some every year, but the partnership ranks remain overwhelmingly white and male.5

Experienced women lawyers report that they are significantly more likely than their male counterparts to be overlooked for advancement; denied a salary increase or bonus; denied equal access to business development opportunities; become subjected to implicit biases, double standards, and sexual harassment; be perceived as less committed to their careers; and more.6

The practice of law is largely based on relationships. Networking and relationship building are key to obtaining key assignments and clients and to gaining quality mentorship and sponsorship. These are primary components of “access to success.” Many women lawyers, particularly women of color, identify a lack of “access to success” as a source of discontentment with the practice of law.

Participants in the 2020 ABA Report by Destiny Peery, Paulette Brown, and Eileen Letts talked about the persistence of the “Old Boys’ Club” and the ways that affinity biases and the choice to invest in people like oneself continues to shut women, particularly women of color, out of full participation and access in the legal workplace, leaving them looking in from the outside, lacking access to the resources and opportunities needed to thrive and succeed at the highest levels.7

This article will explore how biases lead to the exclusion of women lawyers from activities that are critical for gaining “access to success” and how that exclusion hinders the expansion of DEIB in the legal profession.

Examples of Exclusion from Arkansas Attorneys

“Today’s professional workplace continues to operate under a set of rules and expectations that were established decades ago, when men went to the office and women stayed at home, keeping house and raising children. Requiring flexibility, to get grocery shopping done or pick up children from school, is generally viewed as a weakness which will have a negative impact on a person’s career. As the bulk of this domestic labor tends to fall on women, even in a home where both partners work, women’s careers are disproportionately affected. This male-oriented culture extends to more than just the hours spent in the office. In the legal corporate world, networking events are frequently centered around golfing, gambling, or drinking whiskey in dark-paneled rooms with many leather-bound books. Women who want to succeed feel pressure to develop a talent for typically male-dominated activities or otherwise show they can hang with the boys. I’m at the point in my life and career, where I’m just not going to do that anymore. My professional value lies in who I am—not in who I can maybe pretend to be, and my employers will get the best work product from me when they respect and encourage that.”—Compliance

attorney

“I would often wonder why some of my colleagues seemed to always know information that I was not privy to. I found out that my male colleagues all played baseball together after work once a week. No one ever invited me. I just happened to end up in a conversation with someone in the office one day who didn’t realize that I hadn’t been invited and asked me if I was going to the next game. I later learned that some of my female counterpart’s husbands were also playing baseball and drinking with my male colleagues. This resulted in those female colleagues also having access to information that I did not. Ultimately, as an unmarried woman, I was denied access to critical information needed to navigate my workplace.”—Public

defender

“When I first came to my former company, among the attorneys, I was the only woman and the only person of color. My male boss and my male colleague would often have lunches, dinner, drinks, and other social gatherings with senior leadership, other key internal clients, and board members. I was never invited to attend which resulted in me not being recognized by most of senior leadership, being unknown by board members, and often being mistaken as a paralegal or a member of our support staff since I had never been introduced to critical stakeholders as an attorney, formally or informally.”—In-house

counsel

Shana Graves serves as Senior Counsel, US Privacy and Insurance Law. She received her undergraduate degree in Politics and International Relations from Hendrix College and her JD from UA Little Rock Bowen School of Law.

II. How women, specifically women of color, are excluded from social and recreational activities

The perception of who is the “best” or “most qualified” is not based on a set of objective criteria. The selection of lawyers for key assignments as well as the evaluation of their performance are subject to various biases, including similarity bias, confirmation bias, and affinity bias. These biases and the persistence of the “Old Boys Club” often lead to women lawyers, particularly women of color, being excluded from social and recreational activities such as lunches, dinners, golf, client meetings, and other outings that are key to relationship building.

Gender Gap

Women are far less likely than their male counterparts to be chosen as first chairs at trial or as leads on corporate deals.8

Diversity Tax

Many women and people of color

pay a “diversity tax” to practice law. Women of color often experience this on an even larger scale. What is a diversity tax? A “diversity tax” is the “experience of discrimination, of otherness, and the necessity for extra labor experienced by diverse attorneys within the workplace because of their various marginalized identities.”9

A 2018 American Bar Association report from the Commission on Women in the Profession addressed the impact of gender and racial biases, particularly implicit biases, on women and women of color in the legal profession. The study found, consistent with past research, women of color were more likely to report that they had less equal access to high-quality work assignments and fewer fair opportunities for promotion.10

In her October 2022 article, Kee Tobar notes that for many diverse attorneys, the “diversity tax” often includes macroagressions and microagressions both directly and indirectly from their colleagues. She goes on to explain that this tax can also include being othered and passed over for mentorship, promotions, and other growth opportunities. Frequently an effect of being othered as a woman and/ or person of color in the legal field involves being excluded from social and recreational activities both hosted by their firm or company and those activities that are informally planned amongst colleagues.

III. Relationship gaps created by exclusion from social and recreational activities and how this affects women in practice

“Access to Success” describes a set of factors that address how women lawyers are generally perceived and the opportunities they are given to advance within their company or firm. These include access to key assignments, formal and informal networking opportunities, and client development and client relationshipbuilding opportunities.

The Visible Invisibility study reported that women of color felt they were missing out on desirable assignments, being denied formal and informal networking opportunities, missing client development and client relationship opportunities, and

being denied promotion opportunities because of their race and/or gender. They also reported finding it harder to meet billable hour requirements and build a book of business necessary for advancement in law firms, which was due in part to their relative lack of access to the very opportunities and relationships that would allow them to do so.11

A consistent finding from the 2020 ABA study and past research is that women of color experience difficulty in getting access to mentors or sponsors who serve them in ways they see white men in particular being served by these relationships. Furthermore, women of color are especially likely to report that they lack access to mentors or sponsors who are well-connected and have power and influence to both clue them into important dynamics of the workplace and effectively advocate for them.12

These experiences with mentors and relationship building highlight the importance of considering the structures for creating, facilitating, and maintaining formal and informal relationships for attorneys throughout their career, particularly populations like women of color who experience more difficulty forging engaged relationships that lead to effective mentorship and sponsorship and feelings of belonging in the community.13

Exclusion from formal and informal social and recreational activities within a company or firm decreases women lawyers’ access to success because it hinders opportunities for networking and obtaining meaningful mentorship and/or sponsorship, as well as knowledge of the existence of informal and unwritten company or firm policies and practices which are necessary to navigating the internal structure in pursuit of advancement.

Conclusion

As the legal community continues to work to eliminate bias within the practice of law and discusses how to expand DEIB across the profession, it is crucial that we also address the tax associated with diversity. The diversity tax, as well as the exclusion that is often a product of this tax, are counterproductive to the DEIB goals of companies and firms. Companies and firms should create and promote policies

"Biases, specifically affinity bias, the persistence of the “Old Boys’ Club,” and the tendency to invest in those like ourselves, causes women, particularly women of color, to be excluded in ways that limit their access to the opportunities and resources necessary to thrive and advance, preventing their full participation in the legal profession and the practice of law."

surrounding bias reporting. Additionally, senior attorneys with privilege, power, and access to relationships should both leverage this privilege to help reduce and ultimately eliminate discrimination in the practice of law and to reach back and mentor and sponsor women attorneys and people of color by inviting them to social and recreational activities that will give them access to opportunities for networking, mentorship, and more prominent business opportunities.

Most employers, including legal employers, seem to understand diversity as it comes to recruitment and representation, but they continue to fail to understand the necessity of a focus on inclusion and retention.14

Biases, specifically affinity bias, the persistence of the “Old Boys’ Club,” and the tendency to invest in those like ourselves, causes women, particularly women of color, to be excluded in ways that limit their access to the opportunities and resources necessary to thrive and advance, preventing their full participation in the legal profession and the practice of law.

Endnotes:

1. Destiny Peery, Paulette Brown and Eileen Letts, Left Out and Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-Term Legal Careers for Women of Color (A.B.A. 2020), available at: https:// www.americanbar.org/content/dam/aba/ administrative/women/leftoutleftbehindint-f-web-061020-003.pdf.

2. Roberta D. Liebenberg and Stephanie A. Scharf, Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice (A.B.A. 2019).

3. 2021 Report, National Association of Women Lawyers (NAWL) Survey on the Promotion and Retention of Women in Law Firms, available at https://www.nawl.org/d/ do/1120.

4. Kee Tobar, Paying the ‘diversity tax’ to practice law, A.B.A. J. (Oct. 19, 2022), available at https://www.americanbar.org/ groups/journal/articles/2022/paying-thediversity-tax-to-practice-law/.

5. Women and Minorities at Law Firms: What Has Changed and What Has Not in the Past 25 Years?, NALP Bulletin (Feb. 2018), available at https://www.nalp.

org/0218research.

6. Liebenberg and Scharf, supra note 2.

7. Peery, Brown and Letts, supra note 1.

8. Liebenberg and Scharf, supra note 2.

9. Tobar, supra note 4.

10. Commission on Women in the Profession and Minority Corporate Counsel Association, You Can't Change What You Can't See: Interrupting Racial & Gender Bias in the Legal Profession (A.B.A. 2018), available at www.americanbar.org/content/ dam/aba/administrative/women/Updated percent-20Biaspercent20Interrupters.pdf.

11. Id.

12. Peery, Brown and Letts, supra note 1.

13. Id.

14. Id. ■

By Skye Martin

Neva Bennett Talley-Morris: Leading the Way for Women Lawyers

Women have fought for equality in the legal field throughout the history of the United States. In 1869, Arabella Mansfield of Iowa became the first female lawyer to be admitted to the practice of law in the United States.1 Many states were still resistant to allowing women to practice law at this time, and a crushing blow would come only a few years later. In 1873, the Supreme Court of the United States held that the exclusion of women from admission to the bar of a state did not violate the Fourteenth Amendment to the Constitution.2 Once again, women were relegated behind men in terms of their careers and their rights as citizens.

Despite these challenges, women persisted in pressing for admission to law schools and state bars with moderate success throughout the late 1800s and early 1900s even though they were still excluded from most legal associations at the time.3 In 1899, the Women Lawyers’ Club was founded by a group of 18 women lawyers in New York City, and this group eventually became the National

Association of Women Lawyers (“NAWL”) in 1923.4 In 1918, Judge Mary Belle Grossman and Mary Florence Lanthrop were the first two women admitted to the American Bar Association.5 In 1965, NAWL member Lorna E. Lockwood became the first woman chief justice of any state.6 It was not until 1995 that the first woman, Roberta Cooper Ramo, was elected President of the American Bar Association.7

One female attorney who led the way in the legal field for so many women in Arkansas and across the country is Neva Bennett Talley-Morris. It is important to consider Arkansas’ history to understand why Neva was such a trailblazer. Women were not allowed admission to the Arkansas bar until the legislature authorized it by statute in 1917.8 Between 1917 and 1959, the number of women admitted to the practice of law in Arkansas was approximately 150.9 Only 54 women were admitted to the Arkansas bar between 1940 and 1970, but the women who did choose to enter the legal field paved

the way for women to take on leadership roles in legal associations and contribute to legal scholarship.10 Neva not only joined the legal field at a time when so few women did so, but she consistently broke the glass ceiling for female lawyers with her leadership roles in multiple legal associations.

Neva Bennett Talley-Morris was born on October 12, 1909, in Judsonia, Arkansas.11 Neva showed her perseverance early in life when she survived a struggle with polio at the age of two.12 In her early life, she showed her competitive streak by winning the cup in a statewide geometry contest.13 Neva graduated with a Bachelor’s degree in Mathematics from Ouachita Baptist University in 1930, worked as a teacher, and then completed her Master’s degree in School Administration to qualify as a public school principal when most principals at this time were men.14 While married to Cecil C. Talley, an attorney in Arkansas, she worked in his law office and learned enough to pass the bar exam.15 She obtained her license to practice law

“When I’m sometimes asked, ‘When will there be enough [women on the Supreme Court]?’ and I say, ‘When there are nine,’ people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.” —The late Justice Ruth Bader Ginsburg.

Photo of Neva from the July 1986 issue of The Arkansas Lawyer

in 1947 and was admitted to practice at the Supreme Court of the United States in 1950.16 At the age of 75, Neva would receive an honorary doctorate in Philosophy of Law from the World University in Heidelberg, Germany.17

Becoming a licensed attorney as a woman in the 1940s was already a huge accomplishment, but it is Neva’s leadership and scholarship that really sets her apart. After receiving her law license, Neva practiced law with her husband and, after his death, continued to practice law as a solo practitioner in Little Rock and North Little Rock, Arkansas, until her retirement.18 Neva remained an active lawyer until Alzheimer’s disease began taking over later in life, and at that point she moved to Judsonia to live in a nursing home close to her brother.19

Neva was an early supporter of women in the legal profession. She served as president of the Little Rock Association of Women Lawyers in 1950, and once remarked, “We were not competitive with each other. We helped one another.”20 By 1950, Neva was also the legislative director of the NAWL South Central Region.21 Neva served as President of NAWL from 1956–1957, the first Arkansas lawyer to serve in that position.22 During her address before the Northwest Regional Breakfast Meeting of Women Lawyers in 1950, she said, “There might have been a time when a woman lawyer could have been referred to as an oddity because the general public was unaccustomed to the idea of women entering this career; but in today’s enlightened world it is indeed an ‘odd’ community which does not accept upon full and equal status, the woman and the man lawyer of equal training, ability, and experience.”23 She used her position in NAWL to work toward the advancement of women in judicial positions; for example, meeting with Attorney General Herbert Brownell, Jr., and Deputy Attorney General William Rogers to urge President Eisenhower to nominate Justice Florence E. Allen, the first woman to sit on any federal bench of general jurisdiction, to the Supreme Court of the United States.24 Neva received a Merit Award from NAWL in 1961 for her extensive work in the organization.25

Neva was also an active member of the Arkansas Association of Women Lawyers (“AAWL”), and her papers from 1964 to 1978 are found in the Arkansas State Archives.26 AAWL was informally founded in 1938 and drew up its original constitution on January 7, 1967, with a mission to further the interest of women lawyers and their service to the legal profession.27 In 1970, AAWL presented Neva with a plaque in the shape of the state of Arkansas, and it stated in part: “in recognition of her outstanding achievement on being elected Chairman of the Family Section of the American Bar Association thereby becoming the first woman in the history of the ABA to serve as Chairman of one of its Sections.”28

Neva was among the original founding council members of the Family Law Section of the American Bar Association at the 1958 convention in Los Angeles, California, and she served as the Section’s Secretary from 1963 to 1969.29 At the first annual meeting of the Family Law

Section at the American Bar Association Annual Meeting in Bal Harbour, Florida, in August of 1959, Neva introduced a resolution with several goals for the Skye Martin is an attorney for the U.S. Army Corps of Engineers in Little Rock, Arkansas. She is a Past President of the Arkansas Association of Women Lawyers.

Photo from the January 1985 issue of The Arkansas Lawyer

Section.30 She wanted the Section to triple in membership, to publicize among lawyers the importance of family law, to establish a family law center at the ABA’s national headquarters, to encourage state bar groups to promote family law, and to develop a Family Law Section publication.31 Neva served as a Special Judge of the Circuit Court of Arkansas during her time as Section Secretary, the second woman ever to be so designated.32 In 1970, Neva served as a Delegate of the ABA on the Arkansas Council of Children and Youth and also served on Governor Winthrop Rockefeller’s Task Force for the White House Conference on Children and Youth.33

Even though Neva was one of the hardest-working members of the Family Law Section, only men had been elected to Chair positions thus far.34 In 1969, a group of women lawyers in Dallas, Texas, decided to pack the ABA convention during elections to get Neva elected as Chair.35 The plan was a success, and Neva became the first female Chair of a section of the American Bar Association in its 92-year history at her election in 1969.36 At the completion of her term in 1970, she then became the first woman to be elected from one of the 21 sections of the American Bar Association to serve as a Section Delegate to the House of Delegates.37

Although Neva was so busy on the national legal scene in the 1950s and 1960s, she also took on leadership roles in her local legal organizations. In 1965, Neva was elected to the Board of the Pulaski County Legal Aid Bureau and also to the Committee on the Unauthorized Practice of Law in Arkansas of the Arkansas Bar Association and of the Pulaski County Bar Association.38 Neva received the Arkansas Bar Association’s Distinguished Service Award in 1970, and she received the Outstanding Lawyer-Citizen Award in 1978.39 Neva authored two important textbooks in the 1970s: Family Law Practice and Procedure Handbook and Appellate Practice and Procedure. Neva was considered an expert on family law, and her Family Law Practice and Procedure Handbook tackled the national trend of nofault divorces and discussed child custody along with jurisdictional issues involved in intra- and interstate litigation.40 With her

myriad of accomplishments, Neva was named Countess of Pulaski County in 1969.41

Later in her life, Neva widened her focus to a global scale and became deeply involved in using the law as a way of striving toward world peace. She was a member of the World Peace Through Law Center’s Planning and Goals committee and worked with her committee to plan and attend peace conferences in Spain, Egypt, Brazil, the Philippines, Cairo, and Korea throughout the early 1980s.42 Through her work with the committee, Neva participated in discussions on freedom of press, human rights, world health, food and drug laws, and training programs for rural lawyers in third world countries.43 Neva was a panelist at the Center’s twelfth conference in Berlin, Germany, in 1985 and was given a private audience with Pope John Paul II to honor his efforts toward global peace.44 Later that same year, she visited The Republic of China as a member of a delegation of 15 women lawyers and guests under the sponsorship of the People to People International Citizen Ambassador Program.45 In 1987, she attended a National Conference on Peacemaking in Denver, followed by a planning session in Washington D.C. for her World Peace Through Law Center’s conference.46

This has not been an exhaustive list of Neva's accomplishments because she was constantly taking on new challenges throughout her life and accepting leadership roles at a time when the legal field was still predominated by men. Throughout her life, Neva looked for ways to lead, ways to help, and ways to add to the growing knowledge of family law. Along the way, she consistently mentored and encouraged other women lawyers and worked on advancing the cause of women in the legal profession through her leadership in various legal organizations including the American Bar Association, the National Association of Women Lawyers, the Arkansas Bar Association, the Pulaski County Bar Association, the Little Rock Association of Women Lawyers, and the Arkansas Association of Women Lawyers. She is a shining example of a woman lawyer who paved the way for women across the country to excel and lead in the legal profession.

Endnotes:

1. Selma Moidel Smith, A Century of Achievement: The Centennial of the National Association of Women Lawyers, 85 Women Law. J. 2, p. 19 (Summer 1999).

2. Bradwell v. State, 83 U.S. 130, 139 (1872).

3. Frances Mitchell Ross, Reforming the Bar: Women and the Arkansas Legal Profession, 20 U. Ark. Little Rock L. Rev. 869, 872 (1998), available at: https://lawrepository. ualr.edu/lawreview/vol20/iss4/2.

4. National Association of Women Lawyers: NAWL History, http://www.nawl.org/p/cm/ Id/fid=20#pres (last visited Oct. 19, 2022).

5. Id.

6. Id.

7. Id.

8. Women in the Law, 28 W. Va. L. Rev. 322 (1922), available at https:// researchrepository.wvu.edu/wclr/vol28/ iss4/18.

9. Jacqueline S. Wright, Women of the Law in Arkansas 1918-1959, 19 Ark. Law. 17, 17–19 (Jan. 1985).

10. Ross, supra note 3, at 882.

11. Evergreen Cemetery Files, available at http://www.argenweb.net/white/cems/ Evergreen_Cemetery_files/evergreen_ cemetery_judsonia_old.htm.

12. Newsletter, Ouachita Baptist University Alumni, June 1, 1986.

13. Wright, supra note 9, at 20.

14. Wright, supra note 9, at 20. See also Newsletter, Ouachita Baptist University Alumni, Spring 1970.

15. In Memorium, Neva Bennett TalleyMorris, 31 Ark. Law. 52, 52 (Fall 1996).

16. Id.

17. Newsletter, Ouachita Baptist University Alumni, July 1985.

18. Roster of Private Practitioners, 36 Women Law. J. 37 (1950). See also Bennett v. Miles, 212 Ark. 273 (1947) (Neva

B. Talley, Cecil C. Talley, W.E. Phipps, and Wm. J. Kirby were counsel for the appellant).

19. In Memorium, Neva Bennett TalleyMorris, 31 Ark. Law. 52, 52 (Fall 1996).

20. Wright, supra note 9, at 18, 20. See also Muriel E. Richter, Lawyers in the News, 36 Women Law. J. 21, 21 (1950).

21. Richter, supra note 20, at 21.

22. Ross, supra note 3, at 882.

23. Neva B. Talley, Women Lawyers of

Yesterday, Today, and Tomorrow, 46 Women Law. J. 21 (Summer 1960).

24. Smith, supra note 1, at 31.

25. Carl F. Ingraham, Says Our Chairman, The Family Lawyer, Vol. 3, No. 3 (March 1962).

26. Arkansas Association of Women Lawyers records, Arkansas State Archives, Little Rock, Arkansas.

27. Id.

28. Section Chairman is Honoree as Governor Issues Proclamation, The Family Law Newsletter, Vol. 11, No. 2, p. 3 (Feb. 1970).

29. James P. O’Falrity, The Family Law Section Celebrates its Silver Anniversary, Family Advocate, Vol. 6, No. 1, p. 35–36 (Summer 1983).

30. Id.

31. Id.

32. In and Around Our Section, The Family Lawyer, Vol. 8, No. 1, p. 2 (Nov. 1966).

33. The Family Law Newsletter, Vol. 11, No. 2, p. 5 (Feb. 1970).

34. Louise B. Raggio, Women Lawyers in Family Law, Vol. 33 Family Law Quarterly, No. 3, p. 512 (Fall 1999).

35. Id.

36. Id. See also Newsletter, Ouachita Baptist University Alumni, Spring 1970.

37. Certificate Bestowed on Neva Talley, The Family Law Newsletter, Vol. 12, No. 1, p. 2 (Oct. 1970).

38. In and Around Our Section, The Family Lawyer, Vol. 7, No. 1, pp. 1–2 (Nov. 1965).

39. In Memorium, Neva Bennett TalleyMorris, 31 Ark. Law. 52, 52 (1996).

40. Doris Jonas Freed, Review of Family Law Practice and Procedure Handbook by Neva B. Talley-Morris, A.B.A. J., Vol. 61, No. 1 (Jan. 1975).

41. Around the Section, The Family Lawyer, Vol. 9, No. 4, p. 2 (March 1969).

42. Newsletter, Ouachita Baptist University Alumni, November 1983.

43. Family Advocate, Vol. 7, No. 1, pp. 43-48 (Summer 1984).

44. Newsletter, Ouachita Baptist University Alumni, July 1985.

45. Id.

46. Newsletter, Ouachita Baptist University Alumni, June 1986. ■

The Arkansas Association of Women Lawyers

AAWL Board of Directors for 2022-2023, left to right: Amie Wilcox, Shana Woodard Graves, Presley Turner, Nicole Stamm Winters, Vanessa Cash Adams, Bradey Camille Baltz, Sydney Rasch, Deanna Dorrough Ray, Skye Martin, Angela Griffith Mann, Judge LaTonya Austin Honorable, Sarah DeBusk, and Amanda Kennedy

The Arkansas Association of Women Lawyers, better known in the legal community as AAWL, is an organization devoted to the furtherance of the interests of women lawyers in the state of Arkansas. Founded in 1967, AAWL has grown in financial stability and diversity of membership and advanced its impact on the lives and careers of women practicing law in the state. In addition to being an organization that strives to have a positive impact on women in the legal field, AAWL provides continuing legal education to its members and fosters public service and high standards of conduct, integrity, learning and competence. One of the most impactful ways that AAWL promotes the careers of women in the legal profession is through the numerous scholarships it offers every year to women preparing to take the bar exam. These scholarships help fund bar prep courses or other needs of women who are preparing to take the bar exam after graduation from law school. AAWL’s annual fundraiser is the AAWL Holiday Brunch and Silent Auction held every December. It is a hugely popular event, and is the sole means for raising money to support AAWL’s scholarship

program. Additionally, AAWL hosts clothing drives to provide business attire for female law students, which allows students to spend their resources in other areas.

The AAWL Board of Directors is made of a diverse group of women from a variety of practice areas and backgrounds. The mission of the Board of Directors is to help grow membership, increase fundraising, coordinate and host CLE events, offer social gathering opportunities, and select scholarship recipients every year.

To find out more about the Arkansas Association of Women Lawyers, please visit our website at Arkansas Association of Women Lawyers (arwomenlawyers.org). If you are interested in attending, donating to or sponsoring the Holiday Brunch, please visit Holiday Brunch & Auction (arwomenlawyers.org) or reach out to AAWL.

By Deanna Dorrough Ray, AAWL Board of Directors, Parliamentarian

Client Threat of Suicide Ethical Response Actions

By Stark Ligon, Ethics Counsel, Arkansas Supreme Court Help Line 501-683-4014, ethicscounsel@arcourts.gov

At least six times since the Office of Ethics Counsel (“the Office”) opened in October 2021, the question is, “What can I ethically do when my client has made what I consider to be a credible threat to commit suicide?” Arkansas Rules of Professional Conduct (“ARPC”) 1.6 (confidentiality) and 1.14 (client with diminished capacity) and numerous ethics opinions address the issue and the lawyer’s ethicallypermissible responses. The short answer is “DISCLOSE,” and hopefully save at least one life if the client is serious and appears to have the means and opportunity to carry out the threat. This article will address how one gets to this conclusion. Also, please remember the supportive statement in Section 14 of the Scope of the ARPC, “The Rules of Professional Conduct are rules of reason.”

ARPC 1.6 requires the client’s lawyer to keep confidential and not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by exceptions in 1.6(b). Comment 6 states, in part, that the overriding value of life and physical integrity permits disclosure reasonably necessary to prevent death or bodily harm. Client threats of suicide, to injure or kill another person in the process of the client committing suicide, encouraging the suicide of another person, and assisting in suicide are questions of “law” and generally outside the scope of the authority of the Office to opine on under OEC Rule 6.A. For information, see Ark. Code Ann. §§ 5-10-107, 5-10-104(a) (2), and 5-2-605(4). OEC has not found an Arkansas Code provision that now makes the threat or act of suicide to be criminal conduct. ABA Informal Opinion 83-1500 (1983) addresses the need for client permission to disclose the client’s intention to commit a crime and the information

necessary to prevent the crime where neither suicide nor attempted suicide is a crime in the jurisdiction. The Opinion cited several state ethics opinions and concluded that the proper conduct for a lawyer dealing with a client with a disability, now a “client with diminished capacity” under thenproposed Model Rule (MR) 1.14 and now ARPC 1.14, is to safeguard and advance the interests of his or her client as a last resort when the lawyer’s efforts to counsel the client have apparently failed. ABA Informal Op. 89-1530 (1989) approves disclosure by the lawyer of a disabled client’s condition to the client’s physician, citing also to MR 1.14. ABA Inf. Op. 89-1530 points out that if the disclosures necessary and implied as part of the representation under MR 1.14 were prohibited under MR 1.6 then MR 1.14 could not work effectively and the two Model Rules would be internally inconsistent.

Later pre-Model-Rules Virginia Legal Ethics Op. 560 (1984) interprets the former Disciplinary Code DR 4-101(C)(3), now basically Model Rule 1.6(b)(1), and several ABA Informal Opinions in just one short sentence stating, “It is not improper for an attorney to disclose to appropriate mental health authorities the stated intentions of a client to leave the state and commit suicide.” Other state ethics opinions permitting limited disclosure in client suicide threat situations are New York State Bar Ethics Op. 486 (1978), Georgia Ethics Op. 42 (1984), Penn. Ethics Op. 93-43, Alaska Ethics Op. 2005-1, Mass. Bar Op. 01-2 (2001), South Carolina Ethics Op. 99-12, Alabama Ethics Op. RO-95-06, and Arizona Ethics Op. 91-18.

ARPC 1.14(b) allows the lawyer to “take reasonably necessary protective action” with a client with diminished capacity who is at risk of substantial physical harm, including notifying and disclosing necessary client information to family members [Comment

2], other legal representatives of the client [Comment 4], professional services and adult protective agencies [Comment 5], consulting with an appropriate diagnostician [Comment 6], and taking emergency legal assistance action where a threat to the health or safety of the client is imminent and irreparable [Comments 9-10]. Such action reasonably includes contacting law enforcement if the lawyer determines such action is reasonably necessary and believes the client is armed and/or represents credible threat of serious physical harm to others.

John W. Hall, Jr.’s “Observation” in Section 28:26 of his Professional Responsibility in Criminal Defense Practice (4th ed. 2023, Thomson-West at 1122) states the dilemma and the lawyer’s resolution of it in crystal clear terms, “For those of us who have litigated cases where the defendant attempted suicide, we are well aware of the concept of the “cry for help” when somebody calls about a planned suicide. If somebody calls their lawyer and says they plan to commit suicide and they sound serious, a court would certainly be justified in holding that the call was a “cry for help” and constituted an implied waiver of confidentiality. Also, any lawyer who received such a call for help and did nothing would likely never forgive him- or herself if the client committed suicide.” Arkansas lawyers, you may ethically “disclose” to the extent you believe reasonably necessary under the circumstances to prevent a client from attempting or committing suicide. Consider erring on the side of caution. The public and the profession will understand.■

Stark Ligon, Arkansas Supreme Court Office of Ethics Counsel

By Steve Davis

Constructive Trust The Most Flexible Remedy

How naïve is a person entitled to be and still expect a remedy in court? That limit is defined by the law of constructive trusts, and the inconsistency and uncertainty of that law presents an opportunity for creative lawyering.

A. Equitable Remedy

A constructive trust is an equitable remedy. It arises from the doctrines of assumpsit and restitution. “Assumpsit has its origin in relief anciently afforded by chancery in respect to an implied obligation arising by operation of law, and is grounded in equitable principle.”1

“Restitution is founded upon the doctrine of unjust enrichment. . . . Unjust enrichment is an equitable doctrine.”2

A constructive trust is known by various labels, including quasi or constructive contract. Implied trusts include constructive trusts, trusts ex malefico, and resulting trusts.3 The labels tend to be used interchangeably. For this article, the term “constructive trust” applies to all of the equitable remedies based upon the concept of unjust enrichment, because the same requirements and opportunities apply to all.

Constructive trusts are often discussed in the context of equitable liens, but an equitable lien is a more specific remedy. “Ordinarily, an equitable lien arises from an express or implied agreement to create a lien on property, real or personal, as security for an obligation. A loan or advancement of money, in and of

itself, does not give rise to a lien unless there is trickery or fraud involved in the procurement.”4 A test for whether an equitable lien can be requested in a matter involving real estate is whether there is a valid reason to file a lis pendens notice along with the complaint.

The flexibility of the constructive trust as an equitable remedy arises from the fact that there is no set formula by which the existence of the elements of a constructive trust may be determined, because each case is factually different.5 Although unjust enrichment cannot be defined, most judges, like Potter Stewart, “know it when they see it.” Thus, the constructive trust remains the most flexible remedy and offers the most opportunity for creative lawyering.

B. Elements

1. Fault

Early forms of constructive trust were based on the fault of the person on whom the trust was to be imposed. “[T]o establish a trust ex maleficio, there must be an element of positive fraud accompanying the promise, by means of which the acquisition of the legal title is wrongfully obtained.”6 Thus, a constructive trust may arise through fraud, duress, undue influence or mistake, breach of a fiduciary duty, or wrongful disposition of another’s property.7

As late as 2014, the Arkansas Court of Appeals held that “a constructive trust

arises in favor of persons entitled to a beneficial interest against one who secured legal title either by an intentional false oral promise to hold the title for a specified purpose, or by a violation of a confidential or fiduciary duty, or is guilty of any other unconscionable conduct that amounts to a constructive fraud.”8 The decisions have not been consistent, however, as to the requirement of fault of the recipient.

2. Confidential Relationship

As an alternative to fault of the recipient, the courts have imposed constructive trusts where there is a confidential relationship.

[P]roof of fraud is not necessary for the imposition of a constructive trust. This court has often held that although a grantee’s oral promise to hold the title to land for a third person is unenforceable, a constructive trust will be imposed if it is shown by clear, cogent and convincing evidence that the grantee’s promise was intentionally fraudulent, or that the parties were in a confidential relationship.9

There is no set definition of a confidential relationship, but here is a common one seen in case law:

A confidential relation exists between two persons when one has gained the confidence of the

other and purports to act or to advise with the other’s interest in mind. Relationships deemed to be confidential are not limited to those involving legal control; they also arise whenever there is a relation of dependence or confidence, especially confidence that springs from affection on one side and a trust in reciprocal affection on the other. A confidential relationship, however, is not established simply because the parties are related or live in the same household. . . . There is no set formula by which the existence of a confidential relationship may be determined, for each case is factually different and involves different individuals.

. . . Whether two individuals have a confidential relationship is a question of fact.10

“While a confidential or fiduciary relationship does not in itself give rise to a constructive trust, an abuse of confidence rendering the acquisition or retention of property by one person unconscionable against the other suffices generally to ground equitable relief in the form of the declaration and enforcement of a constructive trust.”11

3. Unjust Enrichment

As an alternative ground for imposing a constructive trust, the courts have inconsistently applied the theory of unjust enrichment without regard to the recipient’s fault. On one hand, courts have suggested that fault is unnecessary:

It is not necessary, in order to create an obligation to make restitution, that the party unjustly enriched should have been guilty of any tortious or fraudulent acts; the question is: Did he, to the detriment of someone else, obtain something of value to which he was not entitled? In such cases the simple, but comprehensive, question is whether the circumstances are such that equitably defendant should restore to plaintiff what he has received.12

On the other hand, courts have suggested that fault is necessary:

To find unjust enrichment, a party must have received something of value to which he was not entitled and which he should restore. However, there must be some operative act, intent, or situation to make the enrichment unjust and compensable. The courts will imply a promise to pay for services only where they were rendered in such circumstances as authorized the party performing them to entertain a reasonable expectation of their payment by the party beneficiary. One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contract right.13

C. Defenses

1.

Laches

Because a constructive trust is an equitable remedy, the applicable defense is not limitation of actions, but laches. In Arkansas, this distinction has not been universally followed, at either the trial or appellate level.14

The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance on the action or inaction of the other party. Laches or estoppel does not arise merely by delay, but by delay that works a disadvantage to the other. . . . So long as the parties

are in the same position, it matters little whether one presses a right promptly or slowly.15

In Andres v. Andres, 16 the siblings of Adolph Andres waited 38 years from the date of the deed to attempt to impose a resulting trust upon their brother. In Castleberry v. Castleberry, 17 the siblings of Arthur Castleberry waited 20 years to attempt to impose a resulting trust on their brother. In both cases, the plaintiffs had their day in court and their cases reached the Supreme Court and Court of Appeals, respectively.18

2. Unclean Hands

Because a constructive trust is an equitable remedy, the doctrine of unclean hands applies. It is often discussed interchangeably with equitable estoppel. In

Steve Davis has practiced law in the same building in Harrison since 1982. No one has ever challenged his claim to be the only State Supreme Court Special Associate Justice ever to win a national motorcycle road race.

Henry v. Goodwin, 19 Mrs. Goodwin deeded land to her niece to denude herself of assets so that she could qualify for Social Security (SSI). The niece executed a deed to reconvey the land, but the deed was not recorded. Although the niece was younger, she died sooner. Mrs. Goodwin then recorded the niece’s deed, and the niece’s children claimed the land as their own. They claimed that Mrs. Goodwin was barred from an equitable remedy by estoppel or the unclean hands doctrine because she had misrepresented her position to SSI. The Supreme Court held:

[W]here the owner of property transfers it upon an intended trust which fails for illegality, “a resulting trust does not arise if the policy against permitting unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.”

. . . It is thus a matter of balancing conflicting principles of public policy. Among the factors to be considered are (1) whether the grantor’s conduct involves moral turpitude, (2) the extent of the policy making the transaction illegal, (3) whether the enforcement of a trust would tend to prevent the accomplishment of the illegal purpose, (4) whether the transferee was more at fault than the transferor, and (5) whether the transferor was ignorant of the law or of the facts making the trust illegal.20

The Arkansas Supreme Court found that Mrs. Goodwin was not barred from an equitable remedy by estoppel or the unclean hands doctrine, but noted that its decision was not binding on the Social Security Administration.

A different result was reached in Lucas v. Grant. 21 Mr. Lucas conveyed property to his wife to conceal it from the IRS and from a judgment his ex-wife recently obtained. When the new wife predeceased him, he attempted to impose a constructive or resulting trust or equitable lien against the property, which the new

wife’s children claimed. The chancellor held that an equitable remedy was barred by the doctrine of estoppel and unclean hands, and it was affirmed on appeal:

It has long been recognized that the clean-hands maxim bars relief to those guilty of improper conduct in the matter to which they seek relief. The purpose of involving the clean- hands doctrine is to protect the interest of the public on the grounds of public policy and to protect the integrity of the court. It is within the chancellor’s discretion to determine whether the interests of equity and justice require application of the doctrine.22

D. Jurisdiction

Because a constructive trust was consistently viewed as an equitable remedy, the cases were normally heard in chancery court. Probate court had no jurisdiction. Amendment 80 combined the courts of law and equity, but recognized the procedural distinctions between equitable and purely legal remedies.23

In a historic revision of centuries of equitable jurisprudence, the Arkansas Supreme Court in Dawson v. StonerSellers24 abolished the equitable cleanup doctrine. What this means is that, should you add purely legal claims to your equitable remedies, or should your opponent assert purely legal defenses, you may be facing a bifurcated trial, with a jury deciding the purely legal issues. In addition, the doctrine of laches will no longer apply to the purely legal issues.

E. Burden of Proof

The party proposing a constructive trust bears the highest level of proof required in a civil case. It has been variously expressed, generally requiring “clear” plus some other adjective.

The general rule, as well as the established rule in this state, seems to be well settled that in order for one to establish by parol evidence either a resulting or constructive trust, the evidence must be “full, clear and convincing,” “full, clear

and conclusive,” “of so positive a character as to leave no doubt of the fact,” and “of such clearness and certainty of purpose as to leave no well founded doubt upon the subject.” These requirements run through a long line of cases from this court.25

Bramlett v. Selman, 26 among many other cases, also stands for the proposition that constructive trusts may be established by parol evidence. “However, where one of the parties alleges the existence of an implied or constructive trust, as here, it is well-settled that parol evidence is admissible to establish its existence.”27 This is hardly surprising, because, if there were a written document, a different remedy would be sought.

The Arkansas Statute of Frauds pertaining to trusts28 contains a specific exemption from the writing requirement for trusts which may arise or result by implication of law.

Conclusion

An action for constructive trust is less restricted and fettered by technical rules and formalities than any other form of action.29 The long and inconsistent history of the jurisprudence of constructive trusts, as well as the ambiguity of the language employed, means that research should reveal a case which stands for the proposition that your client, on whichever side, should win. It is then up to the creative lawyer to present the facts at trial in such a manner that the trial judge will know unjust enrichment when he or she sees it.

Endnotes:

1. First Nat'l Bank v. Cruthis, 360 Ark. 528, 535–36, 203 S.W.3d 88, 93 (2005) (quoting Import Motors v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (1980)).

2. Id. at 535, 203 S.W.3d at 93.

3. Edwards v. Edwards, 311 Ark. 339, 843 S.W.2d 846 (1992).

4. Mitchell v. Mitchell, 28 Ark. App. 295, 773 S.W.2d 853 (1989).

5. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998).

6. Phillips v. Phillips, 178 Ark. 1056, 14

S.W.2d 219, 221 (1929).

7. Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996).

8. McNeill v. Robbins, 2014 Ark. App. 222, at 3.

9. Bramlett v. Selman, 268 Ark. 457, 462, 597 S.W.2d 80, 83–84 (1980).

10. Lucas v. Grant, 61 Ark. App. 29, 33–34, 962 S.W.2d 388, 390 (1998).

11. Hall v. Superior Federal Bank, 303 Ark. 125, 134, 794 S.W.2d 611, 616–17 (1990).

12. Frigillana v. Frigillana, 266 Ark. 296, 306, 584 S.W.2d 30, 34 (1979).

13. Sparks Regional Medical Center v. Blatt, 55 Ark. App. 311, 317, 935 S.W.2d 304, 307 (1997).

14. Razorback Rides, LLC v. Birdsong, 2022 Ark. App. 113, 643 S.W. 3d 59 (2022).

15. Higgins v. Higgins, 2010 Ark. App. 71, at 10, 374 S.W.3d 56, 61.

16. 1 Ark. App. 75, 613 S.W.2d 404 (1981).

17. 202 Ark. 1039, 155 S.W.2d 44 (1941).

18. But see Razorback Rides, LLC v. Birdsong, 2022 Ark. App. 113, 643 S.W.3d 59, where the author failed to persuade both the trial court and the Arkansas Court of Appeals

not to apply legal statutes of limitations to this equitable remedy.

19. 266 Ark. 95, 583 S.W.2d 29 (1979).

20. Id. at 99, 583 S.W.2d at 31.

21. 61 Ark. App. 29, 962 S.W.2d 388 (1998).

22. Id. at 34, 962 S.W.2d at 390.

23. First National Bank v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).

24. 2019 Ark. 410, 591 S.W. 3d 299.

25. Waller v. Waller, 15 Ark. App. 336, 339, 693 S.W.2d 61, 63 (1985), citing Nelson v. Wood, 199 Ark. 1019, 137 S.W.2d 929 (1940).

26. 268 Ark. 457, 597 S.W.2d 80 (1980).

27. Id. at 461, 597 S.W.2d at 83.

28. Ark. Code Ann. § 4-59-103.

29. Import Motors, Inc. v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (1980). ■

Legal Briefing

By Amie Wilcox

Burnout in the Legal Profession

Burnout is a hot topic in wellness presentations and ethics CLEs, but what does it really mean in practice? Dr. Herbert J. Freudenberger coined the phrase “burnout” in 1974, defining it as “the extinction of motivation or incentive, especially where one’s devotion to a cause or relationship fails to produce the desired results.” Previous corporate strategies for addressing burnout in the workforce have focused on vacation days—and, for some, a weekend at the lake may “cure” what they perceive as burnout. For others, vacation days aren’t the fix, and actual burnout wreaks surprisingly destructive havoc on their lives and the lives of those around them.

I'm doing "self-care"—isn't that enough?

The key to preventing or addressing burnout is not a once-a-year reminder to not overload yourself—especially if this reminder is not actually modeled at the management level. Does your self-care look like any of these?

• Going to yoga or a workout class at 5AM every morning

• Drinking coffee from a mug that says #blessed

• Taking a “vacation day” with your feverish kids while you attempt to work from home in between the coaxing to eat a bite of potato soup and the screaming, followed by the realization on your way to work the next morning that you, too, have the stomach bug

• Replacing all your lunches with green smoothies

• Spending 15 minutes with a selfcompassion coloring book

The wellness industry fills us with messaging that the key to get our lives— and our stress levels—under control is just to try a little harder. Spoiler: the problem isn’t that you need to try any harder.

What's the harm, anyway?

We’ve all heard the statistics on lawyer well-being. Our profession—including both men and women—has had alarmingly high substance abuse rates and poor mental health outcomes for some time—and that was before a global pandemic rocked our personal and professional worlds. Researchers reported data1 from a recent survey of attorney respondents, reporting the following alarming developments:

• 44% described mental health problems and substance abuse at a “crisis” level in the legal industry

• 35% said they personally feel depressed

• 75% said their profession has had a negative effect on their mental health over time

• 64% reported their personal relationships have suffered because of being a member of the profession

• 19% answered “yes” to the following question: “In your professional legal career, have you contemplated suicide?”

We think you’ll agree—the stakes are just too high. In addition to these mental health risks, a chronically activated stress response impacts every organ system in our bodies. The most common example of the physiological effects of chronic stress is the havoc that a chronically high blood pressure can wreak on your cardiovascular system, but similar dangers exist to our digestive, immune, musculoskeletal, and reproductive systems. Increased diagnoses of autoimmune diseases, chronic pain, and infertility, for example, have all been linked to long-term stress. Continued periods of elevated stress cause burnout. “Burnout” is not an exaggeration or an unrealistic complaint of the millennial generation— unmitigated burnout is killing us, and it’s killing the people we love.

What is burnout?

Freudenberger’s research, most recently revisited by Emily and Amelia Nagoski, describes burnout using three components:

1. Emotional exhaustion that comes with caring too much, for too long;

2. Depersonalization that results from the depletion of empathy, caring, and compassion; and

3. A decreased sense of accomplishment, which presents in a feeling of helplessness when nothing we do seems to make a difference.

Emily and Amelia Nagoski add to this, describing emotions as whole-body reactions to a stimulus that are automatic and instantaneous. These emotions eventually end on their own—if we allow them to move all the way through their cycle, like driving into, through, and out of a tunnel. Exhaustion is what happens when we get stuck in the middle of the tunnel.

Logic tells us that when we are under a lot of stress before a big event—like a trial, a deadline, or the closing of a transaction —we’ll recover and feel back to normal once the big event is over. The trial is over! We cracked the case! Or we didn’t. Either way, it is over. However, to the contrary, we often find that the stress doesn’t leave our bodies just because the stressor is gone —sometimes, we even feel worse. This might resonate if you’ve ever gotten sick after a big event, or when you have time to relax. Personally, I have a running record of getting sick on what was supposed to be a relaxing vacation.

We traditionally think that the most dangerous stress originates from a larger life event, like losing a loved one, facing a divorce, or being diagnosed with a lifechanging medical condition. However, we have a significant number of “regular” stressors every day, like a constant project that greets you on your desk every morning, or a client whose “emergency” needed to be handled yesterday—always. The cumulative effect can be just as harmful as stress that comes from a life event that stops us in our tracks.

These stressors activate a physiological stress response in our bodies, which helps

us respond to the “threat.” The only problem here is that our evolutionary brain is programmed to respond to threats in three ways: fight, flight, or freeze. While these responses may be heavily effective if we are being chased by a lion, they are less helpful while looking at a meeting invite that assumes we can be in three places at once or working against an impossible deadline when a large transaction is on the line.

How do we combat burnout?

Unfortunately, we can’t intellectualize our way out of burnout. To combat burnout, we must do something to signal to our cave man brains that they can cut out the stress response and stop flooding our bodies with chemicals to help us fight off a lion. It follows then, that the practical steps we can take to deactivate the stress response are based in these physiological needs.

1. Researchers continue to note that physical activity is the most efficient strategy for completing the stress response, because it’s rooted in the evolutionary memory that fleeing or fighting deals with the threat we perceive. There’s no magic exercise program or goal of calories burned —a time of dedicated movement is enough to send the signal to your brain that the threat has passed.

2. Take a few deep breaths! A breathing practice is an incredibly useful tool to manage emotional reactions in the moment and make us better lawyers. If we are able to breathe in to the count of five, hold that breath for five, and then exhale for a count of 10, and pause for another count of five—and do that three times—we can calm our sympathetic nervous system and make sure our leveled response is one we are able to choose and not one that our body chooses for us

(which is always to the detriment of our clients).

3. Positive Social Interaction Affection and Laughter—humans are social beings, and we need connection and affection to survive. We can fulfill this need in many ways, whether we schedule dinner with friends, a family movie night with our pets, or schedule a reoccurring lunch with coworkers—the limit is endless here. All that is required is that we spend time with others who fill us with positive energy.

4. A Good Cry—this one is certainly frowned upon in society and certainly in the professional world. No one wants to see their attorney “complete the stress cycle” by crying in court, of course. But when the emotion and stress build up, and we are in a safe and private space, crying is an evolutionary trigger that

Amie Wilcox is an attorney with Friday, Eldredge & Clark LLP in Little Rock where she practices healthcare regulatory law.

releases some of the weight on our shoulders. The inherent moral judgment that is attached to crying (demonstrated by the well-known catchphrases “big girls don’t cry” or “there’s no crying in baseball”) has not served society well. In the developmental psychology space, the ability to cry is seen as essential to effectively process loss and move through grief. So, shut the door. Have a moment. And then shake it off.

5. Creative Expression—many of us haven’t made creative expression a priority since entering the professional workforce. Law school is not the place to go for creative writing training, and we are trained to see the black, white, and grey of any situation. For those of us who struggle with perfectionist tendencies, we may have an aversion to being an amateur—it turns out that very few people are immediately an award-winning musician or artist. But creative expression—listening to live music, taking a pottery class, going to stand-up comedy, watching a play, or even listening to a podcast while walking at lunch or reading at a coffee shop—can help us move through the tunnel of emotion in places we’ve gotten stuck to complete a stress cycle. These experiences also help us connect to the world around us when we may otherwise be understandably trapped in our own worlds and work.

Takeaways

The reality of being human is that we navigate an infinite number of stressors—big or small—every day. When we learn to, and practice, completing the stress cycle and model a professional environment that values this work, we’re taking care of ourselves, our families, our colleagues, and our profession. No matter whether we are a male or female lawyer or a two-lawyer couple, burnout affects all in our relationships and addressing it improves the quality of our lives and those with whom we are in relationship.

The strategies above are backed by research to incorporate into our everyday

lives to mitigate and process the stressors we experience every day. They are not, however, a rescue prescription and are no substitute for professional treatment in a mental health or substance use crisis.

The research confirms that lawyers experience mental health crises at much higher rates than other professions. These statistics are more than an abstract number on the page—if you don’t know someone who has personally been affected by a mental health crisis, chances are that you’re not asking the right questions.

What can employers do here? Foster a culture that encourages your employees to process their personal and professional stressors in healthy ways, support them in doing so, and try to resist the temptation to project the rose-colored vision of a historic culture where productivity came at the expense of well-being. Well-balanced professionals are productive professionals; burned out and struggling professionals are not. The future of a firm and the longevity of its members depend on a culture that recognizes burnout and how to address it.

The best thing we can do for ourselves, our families, and our colleagues is to normalize a culture of authentic wellbeing, and to normalize and encourage ourselves and those around us to seek professional treatment where appropriate. If the question is “when is it appropriate?” there is never a bad time to go to therapy, and most people who have spent time in therapy would tell you that everyone can benefit. We have lost too much, and too many of our friends, to the belief that we can (and must) carry it all. Let’s choose something different for our future and for our children, who are watching us as they learn the most appropriate ways to handle their own stressors.

Endnote:

1. https://abovethelaw.com/2022/06/ lawyers-mental-health-remainsin-crisis-but-awareness-isgrowing/#:~:text=Broadly%20 experienced%20negative%20mental%20 health%20impact&text=Thirty%2Dfive%20percent%20of%20 respondents,their%20mental%20 health%20over%20time. ■

Sources and Additional Resources

Arkansas Judges and Lawyers Assistance Program, www.arjlap.org.

Bessel van der Kolk, “The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma.”

Brene Brown, “Unlocking Us: Burnout and How to Complete the Stress Cycle” feat. Emily and Amelia Nagoski, October 20, 2020, https:// brenebrown.com/podcast/brenewith-emily-and-amelia-nagoski-onburnout-and-how-to-complete-thestress-cycle/.

Emily Nagoski, PhD, and Amelia Nagoski, DMA, “Burnout: The Secret to Unlocking the Stress Cycle.”

Law Practice Today, “Intervening Upstream: Why Firms Must Lead in Preventing Burnout,” July 12, 2022, https://www.lawpracticetoday.org/ article/intervening-upstream-whyfirms-must-lead-in-preventingburnout/?utm_source=Jun22&utm_ medium=email&utm_ campaign=Jun22LPTemail.

John Wesley Hall, Jr., “Professional Burnout: An Occupational Hazard for Lawyers” in Professional Responsibility in Criminal Defense Practice (4th ed. 2023, Thomson Reuters) (written originally for the Third Edition in 2004 by Dr. Sherrie Bourg Carter Psy.D., and used with her permission; the updates since 2004 are the author’s).

Christina Maslach & Michael P. Leiter, “The Burnout Challenge: Managing People’s Relationships With Their Jobs” (Harvard University Press 2022).

Dr. Henry Cloud & Dr. John Townsend, “Boundaries: When to Say Yes, How to Say No to Take Control of Your Life” (Zondervan 1992).

Barry Dale Barber of Prescott died January 15, 2023, at the age of 71. He graduated from Osceola, Ark., High School in 1969 as valedictorian of his class. In 1973, he graduated Summa Cum Laude from the University of Arkansas, Fayetteville with a Bachelor of Arts degree in Political Science. In 1976, he graduated from the University of Arkansas Law School with high honors. Upon graduation, Barry joined what is now the McKenzie, Vasser, Barber Law Firm in Prescott. He spent his entire 46-year career with the firm.

George Frank Carder III of Searcy died on November 17, 2022. He earned his Bachelor of Arts in Economics and Business from Hendrix College in 1973, his Juris Doctorate from the University of Arkansas at Little Rock Bowen School of Law in 2004 and a Master of Business Administration from Harding University in 2006. In his professional career, he was a graduate of the Institute of Politics and Government and General Motors University – College of Dealership Management. In 2004, Mr. Carder opened Carder Law Firm where he proudly represented his clients or, in his words, "helped his friends" with his beloved boxer Juris Prudence by his side. He also served as a Little Rock Air Force Base Honorary Commander for the 19th Airlift Wing JAG.

Ed Daniel III of Little Rock died November 9, 2022, at the age of 80. Ed passed the Arkansas State Bar in 1966, was an active attorney ever since, and enjoyed a lifetime of success within his field.

Oscar Earl Davis, Jr., of Little Rock died January 27, 2023, at the age of 82. He was a graduate of Auburn University in 1962 and in 1967 graduated from the Ole Miss School of Law. In June of 1970, Oscar joined Friday, Eldredge and Clark Law Firm in Little Rock where he worked for more than 40 years.

Charles Alston Jennings, Jr., of Birmingham, Alabama, died on January 10, 2023, at the age of 75. With his father, he practiced law at Wright Lindsey Jennings in Little Rock until his retirement. Alston earned his undergraduate degree at Hendrix College and juris doctorate at Vanderbilt.

Judge Milam Michael "Mike" Kinard of Magnolia died November 19, 2022, at the age of 83. Judge Kinard received undergraduate and graduate degrees from Southern State College and the University of Arkansas before attending Little Rock Law School. After law school, he worked for the Arkansas Office of Legislative Services until he received an invitation from Joe Woodward to move to Magnolia and join the firm where he spent most of his legal career. Mike was elected to the Arkansas State Senate in 1987 and appointed as a special justice on the Arkansas Supreme Court. He was appointed twice to the Arkansas Court of Appeals.

Comrade Warrington "C.W." Knauts of Piggott died January 11, 2023, at the age of 87. C.W. began his law career in 1959. He owned a law office in Piggott serving the community as City Attorney, Deputy Prosecuting Attorney and various other roles.

Eugene J. "Gene"

Mazzanti of Little Rock died December 10, 2022, at the age of 90. Gene was a retired attorney and state administrative law judge. He earned his undergraduate degree from the University of Arkansas at Monticello and was president of the last graduating class of the Little Rock Law School. He was a veteran serving as an Army Sergeant during the Korean War.

James Marlon "Jim" Simpson, Jr., of Little Rock, died Jan. 19, 2023, at the age of 70. Jim was an accomplished trial lawyer and represented a number of highprofile clients during his 46 years at Friday Eldredge and Clark. He held leadership positions at the firm and for many years trained and mentored young trial lawyers there. Jim was a 1974 cum laude graduate of the University of Arkansas at Little Rock. He earned his juris doctorate from the University of Arkansas School of Law in 1977 where he served as associate editor of the Arkansas Law Review. Jim led the Arkansas Bar Association as President in 2013-2014. He served as chair of the Annual Meeting committee and as chair of the Unauthorized Practice of Law committee. He served on the Board of Governors for six years and was a tenured member of the House of Delegates after serving for 11 years. He is a Fellow of the Arkansas Bar Foundation and a Fellow of the American College of Trial Lawyers. He previously served as president of the Arkansas chapter of the American Board of Trial Advocates.

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

Arkansas Bar Foundation

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

Memorials and Honoraria

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period November 1, 2022 through January 31, 2023.

In MeMory of DavID Lynn CarrouM, Sr.

Don A. Eilbott

In MeMory of Margaret CoMpton

Steve Quattlebaum

In MeMory of oSCar DavIS, Jr.

Fred Ursery

In MeMory of JuDge robert Donovan

Charles D. “Chuck” Roscopf

In MeMory of Stephen engStroM Judge Dick Moore, Jr.

In MeMory of vInCent foSter, Jr. Judge Dick Moore, Jr.

In MeMory of e. C. gILbreath

Frank and Betty Lou Hamlin

In MeMory of KaneaSter hoDgeS, Jr.

Jane and Justice Jack Holt, Jr.

In MeMory of Larry honeyCutt

B. Jeffery Pence

In MeMory of aLSton JennIngS, Jr.

Patti and Charles Coleman

Judge Bill Wilson and Judge Cathi Compton

In MeMory of JuDge John earL JennIngS

Judge Ben T. Barry

Frank and Betty Lou Hamlin

Jane and Justice Jack Holt, Jr.

In MeMory of JuDge MIKe KInarD

Nancy and Judge John N. Fogleman

Betsy and Cyril Hollingsworth

Judy and Glenn Vasser

In MeMory of MarIanne Wynne LIgon

Don A. Eilbott

In MeMory of CheSter C. LoWe, Jr.

Frank and Betty Lou Hamlin

Judge James M. Moody

John V. Phelps

In MeMory of JaMeS CharLeS LuKer

Kay West Forrest

Judge Richard and Irene Proctor

Charles D. “Chuck” Roscopf

In MeMory of CoL. WM. a. “bILL” MartIn CoL. WM. a. MartIn SChoLarShIp funD

Mary Lou Martin

Jeffrey and Lester McKinley

Steve Quattlebaum

In MeMory of gene MazzantI

Jennifer and Randy Coleman

In MeMory of JaMeS h. MCKenzIe Judge James M. Moody

In MeMory of JuDge WILLIaM r. overton Judge James M. Moody

In MeMory of SaM pIazza

Lyn and Chip Pruitt

Steve Quattlebaum

In MeMory of JaMeS M. SIMpSon, Jr.

Donald H. Bacon

Jill and Steve Bauman

Patti and Charles Coleman

Jennifer and Randy Coleman

James F. Dowden

Don A. Eilbott

Nancy and Judge John N. Fogleman

Friday, Eldredge & Clark

William M. Griffin III

Frank and Betty Lou Hamlin

Lisa and Andy LaGrone

Jeffrey and Lester McKinley

Judge Robin L. Mays

B. Jeffery Pence

Dianne and John V. Phelps

Hayden and Gordon S. Rather, Jr.

Roscopf & Roscopf

Brian Rosenthal

Laura Hensley Smith

Jan and James Sprott

Rex M. Terry

Fred Ursery

Linda and Tom Womack

In MeMory of JaMeS Shaver Judge Richard and Irene Proctor

In MeMory of JuDge John f. StrouD, Jr. Jane and Justice Jack Holt, Jr.

In MeMory of roxanne toMhave WILSon Judge James M. Moody Judge Dick Moore, Jr.

In MeMory of WM. h. L. WooDyarD Judge Dick Moore, Jr.

honorarIa, SChoLarShIp anD other gIftS

In honor of JuStICe annabeLLe IMber tuCK arKanSaS LegaL haLL of faMe

Jill and Steve Bauman

arKanSaS bar founDatIon

Robert S. Jones

Gwendolyn Rucker

e. CharLeS eIChenbauM SChoLarShIp funD

Peggy and L.R. Jalenak

frIDay, eLDreDge & CLarK/herSCheL h. frIDay SChoLarShIp funD

Friday, Eldredge & Clark, LLP

JaMeS h. LarrISon, Jr. SChoLarShIp funD Diane Allen and Rene E. Bressinck

MCKInLey faMILy SChoLarShIp funD

Jeffrey and Lester McKinley

CONGRATULATIONS!

The Arkansas Bar Foundation congratulates all Arkansas law school student recipients of the Foundationadministered endowed scholarships for the 2022-2023 year. We are grateful to all who made these scholarships possible. Please see the opposite page for this year’s scholarship listing.

ARKANSAS BAR FOUNDATION SCHOLARSHIPS 2022-2023

Name of Endowed Scholarship

ABF Misc. Scholarship

Donald J. Adams

Guy Amsler, Jr.

Arkansas Association of Women Lawyers*

Barrett/Deacon

Bogle-Sharp

Ruth Huskey & John H. Brunson

John A. “Jack” Davis III

E. Charles Eichenbaum

R. A. Eilbott, Jr.

Justice John A. Fogleman

Vincent W. Foster, Jr.*

Friday, Eldredge & Clark/ Herschel H. Friday

Judge J. Smith Henley

Justices J. Frank and Jack Holt

Hyden, Miron & Foster

James H. Hyden

W. Jane Knight

James H. Larrison, Jr.

Ernest G. Lawrence, Jr.*

Edward Lester

Brian MacMillan

Austin McCaskill

Horace and James McKenzie

McKinley Family

Col. William A. “Bill” Martin

Judge John E. Miller

Judge William R. Overton

George N. Plastiras

Col. C. E. Ransick

Rather, Beyer & Harper

Justice Andree Layton Roaf

Ramona J. Roe

Charles B. Roscopf

Rose Law Firm

U. M. Rose

Sebastian County Bar Association

Shackleford/Phillips

Justice George Rose Smith

Smith Stroud McClerkin Dunn & Nutter

Stella Boyle Smith

David Solomon

M. Jeff Starling, Jr.*

Judge Thomas Clark Trimble

C. R. Warner

Harry P. Warner

Bernard & Bud Whetstone

Roxanne Tomhave Wilson

Wilson & Associates Ethics

Wright, Lindsey & Jennings LLP

Paul B. Young

Judge Henry Woods

* Scholarships not awarded at this time

Law Student Scholarship Recipients

UA Little Rock Bowen School of Law University of Arkansas School of Law

Jennifer Judkins

Marissa Badillo

Johanna Baker Wade

Adam Conrady Bryce Jefferson

Steven Cox Amanda Freudensprung

Nicholas French

Amelia Hensel

Anuj Teotia Chandler Little Bray

Jacob Hill

Abriel Williams Olivia Dodson

Weston Sizemore

Bailey Gambill

Katherine Clark

Shayne Jeramy Ashton

Verenice Perez

Alyssa Rather

Claire Herman

Bobby Wheeler

Monica Lorena Iracheta Rodriguez

Kayla Norell

Sarah Voss

Macey Rogers

Maraye Tudor

Shadai Walker

Jennifer Simpson

Tyler Gillespie

Amanda Freudensprung

Jasmine Hicks

Amelia Hensel

Lance Hewett

Claire Cockrell

Clifford McLeod

Steven Cox Virginia Greer

Abigail Grimes

Paige Harris

Jack Curtis

A. Shayne Johnson

Sophia Barrett

Taryn Bewley

Carson Henderson

Jacob Colton McChristian

Shayla Dawson

Jace Motley

Elise Baroni

Joshua Clem

Brittany Hawkins

Audra Halbert

J. Hall Frost

Aaron Rooney

Marcus Montgomery

Makyla Jackson

Parker Sparrow

Amber Watson

Arnold Akhavong

Tycam’Ron Mack

Rose McGarrity

Jammie Cush

Jissel Esparaza Saucedo

Bailey Geller

Katie Guhman

Lexi Rook

A. Mills Bryant

Maria Cueva William Yandell

Bailey Geller

Brett Callaway

Trent Freeman

Attorney Disciplinary Actions

Final actions from October 1, 2022 –December 31, 2022, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http:// www.arcourts.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

SUSPENSION:

WILSON, JIMMIE LEE, of West Helena, ABN: 73128, in Committee Case No. CPC-2022-013, on a complaint by Lewis Jarrett, by Findings & Order filed October 24, 2022, was SUSPENDED for five years, ordered to pay $4,000.00 restitution to Lewis Jarrett, assessed a fine of $1,000.00, and assessed costs of $100.00 for violations of AR Rules 1.3, 1.4(a)(3), 1.5(a), 1.5(a)(4), 1.16(d), 1.15(a)(4), and 8.4(d). Wilson failed or refused to provide the representation for which he was paid. Wilson’s extensive disciplinary history was a significant aggravating factor in the sanction given in this matter.

REPRIMAND:

LAMEY, CHARLES CLAYTON, III, of Conway, ABN: 2009244, in Committee Case No. CPC-2022-006, on a complaint by Robert Washington, by Findings & Order filed October 27,

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2022, was REPRIMANDED, ordered to pay $4,806.00 restitution to Robert Washington, and assessed costs of $100.00, for violations of AR Rules 1.2(a), 1.4(a) (3), and 8.4(d). Lamey settled a civil matter without authorization from and notification to his client.

BARRETT, TAMRA , of Hot Springs, ABN: 95121, in Committee Case No. CPC-2022-011, on a complaint by Circuit Judge Marcia Hearnsberger, by Findings & Order filed December 22, 2022, was REPRIMANDED, and assessed a fine of $1,000.00 and costs of $150.00, for violations of AR Rules 1.1 and 1.3. Barrett received an additional REPRIMAND for her failure to respond to the formal complaint. Barrett failed to file a timely response to Requests for Admissions in a civil matter, and then failed to appear at a subsequent hearing scheduled in the same matter.

COYNE, JAMES, OF CONWAY, ABN: 2018133, in Committee Case No. CPC2021-028, on a complaint by Judge Chris Carnahan, by Findings & Order filed December 29, 2022, was REPRIMANDED, and assessed a fine of $1,500.00, costs of $150.00, and court reporter costs of $250.00, for violations of AR Rules 3.1, 1.1, 3.4(e), 8.2(a), and 8.4(c). Coyne failed to provide competent representation to his client in a civil matter. ■

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