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October 1981
Vol. 15, No.4 (Last In 1981 Series)
THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION
W'e
Arkansas Lawyer SPECIAL FEATURES
OFFICERS James D. Cypert, President James L. Shaver, Jr., President-Elect
EXECUTIVE COUNCIL Clint Huey Floyd Thomas, Jr. Norwood Phillips Gus B. Walton Charles Carpenter Robert Cearley Thomas Ledbetter D. Mac Glover Marcia Mcivor Leroy Froman Tommy Womack Julian Fogleman
EX-OFFICIO James D. Cypert James L. Shaver, Jr. Phillip Carroil W. Christopher Barrier Harry T. Moore Robert D. Ross
EDITOR C. E. Ransick
EDITORIAL COMMITTEE Robert T. Dawson E. Alvin Schay Cyril Hoilingsworth
When Does Debt Become Equity? Fall Legal Institute Fourth Amendment Finality Racial Discrimination 1981-82 Organizational Directory
B. Frank Mackey, Jr.. . .. 142 148 John R. Pagan. . .. 168 William French Smith 174 157
REGULAR FEATURES President's Report James D. Cypert 138 Juris Dictum .................•.•...... Robert L. Lowery 180 Legal Economics 140 154 Law School News Oyez-Oyez Carol Utley 171 In Memoriam .................•.•.•.•.•................ 150 Executive Council Notes ...•.•...•.•.•..... W. C. Barrier 146 Service Directory ...........•............... inside back cover Addenda ...............•.•.•............. C. E. Ransick 183 Context W. Christopher Barrier 165 AICLE News Claibourne W. Patty, Jr. 178 The Arkansas Bar Foundation Herman L. Hamilton 152 To Wit ........................•........ S. Sponte, Esq. 182 Lawyer's Mart ................•.•.•........ inside back cover
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas 72201. Second class postage paid at UUle Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 peryaar included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association, The Arkansas Lawyer, or the Editorial Committee. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 400 West Markham, Uttle Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer above address.
October 1981/Arkansas Lawyer/137
PRESIDENT'S REPORT by JAMES D. CYPERT
STATE OF THE ASSOCIATION On June 6th of this year, you permitted me to become the 83rd President of the Arkansas Bar Association. Every newly installed President enters office, I suspect, with much the same emotions that were mine in Hot Springs. Among them was a keen sense of the appreciation of the honor which the presidency of this Association represents. I wish to, first off, pledge to each member of the Association that I will do whatever I can to be worthy of the honor.
The beginning of a new year, whether it be a calendar year, a fiscal year, or an Association year, is usually marked with great resolve and high purpose, and further calls for an assessment of the "State of the Association", as well as plans for its future. Although I have been in office only a short time, I can report to you that Arkansas has one of the best voluntary Bar organization or, I should say, organizations, in any state. Your voluntary Arkansas Bar Association is truly one of the outstanding state Bars. Often, its organization, programs and activities serve as models for other state Bar Associations. Through the collective efforts of its members, our Association provides great service to the legal profession and the community in the areas of legislation, law development, delivery of legal services, continuing legal education, legal research, legal publications, etc. The Arkansas Bar Foundation is absolutely the finest. Tax exempt contributions can be made to it for educational and other worthwhile purposes. The Foundation provides the Arkansas Law Center with its first class law library, and Association/Foundation offices. To review the many fine activities an.d contributions of the Foundation, I suggest that you read Sid McCollum's article in the July, 1981 issue of The Arkansas Lawyer to get an idea of just how much the Foundation accomplishes. In addition to the voluntary organizations, the Arkansas Bar, under the auspices of the Arkansas Supreme Court, provides the regulation of the practice of law within the state of Arkansas. It is to this organization that all attorneys are required to pay an annual license fee. The Court supervises the regulatory functions of unauthorized practice of law, discipline, admissions, client security funds, and other necessary regulations for the law practice. This organization represents the unified or mandatory Bar organization in Arkansas. 138/Arkansas Lawyer/October 1981
My positive evaluation of the voluntary state organizations is not based upon mere personal bias, but comes from the opportunities which I have had to serve in other positions with the Association and the Foundation, coupled with information which I have gained while attending meetings of other state law associations, the National Conference of Bar Presidents, and the Southern Conference of Bar Presidents. These visits provided for me a basis for comparison between our Association and the organized Bar elsewhere.
DEMOCRACY IN ACTION Turning specifically to our voluntary Arkansas Bar Association, you should know that the 1972 Constitution and By-Laws of the Association provide the finest example of democratic organizational structure. These documents insure fair representation of all members through the election of representatives from the four state Bar districts and the twenty-nine delegate districts to the House of Delegates, which is the actual governing body of the Arkansas Bar Association.
This leads me to one of my main concerns, and one of the main projects for my tenure in office. While we do have the mechanism in our Constitution and By-Laws for representation "upwards" from our members to the House of Delegates, we need to intensify our efforts to open the "pipeline" down to our membership, particularly through the locai Bar Associations. It is essential that we keep our members informed and involved in the activities of our Association. We need their support on a continuing basis. Many local Bar Associations are very active and effective in their programs of work, and our assistance to them and their assistance to us can be invaluable in the common goals which we seek to accomplish. Equally important is a joint cooperative effort with specialized law associations in Arkansas such as the Arkansas Trial Lawyers Association, in those areas where the organizations have, so often, a community of interest. At this time and during the remainder of my year as President, I will call upon our membership, the local Bar Associations, and other special state law organizations to join in a combined effort in matters of common interest. Such a combination can only serve to increase the chances of success in achieving those goals and objectives which are vital to all members of the legal profession.
OTHER ASSOCIATION PROJECTS There are literally dozens of other projects receiving concentrated attention and effort at this time by the various committees of the Association. This work demands time and talent of scores of lawyers across the state, and every lawyer who has expressed an interest to serve has been given an opportunity. Each of these programs are highly important to our profession and the responsibilities which that profession should meet. If any member of the Association has a particular interest in serving on any committee, I urge you again to contact me as soon as possible for appointment. Some programs which may be of immediate interest to you include the Fall Legal Institute, which will be back in the Ozark Mountains September 10 through September 12 of this year. The ABA members in Northwest Arkansas are delighted to host this meeting again. We promise those in attendance not oniy an outstanding program planned by Dean David Epstein; but, aiso, we are working to provide for you a "fun visit" on this weekend that also happens to be the unveiling ofthe 1981 Razorback Football Squad againstthe Tulsa Hurricanes. The Real Estate Law Section has been organized, and those practicing in the reai estate area should consider joining this Section. Membership is $5.00 annually and should be sent with your name and address to the Arkansas Bar Association offices. Considerabie work is being done by certain committees on proposed legislation for judicial organization in Arkansas should the proposed constitutional amendment be adopted in 1982.
Other committee work "in the mill" at this time includes the recommendations to the Arkansas Supreme Court on rules regulating specialization; formulation of programs for public information and education; studies and planning in the areas of public interest law, legal aid, and legal referral, and specific activity toward long range planning for our Association. Many other committees and sections are moving ahead with their programs, and their work is equally as important as those mentioned. So, I can report to you that your Association has been, is, and will continue putting forth great efforts to promote justice and strengthen the legal profession. In these endeavors, much will depend on the support, unity, cooperation and resolve of the members of the legal profession in Arkansas through our Association and other professional legal associations at all levels throughout the state. Whether our problems are only those that the profession alone must solve or problems which reflect underlying causes that must be dealt with through the legislative process, the membership of the Arkansas Bar Association must be a positive force in seeking solutions. A ROUND OF APPLAUSE Phil Carroll certainly provided outstanding leadership as our President during the past Association year. The past year was a very successful year for our Association, and we owe to Phil and every member who contributed to this success, including Col. Ransick, a hearty round of applause. On behalf of all members of the Arkansas Bar Association, I congratulate all of them for a "job superbly done".
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October 1981!Arkansas Lawyer!139
LEGAL ECONOMICS By Julian S. Clarke, Jr. @1981 Altman & Weil, Inc. Ardmore, Pennsylvania 19003
WORMS IN THE COMMUNICATIONS APPLE OR TELEPHONE HORRORS Law firms allover the United States are buying and installing their own telephone systems or are enlarging rented systems made available by telephone companies. This trend is spurred by the growth in the law firms themselves, rising costs in telecommunications and the advent of new technology. Good planning and a great deal of knowledge about available options are essential if one is to end up with a serviceable, reasonably priced, cost efficient system. There are many potential problems, some of which are illustrated in the collection of horror stories which follows. Each is followe1:J by a caveat which should be considered in telecommunications planning. Here Today-Gone Tomorrow Many law firms have on the staff an attorney who knows just enough about bits and bytes to impress his partners. A Western law firm had such an individual who was also an experienced negotiator and was the principal most involved in equipment selection. The firm's acquisition of a processor-controlled electronic PABX system, installed at a bargain price from a local distributor, took on a somewhat jaded complexion when six months later, the manufacturer discontinued the product line. The predictable results were deterioration in service and increasing inavailability of replacement parts and components necessary for expansion. • The interconnect industry, a new industry, has been known occasionally to take on some of the less desirable characteristics of the used car industry. One should be deliberate and knowledgeable when obtaining a system from any source. It may be next year's Edsel. 140/Arkansas Lawyer/October 1981
Interconnecting The managing partner of a medium size law firm walked into the lobby of his office on Monday morning at 9:20 and greeted the receptionist, "How is our new telephone system performing?" "Well sir, the system seems to be working very well, but the telephone company has not hooked up the lines. We cannot receive incoming calls!" Because the change to a new system, a purchased one, had been planned for over three months, the problem with local telephone company line installation should have been avoided. • Although procedures for coordinating telephone company line hookups with privately acquired telephone systems are much more effectively coordinated than they were two or three years ago, these problems still occur and must be anticipated. No assumptions should be made, and attention to follow-up detail should be a definite part of system planning. A Stone In The Shoe A major Washington, DC area firm had obtained a new, fully electronic PABX from a major manufacturer's local sales office. Thereupon began a series of malfunctions that continued to annoy everyone involved for a period of years. The service people were baffled. The manufacturer was baffled and agreed to change the basic switching system twice. The problems persisted and the situation evolved into acrimony and legal action. Large amounts of time were used on the part of all concerned, not to mention continued poor telephone service, with calls being dropped and total system failures being routine. An independent review showed that the basic switching system has ori-
ginally been installed in a utility area in the core of the building adjacent to the elevator bank, a conduit for summer heat and humidity. With the eventual installation of air conditioning, the equipment room problems created by heat and humidity during summer weekends were eliminated, but problems persisted. Closer examination finally uncovered the culprit in the situation-an area almost directly above the telephone switching system, which housed the X-ray equipment of a dental surgeon. When in operation, the equipment had a negative effect on the telephone switching system . • Attention to environmental detail will pay large dividends. Growing-And Saving The receptionist in a 40 lawyer firm also served as the console operator for the outdated Bell System-provided PABX. Additional duties for the operator included all message taking for the firm occupying two floors in a downtown location. She could hardly keep up with the load in an expanding firm. Because of firm growth over the previous three years, discussions were under way with the Bell System to provide a second console, thereby allowing two operators to handle the calling traffic and related receptionist duties. A consultant was brought in to review the situation. The decision to upgrade the telephone system was a by-product of the firm's general and expansion. It made practical the use of newer technology and thereby the elimination of the need for adding more personnel in the form of a receptionist/telephone system operator. The consultant changed procedures and allowed the system soft-
ware to "call forward" incoming calls to newly instituted receptionist/message centers on each floor. Message taking procedures were eliminated from the receptionist's job description. In addition, the procedural change eliminated many calls to the console operator/receptionist and improved the speed of getting messages to attorneys. • Procedural changes made possible by new technoiogy eliminated the need for another employee. Planning Change A large Eastern law firm received a $40,000 installation invoice from the Bell System after the installation of a new PABX. Due to a substantial amount of order activity, including many last minute changes during the 30 day periods preceeding and following system installation, and general lack of law firm documentation on the changes, the resultant billing was not only inaccurate, but was difficult to understand. The firm paid it. Later review indicated that with proper documentation and planning, more than half the expense could have been avoided. • Planning for telecommunications installations should be completed well in advance of system installation.
using two PABX consoles associated with a new processor-controlled telephone system. It employs two full-time console operators. The consoles are located in a private area and the operators have no other duties. Fairly frequent complaints from clients about incoming calls going unanswered constitutes the justification for the employment of two full-time operators. Ever present and always active crossword puzzle books attest to the relative underutilization of the two operators during major portions of the typical business day. II the proper system were installed, only one full-time operator would be needed. Had the firm requested additional information of the system supplier, it would have found that the incoming calling traffic problems could be eliminated by the installation of a "special assembly" apparatus that would virtually double the incoming call transfer capability of the system.
west had telephone station equipment that is typical in law firms. That is, the system consisted of multi-button sets with lighted lines for both attorneys and secretarial stations with manual intercoms and related signal buttons and buzzers connecting the two telephones. When considering a change to the new processor-controlled Bell System PABX, the telephone company marketing representative convinced the firm's managing partners that single line, plain telephone sets, utilizing various processor-controlled features, would effectively replace the existing multi-button telephone sets. The change was so drastic, procedurally, that the complaints continued for months. The end result was another change back to the multi-button telephones, with the additional monthly costs of approximately $600, representing a 33% increase in the monthly telephone system equipment cost. The long range costs used in the preceeding equipment analysis were therefore totally invalid. • Such unnecessary problems can be avoided by a complete understanding of what a telephone system will do and will not do, as well as the ramifications of the various cost factors involved. Also, one cannot expect impartial advice from a systems vendor.
• When ordering a new telephone system, or refining certain characteristics of existing systems, specific questions shouid be posed to the vendor related to various aspects of telephone calling traffic.
Knowing The Ballgame Another Eastern law firm is presently
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WHEN DOES DEBT BECOME EQUITY? Uncle Sam Changes The Rules Effective December 31, 1981by B. Frank Mackey, Jr.
One of the most sensitive areas of taxation for closely held corporations is whether the stockholders investment in the corporation is considered debt or equity and the resulting tax treatment of the interest vs. dividends and repayment of loan vs. return of capital. For example, if the investment interest is a valid loan the interest payments are deductible by the corporation and repayment of the loan is tax free to the holder, but if the investment were considered an equity item any payments are nondeductible by the corporation (before income taxes) and the payments to the recipient would be considered dividends rather than interest. Obviously, the problem will not occur with General Motors or AT&T even though a stockholder might have an identical interest in outstanding debt and stock of the corporation. It can, and does, happen, the IRS feels too frequently, with the likes of Ajax Motors and Warbucks Bank. Congress in 1969 authorized the IRS to issue regulations to provide guidelines for taxpayers in an effort to bring order and reasonable certainty to this area of the tax law. Congress mentioned five specific factors: "( 1) whether there is a written unconditional promise to pay on demand or on a specified date a sum certain in money in return for an adequate consideration in money or money's worth, and to pay a fixed rate of interest, 142/Arkansas Lawyer/October 1981
"(2) whether there is subordination to or preference over any indebtedness of the corporation, "(3) the ratio of debt to equity of the corporation, "(4) whether there is convertibility under the stock of the corporation, and "(5) the relationship between holdings of stock and the corporation and holdings of the interest in question." Internal Revenue Code ยง385 These long delayed regulations were issued in 1980 in proposed form. As originally issued the final regulations applied to any interest created after April 30, 1981. The IRS has postponed that effective date to December 31, 1981, and has invited comment from the public during this year before they are effective. The regulations place strict limitations on the use of debt instruments issued proportionately to shareholders. The instruments will be treated as stock if the corporation's debt is excessive, if the original terms of the instruments are not arm's length, or if the terms of the instruments are not enforced according to an arm's length standard. Special rules apply to hybrid instruments (income bonds, convertible debentures, etc.) and preferred stock which provides for legally enforceable fixed payments.
B. Frank Mackey, Jr. is with Mackey & Johnson, PA, Uttle Rock. He is active in the Arkansas Bar Association (Member, House of Delegates; Specialization Committee; and Taxation, Trust & Estate Planning Section. Chairman, Professional Ethics Committee). He also is a member of the ABA's Section of Taxation and Section of Real Property, Probate and Trust. His wife Diane S. Mackey is an Assistant U. S. Attorney, Eastern District of Arkansas.
Additionally there must be a determination as to whether there was an overpayment or an underpayment for the instrument by the stockholder, whether it is classified as debt or stock. Overpayments will be treated as contributions to capital-underpayments will be treated as a distribution to the shareholder under either'IRC ยง 301 or 305. The new debt/equity regulations apply to the following corporation interests created after December 31, 1981: (1) bonds, notes, debentures, etc.; (2) preferred stock; (3) certain cash loans made by anyone other than an independent creditor; and (4) certain shareholder guaranteed loans. [Treas. Reg. ยง 1.385-1 (a)(1)] All other corporation interests, such as bank deposits, insurance policies,
trade accounts payable, etc., as well as all corporate interests created before January 1, 1982, are outside the scope of the debt/equity regulations. The new regulations do not apply to an instrument issued before the deadline date, even if after that date there is a failure to pay interest or principal when due, the terms of the instrument are changed, or the instrument is a demand note not bearing interest at a reasonable rate. However, if the terms of an old instrument are changed after the cutoff date and the change is considered sufficiently substantial to be considered an exchange of instruments, then the changed instrument will be treated as having been issued under the new regulations. A distinction is made between straight debt instruments and hybrid instruments with special, stricter rules applying to hybrid instruments. A hybrid instrument is defined as one convertible into stock or one, such as an income bond or a participating bond, that provides for any contingent payment to the holder (a contingent payment is any payment other than a fixed payment). A straight debt instrument is all other. Also, once an instrument is classified as debt, it can never be reclassified as stock except in the case of a change of its term, a failure to pay interest or principal when due, or a failure to pay a reasonable interest on a demand instrument. Under no circumstances can an instrument classified as stock be reclassified as debt.
Stockholder Loan Treated as a Capital Contribution-Any loan of money made to a corporation after December 31, 1981, by a stockholder (with certain exceptions for stockholders who own less than 5% of the corporation's stock) not evidenced by a written instrument is treated, if outstanding more than six months, as a contribution to the capital of the corporation, should the corporation have excessive debt when the loan is made. [Treas. Reg. § 1.385-1 (a); § 1,385-7 (a)(l); and § 1.385-7(b)] Should the loan be treated as a contribution to capital, then all payments of
principal and interest to the stockholder are treated as distributions under IRC § 301 (taxed as a diVidend). Once a loan is classified as stock, its status as a contribution to capital can never change unless it does not exceed $25,000 or is repaid within six months. [Treas. Reg. § 1.385-7(d)] The cautious approach is to create an instrument for each such stockholder loan to a corporation and to see that that instrument meets all normal commercial lending requirements and that the corporation does not have "excessive debt." e.g. Individual A, owner of 100% of the stock of Corporation M, a calendar year taxpayer. On July 1, 1982, A advances $67,000 to M, and M establishes in its books of account an account payable to A in the amount of $67,000. There is no instrument to evidence the debt, nor is the account repaid within six months, and it has "excessive debt." The account payable, therefore, is classified as a contribution to capital and may be taxed as a dividend. With the same facts, except that M does not have "excessive debt". Consequently, the debt is classified as a debt not as a capital contribution. However, should M fail to pay interest at a reasonable rate on the debt, it will be reclassified as a contribution to capital retroactive to the date of the original loan by the stockholder to the corporation.
Locked Interest May Be Separate Interests-Even though two interests are locked or tied (e.g. a corporate bond with a non-detachable warrant) they are treated as separate interests for purposes of debt/equity regulations. Consequently two or more distinct interests in a corporation are treated as separate even though title to one cannot be transferred without transferring title to the other. e.g. On January 1, 1990, Corporation Y issues a 25-year, $1,000 debenture to individual A for $1 ,000 in cash. Y has no other debentures outstanding. The debenture pays interest at the rate of $100 per year;
$50 is payable in all events and the other $50 is non-cumulative and payable only if earned. Individual A owns 80% of the stock in Y and the fair market value of the debenture is $1,000. Based on these facts, the debenture is a hybrid instrument and would be treated as stock under the regulations. Evidently to be classed as debt, interest cannot be dependent upon earnings. Assume the same ownership facts, Y issues a $600 debenture together with four shares of preferred stock to A. The debenture pays fixed interest of $50 a year and has a fair market value of $600. Each share of preferred stock has liquidation value of $100 and pays a noncumulative dividend of $12.50 a year if earned. In addition, Y is required to redeem the preferred stock at $100 a share at the end of 25 years. Under these facts, the debenture is treated as debt-there are two instruments, one debt and one stock even though they are "locked", The Tax Court has taken the position that when notes are locked into stock, there is an indication that the notes are stock. University Castings Corp. 37 T.C. 107 (1961), aff'd, 303 F.2d 620 (7th Cir., 1962). The new regulations reject this view and treat the two interests locked together as separate and distinct.
What is a Hybrid Instrument?Treas. Reg. § 1.385-3(e) defines a hybrid instrument as one convertible into stock, or one that provides for any form of contingent payment (other than a call premium) to the holder.
Effect of Classifying Instrument as Stock-When an instrument is treated as stock under the debt/equity regulations then it is to be treated as preferred stock for all tax purposes. Such preferred stock is considered to have the same terms as any instrument under applicable local law with each class of instruments treated as a separate class of preferred stock. Payments continued on page 144 October 1981/Arkansas Lawyer/143
· . .Debt. .. Equity? continued from page 143
(1) The corporation's debt is excessive,
of interest/dividends on an instrument classified as stock are treated as taxable dividends under IRC § 301 and all payments of principal are treated as distributions in redemption of stock. [Treas. Reg. § 1.385-4(c)(l )(i)]
(2) The instruments are not issued for money and reasonable interest isn't paid on the instrument,
e.g. On January 1, 1982, Corporation X issued a $100,000 note due January 1, 1992, to A, its sole shareholder. The note is scheduled to pay interest at the rate of 10% annually. The note is treated as debt until January 1, 1987, when, because of nonpayment of interest, the debt is reclassified as stock. A will be treated as having exchanged the note for preferred stock on the date the interest was not paid, January 1, 1987, in a recapitalization under IRC § 368(a)(l )(E). Additionally, A will not recognize gain or loss merely because the note is reclassified.
(4) The corporation fails to pay interest or principal on an instrument when due, and/or
If, on July 1, 1988, A receives $15,000 in interest on the note, the entire $15,000 payment will be treated as a distribution under IRC § 301 and taxed as a dividend. e.g. On January 1, 1990, 0 (a shareholder in Corporation Z) buys a 20-year $10,000 subordinated income bond from Z. 0 transfers $10,000 to Z for the bond, and the bond is treated as stock under the hybrid instrument rule. On January 1, 1990, the fair market value of the bond is $8,000. Based on these facts, 0 is treated as having made a contribution of $2,000 to the capital of Z on January 1, 1990, and as having paid $8,000 for the bond. In addition, because the bond is treated as preferred stock, the $2,000 difference between the purchase price and the redemption price may be treated as a constructive stock dividend under IRC § 305(c) and Treas. Reg. § 1.3055(b).
When will a Debt Instrument be Treated as Stock?-The general rule is that all debt instruments are treated as debt for tax purposes [Treas. Reg. § 1.385-4 (a)] with certain exceptions. Instruments issued proportionately to shareholders interests may be treated as stock when: 144/Arkansas Lawyer/October 1981
(3) There is a change in terms of an instrument,
(5) There is a failure to pay reasonable interest on a demand instrument. In addition, hybrid instruments are treated as stock if: (1) They are issued proportionately to shareholders, and/or (2) Equity features predominate the instrument whether held by shareholders or nonshareholders.
Does Debt Treated as Stock Become a Second Class of Stock for Sub S Rules? A corporation with more than one class of stock cannot qualify as a SUbchapter S corporation under IRC § 1371 (a)(4). The IRS has deleted from the Sub S corporation regulations those rules dealing with obligations which purport to be debt but which are actually equity and will constitute a second class of stock. Thereby, the IRS has postponed for further consideration a determination of the circumstances under which an instrument classified as preferred stock under the debt/quity regulations will be considered a second class of stock. [Treas. Reg. § 1.137-1(h)]
Equity/Debt Proportionate Ownership-Treas. Reg. & 1.3856(a)(2)(i) establishes that all relevant facts and circumstances are used as the basis to determine whether or not there is substantial proportionality between debt and equity instruments. Excessive corporate debt is one of the key relevant facts. The IRS position is that there is relatively little economic difference between debt and equity other than tax considerations.
It is clear from illustrations in the regulations that exactly the same percentage holdings of stock and debt instruments will not be required to find proportionate ownership. e.g. A and B each own 50% of the stock of Corporation X, additionally A owns 40% of the debentures issued by X and B owns the remaining 60%. Holdings of the debentures and stock in X are considered substantially proportionate. e.g. E owns all the common stock of Corporation X. F owns all the preferred stock of X. E and F are unrelated parties. The preferred stock is an 8% nonparticipating, nonvoting, nonconvertible issue. E additionally owns debentures issued by X substantially proportionate to his stock holdings. However, if F owned all of the debentures remaining, there would be no substantial proportionality. e.g. A, Band C each own 100 shares of 300 shares outstanding of the common stock of Corporation Y. Y has no other class of stock outstanding. However, it does have subordinated 8% debentures in the principal amount of $100,000 outstanding. A owns $40,000 of those debentures, B, $30,000, C, $20,000, and an independent creditor the remaining $10,000. The individual holdings of the stock and debentures in Yare considered substantially proportionate. However, with the same stock ownership, A, B, and C each own only $10,000 of debentures, and the creditor $70,000. With these changed facts, the holdings are not considered sUbstantially proportionate. e.g. A and B each own one-half of the common stock of Corporation W. Additionally, W has outstanding $100,000 of 6% debentures owned by A. B has no other ownership or debt to the corporation. The holdings of stock and debentures are not considered substantially proportionate.
Each Class of Instruments Must Survive the Proportionality TestThe proportionality rules [Treas. Reg. §
1.385-6(a)(1)] are applied separately to each class of instruments issued. However, the IRS reserves the right to treat two or more classes of instruments as a single class instrument to determine proportionality. e.g. A and B each own one-half of the stock of Corporation Z. Z then, pursuant to a plan, issues $100,000 of Class A convertible debentures to A on January 1, 1983, and $1 00,000 of Class B convertible debentures to B on January 1, 1985. Class A and Class B debentures are then considered together which make the holdings of the debentures and the stock substantially proportionate. e.g. With the same ownership and other facts as above, the debentures are not issued pursuant to a plan. Consequently, the proportionality rules do not apply to either class, unless Corporation Z fails to pay interest on the debentures, at which time they then may be treated as stock.
obligations of comparable maturity, or (d) any rate in between the preceding three rates (the new regulations do not speak to the point of state usury limits); (2) The debt to equity ratio of the corporation does not exceed 1 to 1; and (3) All principal and interest is paid when due.
Safe Harbor Rule Related to Excessive Debt-If all the terms of the debt instrument and the corporation's financial structure would not be satisfactory to a lending institution, commercial bank, insurance company, etc., then the corporation's debt is considered excessive [Treas. Reg. § 1.385-6(f)(2»). Additionally, shareholder loans may also be treated as debt if the debt-equity ratio is considered excessive as defined in Treas. Reg. § 1.385-6(g)(1 )(2) and Treas. Reg. § 1.385-6(f)(3)(4). Caution must be used should a temporary contribution to equity or any
Constructive Ownership Rules are Applied for the Proportionality Test-The constructive stock ownership rules of IRC § 318(a) are used to determine whether a debt instrument is issued proportionally to shareholders. e.g. A and B each own one-half of the common stock of Corporation U. U has outstanding $100,000 of 7% debentures owned 60% by A's spouse and 40% by B's spouse. The holdings are considered substantially proportionate.
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(1) The instrument has a fixed maturity date and provides for annual payments of interest at (a) the rate charged for tax deficiencies and refunds under IRC § 6621, (b) the prime rate at any local commercial bank, (c) a rate determined by the Treasury from time to time based on the average yield of U.S.
To give their techniques of calculation the regulations give the example: e.g. Corporation M on December 31, 1990, has assets with an adjusted basis of $150,000 and liabilities of $100,000, which creates a stockholders' equity of $50,000 in M ($150,000 - $100,000). Should M have no trade accounts payable or other such items, the debt to equity ratio at that time is 2 to 1 ($100,000 to $50,000). This is obviously a summary of some of the provisions of the new debt/equity regUlations as issued by the Treasury Department, pursuant to IRC § 385. It behooves any practitioner, with corporate clients which are closely held, to review the new regulations and apprise the client of them before they become effective the first of next year.
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other contrivance be considered. [Treas. Reg. § 1.385-6(g)(5)(vi») It should be noted that special rules prevail for banks, insurance companies, etc., as well as for affiliated groups.
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October 1981/Arkansas Lawyer/145
EXECUTIVE COUNCIL NOTES by W. Christopher Barrier Secretary-Treasurer
ing opinion of the profession and apparent aversion to dialogue at present, pursuing mandatory continuing legal education at this time seems pointless.
The House of Delegates met on June 6, 1981, at the close of the Annual Meeting. Outgoing President Phil Carroll passed the torch, the gavel, and a few hot potatoes to Cypert & Company. Straws in the wind... The battle to save the Legal Services Corporation is far from over. And just when the fuss over the judiciary's "gag rule" with reference to judicial polls seemed to be dying down, Bill Wilson's committee proposed a straw poll of lawyers by judicial district, to be released a week before an election, rating the candidates as highly qualified, qualified or not qualified. (No straw poll about straw polls has been taken among the judiciary.) The Association's relations with the Arkansas Supreme Court continue to be, at best, frustrating. At a time when public attitudes toward the legal profession are at an all-time low, the Arkansas Supreme Court rejected the Association's attempts to tighten up on lawyer behavior. At Phil Carroll's urging, the committee on specialization and advertising will attempt once again to get the Supreme Court to bring some order to the yellow pages. However, given the Court's somewhat unflatter-
criminal matters... On behalf of the Association, retired Chief Justice Fogleman will undertake an ambitious project to assess Arkansas' compliance with the American Bar Association's standards for the administration of criminai justice. The House also adopted a resolution commending Arkansas' lawyer Senators for their efforts to bring realism to sentencing of repeat offenders and financing of prison facilities. The Delegates also urged Governor White to press for adequate funding of Arkansas' prisons. As his administration closed, President Carroll was able to report that things are going well for AICLE, the Bar Center, and the Arkansas Bar Foundalion. The Fall Legal Institute returns to NW. Arkansas, hopefuily to coincide with the opening of the new Hilton. The Carroll stewardship has also left the Association in sound shape financially. ..â&#x20AC;˘ a look to the future... Looking to the future, at both the House of Delegates' meeting and the
Executive Council meeting, incoming President Jim Cypert called for lawyers to work beyond their own narrow selfinterest, and to address the needs not only of their profession but of their communities as well by giving of themselves. Charley Carpenter responded by promising the President a very special gift of his own...
A Hot Potato Button, Of Course
"
FALL LEGAL INSTITUTE Bella Vista Northwest Arkansas September 10-12, 1981
MID-YEAR MEETING Camelot Inn, Little Rock January 14-16, 1982
146/Arkansas Lawyer/October 1981
SAMPLE INDEX OF THE LEGAL ADVISOR'S GUIDE TO LAW OFFICE MANAGEMENT Does your firm need help in any of the following areas: SECTION
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Transition from manual to automated systems why and how, pitfalls, planning, types of systems and evaluation, learning how to use the system to achieve your goals, how to select the system which is right for you, understanding costs, and much more.
Production & Scheduling
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Production scheduling for your firm, back up systems, mapping out systems and procedures, working with your support staff so they can do the best for you, avoiding pitfalls, forms, equipment, and a sample production system. S 3.
Dictation Types of equipment and how they work (pros and cons), understanding costs, interface with office personnel, good dictation habits, maintenance, and more.
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October 1981/Arkansas Lawyer/147
FALL LEGAL INSTITUTE
featuring MR. AICLE
by Chairman David G. Epstein GREAT NEWS!!
WHERE?? BELLA VISTA THE NEW FAYETIEVILLE HILTON WILL NOT BE READY IN TIME!!
1981 FALL LEGAL INSTITUTE IS RETURNING TO NORTHWEST ARKANSAS
WHAT?? WHEN?? THURSDAY路FRIDAY SEPTEMBER 10 & 11 HOUSE OF DELEGATES MEETS ON SEPTEMBER 12th
PRACTICAL I EVIDENCE I. & TRIAL TACTICS SEMINAR PLANNED TO STRENGTHEN ADVOCACY SKILLS OF THE TRIAL LAWYER
i
WHO?? AN OUTSTANDING FACULTY OF TRIAL SPECIALISTS PLUS
ARKANSAS
v.
TULSA (Tickets are available "first come" basis) 148/Arkansas Lawyer/October 1981
THIS MEMBER ATTENDED!!
THIS ONE DID NOT!!
FALL LEGAL INSTITUTE The Fall Legal Institute returns to N.W. Arkansas this year on September 10 and 11, 1981 and offers a seminar on practical evidence and trial tactics. The seminar will feature outstanding trial lawyers and judges from Arkansas, as well as outstanding out-of-state attorneys. The format will combine live trial demonstrations with lectures, and will deal with trial problems faced daily by Arkansas practitioners. The Institute will be held atthe fine Bella Vista facility. The Fayetteville Hilton will not be ready in time for the 1981 Institute. The Institute will be held immediately before the Arkansas/Tulsa football game, and AICLE has a limited number of tickets available to registrants and their spouses. Apart from Razorback football, the area offers Beaver Lake, Devils Den State Park, Pea Ridge National Military Park, Eureka Springs, and many other attractions which can be enjoyed by you, your spouse, and family. The Thursday session of the Institute will be highlighted by a trial demonstration of the direct and cross examination of an expert witness. Presiding will be Han. William Enfield, Circuit JUdge for Benton County. The trial attorneys will be Jim Blair of Springdale and Bill Putman of Fayetteville, with Hillary Rodham of Little Rock acting as moderator. Thursday's session will also feature talks by the following distinguished speakers: Han. Henry Woods of Little Rock on expert witnesses and opinion testimony; Professor Ray Guzman of the University of Arkansas School of Law on basic evidence concepts under the Arkansas Uniform Rules of Evidence; Bob Compton of EI Dorado on techniques of impeachment. Friday will feature another trial demonstration, this one highlighting problems involved in the introduction of and objection to demonstrative and real evidence. Han. Richard Arnold of Little Rock will preside at this demonstration, and Bob Jones of Ft. Smith and Bobby McDaniel of Jonesboro will be the trial attorneys. Professor Mort Gitelman of the University of Arkansas School of Law faculty will be the moderator. Also on Friday's program, Professor Steve Goldberg of UALR School of Law will speak on the ethical considerations of evidence and trial tactics. Corneill Stephens, a commercial litigator from Atlanta, Georgia, will address the topic of identification, certification and introduction of documentary evidence. Bill Wilson, a Little Rock trial lawyer and adjunct professor at UALR School of law will discuss how the trial advocate should handle objectionable evidence, focusing on the making and answering of objections, offers of proof and motions in limine. Registrants will receive outlines of each topic, and background fact patterns on each of the trial demonstrations. The distinguished seminar participants, the attractions of Northwest Arkansas, and Razorback football should combine to make this a great Fall Legal Institute for all Arkansas Lawyers. -Chairman David G. Epstein
October 1981/Arkansas Lawyer/149
JOHN EMMET GAUGHAN
In jlemortam The recompense of a men's hends shall be rendered
unto him.
Proverbs 12:14
ROBERT H. PEACE Robert Harvey Peace, 93, of 2112 Lakeland St., EI Dorado, died March 5th after a long illness. Bom March 3,1888 in Union County, he was graduated from Cumberland Law School in Lebanon, Tenn., in 1927 and had lived in El Dorado since 1942. He was a member of the First United Methodist Church and the Union County Bar Association. He is survived by a son, Billy M. Peace of El Dorado; two sisters, Mrs. Alice Tomlin, and Mrs. Jimmy Linton, both of Atlanta; a grandson, Mike Peace of Fort Worth; a granddaughter, Mrs. Carol McLemore of Texas City, Texas.
JOHN DALE THWEATT John Dale Thweatt, 83, of DeVaNs Bluff died March 25, 1981. He hed practiced law in Prairie County for 61 years. He was graduated from the Denver Law School, Denver, Col., and was a member of the Arkansas and Amertcan Bar Associations. He served as chairman of the Democratic Central Committee for 36 years and was a World War I veteran. He is survived by a sister, Mrs. Margaret Lenz and a nephew, James Thweatt, both of Carlisle.
RAYMOND R. MORRIS
J. ROY HOWARD
Raymond R. Morris, 75, of 5219 Hawthorne Road, died March 24, 1981. He was a Certified Public Accountant and an attorney. He was a member of the Second Presbyterian Church, Trinity Lodge 694, Arkansas Consistory Scimitar Shrine Temple, Royal Arch Commandry of Knight Templar, Country Club of Little Rock, president of the Arkansas Society of Certified Public Accountants, a member of the Federal Tax Committee of the American Institute of Certified Public Accountants, Arkansas State Board of Accountancy, American Bar Association and Arkansas Bar Association. Survivors are his wife, Mrs. Mary Berthe Morris; a daughter, Mrs. William L. Cravens of Little Rock; a sister and three grandchildren. Burial was in Roselawn Memorial Park in Littte Rock. 150/Arkansas Lawyer/October 1981
J. Roy Howard, 79, of 1215 Skytine Drive, North Uttle Rock, died April 27 in Newport. A native of Strawberry, he was a 5O-year member of the Arkansas Bar Association, a member of the Pulaski County Bar Association and had practiced law for 51 years. He was paaI president of the H0rseman's Benevolent and Protective Association and a founder of the Arkansas Thoroughbred Breedars Ass0-
ciation. He is survived by his wife, Mrs. Dorothy Yancy Howard; a son, JUdge James R. Howard of Naw Orleans, La.; a daughter, Mrs. Elizabeth Wrightman of Fort Worth, Tex.; a brother, Lee Howard of Tuckerman; a sister, Mrs. Edrie Thompson of Tuckerman; four grandchildren and one great-grandchild. Burial was at Roselawn Cemetery.
John Emmet Gaughan, aged 90, of Camden, died June 13, 1981. He began practicing law about 1916 in his father's firm in Camden and retired as the senior partner about two years ago. He attended Georgetown University at Washington and the University of Chicago. He was graduated from the University of Arkansas where he studied engineering and later read for the bar in his father's office. He was named Arkansas Lawyer of the Year in 1964 by the Arkansas Bar Association and was a former presi路 dent of the Camden Chamber of Commerce. He was a director of First National Bank and a former prasident of the Camden Rotary Club. He served on the Board of Ritchie Grocery Company as Chairman. He was a member of the St. Louis Catholic Church and of Pi Kappa Alpha
fraternity. Survivors are his son, John E. Gaughan, Jr. of Camden; two daughters, Mrs. Curtis S. Rogers of Camden and Mrs. Jim Swift of Gadsden, Ala.; four sisters, Mrs. Ruth Clifford and Mrs. N. C. Savers, both of Camden and Mrs. A. R. Carmody and Mrs. W. O. White, both of Shreveport, 10 grandchildren and eight greatgrandchildren.
NELL POWELL WRIGHT Chancellor Nell Powell Wright, 62, of Mountain Home, died May 28 after a lengthy illness. She was bom July 30, 1918 in Amos and was married to Glenn Wright for 37 years. She was a graduate of Mountain Home High School and the University of Arkansas Law School. She was also a charter member of the Arkansas Chapter of Business and Professional Women's Club and of Tau Gamma Sorority. She served as chairman of the Baxter County Ubrary Board and was a former board member of the North Arkansas Council of Girl Scouts in America. Mrs. Wright was a member of the Arkansas and Baxter County Bar Associations, the state Ubrary Board and of the First United Methodist Church where she taught Sunday School. She was a former officer of the League of Women Voters. Survivors include her husband Glenn Wright, of the home; a daughter, Julie Wright of Los Angeles, Calif.; one sister, Ruth Powell of Mountain Home; and one niece, Toni Demers James of San Diego, Calif. ' "
IT'S A • •TTER OFLIFE AIDDEATH~
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II OR1_ SEND COUPON TO' Slate Zip - - . _ •.... lssuel!w.ltlln 6 monlhs of pLII'ehase Will be senl al no chirgt AI arl)' lime, I • I aero IIIttIIIw Co.,. I Will be lree to cancel or change my orlltr lor uplleep Sl!fVlces _ I 235 Ealt 45111 StrMt, ... York, I.Y. 10017 JeleptlOne If --------------------------------------------------------------------------------------------------------_. October 1981/Arkansas Lawyer/151
ARKANSAS BAR fOUNDA TION by: Herman L. Hamilton, Jr. Chairman
I would be remiss if, in this first report, I failed to thank the directors of the Foundation and its members for my election as your Chairman for 1981-82. I appreciate the opportunity to serve you and pledge my best efforts to the duties of the office during my term. The Foundation has been blessed with good leadership in the past years and you may be assured your current officers will carry on in the same tradition. BOARD MEETINGS At the annual meeting of members of the Foundation, June 3rd, at Hot Springs, as your incoming Chairman, I announced plans for four major meetings of your Board of Directors, to be held (1) in conjunction with the Fall Legal Institute at Bella Vista in September, 1981, (2) in conjunction with the Mid-Winter meeting in Little Rock in January, 1982, (3) in conjunction with the Long-Range Planning Retreat for the Bar Association in the Spring of 1982, either at Heber Springs or Fairfield Bay, and (4) in conjunction with the Annual Meeting of June, 1982. All the members of the Board of Directors are urged to now calendar these meetings for attendance. Firm dates and times for these meetings will be given you as soon as they are available. I hope to utilize these meetings in such a way as to make it unnecessary to have other Board meetings during the Foundation year. It will be our policy to make no more demands on the time of the Board members than are required to properly attend the Foundation's business. FELLOWSHIPS The Foundation has made a recent change in regard to cash contributions required of prospective Fellows, which should be brought to the attention of the general membership of the Arkansas Bar Association. At the meeting in Hot Springs, the Foundation members 152/Arkansas Lawyer/October 1981
elected to increase the amount of cash contribution required to qualify as a Fellow, effective 12/31/1981. As of January, 1982, the requirement will be $1250; as of January, 1983, the requirement will be $1500. For those who pledge and partially pay during the remainder of 1981, they can qualify for the present $1000 contribution, if the total is fully paid within 5 years. For those who pledge in 1982, they can qualify for $1250, fully paid within 5 years; and for those who pledge in 1983 and thereafter, they can qualify only upon payment of $1500 within 5 years. In all cases, moneys which have been previously pledged and paid will be credited as appropriate toward Fellowships. Earlier efforts for obtaining contributions toward Fellowships were made in the 1960's and 1970's and the thrust of this effort is to now give the younger members of the Bar an opportunity to become Fellows at the inception of the 1980's. The extended period for payment was provided in hopes that it would induce younger members of the Bar to make a pledge and take initial steps toward a Fellowship at the earliest possible date, to avoid the additional cost involved as these increases become effective. Any member of the Arkansas Bar who is interested in becoming a Fellow of the Foundation and who is uncertain as to what steps to take should call David Solomon, Chairman of the Selection of Fellows Committee at Helena, Otis Turner, Chairman of the Fellowships and Memorials Committee at Arkadelphia. or Colonel C. E. Ransick at the Bar Center in Little Rock, for further particulars. INVESTMENTS Foundation members will also be interested to learn that a lengthy combined meeting of your Trust Committee and of your Investment Advisory Committee was held at Hot Springs for
the purpose of considering long term investment policies for the Foundation's Trust Funds. You should be aware of the continuing efforts of these people, many of whom are legitimate investment experts, in maintaining and preserving the assets of the Foundation, while at the same time producing the maximum safe earnings from them. PROGRAMS In the coming year, the program for the Foundation will be to continue its efforts to promote the image of professionalism and to better the relationship that we lawyers and jUdges have with the public in general. The following paragraphs will cover some of the newer ideas which are being evaluated or which are in progress. We are now partially funding and sponsoring, in conjunction with the UALR Law School at Little Rock, of Law Exploring Post 21 for the Central Arkansas area. This Scouting effort is viewed as a pilot program in hopes of educating some of our young adults in the areas of law, the Courts, legal education, the department of Corrections, etc. If the program meets our expectations it can be expanded into other areas of the state to instill in our young people a better understanding and image of the law, courts and lawyers that can improve our relationships for years to come. We have already funded a pilot film to be produced for use on educational television. It is to be done in conjunction with some of our established committees and has been promised for delivery within the near future. If that initial effort is well received, arrangements have already been made and funds budgeted to finance as many as nine more such films. These are intended to convey to the general public some idea of what contacts with attorneys are actually like, what clients might anticipate in dealings with attorneys and some idea of the profes-
,,
sionalism in treatment they may expect from attorneys in those dealings. Some of the younger members of the Bar have volunteered to serve on important Foundation committees for the next year. It is my intention to call upon them and to involve them in Foundation efforts where possible and to urge them to consider committing to become Fellows of the Foundation as soon as they feel able to shoulder the financial burden. The Foundation will also make a general effort to emphasize Fellowships and Memorials among Bar members and the general public in the coming year. One of my pet concepts for a long time has been to do whatever can be done to broaden our approach to scholarships for deserving law students so that some types of students can be reached that may not now qualify. Most present scholarship funds are delivered to the Foundation with stipulations prescribing the qualifications for recipients. Those grants can only be made to persons so qualified, which automatically eliminates many students from consideration. There are students, however, who because of holding full time employment, or other reasons, may be good and deserving students and promising attorneys-tobe, but who fall short of prescribed academic or other requirements. These may also be some of the people who most need and deserve our help, but are not receiving it. They are the group I am trying to assist. Unfortunately, such scholarships may not be possible during my tenure in office since their aid can only become available from scholarship funds not now established. HopefUlly, such funds will become available and without such limiting criteria in the near future. It is my belief that this is an area in which our scholarships are lacking and I hope to make some progress toward solVing that problem in the coming year. Your Foundation and the Bar Association are jointly making a preliminary investigation into an effort to redefine procedures for enforcement of ethical standards for lawyers. As that develops, future reports on status will be made to keep you advised. The affairs of your Foundation were delivered June 3rd in excellent condition and with the able assistance of your Foundation officers and committeemen, we will pass them on to our successors in that same condition a year from now.
"
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CHRISTIAN LEGAL SOCIETY P.O. Box 2069 Oak Park, Illinois 60303 (312) 848-6335
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October 1981/Arkansas Lawyer/153
LAW SCHOOL NEWS Dean David G. Epstein Assistant Dean Ellen Brantley
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE Summer is a natural time for a law school dean to reflect on the activities and accomplishments of the past school year. I am particularly proud of the academic accomplishments of our students.
Dean's Honor Roll The following students are on the Dean's Honor Roll as a result of their spring semester grades:
First Year James M. Barker James W. Cherry Edward Corrigan James Day Richard T. Donovan Michael Dunbar Jimmie Dunlap Kathy Garner
Robert Gibson James Gill Sarah Gm
Buckner Gwyn Pati Hoffman Robert Honea Jenniffer Horan Michael Lax Phillip McGough Donna Pettus Bobby Pryor Scott Ransick Danny Richey James Schulze John Shock Gary Speed William Still Michael Taylor Timothy Vinson Douglas B. Ward Jay, B. Williams Myra L. Rogers
Hamburg, AR Little ROCk, AR Aurora, CO Texarkana, AR Fayetteville, AR Gravette, AR Trumann, AR Carbondale, IL Webster, TX Blytheville, AR Blytheville. AA Orlando, FL Clarence, fA Conway, AR Quitman, AR Hot Springs, AR Lake Village, AR Fayetteville, AR Fort Smith, AR
Little Rock, AR Smithville, AR Little Rock, AR Conway, AR Conway, AR Helena, AR Victoria, AR Arlington, TX Little Rock, AR Gentry, AR Fayetteville, AR
154/Arkansas Lawyer/October 1981
Second Year Peggy L. Berthelot Alexandria, LA James H. Birch Malvern, AR EI Dorado, AR Daniel D. Boland Lillian O. Davenport Texarkana, AR West Fork, AR Sleven B. Davis William L. Deckelman Crossett, AR Mary A. Estes Lawrence, KS Little Rock, AR William T. Eubanks Little Rock, AR Michael S. Moore Pensacola, FL Henry M. Morgan David G. Nix Jonesboro, AR Tamsy A. Sandford Fayetteville, AR Salem, AR James A. Short Fayetteville, AR Michael E. Sweet Dallas, TX William M. Tabb Kevin S. Vaught Lebanon, IN Marsha G. Wardlaw Little Rock, AR Pampa, TX Bruce A. Wilson
Third Year Benton. AR Marto Bush Arkadelphia, AR Patricia A. Coplan Herbert Cordell Little Rock, AR Fayetteville, AR David M. Donovan Jeffrey Ellis Newport, AR Fayetteville, AR Leo J. Farrow Springdale, AR Kary C. Frank James E. Goldie 51. Joe, AR Dennis M. Hancock Pampa, TX Laura A. Hensley Benton, AR Richard W. Hood Bella Vista, AR Pine Bluff, AR Richard C. Kalkbrenner Fayetteville, AR Mark L. Martin Melbourne, AR Michael G. Smith Fort Smith, AR Beverly A. Stites Evergreen Park, IL Robert D. Topping Hot Springs, AR George G. Vaught Harrison. AR Merle W. Villines
Each semester a certificate listing all honor roll students is printed. A copy of the certificate is given to each honor roll student; a copy is sent to his or her
parents; and a copy is framed and hung on the walls of the law school.
Law Review Officers The editors of the Arkansas Law Review for the 1981-82 school year are: Editor-Chief, Steve Davis, West Fork, AR. Managing Editor, David Nix, Jonesboro, AR. Business Manager, Bill Deckelman, Crossett, AR. Articles Editor, Murray Tabb, Dallas, TX. Steve Nickles will again serve as faculty advisor to the Review. Carol Goforth of Fayetteville has been selected as the first Leflar Fellow. Carol will be starting classes at the law school this fall. She was a straight"A" student at the University of Arkansas where she was an award winning member of the debate team and an award winning member of Phi Beta Kappa. She declined an offer of a substantial fellowship from the Stanford Law School to accept the Leflar Fellowship and remain in Arkansas. It is, of course, the generosity of the members of the Arkansas Bar that has made it possible to honor Bob Leflar and strengthen the iaw school by recruiting outstanding Arkansas students such as Carol Goforth. Your past support of the Leflar Fund is greatly appreciated. Your future support of the Leflar Fund is needed.
Honors at Graduation Each year, the law school holds it
own graduation ceremony in the afternoon after the University commencement. Several academic excellence awards were announced at that time. The Joe C. Barrett Award for excellence in commercial law was presented to L. Jackson (Buck) Farrow, Jr., of Little Rock. Buck also received the Craig Sterne Memorial Award for his outstanding performance in wills and estates courses. Randall Lamb, of Delight, who claims both Delight and now Houston as home, also "claimed" two awards at graduation. He received not only the William J. Arnold Trial Advocacy award but also a plaque from the International Academy ofTrial Lawyers for his Trial Advocacy work at the law school. Laura Hensley of Little Rock
received the Wayne Owen award for her grades during the last two years of law school.
Students Accepted for the Agricultural Law Program As previously indicated, the law school will begin its masters degree program in agricultural law in the fall. We have been very pleased by the interest in this program. The law school has received inquiries from attorneys and third year law students from around the country. The only admissions problem that Jake Looney and Neil Hamilton, the faculty members with primary teaching responsibilities
in the agricultural law program, has encountered is holding to our original goal of limiting the initial LL.M. class to six students. Students from Arkansas, Florida, Kansas, Oklahoma, North Carolina, and North Dakota have been accepted as LL.M. candidates. There are, of course, a number of other outstanding students at the law school-students such as Dorothy Crookshank of Fayetteville who recently received a $4,000 fellowship from the American Association of University Women. I will discuss other student awards and faculty activities and accomplishments in the Alumni Newsletter and future Arkansas Lawyer reports.
1
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT UTILE ROCK Faculty News Professor Robert R. Wright III has completed the manuscript for the third edition of his land use casebook. The annual supplement to Professor Fred Peel's Consolidated Tax Returns has been published.
An article by Professor O. Fred Harris, Jr., "Protection Against Discrimination Afforded to Uniformed Military Personnel: Sources and Directions," was published in the Spring edition of the Missouri Law Review. Professor Ellen Brantley and Professor Richard W. Effland of Arizona State University received awards as the outstanding facUlty contributors to the UALR Law Journal for 1980-81 for their article comparing Arkansas law and the Uniform Probate Code.
Karen Stitsworth, Reference librarian, has been named Assistant Director of the Law Library. She has completed her M.L.S. degree from George Peabody College of Teachers of Vanderbilt University. Professor Steven Goldberg has been named to the American Bar Association Committee on Association Standards for Criminal Justice. Professor Goldberg also directed a mock trial for the deaf community. The defendant and two jurors were deaf. The program was cosponsored by the Association. Professor Ruth Brunson, Melanie Nelson, Assistant Librarian, and Pauline Ghidotti, Assistant to the Director of the Law Library attended the American Association of Law Libraries
annual meeting in Washington, D.C., from June 27 - July 2. Assistant'Librarian Sylvia Dresser attended the American Library Association meeting in San Francisco. Professor Arthur G. Murphey attended an Association of American Law Schools Conference on Teaching Contracts from May 31 June 5. The conference was held at the University of Wisconsin. Professor Ellen Brantley attended the Eighth Circuit Judicial Conference in Kansas City from July 7 - 10. Professor Paula Casey, who has been appointed Assistant Professor of Law, attended a conference for clinical law teachers in Rockport, Maine, from June 21 - 25. Ms. Casey has served as Clinical Supervisor in the School of Law's Legal Clinic since 1979. continued on page 156 October 1981/Arkansas Lawyer/155
School of Law..., continued from page 155 A number of law school faculty members attended a regional law school meeting at Branson, Missouri, April 11 . The two Arkansas law schools were co-hosts for the meeting. Those . attending were Ellen Brantley, Ruth Brunson, Steve Goldberg, Philip Oliver, Jason Reynolds, John Sheffey, Jim Spears, Norman Stein, and Bob Walsh. Representatives from law schools in Kansas, Missouri, Oklahoma, and Nebraska also attended.
Professor Fenton Adams Named Acting Dean Professor D. Fenton Adams has been selected to serve as Acting Dean of the School of Law. He assumed this position July 1. Professor Adams has been a faculty member at UALR since 1977. He served earlier as Assistant Dean of the Little Rock Division of the University of Arkansas School of Law from 1966 to 1970. Professor Adams is a graduate of Dickinson College and the Dickinson School of Law. He served as editor-inchief of the Dickinson Law Review. He has taught at Dickinson Law School, the University of Mississippi, and Stetson University. Professor Adams, who teaches Contracts, Commercial Paper, Insurance, and Sales, will serve until a new dean is named.
been named Chairman of the committee. Professor Ken Gould is Vice Chairperson. Other members of the committee are E. Harley Cox, representing the Bar; Dr. Patricia McGraw of the UALR English Department; Sheffield Nelson, representing alumni/ae of the law school; law students Judy Proctor and Sammye Taylor; and law school faculty members Ellen Brantley, Arthur G. Murphey, Fred Peel, John Sheffey, and Norman Stein.
UALR Law School Association Annual Meeting The Law School Association held its annual breakfast meeting in conjunction with the Arkansas Bar Association meeting in Hot Springs. Outgoing President Sandra Cherry was honored for her work. New officers are Frank Whitbeck, President; Mike Bearden, President-Elect; James William Spears, Secretary, and Clay Patty, Treasurer. At the meeting, Mrs. Cherry announced that the Association has named a scholarship in honor of former Dean Robert K. Walsh.
Spring Highlights Law Week featured luncheon sessions with former Governor Bill Clinton and Association President Philip Carroll and an awards banquet. Con9ressman Ed Bethune spoke at the Banquet. 98 students were graduated at Commencement Exercises held May 17. Students elected Bruce Leasure of Little Rock as Student Bar Association President for 1981-82. D. Ray Fuller, a deaf student, has been awarded an Alexander Graham Bell Association Scholarship. Mr. Fuller, who began law school part-time in fall 1979 has been deaf since birth. He serves as Executive Director of the Governor's Committee on Employment of People with Disabilities.
A committee to search for a new dean has been formed. Dr. James Fribourgh, Executive Vice-chancellor has 156/Arkansas Lawyer/October 1981
Ben Clifton, a third year student, has been elected Governor of the 10th Circuit of the Law Student Division of the American Bar Association. The Circuit includes Arkansas, Oklahoma, and Kansas.
Judge Roy Establishes Trimble Scholarship Fund United States District Judge Elsijane Trimble Roy and her family have donated $5,000.00 to the Arkansas Bar Foundation. The income from the fund is to be used to award prizes to the best students in the course in Federal Courts at the two Arkansas law schools. In even-numbered years the prize will be awarded to a student at UALR, and in odd-numbered years, to a student at UAF. The fund was established in honor of Judge Roy's father, Thomas Clark Trimble, III, who served as a federal judge for the Eastern District of Arkansas for more than 20 years. In addition, the fund memorializes Thomas Clark Trimble I, an attorney in both Mississippi and Arkansas, Thomas Clark Trimble II, who practiced law with Joseph T. Robinson, and Thomas Clark Trimble IV, who practiced law for over thirty years with the House, Holmes, and Jewell firm. The other members of the family who joined in the creation of the fund are Elsie Walls Trimble, the widow of Thomas Clark Trimble, III, and Susan Trimble Measel, Walls Trimble, and Mollie Trimble Verser, children of Judge Trimble. When she created the fund, JUdge Roy asked that the first scholarship, which will be awarded in 1982, go to a UALR student in honor of former Dean Robert K. Walsh.
Helen Dupre joins Law School Faculty Helen Dupre has been appointed to the faculty of the School of Law as an Instructor. She will direct the first year program in legal research, writing, and appellate advocacy. She will also administer the upper level Moot Court Competition. Mrs. Dupre is a graduate of Kansas State University and the Washburn University Law School. She served as Associate Editor of the Washburn Law Review. After graduation, Mrs. Dupre clerked for the Kansas Supreme Court. She has recently completed a clerkship for Justice Frank Holt of the Arkansas Supreme Court. Mrs. Dupre is married to Durward D. Dupre, an attorney for Southwestern Bell Telephone Company. The Dupres have two sons.~
JUSTICE BRA DEIS HA l."ade associatIOn is all or"sanization fo'" mutual benefit which substitutes kJlOwledge for ib'110ranCc, rumor, guess and suspicion. It tends to substitute reseal"eh and '"casolling for" gambling and pi,"acy, without closing the door to
advcntlll"c or lessening the value of prophetic . " reasollmg.
, TEDDY ROOSEVELT
"Every man owes part of his time and money to the profession in which he is engaged."
DANIEL WEBSTER "There are many objects of great value to man which cannot be attained by unconnected individuals, but must be attained, if at all, by association."
Arkansas Bar Association EXECUTIVE COUNCIL President
James D. Cypert Box 869 Springdale, AR 72764
Secretary Treasurer (376-3151) Chairman, YLS
(238-2317)
James L. Shaver, Jr. Box 592 Wynne, AR 72396
(236-7718)
Immediate Past President (375-9131)
Phillip Carroll 120 East 4th Little Rock, AR 72201
Chairman, Executive Council (375-9947)
(751-5222) President-Elect
W. Christopher Barrier 400 Gaines Place lillie Rock, AR 72201 Harry T. Moore Box 726 Paragould, AR 72450 Robert D. Ross 401 Three Hundred Spring Little Rock, AR 72201
SOUTHERN BAR DISTRICT Clint Huey Floyd Thomas, Jr. Norwood Phillips
1982 1983 1984
Warren EI Dorado EI Dorado
NORTHWESTERN BAR DISTRICT Thomas Ledbetter 1982 D. Mac Glover 1983 Marcia Mcivor 1984
Harrison Malvern Fayetteville
CENTRAL BAR DISTRICT Gus B. Walton Charles Carpenter Robert M. Cearley
1982 1983 1984
Little Rock Little Rock Little Rock
NORTHEASTERN BAR DISTRICT Leroy Froman 1982 Tommy Womack 1983 Julian Fogleman 1984
Searcy Jonesboro W. Memphis
LIAISON NON-VOTING MEMBERS Chairman, Legal Education Committee. . . . . . . . . . . . . . . . . . .. R. T. Rick Beard Box 7808 Pine Bluff, AR 71611
Delegate to American Bar Association
Chairman, Arkansas Bar Foundation
Arkansas Judicial Representative ............•........... William H. Enfield Box 553 Bentonville, AR 72712
• .. .. .
Executive Director
Herman L. Hamilton Box 71 Hamburg, AR 71646
Herschel H. Friday 2000 First National Bldg. Little Rock, AR 72201
C. E. Ransick 400 West Markham Little Rock, AR 72201
STAFF Executive Director Administrative Assistant Publications Assistant Membership Secretary Section/Committee Secretary Lawyer Referral Service 158/Arkansas Lawyer/October 1981
C. E. Ransick Judith Gray Carol Utley Lisa Lewis Janet Miller Virginia Hardgrave
Arkansas Bar Association 400 West Markham Little Rock, AR 72201 (501-375-4605)
HOUSE OF DELEGATES President
Treasurer
(751-5222)
James D. Cypert Box 869 Springdale, AR 72764
President路Elect
James L. Shaver, Jr.
Chairman, YLS
(238-2317) Immediate Past President (375-9131)
Box 592 Wynne, AR 72396 Phillip Carroll 120 East 4th Little Rock, AR 72201
Secretary (376-3151 )
(236-7718) Chairman, Executive Council (375-9947)
W. Christopher Barrier 400 Gaines Place Little Rock, AR 72201 Harry T. Moore Box 726 ParagOUld, AR 72450 Robert D. Ross 401 Three Hundred Spring Little Rock, AR 72201
NON路VOTING MEMBERS Past Presidents VOTING MEMBERS District No. 19 Jerry C. Post Box 2595 Batesville, AR 72501 Term Expires 1982
District No.1 John R. Elrod P.O. Box 580 Siloam Springs, AR 72761 Term Expires 1983
District No.1 0 J. Ray Baxter Box 71 Benton, AR 72015 Term Expires 1983
District No.2 Garvin Fitton P.O. Bex 249 Harrison, AR 72601 Term Expires 1984
District No. 11 Howard L. Martin Bex 9 Cabot, AR 72023 Term Expires 1984
District No. 20 Edward J. Cunningham 701 S. Church SI. Mountain Home, AR 72653 Term Expires 1983
District No. 25 R. T. Beard Box 7808 Pine BlUff, AR 71611 Term Expires 1983
District No. 12
District No. 26 Troy Henry 630 S. Main Jonesboro, AR 72401 Term Expires 1984
District No. 25 Martin G. Gilbert Box 8509 Pine Bluff, AR 71611 Term Expires 1984
District No.3 Paul D. Gant Bex 416 Van Buren, AR 72956 Term Expires 1982
Box 100 Searcy, AR 72143 Term Expires 1982
District No. 21 Edward Allen Gordon Box 558 Morrilton, AR 72110 Term Expires 1982
District No.4 John S. Patterson Box 36 Clarksville, AR 72830 Term Expires 1983
District No. 13 Jesse E. "Rusty" Porter, Jr. Box C West Helena, AR 72390 Term Expires 1983
District No. 22 G. William Lavender Box 1938 Texarkana, AR 75501 Term Expires 1982
District No. 26 Paul Mark Ledbetter Box 1346 Jonesboro, AR 72401 Term Expires 1982
District NO.5 William H. Hodge Box 606 DeQueen, AR 71832 Term Expires 1983
District No. 14 W. Frank Morledge Box 924 Forrest City, AR 72335 Term Expires 1983
District No. 22 W. Kelvin Wyrick 2015 Beech SI. Texarkana, TX 75502 Term Expires 1983
District No. 27 Marcia Mcivor 26 E. Center Fayetteville, AR 72701 Term Expires 1984
District No.6 Glenn Vasser Box 599 Prescott, AR 71857 Term Expires 1984
District No. 15 Julian B. Fogleman Box 1666 W. Memphis, AR 72301 Term Expires 1984
District No. 23 Carl A. Crow, Jr. Box 1620 Hot Springs, AR 71901 Term Expires 1982
District No. 27 David Horne 207 W. Center FayetteVille, AR 72701 Term Expires 1982
District No.7 Paul E. Lindsey P.O. Box 777 Camden, AR 71701 Term Expires 1984
District No. 16 Janet K. Moore 401 West Hale Osceola, AR 72370 Term Expires 1984
District No. 23 Richard S. Muse Box 758 Hot Springs, AR 71901 Term Expires 1983
District No. 27 Joe B. Reed Box 507 Springdale, AR 72764 Term Expires 1983
District NO.8 Samuel N. Bird Bex 507 Monticello, AR 71655 Term Expires 1982
District No. 17 T. Joe Holifield Bex 754 Paragould AR 72450 Term Expires 1982
District No. 24 Ronald L. Griggs 431 N. Washington EI Dorado, AR 71730 Term Expires 1984
District No. 28 Jim Spears P.O. Bex 751 Fort Smith, AR 72901 Term Expires 1984
District No.9 Thomas S. Streetman
District No. 18 James A. McLarty 209 Walnut SI. Newport, AR 72112 Term Expires 1983
District No. 24 Michaei R. Landers P.O. Box 127 EI Dorado, AR 71730 Terrn Expires 1984
Drawer "A"
Crossett, AR 71635 Term Expires 1983
Jerry Cavaneau
District No. 28 G. Alan Wooten P.O. Box 1626 Fort Smith, AR 72901 Term Expires 1984 October 1981/Arkansas Lawyer/159
District No. 28 Robert E. Hornberger Box 185 Fort Smith. AR 72901 Term Expires 1982
District No. 29 B. Frank Mackey. Jr. 1970 Union Nat'l. Bldg. Little Rock, AR 72201 Term Expires 1982
District No. 29 William R. Wilson P.O. Box 71 Little Rock, AR 72203 Term Expires 1983
District No. 29 Victor A. Fleming 210 Commercial Natl. Bk. Liltle Rock, AR 72201 Term Expires 1984
District No. 28 William M. Cromwell Box 669 Fort Smith, AR 72902 Term Expires 1983
District No. 29 Allen W. Bird. II 120 E. 4th St. Little Rock, AR 72201 Term Expires 1982
District No. 29 Box 2038 Little Rock, AR 72203 Term Expires 1983
District No. 29 Wm. Russell Meeks 1151 First Natl. Bldg. Little Rock, AR 72201 Term Expires 1984
District No. 29 James M. Moody 2200 Worthen Bank Bldg. Little Rock, AR 72201 Term Expires 1982
District No. 29 Tim Boe 120 E. 4th St. Little Rock, AR 72201 Term Expires 1982
District No. 29 James R. Rhodes, III 1591 First National Bldg. Little Rock, AR 72201 Term Expires 1983
District No. 29 Kaye S. Oberlag 2224C S. Main Little Rock, AR 72206 Term Expires 1984
District No. 29 William L. Owen 400 Gaines Place Little Rock, AR 72201 Term Expires 1982
District No. 29 Thomas L. Overbey 402 First Federal Plaza Little Rock, AR 72201 Term Expires 1983
District No. 29 Charles L. Carpenter 1405 Main Street No. Little Rock, AR 72114 Term Expires 1984
Law Student Member Fayetteville Law School Lazar M. Palnick 500 Beckwood Little Rock, AR 72205
District No. 29 R. Christopher Thomas 115 N. State Little Rock, AR 72201 Term Expires 1982
District No. 29 James W. Moore 2000 First National Bldg. Little Rock, AR 72201 Term Expires 1983
District No. 29 Randy Coleman 300 Spring Building Little Rock, AR 72201 Term Expires 1984
Law Student Member UALR Law School John H. Watt, Jr. 5901 Pecan Lake Road Little Rock, AR 72204
Lonnie Powers
PAST PRESIDENTS' COMMITTEE E. Harley Cox, Jr. A. F. House Terrell Marshall J. L. Shaver John A. Fogleman W. S. Mitchell Oscar Fendler Louis L. Ramsay, Jr. Bruce T. Bullion Maurice Cathey William S. Arnold J. Gaston Williamson
Pine Bluff Little Rock Little Rock Wynne W. Memphis Little Rock Blytheville Pine Bluff Little Rock Paragould Crossett Little Rock
Chairman 1948-49 1951-52 1953-54 1958-59 1960-61 1962-63 1963-64 1964-65 1966-67 1967·68 1968-69
Robert L. Jones, Jr. J. C. Deacon PauiB. Young Henry Woods James West James B. Sharp Robert C. Compton Herschel H. Friday Walter R. Niblock Wayne Boyce Phillip Carroll
Fort Smith Jonesboro Pine Bluff Little Rock Fort Smith Brinkley EI Dorado Little Rock Fayetteville Newport Little Rock
1969-70 1970-71 1971-72 1972-73 1973-74 1974-75 1975-76 1976-77 1977-78 1978-79 1980-81
SECTION CHAIRMEN Criminal Law Section
Ralph M. Cloar, Jr. 1716 First National Bldg. Little Rock, Arkansas 72201 378-0106
Family Law Section
Ben D. Rowland 604-Three Hundred Spring Little Rock, Arkansas 72201 375-3384
Labor Law Section
....•............... Pamela D. Walker 1700 First National Building Little Rock, Arkansas 72201 372-3363
Law Student Section
Natural Resources Law Section
160/Arkansas Lawyer/October 1981
Michael Crawford 3114 Wynne Street Little Rock, Arkansas 72204 224-6555 Oliver M. Clegg McAlester Bldg.-Drawer A Magnolia, Arkansas 71753 234-3550
Savings and Loan Section
Taxation, Trust & Estate Planning Section
Workers' Compensation Section
Young Lawyers Section
James W. Lance #800-300 Spring Bldg. Little Rock, Arkansas 72201 376-9997
Joe A. Polk One Spring St. Little Rock, Arkansas 72201 376-2981
Robert Hornberger Box 185 Fort Smith, Arkansas 72901 782-7294
Harry T. Moore Box 726 Paragould, Arkansas 72450 236-7718
Real Estate Law Section
Thomas A. Buford 400 Gaines Place lillie Rock, Arkansas 72201 376·3151
William Haught 2200 Worthen Bank Bldg. lillie Rock, Arkansas 72201 371-0808
Probate Section
COMMITIEE CHAIRPERSONS 1981-82 Agricultural Law Committee J. W. Looney Annual Meeting David Epstein Antitrust & Trade Regulations Steve Napper AUditing John L. Johnson Automobile "No Faull" Insurance Bobby McDaniel Banking Law Martin G. Gilbert Bar Related Title Insurance Thomas D. Ledbetter Cameras In The Courtroom Thomas M. Carpenter Civil Procedures William H. Sutton Constitutional Reform Georgia K. Elrod Consumer Law William Isaacs Creditors' Rights David Epstein Criminal Justice Standards ....•......... John Fogleman Desk Book Neva Talley Economics Of Law Practice James H. McKenzie Environmental Law Jerry Rephan Federal Legislation & Procedures . E. Charles Eichenbaum Group Insurance James M. Moody House Committee Charles L. Carpenter International Law Dennis L. James JUdicial Council Liaison Charles L. Carpenter Judicial Nominations Albert Graves Judicial Polls (Committee To Study) William R. Wilson, Jr. Jurisprudence & Law Reform Terry Kirkpatrick Juvenile Justice Standards Marcia Mcivor
Law Student Liaison Terry Kirkpatrick Law School Committee E. Harley Cox, Jr. Lawyer Referral Service Eugene J. Mazzanti Joseph Ross Legal Aid Legal Education R. T. Beard Legal Services For The Deaf Committee Kaye Obertag Legislation Joe D. Bell Local Court Rules Ben Rowland Malpractice Education Committee Joseph Bullalo Maritime Law Gordon S. Rather, Jr. Mentally Disabled Committee L. Lynn Hogue Minor Disputes Resolutions Committee .. .. .. .. .. .. .. .. .. .. .. . .. .. .. .. . Dean Ralph Barnhart Prepaid Legal Services Harold H. Simpson Professional Ethics & Grievances B. Frank Mackey, Jr. Public Information Samuel A. Perroni Resolutions Committee James B. Sharp Review & Redistricting Committee Winslow Drummond Specialization & Advertising Tim Boe Special Planning Committee Dennis Shackleford State & Federal Securities Richard C. Downing Statute Revision Commission William S. Arnold Tort Reform James A. McLarty, III Uniform Laws Robert K. Walsh Youth Education For Citizenship Waller A. Paulson, II
Arkansas Bar Foundation OFFICERS Chairman (853-5461) Vice-Chairman (972-1400) Treasurer
_
(376-4731)
Herman L. Hamilton Box 71 Hamburg, AR 71646 Randall Ishmael P.O. Box 4096 Jonesboro, AR 72401 Cyril Hollingsworth Box 3363 Little Rock, AR 72203
Secretary
Robert L. Jones, III Box 2023 Fort Smith, AR 72901 Col. C. E. Ransick 400 West Markham lillie Rock, AR 72201
(782-7203) Executive Secretary (375-4605)
DIRECTORS Hamburg Richard F. Hatfield 1982 1982 Jonesboro H. David Blair 1982 lillie Rock Ben Core 1982 Fayelleville Otis H. Turner 1982 Brinkley Ben E. Rice 1982 lillie Rock Robert L. Jones III Texarkana Dennis L. Shackleford 1982 EX-OFFICIO: James D. Cypert President Sid McCollum Arkansas Bar Association Arkansas Bar Foundation
Herman L. Hamilton Randall Ishmael Cyril Hollingsworth A. D. McAllister, Jr. James B. Sharp Neva B. Talley Leroy Autrey
Searcy 1963 Batesville 1983 Fort Smith 1983 Arkadelphia 1983 Jacksonville 1983 1983 Fort Sm~h 1983 EI Dorado Past-Chairman
COMMITIEE CHAIRPERSONS Awards Court Standards Finance House Investment Advisory Oral History
Herman Hamilton John P. Gill John L. Johnson Charles L. Carpenter James B. Sharp David Malone
Public Education Scholarships & Memorials Selection of Fellows Trusts Writing Awards
Robert L. Brown Otis Turner
David Solomon Boyce R. Love Neva B. Talley October 1981/Arkansas Lawyer/161
LOCAL BAR ASSOCIATIONS ARKANSAS ASSOCIATION OF WOMEN LAWYERS President . Jackie Wright Vice-President Carolyn Witherspoon Recording Secretary Virginia Tackett Treasurer Gladys Lucy ARKANSAS PROSECUTING ATTORNEYS President Dub Bentley Vice-President David Burnett Secretary-Treasurer Kim Smith ARKANSAS BLACK LAWYERS ASSOCIATION President limmery Crutcher Vice-President Marion Humphrey Secretary Rodney Slater Treasurer Harold Evans ARKANSAS COUNTY BAR ASSOCIATION President David Henry Vice-President Maicom Smith Secretary-Treasurer Virgil Moncrief ASHLEY COUNTY BAR ASSOCIATION President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Ovid T. Switzer Vice-President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Bill Johnson Secretary Gary Draper Treasurer Herman Hamilton BAXTER COUNTY BAR ASSOCIATION President Leo Carney Vice-President .. . Terry Poynter Treasurer . Charles Vandegrift Secretary P. R. Dixon BENTON COUNTY BAR ASSOCIATION President John Scott Vice-President Georgia Elrod Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Steve Sawyer BLYTHEVILLE BAR ASSOCIATION President John B. Mayes Vice-President Jeff Gardner Secretary-Treasurer John Bradley BOONE COUNTY BAR ASSOCIATION President
_. _
Van Younes
Vice-President Scott Covington Secretary-Treasurer Frank Elean BRADLEY COUNTY BAR ASSOCIATION H. Murray Claycomb President Vice-President Robert Vittitow Secretary-Treasurer Stark Ligon CARROLL路MADISON COUNTY BAR ASSOCIATION President Alan D. Epley Vice-President . . . . . . . . . . . . . . .. Stevan Vowell Secretary-Treasurer Kent Coxsey CHICOT COUNTY BAR ASSOCIATION Secretary-Treasurer W. K. Grubbs, Sr. CLARK COUNTY BAR ASSOCIATION President Herman Hankins, Jr. Secretary Don Chaney CLEBURNE COUNTY BAR ASSOCIATION President David W. Harrod F. W. Jeffcoat Vice-President Secretary Patrick Gardner Treasurer Earl N. Olmstead COLUMBIA COUNTY BAR ASSOCIATION President Carolyn J. Clegg Vice-President Michael G. Epley Secretary-Treasurer William A. Eckert, III CONWAY COUNTY BAR ASSOCIATION President Nathan Gordon Vice-President Edmund Massey Secretary-Treasurer William J. Cree 162/Arkansas Lawyer/October 1981
CRAIGHEAD COUNTY BAR ASSOCIATION . . . . . . . . . . . . . . . . . . . . . . . . .. Stan Langley President .. Vice-President Bobby McDaniel Secretary-Treasurer Keilh Blackman CRITTENDEN COUNTY BAR ASSOCIATION President Ken Cook Vice-President Connie Mayton Secretary-Treasurer Mike Mayton CRAWFORD COUNTY BAR ASSOCIATION President Lee Kuykendall Vice-President Bob Marquette Secretary-Treasurer Steven Peer CROSS COUNTY BAR ASSOCIATION President John Killough Vice-President DeLoss McKnight Secretary-Treasurer J. L. Shaver, Jr. FRANKLIN COUNTY BAR ASSOCIATION President Gregory P. McKenzie Vice-President Steve White Secretary-Treasurer
, .. Neva King
FAULKNER COUNTY BAR ASSOCIATION President William M. Clark Vice-President . Secretary-Treasurer Phil Stratton GARLAND COUNTY BAR ASSOCIATION President Louis Longinotti, III Vice-President Donald Pullen Secretary-Treasurer Bruce MacPhee GRANT COUNTY BAR ASSOCIATION President John W. Cole Vice-President Joseph W. Swaty Secretary-Treasurer Harold King GREENE-CLAY COUNTY BAR ASSOCIATION President Robert E. Young Vice-President David Goodson Secretary-Treasurer Mike Todd HOT SPRINGS COUNTY BAR ASSOCIATION President Fenton Stanley Vice-President David M. Glover Secretary-Treasurer Donald M. Spears INDEPENDENCE COUNTY BAR ASSOCIATION President Wesley J. Ketz, Jr. Vice-President Fred Livingston Secretary-Treasurer Fay Dilbeck JACKSON COUNTY BAR ASSOCIATION President Steven G. Howard Vice-President Stanley Montgomery Secretary-Treasurer Max O. Bowie JEFFERSON COUNTY BAR ASSOCIATION President Kenneth Baim Vice-President Richard Byrd Secretary-Treasurer John Rush LAWRENCE-RANDOLPH COUNTY BAR ASSOCIATION President
Secretary-Treasurer LEE COUNTY BAR ASSOCIATION President Vice-President LONOKE COUNTY BAR ASSOCIATION President MARION COUNTY BAR ASSOCIATION President Vice-President Secretary-Treasurer ,
Murrey L. Grider
David Throesch W. H. Daggett Carrold E. Ray Edgar Thompson Michael Kelly Kenneth R. Smith Judith Bearden
r - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- -
l
MONROE COUNTY BAR ASSOCIATION President Treasurer
Dan Kennett John Martin
NEVADA COUNTY BAR ASSOCIATION President James H. McKenzie NORTH PULASKI BAR ASSOCIATION President William S. Robinson Vice-President John B. Bingham Secretary Morgan E. Welch Treasurer Mackie M. Pierce NORTH CENTRAL BAR ASSOCIATION President Herbert L. Ray Vice-President Connie Barksdale -. . .. . Don Brown Secretary Treasurer Dwayne Plumlee NORTHEAST ARKANSAS BAR ASSOCIATION President Robert Branch Vice-President ........... Bill Ross H. T. Moore Secretary-Treasurer , OSCEOLA BAR ASSOCIATION President Lee Fergus Vice-President Charles A. Banks Secretary-Treasurer Janet K. Moore OUACHITA COUNTY BAR ASSOCIATION President Hamilton Singleton Vice-President Edwin A. Keaton Secretary-Treasurer Benton Rollins PHILLIPS COUNTY BAR ASSOCIATION President Rusty Porter Secretary-Treasurer Harvey Yates PIKE COUNTY BAR ASSOCIATION President Jimmy L. Featherston Vice-President Phillip Clay Secretary James C. Graves Treasurer Charles Yeargan POINSETI COUNTY BAR ASSOCIATION L. D. Gibson President Vice-President Chuck Easterling Secretary-Treasurer Steve Inboden POLK COUNTY BAR ASSOCIATION President David Maddox Vice-President Bob Keeter Secretary-Treasurer Patricia Tucker
POPE COUNTY BAR ASSOCIATION President Steve Gardner Vice-President Ike Laws Secretary-Treasurer Ruth Teai PULASKI COUNTY BAR ASSOCIATION President Vincent Foster, Jr. Vice-President W. Russell Meeks, III Secretary-Treasurer .,. . ... Frank B. Sewall ROGERS-LOWELL BAR ASSOCIATION President . . . . . . . . . . . . . . . . . . . . .. John Burnett Secretary-Treasurer John Stephens ST. FRANCIS COUNTY BAR ASSOCIATION President . . . . . . . .. Bentley Story Secretary-Treasurer Steve Routon SALINE COUNTY BAR ASSOCIATION President Greg Brown Vice-President Ray Baxter Secretary Joe Hardin Treasurer
,
Pete Lancaster
SEBASTIAN COUNTY BAR ASSOCIATION President . . . . . . . . . . . . . .. Robert E. Hornberger Vice-President Thomas E. Robertson Secretary William M. Cromwell SOUTHEAST ARKANSAS LEGAL INSTITUTE President Bruce Switzer Secretary Robert Wellen burger TEXARKANA BAR ASSOCIATION President Nick Patton Vice-President Kelvin Wyrick Secretary-Treasurer Nelson Shaw UNION COUNTY BAR ASSOCIATION President David Guthrie Vice-President Bobby Shepherd Secretary-Treasurer Denver Thornton WASHINGTON COUNTY BAR ASSOCIATION President Peter G. Estes, Jr. Vice-President Joe B. Reed Secretary-Treasurer Priscilla Pope WHITE COUNTY BAR ASSOCIATION President Clarence Shoffner Vice-President . . . . . . .. Don P. Raney Treasurer Chris Raff WOODRUFF COUNTY BAR ASSOCIATION T. B. Fitzhugh President Secretary-Treasurer Joe N. Peacock
ARKANSAS INSTITUTE OF CONTINUING LEGAL EDUCATION BOARD OF DIRECTORS 1981-82 E. Harley Cox, Jr. (534-5221 )
P.O. Box 8509 Pine Bluff, AR 71601
Fenton Adams (371-1071)
UALR, Law School 400 West Markham Little Rock, AR 72201
Marvin L. Keiffer (932-1120)
McAdams Trust Jonesboro, AR 72401
James D. Cypert (751-5222)
P.O. Box 869 Springdale, AR 72764
James L. Shaver, Jr. (238-2317)
O.U,"",,, (375-4605)
P.O. Box 592 Wynne, AR 72396 400 W. Markham Little Rock, AR 72201
David Epstein (575-5600) H. T. Moore (236-7718) Herman Hamilton (853-5461 ) Randall Ishmael (972-1400) Roy T. Beard (534-5532) EXECUTIVE DIRECTOR Claiboume W. Patty (371-2268)
University of Arkansas School of Law Fayetteville, AR 72701 P.O. Box 726 Paragould, AR 72450 P.O. Box 71 Hamburg, AR 71646 P.O. Box 4096 Jonesboro, AR 72401 Box 7808 Pine Bluff, AR 71601 400 West Markham Little Rock, AR 72201 October 1981/Arkansas Lawyer/163
There may be an angry client on your trail!
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CONTEXT By W. Christopher Barrier
V
CRIME AND PUNISHMENT (LAWYER'S EDITION) In his first remarks as President of the Association, addressed to the House of Delegates, Jim Cypert decried what he perceives as a trend toward self-absorption among Americans, including lawyers. The symptoms Jim apparently has in mind are diminished dedication to our profession and also reduced involvement in the communities where we live.
A special obligation... Lawyers do in fact have a special obligation to the community where they each live, beyond their own clients, as they are not only a part of that community but are molders of public opinion. While surveys have generally shown that lawyers are held in low public esteem, the surveys also show that people who know lawyers personally and especially those who use lawyers give them much higher ratings. (There is a lesson in this, but it is not wholly relevant to the subject of this column.) The phenomenon would appear to be especially true in smaller communities. As lawyers have a disproportionate influence on public opinion, they have an obligation to be informed, and also to speak out on issues where their professional experience gives them special knowledge of their subjects. This obligation is nowhere more real or more crucial than in the areas of crime (especially violent crime) and corrections. These are highly emotional issues, especially susceptible to demagoguery, misinformation and misunderstanding. (These are also areas where lawyers-and our legal system-take a lot of lumps in the public opinion polls, which is relevant to this discussion.)
An important role... These are also issues with a great deal of room for variance of opinion, and with few absolute answers. In this context, the most important role of the lawyer is not in providing all the answers, but in making sure that the public Is in fact discussing the real issues, and not shadow issues, or only pieces of issues.
Take, as one simple example, the issue of longer sentences for violent felons. It is actually at least three separate issues. First, do longer sentences actually produce the results we want? Second, are we willing to build larger prisons
if that is what is required? And, third, are we willing to pay for them and, if so, how? An enormous problem... The problem of crime itself is enormous. It has been estimated that in the last year crime cost the American pUblic over $100,000,000,000, although it is hard to put a dollar value on the results of homicide, rape and other violent crimes.
United States Attorney General William French Smith has estimated that 30% of the American public is each year impacted by serious crime, and as many as one in sixteen Americans are the victims of violent crime each year-that is, murder, rape, robbery and assault. There were 21,000 homicides in the United States in 1980. Drug addiction has become a major element in crime statistics, as the average addict will commit a serious offense every other day, and the number of fugitives sought by the Drug Enforcement Administration is now half again as large as the number of their officers in the field. Few arrests... As overwhelming as the overall statistics are, it is perhaps even more depressing to realize what a small fraction of crimes are actually solved. Again, at this point we have an obligation to make statistics meaningful to the public. Very few burglars are content to burgle a single house. If they burgle seven and are jailed for one, they are just as surely out of circulation, so we are arresting a much higher percentage of perpetrators than the statistics would indicate. But, the sheer mass of statistics, coupled with their emotional impact, gives the public a great deal to misunderstand. Deep frustrations... The public is also faced with a highly complicated system. Chief Justice Warren Burger has commented that our extended process of appeals and post-conviction remedies is far and away the most complex and extensive in the world. These frustrations have periodically led to assaults on the Bill of Rights, and even now Congress is considering emasculating the exclusionary rule, whereby improperly obtained evidence may not be used at the trial of an accused. continued on page 166 October 1981/Arkansas Lawyer/165
Context, continued from page 165 Some answers. .. However, in recent years as many as 90% of accused persons appearing in federal courts have plead guilty. This serves to indicate, by and large, that if we can catch criminals, our system can convict them. We also know that recidivism is a serious problem. This means that our system continues to deal with roughly the same criminal population year after year. In simple terms, we can reduce crime drastically by either keeping repeat offenders for substantially longer periods, or rehabilitating them, or both.
Although efforts at rehabilitation for repeat offenders have been disappointing, the statistics for youthful offenders are impressive but often overlooked. In the twelve years that the vocational and technical training program has been underway at Tucker Intermediate Reformatory, 1,142 inmates have gone through the program. Of these, 367 have dropped out, but 775 have finished their course, (a respectable ratio for some colleges). Most significantly, the graduates of the program have only an 11 % recidivism rate, which is dramatically lower than that for persons not participating in the program.
Cost-effective juvenile justice. .. This tells us unmistakably that our juvenile justice system and our system for dealing with first offenders are by no means frills. In fact, they are highly cost-effective.
Of course, as Chief Justice Burger points out, effective rehabilitation takes a firm resolve. Prison inmates typically have a high illiteracy rate. The Chief Justice has recently suggested force-feeding rehabilitation, finding methods for not only demanding appropriate behavior from inmates, but actual constructive behavior, as opposed to merely warehousing them.
All of this costs money, and the public needs to realize this. The public also needs to realize that there are limits to the amount of money which a prison system can generate, through agriculture or otherwise. (It is not at all unreasonable to expect prisoners to work. It may be unreasonable to expect them to be highly productive, when many have never held a job of any sort-80%, according to AI Lockhart.) The Chief Justice has also proposed a national institute for the training of corrections officers and a commensurate increase in their pay, to combat the exceptionally high turnover in such officers.
Who NOT to jail. .. Assuming a finite prison system, the pUblic also needs to think about who they want placed in prison and kept in prison. Although he has an obvious bias, ex-convict Chuck Colson of Watergate fame has recently suggested releasing most non-violent felons into community service activities. Work-release programs proceed on the same type of theory. However, they take an enormous amount of supervision and a real commitment by the system and the public.
The Chief Justice does point out that, with some exceptions, incarceration can never be made pleasant nor even really very comfortable, that crowding substantially reduces rehabilitative efforts, and that overcrowding at the very least significantly increases the risk that our corrections personnel will be injured.
Certain non-issues. .. Re-examination of the exclusionary rule and even the privilege against self-incrimination are certainly legitimate subjects of legislative debate. However, we have to remember that they involve an almost miniscule proportion of all prosecutions, much less all crimes. They simply cannot have any significant impact on the crime problem in a quantitative sense.
On the other hand, public misunderstanding of the purposes of these rules does make a difference, as this misunderstanding perpetuates the stereotype of the tricky lawyer utilizing loopholes, which injures the public image of the profession generally. The public frustration is fully understandable, as such cases are widely publicized and many in fact involve the release of a defendant who has virtually been proven to be guilty.
Real issues, please. .. The real issues appear to include:
(a) Rational sentencing, which may indeed mean longer separations from society for violent felons, but which should also mean more uniformity and less arbitrariness in sentencing; (b) Alternatives to incarceration for non-violent felons; (c) Attaching appropriate significance to our juvenile system as a part of our overall criminal justice system; Yes, I see you have a law-related problem-see if my secretary can work you in, and we'll talk about it. .. 166/Arkansas Lawyer/October 1981
(d) Realizing the value of rehabilitation and, in particular, vocational-technical training; and
(e) Facing up to appropriate levels and methods of financing, which is perhaps the most important issue of all.
The public needs to understand that law enforcement officers can make their case in the overwhelming majority of arrests, the Bill of Rights notwithstanding. They need to understand that police officers and patrol cars cost money. They must understand that a substantial amount can be done with prisoners to prevent recidivism, but that you've got to have a place to put repeat offenders if you want to keep them away from society.
This may help to strengthen the public's resolve to put aside easy answers and really do something about the issue of crime. In the process, we may be able to retrieve for our profession a portion of the public esteem that the breakdown of our criminal justice system has cost us.
I-
" ARKANSAS BAR ASSOCIATION
Not just resolutions... The House of Delegates of the Arkansas Bar Association at the Annual Meeting adopted a resolution commending Senator Pryor for his efforts in the area of sentencing and Senator Bumpers for his efforts in the area of correction facilities financing, (which is, of course, a necessary corollary to the proposals with reference to sentencing). The House also urged Governor White to continue with his efforts to obtain adequate financing for the Arkansas prison system. This sort of support is important for our political leaders, as the population in general understandably resents spending money on the corrections system. However, voters also need to fUlly understand the cost of not doing so. In this regard, the solution is certainly not in high-minded resolutions from organized groups, but in hardheaded encounters with the facts, presented face to face by local lawyers to the people they know best. Lawyers have simply got to let their friends, neighbors and clients know what the real issues are before meaningful solutions can be adopted and put in place.
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RESOLUTION WHEREAS, violent crime and the fear of crime have substantially eroded the quality of life for many Americans, especially the poor and the elderly; and WHEREAS, freedom from crime is a basic right of all citizens and its provision is a fundamental purpose of our judicial system; and WHEREAS, rational sentencing, speedy trials, expeditious appellate procedures, and adequate corrections facilities are crucial to a serious assault on violent crime; and WHEREAS, Arkansas' senators have sponsored legislation in Congress addressing these issues and Governor White has called for a higher financial commitment to Arkansas' prison system; NOW, THEREFORE, be it hereby resolved that the Arkansas Bar Association commends Senator Dale Bumpers and Senator David Pryor for their efforts on behalf of a more effective criminal justice system. BE IT FURTHER RESOLVED, that the Arkansas Bar Association urges Governor Frank White to go forward with his announced intention to strengthen the Arkansas prison system as an instrument for the reduction of crime in our society. Adopted by the House of Delegates, the Association's governing body, at its Annual Meeting, June 6, 1981, Hot Springs, Arkansas .
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October 1981/Arkansas Lawyer/167
FOURTH AMENDMENT FINALITY by John R. Pagan
For a variety of reasons, many people prefer to litigate issues arising under the United States Constitution in federal rather than state court.' When the state prosecutes someone, he seldom has access to a federal forum in the first instance. He must raise his constitutional claim in state court initially and then, if the state trial and appellate tribunals rule against him, try to relitigate the question in U.S. district court through a habeas corpus action brought under 28 U.S.C. § 2254 or a civil rights suit filed pursuant to 42 U.S.C. § 1983. Due to the size of its caseload and other institutional constraints, the U.S. Supreme Court can review relatively few state convictions. Consequently, any diminution of the district courts' power to use §§ 2254 and 1983 as vehicles for re-examining issues previously adjudicated by state courts increases commensurately the extent to which state judges have the final sayan matters of constitutional interpretation and application. Barriers to Relitigation Culminating a process begun in Stone v. Powell,' the Supreme Court in Allen v. McCurry' virtually eliminated the district courts authority to redetermine questions involving defendants' rights under the Fourth Amendment (as applied to the states via the Fourteenth Amendment). The Court in Allen reversed a decision of the Eighth Circuit' holding that a state court's denial of a suppression motion should not be accorded collateral estoppel effect in a subsequent § 1983 action in federal court. McCurry was convicted of possession of heroin and assault with intent to kill after a Missouri judge admitted into evidence contraband seized during an allegedly illegal search. Stone barred McCurry from re16B/Arkansas LawyerlOctober 19B1
litigating the Fourth Amendment question on habeas corpus, so he tried another route into the federal forum: he filed a million-dollar damage suit against the policemen who searched him. The Court of Appeals permitted the action to go forward unencumbered by prior state-court rulings, reasoning that, given Stone, "if collateral estoppel is to apply in § 1983 actions raising search and seizure claims, there will be no federal forum for the victim of a search and seizure which allegedly violates the federal constitution. "s Totally foreclosing access to a district court would be intolerable, the Eighth Circuit declared, "because of the special role of federal courts in protecting civil rights.'" The Supreme Court squarely rejected the Eighth Circuit's view that every person asserting a federal right is entitled to at least one opportunity to litigate in a district court. Construing § 1983's legislative history, the Court concluded that when Congress passed the Civil Rights Act of 1871, it meant to expand the federal courts' jurisdiction and remedial powers, not reduce state courts' authority to make binding interpretations of the U.S. Constitution, a right they have enjoyed since the founding of the Republic.' The Framers intended state courts to be, as Henry Hart put it, "the primary guarantors of constitutional rights. ". Allen implicitly acknowledges that state courts can fulfill that responsibility effectively only if their jUdgments are granted a high degree of finality. Clearly the Court is convinced that state judges possess the ability and willingness to perform the tasks assigned them by the Framers, witness Allen's citation' to the following passage in Stone: [Wle are unwilling to assume that there now exists a general lack of
John R. Pagan, a native of Uttle Rock and member of the Arkansas Bar, is currently serving as an assistant professor at the Marshall- Wythe School of Law, College of William and Mary, in Williamsburg, Virginia. He has taught constitutional law, federal jurisdiction, appellate advocacy, legal history, torts, and products liability. In 1973 he received an A. B. with highest honors from the College of William and Mary, where he was a member of Phi Beta Kappa. He studied at Oxford University as a Marshall Scholar, earning an M.utt. degree in 1975. He received his J.D. (cum laude) from Harvard Law School in 1978. Prior to joining the William and Mary law faculty in 1979, he clerked for Circuit Judge Ozell M. Trask of the U.S. Court of Appeals for the Ninth Circuit.
appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law... Moreover, the argument that federal judges are more expert in applying federal constitutional law is especially unpersuasive in the context at search-and-seizure claims, since they are dealt with on a daily basis by trial level judges in both systems. In sum, there is "no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned with respect to the [consideration of
Fourth Amendment claims] than his neighbor in the state courthouse."'¡ Whatever may have been true in the past, presumptively parity now exists between state and federal courts, and Allen requires the latter to give preclusive effect to the former's Fourth Amendment decisions. Identical tests govern both modes of collateral review. A state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial unless the state fails to provide him with "an opportunity for full and fair litigation" of his Fourth Amendment claim." In the § 1983 context, collateral estoppel prohibits relitigation except "where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court."" Preclusion-Avoidance Devices We must now consider the ways in which an artful advocate might be able to circumvent the barriers erected by Stone and Allen. If the state never actually presses charges against the search victim, he can sue for damages under § 1983 In either federal or state" court without worrying about preclusion. But if the prosecution commences or appears imminent, he has only a few exceedingly problematical alternatives. Right away he can rule out a damage suit in federal court because by the time the litigation reaches the jUdgment stage, a state judge probably will have long since denied his suppression motion, triggering collateral estoppel. Instead the victim must seek a speedier form of relief, namely an injunction or a declaratory judgment. Can he procure federal preemption of the Fourth Amendment issue by filing suit in U.S. district court before a state jUdge rules on the search's legality? In most situations the answer surely will be no. Although federal courts undoubtedly possess the power to interfere with constitutionally defective state prosecutions, the judicially created doctrine known as "Our Federalism" severely limits their ability to exercise that power. If the state prosecution is already under way when the search victim files his federal complaint, he will find it almost impossible to get the district judge to hear his Fourth Amendment claim. Unless he can prove bad faith or other extraordinary circumstances, Younger v. Harris" will proscribe issuance of
an injunction, Samuels v. Mackell " will thwart declaratory relief, and Perez v. Ledesma" will prohibit a suppression order. If state criminal proceedings are threatened but have not yet begun, the victim can seek a federal declaratory judgment under Steffel v. Thompson." A district-court ruling that the search violated the Fourth Amendment would have preclusive effect in a subsequent state prosecution. However, Hicks v. Miranda allows state officials to block Steffel relief by merely instituting charges "before any proceedings of substance on the merits have taken place in the federal court."" The only way to prevent them from trumping the federal suit between the filing of the complaint and trial on the merits is to persuade the U.S. district court to grant preliminary injunctive relief, a maneuver approved in Doran v. Salem Inn." To qualify for such relief, the plaintiff must make a sufficient showing both of irreparable harm pendente lite and of likelihood of ultimate success on the merits. Where the challenged search has already occurred, the irreparable-harm requirement will doubtless prove extremely difficult to satisfy. At least in theory the opportunity to raise the Fourth Amendment issue as a defense to the state prosecution affords the victim a wholly adequate remedy. Perhaps a person who is engaged in a continuing course of conduct could qualify for preliminary federal relief by arguing that unless the district court halts the state prosecution and passes judgment on the search's validity, he will be forced to either surrender his freedom of action or run the risk of multiple prosecutions. The argument might succeed if the search implicated First Amendment values, but the federal judge could choose simply to restrain future searches while the question of the completed conduct's constitutionality is litigated in state court. 2. That result would, of course, leave Allen's force largely undiminished. Where state-court proceedings are not yet pending, there exists another tactic the search victim might employ to bring his Fourth Amendment claim into federal court for trial de novo: Pullman abstention with an England reservation. This gambit's prospects for success are virtually nil, for it requires the prosecutors' active, albeit unwitting, cooperation. Nevertheless, it provides some intellectual interest and therefore merits our attention. The gambit presupposes this scenario: (1) for some
reason the prosecutors are not yet in a position to press formal charges (e.g. they need to investigate further), so they cannot take advantage of the Hicks v. Miranda 'trump'''; (2) the victim's federal complaint alleges a violation of state regulations as well as the Fourth Amendment; (3) the regulations' meaning is uncertain; and (4) an interpretation in the victim's favor would result in suppression of the evidence, mooting the federal constitutional question. This situation might tempt prosecutors to try to shunt the controversy into state court through Railroad Commission of Texas v. Pullman" abstention, thereby forestalling federal review of state or local policemen's investigatory methods and buying themselves some extra time. But if the prosecutors succeed, theirs will have been a Pyrrhic victory, at least from the standpoint of Allen issue preclusion. The reason is simple. Pursuant to England v. Louisiana State Bd. of Medical Examiners," the search victim could expressly reserve the right to return to federal court for decision of the Fourth Amendment question if the state-law issue were resolved against him. In that event, any purported decision of federal law by the state court would not be given collateral estoppel effect in a subsequent federal action. This is a rather exotic end-run around Allen, .to be sure, but footnote 17" of that opinion hints that it just might work. Conclusion Notwithstanding the preclusionavoidance devices canvassed above, the combined effect of Allen v. McCurry, Stone v. Powell, and the Younger v. Harris line of cases is to unify and streamline Fourth Amendment adjudication. Persons accused of violating state law are now entitled to no more than one full and fair hearing on search and seizure questions, subject only to review by higher state tribunals and, ultimately, the Supreme Court. The U.S. district court serves a procedural backstop function, its role limited to ensuring that the defendant received an adequate opportunity to litigate in state court. I, for one, applaud these developments and would like to see the finality principle fUlly implemented in areas besides the Fourth Amendment." Redundancy wastes scarce judicial resources and creates intergovernmental friction while yielding few, if any, continued on page 170 October 1981/Arkansas Lawyer/169
, , ,Amendment,
School of Law, College of William and Mary. A.B., College of William and Mary; M.Utt.• Oxford University; J.D., Harvard Law School. Member, Arkansas Bar.
, "
continued from page 169 benefits. The best way to minimize constitutional error is not for federal jUdges to second-guess their state counterparts, but rather for states to take the initiative and improve trial and appellate procedures so their courts can become more hospitable fora for adjudicating federal rights. Let us hope that Allen's reaffirmation and reinforcement of the state judiciaries' vital role in the federal system will spur further reform.
NOTES • Assistant Professor of Law, Marshall-Wythe
'See Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977). '428 U.S. 465 (1976). '101 S.C\. 411 (1980). 'McCurry v. Allen, 806 F.2d 795 (8th Cir. 1979). I'd. at 798.
'Id. al 799. '101 S.CI. at 417-18. -Hart. The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1401
(1953). '101 S.Ct. at 420. "428 U.S. at 493-94, n.35 (citalions omilled). "ld. at 494. lIAllen Y. McCurry, 101 S.Ct. at 418.
"See Maine v. ThiboutOI, 100 S.Ct. 2502 (1980). "401 U.S. 37 (1971). "401 U.S. 66 (1971). "401 U.S. 82 (1971).
"415 U.S. 452 (1974). "422 U.S. 332, 349 (1975). "422 U.S. 922 (1975). ~See P. BATOR, P. MISHKIN, D. SHAPIRO& H. WECHSLER, HART & WECHSLER THE FEDERAl. COURTS AND THE FEDERAL SYSTEM 278-79 (2d ed. Supp. 1981). 1"See text accompany note 18 supra.
u312 U.S. 496 (1941). u375 U.S. 411 (1964). ""01 S.Ct. at 418·19, n. 17. uThe reasoning employed in Allen suggests that collateral estoppel is not limited to search and seizure issues. However, thus far the Supreme Court has not extended Stone's ban on habeas corpus relitlgation beyond the confines of the Fourth Amendment. See Jackson v. Virginia,
443 U.S. 307 (1979) (due process-based challenge to sufficiency of evidence held relitigable on habeas corpus): and Rose II. Mitchell, 443
U.S. 545 (1979) (equal protection-based racial discrimination claim held relitigable on habeas
corpus).~
ARKANSAS LAW OFFICE MANUAL
The information contained in this manual is intended to be of general interest to all concerned with the operation of a law office and to
prepare them to cope with the many day-to-day problems that can arise in law firms. It is presented in looseleaf form so that personalized information may be added if desired and so that sections may be removed if they do not fit your firm. Ample space is provided in this notebook for adding office management topics which are of interest to you and which may not be included here. Ideally, each member of the law office staff should have his or her own copy of the manual and should be responsible for keeping it up-to-date.INTRODUCTION.
THE ARKANSAS LAW OFFICE MANUAL is a 212-page handbook for the lawyer, the legal secretary and the law office manager to enable them to provide the highest possible standard of practice for the client. The price is only $37 (includes handling and mailing).
ARKANSAS LAW OFFICE MANUAL
ORDER FORM NAME ADDRESS
170/Arkansas Lawyer/October 1981
_
Mail Order with check to: Arkansas Bar Association 400 West Markham Little Rock, Arkansas 72201
,, OYEZ · OYEZ ••
By: Carol Utley Publications Assistant
SAMUEL A. PERRONI and STANLEY D. RAULS announce their association for the general practice of law as Perroni and Rauls, at 1523 S. Broadway, Little Rock. Perroni was previously an assistant U.S. Attorney and has been in private practice since 1979. Rauls, an attorney and CPA, was previously in the Criminal Investigation Division of the Internal Revenue Service. DAVID MALONE of Fayetteville, assistant dean at the University of Arkansas Law School, was sworn in May 22nd as a member of the Arkansas House of Representatives from District 10. Associate Justice M. Steele Hays of the Arkansas Supreme Court administered the oath of office. WILLIAM G. WRIGHT and DONALD P. CHANEY, JR. announce the firm's name has been changed to WRIGHT and CHANEY, P.A. and that ROBERT E. McCALLUM has become associated with the firm. PHILLIP WAYNE CAMPBELL of Little Rock recently received his law degree from Duke University at Durham, N.C. He is a Phi Beta Kappa graduate of the University of Arkansas and plans to work as a clerk for federal Judge G. Thomas Eisele and eventually join the law firm of Wallace, Hilburn, Clay1on, and Caihoon. Lights! Cameras! Action! JAMES B. SHARP of Brinkley appeared on Channel 2's McCord's Arkansas during May to present his views on Legal Services in Arkansas. The Arkansas District Export Council has a new member. DAVID HODGES was appointed during May to the council by Secretary of Commerce Malcolm Baldrige. Their objective is to involve more Arkansas firms in foreign trade and to focus attention on the opportunities availabie in world trade. ROBERT J. DEGOSTIN, JR., Little Rock, has been hired by the state Correction Department to help the prison system to comply with federal court orders to improve conditions. He formerly worked in the Department of Finance and Adminis-
tration as a tax attorney. HARKEY, WALMSLEY and BELEW in Batesville, announce the formation of a new partnership with LEROY BLANKENSHIP, former circuit Judge of the 16th Judicial District. The firm's new name is Harkey, Walmsley, Belew and Blankenship located at 415 Allen Street in Batesville. Bentonville has a new law firm. KURT BUTCHER and JOHN SKAGGS announced the formation of a new partnership in May. Their office is located at 209 2nd Street, N.E. in Bentonville. ELIZABETH M. BROOKS announces her association with the law firm of Lafferty and Clark at Ste. 650, Twin City Bank Building in North Little Rock. PEGGY O'NEAL, former Director of the Office of State Purchasing in Little Rock, has returned to Fort Smith to open an office for the general practice of law. A recent meeting of Credit Women International heard DAVID GUNTI of Pine Bluff speak on bankruptcy and some of the recent changes in the laws. THOMAS D. LEDBETTER of Harrison, was awarded the SI. George's Medal, a national recognition acknowledging distinguished service by adults in the spiritual, physical, mental and moral development of youth through service to the church and its Scouting program. BILL R. HOLLOWAY has been named Trial Lawyer of the Year by the Arkansas Trial Lawyers Association. The award is based on diligence, professionalism and contributions to the Trial Bar. Blevins & Pierce of North Little Rock have a new associate. ROBERT E. MARSTON has joined the firm which now includes William B. Blevins, Robert L. Pierce, James W. Stanley, Jr. and William S. Robinson. Patten, Brown & Leslie are pleased to announce that CHARLES R. WHITE who formerly practiced in Garland county is now associated with the firm. TOM M. FERSTL of Little Rock has been awarded the Senior Real Property Appraiser designation by the board of governors of the inter-
national Society of Real Estate Appraisers. GARY L. TIDWELL joined the law faCUlty, Department of Law, at the United States Military Academy, West Point, N.Y., in JUly. JACQUELYN C. GREGAN of Conway has joined the law firm of Woodson Walker and Associates in Little Rock. COL. WM. AUBERT MARTIN, USAF, moved to San Antonio in July to become Staff Judge Advocate, Hq Air Training Command at Randolph AFB, Texas. He formerly served as Staff Judge Advocate, Hq Fifth Air Force and Legal Advisor in Yokota AB, Japan. Attorney BOBBY RAY McDANIEL of Jonesboro was named to a six-year term on the Justice Building Commission replacing Chancellor Graham Partlow of BIy1heville. Wilbur D. Mills was the keynote speaker during the annual Osceola Chamber of Commerce banquet where MIKE GIBSON was named Outstanding Citizen of the Year. Gibson has devoted many hours of service to charitable organizations and community projects. WILLIAM S. ARNOLD, senior partner in the firm of Arnold, Hamilton and Streetman, has been re-appointed by Gov. Frank White to a four-year term on the Commission on Uniform State Laws. ALLYN "LYNN" TATUM of Jacksonville was elected president of the National Council of Community Mental Health Centers at its annual meeting in Dallas. WILLIAM H. DUNKLIN of Batesville, has been elected acting president of Arkansas College while Dr. Dan West, president, is attending classes at Harvard University in Cambridge, Mass. DON ROSS of Monticello has on two occasions presented programs on estate planning for Drew County senior citizens. Keep up the good work! The Phi Alpha Delta law fraternity elected MARK COOPER of Mountain Home as its president. He is a senior at the U of A School of Law in Fayetteville. Ciarendon attorney continued on page 172 October 1981/Arkansas Lawyer/171
Oyez-Oyez!! continued from page 171
RAYMOND ABRAMSON recently moved into a new office building located at 281 Madison Street, Clarendon. Arkansas Atty. Gen. STEVE CLARK and former Gov. BILL CLINTON were speakers at the fifth annual School Law Workshop held at the University of Central Arkansas June 22 through July 3. JUDGE ROYCE WEISENBERGER, assisted by JIM GUNTER and CHARLES WALKER all of Hope, explained the Chancery and Probate Court system to about 185 seventh graders who visited the local court. JAMES D. FOYIL of Pine Bluff, recently became an associate of Bridges, Young, Matthews, Holmes and Drake. JAMES F. SWINDOLL has joined the law firm of Gary Eubanks and Associates in Little Rock. Former Gov. BILL CLINTON spoke during a Joe Purcell Appreciation Dinner in Benton during May. The banquet was sponsored by the legislative committee of the Saline County Chamber of Commerce. DON A. EILBOTT of Pine Bluff, has been appointed to serve on the Board of Governors of the Arkansas Trial Lawyers Assn. Secretary of State Paul Riviere has chosen JOHN FINCHER of Little Rock to head his election services division. OTIS H. TURNER of Arkadelphia was inducted as a member of the American College of Trial Lawyers at its meeting in Phoenix, Ariz., March 4th. TRUMAN H. SMITH and RAYMOND C. SMITH of Smith & Smith, wish to announce the relocation of their offices to 15 East Mountain Street, Fayetteville. DAVID F. GUTHRIE, GARY R. BURBANK and DON B. DODSON announce the formation of a law firm in EI Dorado. The firm name is Guthrie, Burbank, and Dodson. JACK R. KEARNEY, formerly of the State Appellate Public Defender Office, announces the opening of a law office in Little Rock at ste. 608, Kane Building. He eventually plans to open an office in Lonoke also. DAVID B. VANDERGRIFF and WILLIAM T. MORRIS announce the formation of a partnership at 316 North 7th Street, Fort Smith. Milton Greenfield, Jr., President of the American College of Probate Counsel, has announced that PHILIP HICKY, II of the law firm of Butler, Hicky and Hicky in Forrest City, has been elected to membership as a Fellow of the College. LUTHER B. HARDIN was the speaker recently at 172/Arkansas Lawyer/October 1981
Attorney General Steve Clark, second from right, recently announced the promotion of two attorneys on his staff and the addition of a new lawyer. David Williams, left, a native of Warren, has been named a Deputy Attorney General for the Litigation Division and Dennis Molock, right, a native of Stuttgart, has been named Deputy Attorney General for the Criminal Justice Division. Marion Humphrey, second from left, a Pine Bluff native, has been named an Assistant Attorney General and will work in the Litigation Division. the monthly meeting of the Credit Women International Russellville chapter. DAVID GIBBONS of Ozark has opened his office in Ozark for the general practice of law. ANN HENDERSON has joined the firm of Doug Wood and Associates in Little Rock. W. B. GUTHRIE, JR., Des Arc attorney, spoke to Des Arc High School seniors honored at a breakfast at the First United Methodist Church in Des Arc. HERBY BRANSCUM, JR. of Perryville, was honored with a "Roast and Boast" May 23rd at the Executive Inn in Little Rock. Roasters included George Jernigan, former Sec. of State; Lottie Shackleford, secretary, Democratic State Committee; Steve Clark, attorney general; Jim Guy Tucker former U.S. Congressman; Jimmie Lou Fisher, state treasurer and Bill Clinton, former governor. Wilson and Grider in Pocahontas announce that BOB CASTLEMAN has joined the firm. WILLIAM J. VELEK opened his law office in Greenbrier. He is the first attorney to have a law office in Greenbrier in several years. The U.S. District Court and U.S. Court of Appeals would like to announce the opening of its new library located in the Post Office and
Courthouse, 600 West Capitol Ave., Room 220, Little Rock. The U.S. Courts Branch Library will be open to members of the federal bar, to United States Attorneys and their assistants, and to other law officers of the government. The Washington County Bar Association provided a booth in the Northwest Arkansas Mall in May to give legal advice to the elderly. WILLIAM H. BOWEN of Little Rock, has been named chairman of the Arkansas 4-H Bankers' Fund Drive for 1981-82. He was also elected first Vice-president of the Arkansas Bankers Association. BYRON EISEMAN of Little Rock has been elected secretary for the t 5member Board of Directors of the Arkansas Baptist Foundation. JAMES E. SMEDLEY announces the opening of his law firm at Ste. 608 Kane Building, Little Rock. ODELL POLLARD of Searcy has been appointed to the state Board of Judicial Reapportionment for a one-year term. PROF. FENTON ADAMS became acting dean of the UALR School of Law July 1sl. He will succeed Dean Robert K. Walsh who is returning to private practice. JEFF STARLING of Pine Bluff has been appointed to a nine-year term on the state
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Education Board by Gov. Frank White. Three lawyers recently received honorary degrees at three separate commencement exercises. HERSCHEL H. FRIDAY of Little Rock was awarded an honorary Doctor of Law degree during the UALR commencement ceremonies while ROBERT SHULTS received an honorary Doctorate Degree in Fayetteville. DEAN ROBERT A. LEFLAR, professor emeritus of the U of A Law School, received an honorary Doctor of Letters degree during the John Brown University commencement. STEWART K. LAMBERT and DON R. BROWN have formed a partnership for the practice of law in Ash Flat and Hardy. JOHN R. YOUNG and GREG B. BROWN have been elected to the board of directors of The Union Bank of Benton. JOE BENSON of Jonesboro recently became licensed to practice law and has joined the law firm of Barrett, Wheatley, Smith, and Deacon. GARY R. GIBBS and D. SCOTT HICKAM opened their law offices in suite 401 of the Arkansas Bank and Trust Building in Hot Springs. CIRCUIT JUDGE JOHN W. COLE of Sheridan has been named Outstanding Trial Judge for 1980 by the Arkansas Trial Lawyers Association. E. ALVIN SCHAY and KAYE S. OBERLAG announce the opening of their individual law offices at The Carriage House, 2224C South Main, Little Rock, AR 72206. WILLIAM LEE GRACE, Jr. has joined the firm of Mcintyre, McDivitt & Casey in Oklahoma City. He received his Juris Doctordegree from the University of Arkansas Law School in June 1980 and his Master of Law degree in taxation from SMU in May of this year. MERL O. BARNS, formerly with the attorney general's office, is now engaged in private practice at 801 W. 4th Street, Little Rock.
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October 1981/Arkansas Lawyer/173
RACIAL DISCRIMINATION by William French Smith Attorney General Of The United States
(Editor's Note: This article is based upon the address of the Honorable William French Smith, Attorney General of the United States, on May 22, 1981, before the American Law Institute in Philadelphia, Pennsylvania. It is presented to inform our lawyer readers as to the policies of the Reagan Administration in this connection,)
On this subject, the goals of government must be clear. It is basic to the very idea of America that discrimination on the basis of race must be eliminated and the effects of prior discrimination must be effectively remedied. In both respects, the history of government action has been less than satisfactory. For most of our life as a Nation, government has differentiated between individuals on the basis of race. First, to further segregation, Later, to remedy segregation and its effects. In both instances, discrimination by government on the basis of race has divided our people and retarded the development of a just society. The ide174/Arkansas Lawyer/October 1981
als of America require that, one day, all government action must be color-blind. When that day comes, the injuries to individuals would be redressed by government on the basis of the actual deprivations suffered by the affected individuals. Ultimately, in ajust society, government must not require either racial balance or racial separation-and government must not guarantee any individual a result based upon his or her race. Having recognized those goals, however, we must also recognize that they have not always been wellserved by government throughout the past. Less than fifty years ago the Department of Justice moved into its present building on Constitution Avenue. Over the entrance to that building is engraved the inscription: "Justice in the Life and Conduct of the State Is Possible Only As It First Resides in the Hearts and Souls of the Citizens." When those words were first etched in stone in 1934, racial justice clearly did not fill the hearts and souls of all our
citizens nor fUlly characterize the life and conduct of the State. In the Nation's capital itself there were separate facilities for blacks. As William Manchester recounts in The Glory and the Dream: "Department stores, movies and government cafeterias were closed to them. Black workmen digging the foundations of the new Justice Department building ... either brought their lunches or went hungry; even if they wanted a glass of water they had to walk two miles... to find a restaurant that would serve them." Throughout much of the country, most public schools were legally segregated-as were public accommodations, buses, and restaurants. Blacks were stigmatized by discrimination that most Americans today have not experienced and many can hardly imagine. The injustice was not of recent duration. It had existed in our life and laws
since the country's beginnings. In 1776, agreement on our Declaration of Independence was made possible only by a compromise that omitted black slaves from the principle that all men are created equal. Eleven years later the Constitution ratified the inferior status accorded to black slaves. In 1820, Thomas Jefferson was moved to write that the compromise over slavery: " ... like a firebell in the night awakened and filled me with terror. I considered it the knell of the Union." Indeed, it nearly was. Only a civil war and almost another half century produced the Emancipation Proclamation. Yet even that document failed to guarantee equality before the law and could not erase the prejudice in the hearts and souls of many citizens. An old story recounts Abraham Lincoln's signing that historic document. He took his pen, slowly dipped it in the ink, moved his hand to sign, held it for a moment, but then put down the pen. After a moment, the President again repeated the same sequence and did not sign. He turned to Secretary Seward and said: "I have been shaking hands since early this morning, and my right arm is nearly paralyzed. If my name ever goes into history, it will be for this act, and my whole soul is in it. If my hand trembles when I sign the Proclamation, all who examine the document hereafter will say: 'He hesitated" " For nearly a century after the signing of the Proclamation, the country still hesitated in its efforts to guarantee all citizens the equality they deserved by right. Only in 1954 did the country truly begin to act. In Brown v, Board of Education, the Supreme Court at last ruled that in the sphere of public education racial discrimination by the state was unconstitutional. Although some still hesitated, by late in the 1950s government earnestly began the long overdue process of ensuring that American law would henceforth and in every way be truly color-blind. Congress passed the 1957, 1960, and 1964 Civil Rights Acts; the Voting
Rights Act; and the Fair Housing Act. The Supreme Court continued to expand the pursuit of equal justice. Successive Presidents and Attorneys General-irrespective of party-acted to enforce those rights. Nearly two centuries of hesitation were punctuated by three decades of remedial action. After so many decades of inaction, the national government-and especially the Supreme Court-pursued both prospective and retrospective remedies. Efforts were made both to ensure that racial discrimination would not afflict our future and to assist citizens whose recent and distant ancestors had been held back by stateimposed discrimination. After so much injustice to blacks, Hispanics, and other minorities, justice demanded swiftness and results. That demand has produced many discernible legal achievements. The principles of liability for intentional racial discrimination are firmly established. No level of government may directly or indirectly, on the basis of race, deny any black, Hispanic, or other citizen any right or benefit enjoyed by others. All laws or government actions with that purpose are clearly condemned by federal law-as are any racially motivated acts of violence. After so many years of hesitancy, the overwhelming majority of Americans now view these principles as an intrinsic feature of our democracy. That much we have accomplished, and this Administration will protect those accomplishments fully and vigorously. Unfortunately, when liability for discrimination has been found, some of the measures employed to remedy its effects have been less than successful. In fact, some remedies have not been remedial. Increasingly, many Americans-both black and whiteview some types of remedial efforts as beneficial only because of the substantial and well-intended commitment by government that they reflect. After some twenty-five years of experience with various remedial devices, the time has come to test their effectiveness. We must not delay the reevaluation necessary to the achievement of actual and not merely symbolic progress. We cannot afford to pursue an ineffective course solely because its intentions are good. Instead, we need to engage in practical problem-solving and adopt measures that
will realistically remedy the direct results of discrimination. That means the Nation must end its over reliance on remedial devices aimed solely at achieving inflexible and predetermined mathematical balance. Twenty-seven years ago in Brown v. Board of Education, the Supreme Court noted: "Today, education is perhaps the most important function of state and local governments..." A quarter century later, that remains the case. Although the courts have made it abundantly clear in the intervening years that no child shall be denied a high quality of education on the basis of race, it is not clear that the school desegregation remedies thus far fashioned primarily in the courts have succeeded in promoting that goal. Brown remains the centerpiece of civil rights cases. Both our accomplishments and our failures in this area over the past quarter century have arisen from the reasoning of that case. First, it held that legally enforced segregation in the schools unconstitutionally stigmatized black children as inferior. Second, it implied that a more heterogeneous racial environment in the schools would improve the educational achievements of formerly segregated students. The first premise has ensured that no minority student is legally denied the opportunity to attend a school solely because a majority of the students there are white. And no minority student may be consigned to a one-race school solely because of his race. So firmly established is this principle that an overwhelming majority of the American people support it and condemn the concept of segregation. The second point has encouraged a jurisprudential emphasis on compulsory busing, which has neither produced significant educational benefits nor won the support of most Americans. In the long line of school desegregation cases following Brown, the Supreme Court has pursued pupil reassignments as the remedy impliedly most likely to guarantee black children better educations. Upon the finding of a constitutional violation, courts have regularly and often automatically ordered busing. The sociological precontinued on page 176 October 1981/Arkansas Lawyer/17S
路 . .Discrimination, continued from page 175 mise of Brown-that a segregated education inevitably deprived black children of an equal education-led the courts to order some form of racially determined reassignments in an attempt to Improve minority students' education. In many instances that has come to mean busing to achieve racial balance in the school. Nevertheless, as Justice Holmes counseled, the life of the law has been experience and not logic. After substantial experience with busing as a remedy, a majority of blacks and whites disapprove the court-ordered transportation of children to remote schools for the sale purpose of achieving racial balance. The reasons are not hard to find, and they are not racially motivated. The results of studies aimed at determining the benefits of busing to educational achievement are at best mixed. Some studies have found negative effects on achievement. Other studies indicate that busing does not have positive effects on achievement and that other considerations are more likely to produce significant positive influences. In addition, in many communities where courts have implemented busing plans, resegregation has occurred. In some instances upwardly mobile whites and blacks have merely chosen to leave the urban environment. In other instances, a concern for the quality of the schools their children attend has caused parents to move beyond the reach of busing orders. Other parents have chosen to enroll their children in private schools that they consider better able to provide a quality education. The desertion of our cities' school systems has sometimes eliminated any chance of achieving racial balance even if intracity busing were ordered. All of these considerations point to the need for more innovative and practical approaches to achieve equal educational opportunity. Mandatory busing is not an effective educational remedy, and in many cases it has also proven counterproductive. But this does not mean that desegregation should not continue or that improving the quality of public education for all our children cannot be achieved. To do so, 176/Arkansas Lawyer/October 1981
however, we must tailor the remedy to the facts of each case in which a constitutional violation has occurred. Rather than focusing solely on the means by which discrimination has been practiced in the past, it is time we devoted more attention to remedying the resulting harms actually being suffered today. We should emphasize those remedies that actually improve the quality of public education. Rather than continuing to insist in court that the only and best remedy for unconstitutional segregation is pupil reassignment through busing, the Department of Justice will henceforward propose remedies that have the best chance of both improving the quality of education in the schools and promoting desegregation. Let me emphasize, however, that it would be a serious mistake to interpret this change of focus at the remedial level as a signal that the Justice Department will not vigorously prosecute any governmental attempts to foster segregation. We will not countenance any retrenchment here. We will not permit any of our citizens to be stigmatized by government as the result of their race. Although the approach we intend to follow is different, it clearly is within the framework of Supreme Court jurisprudence. Reading the Court's opinions on school desegregation during the last decade, I am struck by the extent to which they sometimes seem to implore the other branches of government to pursue remedies that would prove more effective than court-ordered busing. Beginning in Swann v. Charlotte-Mecklenburg, the Court, unanimous in that case, emphasized that desegregation does not mandate the imposition of any mathematical racial balance throughout a previously segregated district. Not every school within a district must "reflect the racial composition of the school system as a whole." As the Court has observed, student busing is constitutionally excessive as a remedy "when the time or distance of travel is so great as to risk either the health of the children or significantly impinge on the educational process." It is this latter point, first made a decade ago in Swann, that is undoubtedly the most important. When the transportation of pupils significantly impinges upon the educational pro-
cess itself, we must find better remedies to promote both desegregation and improved quality of education. Perhaps the clearest expression of the growing uncertainty about the educational effectiveness of the busing remedy came just last year from Justice Powell, joined by Justices Stewart and Rehnquist in Estes v. Metropolitan Branches of the Dallas NAACP: "This pursuit of racial balance at any cost. . . is without constitutional or social justification. Out of zeal to remedy one evil, courts may encourage or set the stage for other evils. By acting against one-race schools, courts may produce onerace systems. Parents with schoolage children are highly motivated to seek access to schools perceived to afford quality education. A desegregation plan without community support, typically one with objectionable transportation requirements and judicial oversight, accelerates the exodus to the suburbs of families able to move..." By one estimate, there have already been some 300 desegregation plans ordered by the courts. The law is established that no child may be discriminated against by the public schools on the basis of his or her race. Now, it is time that we set to work with communities across the country to ensure that, where intentional discrimination has taken place, the full promise of Brown is realized-not only for the elimination of legally enforced segregation but for the promotion of better educational opportunity as well. Although the major portion of my remarks today has focused on school desegregation, added fleXibility and creativity needed there are similarly overdue in other areas. Just as we have compromised the principle of color-blindness through over reliance on mandatory busing to desegregate our schools, we have come perilously close in recent years to fostering discrimination by establishing racial quotas in other areas. Since 1968, the thrust of the civil rights movement has not been the outlawing or banning of legal disabilities based on race or national origin. Its focus has been upon remedial action in
education and employment. During this period, the consensus of Brown-with its nine-to-zero votewas replaced by a cacophony of judicial voices in the great cases of the 1970s. Ideological lines broke. The unanimity of Brown was lost. The reason is no mystery. A bedrock principle of our government, embodied in the fifth amendment due process clause and the fourteenth amendment equal protection clause, is that the government should treat all citizens fairly and equitably. Thus, if the government had violated the free-speech rights of a specific, identifiable group by favoring another group, the effective remedy would be to secure those rights for both groups. But it would not be consistent with our traditions or our law to impose free-speech restraints on the previously advantaged group. Similarly, there is good reason to question remedial action of a wholly numerical character-such as mandatory quotas. While well-intended, quotas invariably have the practical effect of placing inflexible restraints on the opportunities afforded to one race in an effort to remedy past discrimination against another. They stigmatize the beneficiaries. Worst of all, under a quota system, today's minimum may become tomorrow's maximum. While seeming to guarantee a minimum number of openings to some group, throughout history quotas have become the means by which the upward mobility of some groups has been hampered. Rather than operating as minimal gurantees, they have often become ceilings on competition by which a group's economic progress is held in check. In a similar fashion, the use of quotas could tend to thwart the aspirations of increasingly accomplished minority individuals. Our goal must always be genuinely color-blind state action. This means that race or color or national origin must, for purposes of government decision-making, ultimately become irrelevant. In the light of history, this Nation has come a long way in its attitude towards racial discrimination. We have firmly established the principle of liability for racial discrimination by any level of government. Firmly establishing that principle consumed a century and
three-quarters. For a quarter of a century we have devoted considerable governmental resources to the task of fashioning remedies to assist members of minority groups that have historically been the victims of discrimination. Too often, some of those remedies have proved ineffective. We cannot in good conscience hesitate for another century and one-half, however, before developing more effective remedies. Because government-ordered busing and quotas have proven ineffective as universal remedies, we must begin to take a more practical and effective approach to the problem of equal educational and occupational opportunity. As Abraham Lincoln said in 1862: "As our case is new, so we must think anew and act anew." In this Administration, the Department of Justice intends to do just that. We will vigorously enforce the Nation's civil rights laws-including those designed to protect every American from racially motivated violence. I believe that the time has come in America when more can be accomplished by
emphasizing the aspirations most Americans have in common irrespective of race: a high quality of education for their children and the opportunity to make the most of their individual abilities. There are, however, some who prefer to play upon the differences among us-whether race, or religion, or national origin. Just as such divisive elements of this society fail to understand the importance of diversity to America, this Nation will not tolerate their activities that pass beyond the mere expression of contemptible ideas and become criminal. We will not countenance their attempts at intimidation or violence and will use all our legal capabilities to ensure the failure of their methods. Throughout all our efforts in the area of civil rights, we are-and will remain-mindful of history's judgment. It will not later be said that, when the need to fashion more effective remedies for past discrimination became apparent to most Americans, this Administration hesitated. ~
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AICLE NEWS by Claibourne W. Patty, Jr. Executive Director Arkansas Institute of Continuing Legal Education
FOURTH YEAR OF OPERATION IS ONE OF INCREASED CLE ACTIVITY The Arkansas Institute for Continuing Legal Education (AICLE) has completed its fourth year of operation. During the period July 1, 1980 to June 30, 1981 the number of programs, the diversity of topics and the overall attendance by the Bar have shown a marked increase. Statistically speaking AICLE directly sponsored or cosponsored 18 programs consisting of a total of 133 lecturer/demonstration hours presented to 1,695 registrants or an average of approximately 95 registrants per program-session. Of the total programs four were videotape replays of the Fall Legal Institute on the subject of Domestic Relations Law and the system with live participation by various chancery judges, and three were videotape replays of the Midyear Meeting on the topic of Debtors'/Creditors' Law and system with live participation of Professor J. W. "Jake" Looney and John R. Eldridge, III, Esq. both of Fayetteville. The videotape replays have been presented on each subject in Fayetteville, Jonesboro, Monticello and on Domestic Relations in Little Rock and Magnolia. The Debtors'/Creditors' topic will be presented in Magnolia on Friday, July 10, but it probably will not be presented in Little Rock. The videotape replays are a "first" for Arkansas, and they have been well received by the 235 registrants who have attended. The success of these programs is based partly on the fact that the best presentations of a two day program are condensed into a one day program with appropriate "live" commentary and presentations being made in order to break up the monotony of sitting all day looking at a television set. From an economics standpoint the use of videotape replays preserves intact outstanding presentations by out-of-state speakers who could not be brought back for regional workshops for the benefit of those lawyers who due to preference or circumstances beyond their control cannot or will not attend the larger meetings conducted in Little Rock or Fayetteville including but not limited to the Fall Legal Institute and the Midyear Bar Meeting. The Board of Directors of AICLE is committed to presenting at least one series of regional programs during a bar year on the average assuming that there is a worthwhile topic and sufficient demand to put on the programs around the state after the main program is held in Little Rock. It is the intention of AICLE to continue this practice for the benefit of the Bar of Arkansas. By necessity (and now by tradition) AICLE relies on the members of the Arkansas Bar Association to patronize the various CLE presentations during the Bar year not only as registrants but also by participating as program planners, chairmen or moderators, lecturers and panelists and authors of course materials all of which is done with iittle or no honoraria and minimal reimbursement of personal ex178/Arkansas Lawyer/October 1981
penses. Not only have individuals been involved but the committees and sections of the Arkansas Bar Association participating during the past year are as follows: The Family Law Section; The Young Lawyers Section; Taxation, Trusts and Estate Planning Section; Committee on the Mentally Disabled; Committee on Legal Services for the Deaf; Civil Procedures Committee; Banking Law Committee; Creditors' Rights Committee; Labor Law Section; and the Real Estate Law Committee. Chairmen of the Young Lawyers Section and the Legal Education Committee also sit ex officio on the board of AICLE along with Bar Association executives, Bar Foundation executives and members of the House of Delegates. The leadership of the Bar Association is to be commended for its support of strong Bar section and committee activity in the CLE area, and the sections and committees as indicated above have responded overwhelmingly. The membership of the Bar has responded by enthusiastically participating in the various programs as faCUlty or planners as well as providing overwhelming attendance as registrants. And last but not least, the two cosponsoring law schools, the University of Arkansas in Fayetteville and the UALR School of Law have provided leadership and program planning through their respective deans who are also members of the AICLE Board, and more importantly have provided generous faculty support as program participants and authors of systems and program materials. In this sort of climate it is no wonder that AICLE has continued to thrive and grow to meet the challenges for providing continuing legal education programming since its inception. The Bar membership will continue to benefit by the availability of quality CLE programs in the ensuing years which will be on a variety of topics, basic and advanced, at registration costs modest by national comparison.
LANDLORD/TENANT RATED EXCELLENT BY THOSE ATTENDING A program entitled "Landlord/Tenant, Law and Practice" jointly sponsored by AICLE and the Real Estate Committee of the Arkansas Bar Association was presented at the Camelot Inn in Little Rock on Friday, April 10. Tom A. Buford, Chairman of the Real Estate Law Committee, presided and the following topics were presented: "Landlord-Tenant Law, an Overview" by Professor David S. Hill of Colorado School of Law and author of Landlord and Tenant Law in a Nutshell (West, 1979); "Representing the Private Landlord" by S. Graham Catiett, Esq. of Little Rock; "Representing the Public Landlord" by Richard D. Taylor, Esq. of Little Rock; "Landlord-Tenant Law, Recent Developments" including legislation in Arkansas, by Professor Morris Sheppard Arnold, Visiting Professor at UALR School of Law; "Representing the Private Tenant" by Mary Ann Spencer, Esq. of Little
Rock; and "Representing the 'Public' Tenant" by William F. Rahn, Esq. of Little Rock. Due to the fact that the General Assembly did not adopt the Model Landlord{Tenants Act as introduced and sponsored by the Arkansas Bar Association, but merely passed at the last minute a constitutionally acceptable Unlawful Detainer Act; it was all the more important that Arkansas lawyers have the oppcrtunity to once again review the background law which has developed in this area during the last ten to twelve years as well as acquire a feel of what are the rights and responsibilities of each party to a residentiai rental contract or lease under the existing hodge-podge of Arkansas statutory and case law. THIRD ARKANSAS COLLEGE OF TRIAL ADVOCACY HELD IN LITTLE ROCK The Third Annual Arkansas College of Trial Advocacy, jointly sponsored by AICLE, the UALR School of Law, and the Arkansas Trial Lawyers Association was conducted in Little Rock at the Old Federal Building for five days from Monday, May 11 through Friday, May 15. This program was limited to 24 registrants, and it was designed primarily for practicing attorneys with zero to five years of trial practice experience. The College stressed basic techniques and information designed to enhance the practical knowledge and to sharpen the courtroom skills of those attorneys who attended. The course included lectures, demonstrations, and workshops conducted by highly qualified teams of experienced trial practitioners and law professors; and it covered such topics as direct and cross-examination of witnesses (expert and lay), adverse examination, opening statement and closing argument, use of demonstrative evidence and foundations-impeachment. The director of the College was Professor Steven H. Goldberg and the workshop leaders were H. David Blair, Esq. of Batesville and Professor Norman H. Stein of UALR School of Law. In addition the session of Friday, May 15, coincided with the Annual Meeting of the Arkansas Trial Lawyers Association which was an all day seminar concerned with the topic of evidence-techniques and strategies. Once again this course met with a most enthusiastic response by those attending, and plans are now underway to conduct a Fourth Annual Trial Advocacy College with consideration being given to presenting a trial course at a more advanced level on one or more topics which might be of interest to seasoned trial practitioners. PRACTICAL EVIDENCE AND TRIAL TACTICS SUBJECT OF FALL LEGAL INSTITUTE For the first time in five years, the Fall Legal Institute, which has traditionally been presented at the University of Arkansas School of Law at Fayetteville, will return to Northwest Arkansas-this time to be held at the fine Bella Vista facility on September 10-11 tho The program, under the general chairmanship of Dean David G. Epstein with the assistance of Professor Bill Bost, both of the University of Arkansas School of Law in Fayetteville, will be devoted to the general topic of practical evidence and trial tactics. The program itself will be divided between lectures and trial demonstrations. Professor Ray Guzman will discuss basic concepts of evidence under the Arkansas Uniform Rules of Evidence; there will be a trial demonstration on Thursday concerning expert witnesses and opinion testimony presided over by Judge William Enfield with attorneys Jim Blair and Bill Putman participating and Hillary Rodham, Esq.
as moderator; the Honorable Henry Woods will lecture on expert witnesses and opinion testimony; Bob Compton, Esq. will lecture on techniques of impeachment. On Friday there will be a second trial demonstration on introduction of and objection to demonstrative and real evidence presided over by Federal Judge Richard Arnold with attorneys Bob Jones and Bobby McDaniel participating and Professor Mort Gitelman as moderator; Professor Steven H. Goldberg will lecture on ethical considerations of evidence and trial tactics; Corneill Stephens, Esq. will lecture on subject of identification, certification and introduction of documentary evidence; and Bill Wilson, Esq. will lecture on handling objectionable evidence-motions and limine, making and answering objections, offers of proof. A program in the trial and evidentiary area has been long overdue and it promises to be of broad interest to the attorneys attended. Since we expect a large registration it is suggested that when you receive your registration brochures please return them promptly because space will be available on a first come-first served basis. PROGRAMS IN PROGRESS The Twenty-first Annual Practice Skills Course, designed for the recent admittee to the Bar (and those lawyers recently becoming active in the practice of law) will be held at the Camelot Inn in Little Rock on October 15 -16,1981. This course, formerly the "Bridging-the-Gap" Seminar is sponsored jointly by AICLE and the Young Lawyers Section of the Arkansas Bar Association. The object of the course is to provide basic and practical instruction by lawyers who have a recognized expertise in the areas they will discuss. The sessions conducted during this two day period will include an intensive review and analysis of current forms used by those lawyers in their daily practice. A brochure more fully describing this year's program will be mailed to the Bar membership in general and it will be handed out to the new Bar admittees when they are sworn in before the Supreme Court in September.
The Arkansas Federal Tax Institute, jointly spcnsored with the Arkansas Society of CPA's, will be held in Little Rock at the Camelot Inn on November 19 - 20. The faculty, made up jointly of lawyers and CPA's, will discuss topics mutually interesting to lawyers and CPA's. More details on this annual high quality program will be published in a later issue of the Arkansas Lawyer and by the mailing of brochures. The annual Midyear Meeting of the Bar Association will be held at the Camelot Inn on January 14 - 16, 1982, and will be devoted to the general topic of "Practicing Law in an Inflationary Economy" or "How to Survive in the Perilous 1980's." The concept of the program will be to deal with the effects of inflation on attorneys in every area of their practice. Some of the specific topics will be: 1. 2. 3. 4.
The Freezing of Values in Estate Planning. The Effect of Inflation Upon General Injury JUdgments. Inflation in Divorce Practice. The Effect of Inflation Upon the Management of a Law Office. 5. Investment Planning in an Inflationary Era. This should be a most timely and interesting program with more details to follow. ~ October 1981/Arkansas Lawyer/179
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JURIS DICTUM by Robert l. Lowery Executive Secretary, Judicial Department
INDIGENT REPRESENTATION: TO PAY OR NOT TO PAY? The Arkansas Appellate Public Defender's Office, a federally funded project, lost its funding this year. The 73rd General Assembly during its 1981 regular session chose not to pick up the expense of maintaining the office and so it has ceased functioning. The Arkansas Supreme Court receives a biennial appropriation from which it pays attorneys a fee for representing an indigent defendant on appeal. It is anticipated that with the demise of the Appellate Public Defender's Office, there wiii not be sufficient funds to pay private attorneys for the increased number of indigent appeals they will be asked to assume. Chief Justice Richard B. Adkisson of the Supreme Court, Justice Steele Hays, and Chief Judge Melvin Mayfield of the Court of Appeals, personally requested an appropriation large enough to cover this expected added expense, but their requests were denied. The appropriation received by the two courts is approximately the same as that for the previous year. It is clear that when the caseload of the Appellate Public Defender's Office is assumed by private attorneys this state's two appellate courts will not be abie to compensate these attorneys at past rates. The indigent has a constitutional right to counsel on appeal but can the bar withstand the economic pressures which will be brought on by the increased amount of very low fee or no fee representation of these indigent defendants? If any person is about to be arraigned on an indictment for a felony and is without counsel to conduct his defense and is unable to employ counsel, it is the duty of the court to assign such person counsel, it is the duty of the court to assign such person counsel, at their request. Ark. Stat. Ann. sec. 431203 (Repl. 1977). If legal counsel is 180/Arkansas Lawyer/October 1981
appointed by any court in Arkansas to represent an indigent person accused a a crime, whether misdemeanor or felony, the court shall determine the amount of the fee to be paid the attorney and an amount for a reasonable and adequate investigation of the charges made against the indigent and issue an order for payment. The amount allowed for investigation expense shall not exceed $100.00 and the amount of the attorney's fee shall not be less than $25.00 or more than $350.00, based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services. Ark. Stat. Ann. sec. 43-2419 (Repl. 1977). These two statutes govern the appointment of counsel at the trial level and the amount of compensation he may receive. However, representation of the indigent at the trial level is not the full extent of the appointed attorney's duty. Arkansas Rules of Criminal Procedure, Rule 36.26 says that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. Also, any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to the Arkansas Supreme Court, shall contain a statement of the reason for the request, and shall be served upon the defendant appealing. Supreme Court and Court of Appeals Rules, Rule 11 (h). Thus, appointed trial counsel has a duty to see that a notice of appeal is filed on behalf of the indigent defendant
and then may be relieved only by applying to the Supreme Court or Court of Appeals for permission to withdraw. We have already seen that the maximum amount of compensation a court appointed attorney may receive, at the trial level is $1 00.00 for expenses and $350.00 for services for a total of $450.00. The Arkansas Supreme Court paid attorneys representing indigents on appeal an average of $560.00 per case in 1980 and surely this figure will be lower in 1981. Is this pay sufficient to allow the bar to assume the increased number of indigent appeals that is certain to follow the demise of the Appellate Public Defender? What happens when the Supreme Court runs out of funds for payment in these cases? How much free service is an attorney ethically bound to provide and does he face contempt charges if he refuses? In the case of State v. Green, 470 S.w.2d 571 (Mo. 1971), the Missouri Supreme Court addressed the problem of free representation by attorneys: "The history of handling indigent criminal cases without compensation has led many persons to conclude that because the state has licensed the attorney to practice law, he is required, as an incident of that license, to serve by appointment in the indigent cases without compensation or reimbursement of expenses. At the same time, people do not expect others, even if licensed by the state, to furnish services gratis. For example, in the prosecution of criminal cases, the state is represented in the trial court by a prosecuting attorney and on appeal by the attorney general. No one would suggest that their license obligates them to serve in these cases without compensation. The services
of doctors, dentists, and psychiatrists, including examinations for the purpose of testifying in the trial, often are required on behalf of persons accused or convicted of crime. These professional people, all licensed for such practice, are not expected to, and do not, as a general proposition, perform these services without compensation. Jails and prisons in which to house those charged with or convicted of offenses are required, and architectural and engineering services are necessary to design and build such facilities. Architects and engineers, although licensed by the state, are not expected to do this as a public service without compensation. No individuals are asked to feed and clothe them as a public service. The same can be said of many others who provide various kinds of services and goods for indigents accused of crime, or for that matter, for other indigents not involved in criminal proceedings but to whom the state furnishes services. Examples are legion. It is of interest to note that in the recent publication of the American Bar Association and the Institute of Judicial Administration entitled "Standards Relating to Providing Defense Services," written as a part of the American Bar Association Project on Standards for Criminal Justice, the following statement is made page 34: "The legal profession has carried for many years the major part of the burden of representation in criminal cases. In so doing, many individual lawyers have suffered personal hardship because of their loyalty to the tradition that no one should lack counsel because of indigency. Many private practitioners have devoted vast amounts of time which required them to neglect their paying clients and other responsibilities in order to perform needed services for indigent defendants. Society cannot justly impose this heavy de-
mand on one segment of the population." The general rule which is followed in the great majority of jurisdictions, is that it is not a violation of due process to require an attorney to give his time to the representation of indigent defendants charged with a crime, even if they receive no compensation. MacKenzie v. Hillsborough County, 288 SO.2d 200 (Fla. 1973); In re Meizlich, 387 Mich. 228, 196 N.w.2d 129 (1972); Jackson v. State, 413 P. 2d 488 (Alaska 1966); State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966); U.S. v. Dillon, 346F.2d 633 (9th Cir. 1965); Annot. 21 L.Ed.3d 819 (1968). Generally, there is no denial of equal protection to lawyers by requiring them to perform a service which is peculiar to their profession. (See Annot., 21 ALA. 3d 819, 824 (1968.) A Fifth Amendment "taking" of property does not occur when the state simply requires an individual to fulfill a commitment he has made. Kunhardt & Co. v. United States, 266 U.S. 537 (1925); Hurtado v. United States, 410 U.S. 578 (1973). An applicant for admission to practice law may rightfully be said to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. In Powell v. Alabama, 287 U.S. 45 (1932), the United States Supreme Court found that attorneys were
obligated to accept compuisory appointments to defend indigent defendants, stating: "Attorneys are officers of the court, and are bound to render service when required by such appointment." It is unwise to think that attorneys should start refusing to accept such appointments because effective assistance of counsel is a right fundamental to criminal defendants, and is a principle deeply ingrained in the criminal justice system, and is required by both the Federal and the State Constitutions. Argersinger v. Hamlin; 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963). A refusal of the court's request would in most instances constitute contempt. State v. Frankel, 119 N.J. Super. 579, 293 A.2d 196 (1972), cert. denied, 409 U.S. 1125 (1973). See also, Annot., 36 A.L.R.3d 1121 (1971), "Attorneys' Refusal To Accept Appointment To Defend Indigent, Or To Proceed In Such Defense, As Contempt"; and "Contempt-Refusal To Accept Appointment As Attorney", 18 Tenn. L. Rev. 772 (1945). The response of Arkansas Attorneys to acceptance of indigent defense work has always been good and likely will continue to be good. It is unfortunate that they will receive for the necessary work even less than the small amount of compensation they have received in the past.
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October 1981iArkansas Lawyeri181
TO WIT By S. Sponte, Esq. "S. Sponte is the nom de plume of a lawyer who practices and is generally bewildered in Westmoreland County, Pennsylvania."
NO MORE RUNNING THROUGH AIRPORTS I spent much of my youth as a young person, and like others similarly afflicted, I passed through straits of psychological development. By some cruel turn of Freudian fate however, I leapt from the primitive longings for Mother directly to a passion for Mother Tongue, with nary another body, save the body of language, upon which to suckle. I found early on that I derived a perverse pleasure in twisting my verbogate Mom beyond all recognition, and while I broke no laws of Man or God of which I am aware, I nevertheless admit that the field of my past is strewn with the broken "bons" of many "mots". It was, I suppose, a most natural and predictable course of events that found me succumbing to my budding verbiality by writing advertising copy for a local radio station during my law school summers. To the day I shuffle off, I shall retain the fondest memories of those times of verbal foreplay when I could engage in sleight of mind with reckless abandon. I might very well have continued my quest for the holy phrase but for a certain advertiser, the proprietor of a prestigious funeral home, who complained to my employer of my suggestion that he offer a family group discount, sort of as a loss leader. My timely departure from law school to the practice of law, coupled with the restrictions the profession placed upon my ad vocation, left the bereaved customer more or less comforted with the knowledge that none would again fall prey to my ad ventures. While my ardor for words to this day remains essentially undiminished, I left the advertising world with a lingering doubt as to my powers of persuasion, a feeling only recaptured at present by argument before Court En Banc. It is then with the heartiest of appetites that I welcome the arrival of advertising to the legal profession, for I 182/Arkansas Lawyer/OCtober 1981
can state with perfect humility that none is so prepared as I to meet the challenge. Of course, we all know that the conference of blessing by the powers that be upon legal advertising only permits us to do openly what heretofore we practiced strictly in closetum. While it has been true that only the brash and vulgar brothers among us dared advertise in public, for which they received, I might add, sanctions, censures, and far more than their share of the business, lawyers have always had a way to spread their own gospel in one fashion or another. Some years back, a passing professional acquaintance of mine, a young man whose ambition far exceeded his experience, chose just such a course by running, unknown and unendorsed, for judge. While he had completely discounted any notion he may have secretly harbored of actually winning, he had carefUlly determined that he could in this manner ethically put his name and face in front of 2507 potential customers for every campaign dollar he spent, and his private practice must, perforce, prosper. Unfortunately, he was elected and was thus obliged to give up what had promised to be a distinguished career in the law. For my own part, I chose a different route. Being full of pleas and vinegar, I was determined not to wait for the worthy plaintiff to wend his litigious way to my door by mere happenstance. Accordingly, I made it a point to take every difficult, no-pay case that came along. In the event my number came up on the Wheel of Justice, I hoped to gain some decent notoriety, the better with which to make my name, if not my fortune. Ilet it generally be known that I preferred to work and not get paid than to not work and not get paid, and soon I had my wish fulfilled beyond my wildest expectations. Though my client list
swelled out of all proportion to my tender years, my clients fUlly intended to hold me to my advance billing, leaving me with a wealth of experience, though little else. Oh, I am well aware the current rules require that advertisements be limited in scope and professionally dignified, but that too, I trust, will pass. As against the day I can ply my flair unfettered and once again leap full tilt into the phrase, I am stockpiling slogans, such as: WHERE THERE IS A WILL, THERE IS A WAY TO BREAK IT. WHY WAIT TILL DEATH DO YOU PART? If you are as excited as I am about the prospect of doubling or even tripling your income in this new era without running through airports, all you need do is return the postage-paid card to me, care of this magazine, and I will send you absolutely free my full-color illustrated brochure. You incur no obligation, and no salesman will cail. TRY IT! YOU'LL LIKE IT!
â&#x20AC;˘ ~
Copyright 1979, S. Sponte, Esq.
(Editor's Note: Law generally is a rather somber profession. True, once in awhile, there is a pleading or decision couched in a humorous vein. However, we lawyers must admit that there are few wits in the legal profession. So, it is with the especial pleasure that we introduce a new Regular Feature in The Arkansas Lawyer, appropriately entitled "To Wit" and authored by S. Sponte, Esq. All lawyers should be able to identify with him.)
ADDENDA by C. E. Ransick Editor
WHY LAWYERS ARE IN THE DOGHOUSE Did any of our lawyer readers miss the cover on the May 11, 1981 issue of U.S. NEWS & WORLD REPORT? For the few that did: The cartoon on the cover, titled as above, shows an apprehensive lawyer, briefcase in hand, in a hounddog's doghouse-the hound still chained is looking morosely from behind his doghouse. Perhaps the lawyer is the one looking morosely-the dog, apprehensive. According to Webster's New Collegiate Dictionary, morose means "glum; sullen"; apprehensive is defined "anticipative of something unfavorable; fearful". Either definition applies in this situation. Any lawyer who has read the accompanying article in U.S. News & World Report must be glum about his "public image". If one has not read the article, the lawyer needs to be apprehensive about what the general public feels about lawyers and the legal profession. It does not do any good to stick one's head in the proverbial sands and believe that the "public image" of lawyers does not concern one-the sands are running out!! The subtitle to Why Lawyers Are in the Doghouse is "Courtroom blunders, fee gouging, outright crookedness-the string of allegations lengthens every day. Bar leaders concede that restoring people's confidence in the legal profession will be a big chore". However, it is with the last part of the subtitle, the legal profession needs to concern itself. Accept the proposition that the image of lawyers is literally at the "bottom of the barrel". Then the organized bar (and bench) must take action to elirninate the causes for the public's disenchantment with lawyers. Let us examine some of the roots of the problem. The article, "Why Lawyers are in the Doghouse", begins with these indictments, viz: "Charge No.1: Dishonesty. A growing number of lawyers are accused of defrauding clients, representing conflicting interest, breaking securities laws or other misdeeds that show either ignorance of ethics or contempt for them. "Charge No.2: Incompetence. More and more practitioners are accused of costly mistakes such as failing to file suits before deadlines, not telling clients about the progress of their cases and making inexcusable errors during trials. "Charge No.3: Greed: Attorneys are accused of collecting fees that often seem to go far beyond what is justified by the work involved-fees so steep that they sometimes exceed a client's winnings in a damage suit." The article then proceeds with the proof for the charges. The ABC News-Harris Survey in November, 1980 found that only 13% of the public put high confidence in lawyers
and law firms-down from 18% in 1978 and 24% in 1973. Out of a long list of American professions and institutions, lawyers finished last! In 1977, Chief Justice Warren Burger reported that up to 50% of "trial lawyers" are unfit to appear in court. The American Bar Association's Kutak Committee has undertaken to re-write the Code of Professional Responsibility. Even the Arkansas Gazette, in a feature article in its June 1, 1981 paper, commiserated with the legal profession. The article was headlined, "Lying Clients Put Attorneys in Delicate Situation in Balancing Ethical Demands", but still pointed out that lawyers finished last in the survey. What a turn of affairs! In 1835, Alexis de Tocqueville (if any lawyer has not read de Tocqueville's observations on the United States, the lawyer's education is lacking) wrote: "The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause, and the people listen to them without irritation, because they do not attribute to them any sinister designs." "Can the Legal Profession Regain Its Reputation?" is an article by California lawyer and professor Henry R. Cheeseman for Case and Comment, March-April 1981. continued on page 184
October 1981/Arkansas Lawyerl183
Addenda, continued from page 183 Cheeseman's premise is that there are certain problems associated with the delivery of legal services, and not the quality of the services provided, which have created the lawyer's current public image. He feels that the legal profession has lost sight of its major objective to meet the needs of consumers for legal services by placing its own self-interest and protection above the interests of consumers. Cheeseman's premise of the problem fails to point up the fact that the individual lawyer is "where the action is". How many lawyers in Arkansas have read and understand the Code of Professional Responsibility (adopted by the Arkansas Supreme Court in 1970)? The Arkansas Supreme Court recently issued a Per Curiam that lawyers are competent to interpret the Code for themselves and need no agency for advisory ethics opinions. The Court followed on June 1, 1981 with another Per Curiam refusing to issue guidelines for lawyers' trust accounts-the rationale apparently that if a lawyer will not read the Code, why would the iawyer be expected to read implementing guidelines. See DR 9-102. Yet improper use of clients' funds is reported as the second most prevalent cause for complaints to the Court's Committee on Professional Conduct. In fact, during the past three years, the Client Security Fund of the Arkansas Supreme Court has paid at least seven (7) clients' claims based upon their lawyers' misuse of their funds; and four (4) lawyers in Arkansas have surrendered their licenses to practice law in this connection. The top basis for complaints is reported as fee disputes. The ABA pamphlet, Avoiding Unintentional Grievances, was furnished in 1976 to all association members; since then, it has been reproduced-grievance by grievance-in The Arkansas lawyer under the regular feature, Code of Professional Responsibility. The matter of fee disputes is the first addressed in the pamphlet. EC 2-19 provides: "As soon as feasible after a lawyer has been empioyed, it is desirable that he reach a clear agreement with his ciient as to the basis of the fee charges to be made.路路路". A clear explanation of the fee arrangement and a written agreement at the outset will reduce the likelihood that a fee dispute will develop. Perhaps the Arkansas Supreme Court and the organized bar in Arkansas should establish a fee dispute arbitration program--46% of the State bar associations (unified and voluntary) have such programs. One cause for current concern (as expressed in the House of Delegates' Annual Meeting, June 6, 1981) is the lawyer advertising in the yellow pages. Canon 6 of the Code of Professional Responsibility states that "A lawyer Should Represent A Client Competently". EC 6-1 states that a iawyer "should accept employment only in matters which he is or intends to become competent to handle". EC 6-4 spells out the need for diligent work and study necessary to qualify one's self. DR 6-101 goes further, "A lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it." Another cause for concern is the failure of many iawyers to attend any continuing legal education programs (only 184/Arkansas Lawyer/October 1981
about 25% do so). Of course, competency can be maintained in many ways. However, "ClE" is probably the easiest and best method. The most controversial problem facing the individual lawyer is the pro bono requirement. Canon 2 states, "A lawyer should assist the legal profession in fUlfilling its duty to make legal counsel available". EC 2-25, in part, states, "Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer....". If the Legal Services Corporation (the federal support for legal aid offices) is discontinued, pro bono will be a by-word for lawyers. All lawyers will have to become conditioned to providing free legal services to the needy. No other professionals contribute so much in so many ways as do lawyers. As Alexis de Tocqueville pointed out, it is known that lawyers "are interested to serve the popular causes"; but lawyers are also expected to handle the unpopuiar cause too!1 Finally, William L. Prosser put itthisway, "Your lawyer in practice spends a considerable part of his life in doing distasteful things for disagreeable people who must be satisfied, against an impossible time limit and with hourly interruptions, from other disagreeable people who want to derail the train; and for his blood, sweat, and tears he receives in the end a few unkind words to the effect that it might have been done better, and a protest at the size of the fee." And Daniel Webster, "An eminent lawyer cannot be a dishonest man. Tell me a man is dishonest, and I will answer he is no lawyer. He cannot be, because he is careless and reckless of justice; the law is not in his heart, is not the standard and rule of his conduct." Aiso Abraham lincoln, "There is a vague popular belief that lawyers are necessarily dishonest. .. let no young man choosing the law for a calling for a moment yield to the popular belief-resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer." John W. Davis, "True, we build no bridges. We raise no towers. We construct no engines. We paint no picturesunless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state." The individual lawyer is expected to fully understand and live by the Code of Professional Responsibility, to be totally competent, to advertise truthfully, to maintain competence, to provide pro bono legal services, to pay into a client's security fund (no other professional does so), "to give of his time and money to the legal profession" (the Teddy Roosevelt quote), etc., etc.-and only the individual lawyer can change the public image of the legal profession. The statement, "Why Lawyers are in the Doghouse", should be made the question, "Why Are lawyers in the Doghouse"?
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