ARKANSAS October 1987
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BRAZILIAN LAW AND LIFE
Bringing Together
The Best Of Both Worlds
THE WRITTEN LAW A LEGAL RESEARCH EXPERT 523 West Third
Little Rock. AR 72201 (501) 375-6117 Appellant Briefs. Trial Briefs. Computer Searches. Abstracts _ State and Federal Cases
October 1987 Vol. 21, No.4 OFFICERS John F. Stroud. Jr.. President Philip E. Dixon. President-Elect Sandra Wilson Cherry. Sec.-Treasurer Vincent W. Foster. Jr.. Council Chair
ARKANSAS
La
SPECIAL FEATURES
122 The President's Report
Wm. A. Martin. Executive Director Judith Gray. Assistant Executive
125 Point of ViewlLetters
Director
EXECUTIVE COUNCIL Madison P. Aydelott. III H. Murray Claycomb John D. Eldridge. III Donald K. Harp Ronald D. Harrison Robert L. Jones. III R. Gary Nutter Robert G. Serio Bobby E. Shepherd James M. Simpson. Jr. Carolyn B. Witherspoon Robert R. Wright. III EX-OFFICIO John F. Stroud. Jr. Philip E. Dixon Richard F. Hatfield Sandra Wilson Cherry Vincent W. Foster. Ir. Michael H. Crawford
REGULAR FEATURES
128 Law. Literature & Laughter Planning Ahead With Premarital Agreements. by Thomas 1. Overbey
131
Scholars: Balancing Out the Under-Representation. by Phyllis Harden Carter
135
Brazilian Law and Life. by Gary Speed
143 151
In Memoriam
154 Disciplinary Actions 156 Arkansas IOLTA Program
EDITOR Ruth M. Williams. Director of Communications 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 Little Rock. Arkansas. In all counts. POSTMASTER: send address changes to Arkansas Bar Association. 400 West Markham. Little Rock. Arkansas 72201. Subscription price to non-members of the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author. and not
necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer
are welcome and should be sent in two copies to the Arkansas Bar Center. 400 West Markham. Little Rock. Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.
158 Executive Director's Page 159 Young Lawyers' Update 160 In-House News 164 Index ON THE COVER: In a six-week tour of Brazil sponsored by the Rotary International Foundation, Gary Speed, of Little Rock, an associate with the Rose Law Firm, and five other Arkansans probed beyond the country's exotic image. What they discovered was a poor, economically depressed agricultur路 01 country struggling to leave the Third C/) World. In Brazil. most citizens distrust the government and the judicial system and. _~ whether or not well路founded. believe core" ruption to be widespread. Attorneys there confirmed that despite the existence of many fair and competent judges. judicial .9 corruption is common. Speed concludes o that if Brazil is to become a first-class nation, corruption must be eliminated.
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October 1987/Arkansas Lawyer/121
THE PRESIDENT'S REPORT
Staying
On Course By John F. Stroud. Jr.
On June 13, you permitted me to become the 89th president of the AIkansas Bar Association. It is a most sobering and challenging experience to follow the excellent leadership we have enjoyed in the Association. Congratulations to Dick Hatfield for leading us through a legislative session virtually unscathed from frontal attacks by the insurance industry on the basic concepts of tort litigation. His active and successful bar year was highlighted by a wellrounded program at the annual meeting and the second-highest attendance at an annual meeting in our history. Dick and Sue Hatfield have represented us well. Recognizing that "tort reform" and other attempts to usurp the legal profession are not over, a retreat
was held two weeks after the annual meeting in June by Association leaders to discuss legislation and other matters allecting this bar year. The group included our lobbyist. Martha Miller, the past officers who dealt most closely with the legislature and those of us who will have that task during the next two years. President Elect Phil Dixon has wisely chosen Jack McNulty to chair his Executive Council and he brought Jack with him. We agreed upon several ways to improve the ellectiveness of the bar in supporting or opposing pending legislation, inel uding several by-laws changes and new responsibilities for the Legislation Committee which Jim McKenzie will chair. That committee will work to establish a network of politically influential attorneys in each county who are willing to contact their state senators and representatives on a moment's
notice to express a unified voice for the bar. Our two-day retreat to review the past bar year and plan for l221Arkansas Lawyer/October 1987
and his committee have done an excellent job in preparing public service spots. presenting the "Symposium on the Judiciary" and organizing courthouse
ceremonies for September 17. Judicial Compensation Commission. We are in the midst of a campaign to place a constitutional amendment on the ballot at the general election in 1988 to create a Judicial Compensation Com路 mission. The commission is sorely needed to provide a mechanism to set and maintain appropriate salary and expense allowances for our judges. The Association's Judicial Compensation Commission Committee, chaired by Dennis L. Shackleford. has teamed up with our Senior Task Force Committee,
chaired by E. Charles Eichenbaum. to obtain the needed 87.000 signatures. It the coming one was most helpful and something I hope will become an annual event. The most exciting and rewarding thing about this job so far has been the satisfaction of appointing committees, naming chairmen and watching them function. It's great to see lawyers who care enough about their profession to give hours and hours of their time and expertise to improve it. As I write this report this Sunday night. I have just opened letters from Retired Justice George Rose Smith giving an interim report of his committee's work on gathering and preserving the history of the bar in AIkansas and from Tom Overbey on the first meeting of his committee to determine if our association should become incorporated and which category of tax exemption most nearly fits our needs. Other examples of our ellorts to benefit the profession and the public include: The Bicentennial of the U.S. Constitu路 tion. It is appropriate that attorneys take the lead in reminding the nation to
pause and appreciate our freedoms during this Bicentennial Celebration of the United States Constitution. John Gill
called upon, please lend your assistance by circulating a petition in your of-
fice and neighborhood. This is a task we, as practicing attorneys, need to accomplish for the judiciary.
We have an excellent state bar association, an envied bar center and a bar foundation that others have emulated. During the past 12 months. I have attended several meetings of the Southern Conference of Bar Presidents and the National Conference of Bar Presidents. At each of these meetings, discussion groups with other presidents of voluntary state bar associations having memberships of less than 5.000 were formed. It is extremely helpful to discuss our problems in Arkansas with representatives of states having similar memberships and problems and to piece together solutions. I am amazed at how much we've accomplished in Arkansas with a smaller budget and a much smaller professional staff than most of our contemporaries. We can be proud that our percentage of membership is one of the highest of the voluntary state bar associations in the country. I pledge to do my best during this bar year to keep our ship of state on course. With your help we can do just that. D
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• A complete roster of attorneys and law firms in Arkansas with addresses and telephone numbers. • Professional associations including
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October 1987/Arkansas Lawyer/123
POINT OF VIEWILETTERS
By Samuel A. Perroni On April 13, 1987, the United States Sentencing Commission issued a host of proposed sentencing guidelines and policy statements concerning the federal court sentencing system. The guidelines included significant changes from earlier drafts and were released without an opportunity for public comment or revision. Since the guidelines constitute a sweeping change in the existing sentencing process, it is no wonder that the Commission has come under sharp attack by those involved in the day-to-day workings of the criminal justice system. On a local level, Judge G, Thomas Eisele, chief judge of the United States District Court for the Eastern District of Arkansas, has denounced the guidelines and called for delay in their implementation. In the opinion of this writer, Judge Eisele's feelings are shared by most. if not all, of Arkansas' federal judges. The guidelines will become law on November J. 1987, unless Congress decides otherwise. The guidelines outline steps the sentencing court must follow in determining a sentence. Briefly, they are: (I) Determine the statute the
offender has been convicted of violating. (2) A Statutory Index at the back of the guidelines then refers the Court to a specific section in the chapter on Offense Conduct. This chapter assigns a base offense score (a numerical figure) to the offense. The Court then adds or subtracts points for Offense Characteristics, thus aggravating or mitigating the base offense score.
(3) Steps I and 2 are repeated for each offense of conviction. (4) Then the Court refers to a chapter in the guidelines which covers applicable adjustments for Offender Characteristics. Points are added or subtracted to aggravate or mitigate the base offense score further. (5) When all offenses have been scored, the Court totals the offense values. (6) There is an adjustment for
PROPOSED SENTENCING GUIDELINES
A SWEEPING CHANGE Post-Offense Conduct (obstruction of justice and perjury, acceptance of responsibility, cooperation). (7) There is also an adjustment for Criminal History. (8) The new total is the offender's Sanction Unit Score, (9) The Court then refers to the Sanction Unit Guideline Table and a sentence is assigned within the applicable guidelines. In steps 2 and 4, the Court is instructed to add or subtract points for special characteristics. When one compares the lengthy list of aggravating factors to the list of mitigating factors it can be reasonably predicted that the courts will engage in little subtraction when determining the Sanction Unit Score. On July 22, 1987, a representative of the American Bar Association appeared before the House Subcommittee on Criminal Justice, Committee on the Judiciary, to voice the ABA's concerns over the proposed guidelines. The concerns were as follows: (I) The guidelines limit. in an unprecedented fashion, the availability of probation and other non-incarcerative sentences. (2) The guidelines substantially reduce the sentencing judge's ability to consider the broad range of offense and offender characteristics that may be relevant in a particular case. (3) While the guidelines permit departures, the Commission failed to provide clear guidance regarding departures
and in particular failed to recognize a broad-enough range of justilications for departure. (4) The absence of clearly defined procedures and standards will result in a flood of inefficient and time-consuming litigation in the district courts and courts of appeals. (5) Implementation of the guidelines will assure a dramatic increase in prison population well beyond existing capacities. It should be noted that in the 1970's the ABA took the initiative on the guideline issue. Specific standards were proposed and adopted for sentencing. Eventually, ABA standards for sentencing were developed and approved by the ABA's House of Delegates and a lO-year implementation project was undertaken by the ABA to encourage adoption of the standards in every state and in the federal system. In late 1976, the ABA launched a major project to produce a second addition of the standards. Final proposed standards were presented to the ABA's House for approval in 1978, 1979 and 1980. While the standards proposed to somewhat limit judicial discretion through the implementation of guidelines and the establishment of a guideline agency, the standards favored reservation of broad judicial discretion. The Editor's Note: Samuel A. Perroni, of Uttle Rock, is a partner in the Perroni, Rauls & Looney law firm and is chair of the Arkansas Bar Association's Criminal Law Committee. October 1987/Arkansas Lawyer/125
concluding sentence 01 the introduction to the standards chapter dealing with sentencing alternatives and procedures provided that: Where it has not been necessary to change, it has been considered necessary not to change, since we know too little today to experiment casually with the liberty 01 any citizen, including the 01lender. To someone deeply involved in the lederal criminal justice system, it is apparent that in addition to virtually eliminating judicial discretion, the proposed guidelines provide little incentive to an accused to cooperate with the government. The reason for this is simple. Under the proposed system. the judge will be able to con126/Arkansas Lawyer/October 1987
sider factors the delendant thought were eliminated through cooperation. Le., evidence of crim-
inal offenses not charged which would aggravate an accused's sentence. Without the ability to plea bargain in the Eastern District 01 Arkansas, my clients, under the new sentencing guidelines, will have nothing to lose and everything to gain by going to trial. The Commission attempted to address this by pointing out the need lor a modified real-offense structure. Under this procedure. only those elements that are importantly bound-up with the conduct that constitutes the crime charged are theoretically to be included. However, the question 01 whether uncharged inlormation will still appear in the government PSI (PreSentence Investigation) will still
exist. II the judge. supposedly, cannot use the information in establishing the sentence, then why should it be in the government PSI, as it is now? Rule 32 conflicts (correction 01 PSI controversies) will continue il the guidelines are adopted and this issue is not resolved. Another important issue concerns sentencing lacts. When a sentencing lact is disputed, the judge is to determine the lact, using a preponderance of the evi-
dence standard. II a hearing becomes necessary, the prosecution bears the burden 01 prool lor any aggravating lactors, but the delense bears the burden lor mitigating factors. Consequently, any sell-respecting delense attorney will be well-advised to not only
review the government PSI. but commission the preparation of a defense PSI to document any mitigating factors. While this may not pose a problem to the well-healed offender. it smacks of potential discrimination against the indigent offender who cannot afford such a luxury. The question then becomes one of whether the government would be obliged to provide the indigent defendant with the means to obtain a defense
PSI. Many have recognized the useless waste of taxpayer dollars being spent to keep non-dangerous offenders behind bars. but the proposed guidelines do not address the issue of alternatives to incarceration. I have been making such proposals to the federal courts in appropriate cases since 1979. While not all of the alternative sentences I have proposed have been accepted. I can state without reservation that the alternative sentences that have been imposed in my cases have been absolutely effective. Alternative sentences are good for the criminal justice system and we must give the court some broad discretion to use them in appropriate cases. As the guidelines now stand. a first-time offender of a non-violent offense rated above 14 sanction units would go to jail. and time sentenced is time served under the new guidelines. There is no parole. This becomes even more distressing when one realizes that the guidelines also lack any provisions for lessening the severity of a sentence based on the youthfulness of the offender. Finally. I am deeply concerned with the guideline provisions which use cooperation as a mitigating factor in sentencing. This considers only those people who literally admit to a crime despite their right to a fair trial. That is. plead guilty. cooperate and in tum a few points will be shaved from your offense Sanction Unit score. As it stands. the cooperation provisions threaten the basic foundation of the constitutional right to trial by jury. While unconstitutional. the possibility that an accused will be punished for exercising his right to trial by jury always exists. However. under the sentencing guidelines as proposed by the Commission. the possibility. in my D opinion. becomes reality.
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LAW. LITERATURE & LAUGHTER
The lawyer was working late one evening at home, finalizing preparation for a jury trial the next day. He took time out to put his seven-yearold daughter to bed. After the bedtime story, she inquired about the nature of his trial. It is a simple story, he told her. His client had dug a drainage ditch on what he thought was his land. A year later a water line broke near tbe ditch. Thousands of gallons of water spewed hundreds of feet into the air. The water company went out and fixed the pipe and repaired the damage the gushing water had done. It turns out that the ditch had been dug so as to cross over onto neighboring property. This. the water company said, was too close to its water pipe. This, the water company said, caused erosion - the washing away of the soil - until the ground underneath the pipe was too weak to hold it up. This, the water company said. caused the pipe to break. Therefore. you. Mr. Ditchdigger. must pay the water company $12,001, the cost to fix the pipe and repair the damage. Wow, mused the little one. She wondered whether the ditchdigger was really going to have to pay that much money. Her dad went on to tell her that the telephone company had been in the area just a few weeks earlier digging a trench near the water line. The phone company was burying cable. The engineer - no, not the train-<:\riving type - who helped dig the ditch thought the other company may have loosened the ground around the water line, precipitating - causing or contributing to the cause of - the break. The little girl wanted to know how the question - what caused the break - would be answered. Told that a jury would decide, she said she knew something about juries. "They're a group of pecple who decide punishment for someone." 1281Arkansas Lawyer/October 1987
By Vic Fleming "How do you know this?" 'Well, at school I was on a jury once. They told us about a little girl who threw an eraser through a window. It hit another student on the cheek. We had to decide the punishment."
"And what did you decide?" "The other kids wanted to make her clean the toilets for a year. But I said she should have to write 50 times 1 will not throw erasers:" Hmmm, the attorney thought. remembering that his client had, after the incident in question. gone to the expense of having the ditch moved. Next day, after all the evidence
was in, the only real issue was causation. It had been proved that the ditch was in the wrong place; that the pipe joints had uncoupled; that $12.000 had been spent to fix and repair; that telephone company workers had dug in the area just weeks earlier; and that the ditch was moved by the defendant after the incident. In his summation. defense counsel was emphasizing the "preponderance of the evidence" standard by which the jury, in order to make certain findings, was to be guided by what it found to be more likely than not. Especially as it applied to the element of causation. He suggested that unless the jury was convinced his client's ditch caused the damage, they should let the water company, and thus the public. bear the cost of this incident. After all. he told them, the water company workers admit that fixing pipes is part of their job. He was far from certain the jurors had made up their minds. He decided to take a gamble. Nearing the end of his argument. he told the jury of the dialogue with his daughter the night before. Noting the jurors' smiles and cautious laughter as he recited the two possible punishments for the eraser-thrower, he said: "Ladies and gentlemen, by moving the ditch, the defendant has already promised that he will not put ditches in the wrong place any more; he'll write it 50 or 100 times. But the water company says that isn't enough. By suing him for $12.000. it says it wants him also to clean the toilets for a year." The jury openly chuckled. And took 20 minutes to return a defendant's verdict. That evening the lawyer thanked his daughter and told her that he had shared her story with the jury. "Daddy," she asked, "what did the jury decide for the lillie girl's punishment?" 0 Copyright Š 1987 By Vic Fleming
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ARKANSAS:
Little Rock Patrick H. Admire (SOl) 370-3106
October 1987/Arkansas Lawyerll29
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The optimum situation is to create the revocable trust immediately upon the termination of the prior marriage and before the client has become involved again.
The idea i, for the revocable trust to hold all premarital assets.
1321Arkansas Lawyer/October 1987
agreement if most or all 01 a client's pre-marriage assets have been placed in the trust well in advance 01 remarriage. Most clients would preler not to have to enter into a premarital agreement because 01 the negative implications 01 negotiating and signing the document on the eve 01 a marriage and most are willing to let a new spouse acquire rights to property acquired after the marriage. The idea is lor the revocable trust to hold all premarital assets. Post-marriage assets are subject to the usual rules upon death or divorce. 11 this meets the client's objectives, a lormal premarital agreement is not even necessary. • In preparing any premarital agreement, a review 01 Act 715 01 1987 - the Arkansas Premarital Agreements Act - is necessary. The Act became effective on July 1. 1987. Nothing in the Act prevents the use 01 a revocable trust lor pre-marriage assets as a planning device. However, any premarital agreement prepared in conjunction with the use
01 a revocable trust should meet the Act's requirements. • One portion 01 the sample letter discusses the character 01 income from non-marital property. This is based on Speer v. Speer. 18 Ark. App. 186. 712 S. W. 2d 659 (1986). In the client's individual situation. there may be several items which need to be covered in a special manner in the revocable trust and/or premarital agreement. Such special provisions are explicitly allowed under Ark. Stats. Ann. §34-1214 and Act 715 011987. • The discussion with respect to a qualified terminable interest trust (QTlP) has relerence to a trust qualifying lor the marital deduction lor estate tax and gilt tax purposes under Internal Revenue Code §2056(b)(7} and §2523(1}. 11 the client's assets are 01 a sullicient enough size to cause a concern
with respect to gilt or estate taxes. it is necessary to consider obtaining a marital deduction on any assets placed in a revocable trust or required to be transferred
PLANNING AHEAD
BY THOMAS 1. OVERBEY
W
ith the everincreasing divorce rate and
first marriages occur-
With the ever-increasing divorce rate and first marriages occurring later in life. it is not uncommon for couples to have acquired significant assets prior to marriage. Many lawyers have started sending a letter to those clients with significant assets who are recently divorced or widowed or who are considering marriage for the first time to discuss premarital agreements or other pre-marriage planning.
ring later in life. it is not uncommon for couples to have acquired significant assets prior to marriage. The need to proteet these assets is often overlooked by a client until after he or she has already married due to the assumption that agreements regarding their assets can be entered into at that lime. To counter this. many lawyers have started sending a letter to those clients with significant assets who are recently divorced or widowed or who are considering marriage for the first lime to discuss premarital agreements or other pre-marriage planning such as a revocable
has never married but has acquired enough assets to need premarital planning. There are a few tips to keep in mind when drawing up these agreements:
â&#x20AC;˘ Roberts v. Roberts. Admx. 131 Ark. 90 (1917). holds that a revocable trust created on the eve of marriage is not effective as against the new spouse's dower rights. The theory of the holding is that the husband created the revocable trust immediately before the marriage to defeat the dower rights of the new spouse in the event of his death. Therefore. the optimum situation is to create the revocable trust immediately upon the termination of the prior marriage and before the client has become in\iust. The following letter is volved again. U the clia variation of the type of ent is already considercorrespondence our firm ing marriage. it would sends regarding such be wise to couple the agreements and plan- creation 01 the revocning. This letter is ad- able trust with a predressed to a divorcee marital agreement to who might be consider- avoid the holding of this ing a second marriage. =se. but can be modified for A revocable trust can the recently widowed be used without the neclient or the client who cessity of a premarital October 1987/Arkansas Lawyer/131
Mr. John Q. Client 1010 Main Street County Seat, Arkansas Dear John:
to a surviving spouse under the terms of a premarital agreement. (Other issues with respect to the use of a QTIP trust were covered in a previous article in the October 1986 issue of The Arkansas Lawyer.) Also to be considered are the other legal effects, including tax effects, of creating a funded revocable trust in premarital planning. Editor's Note: Thomas L. Overbey, a member of the Overbey & Deininger professional corporation of Li ttle Rock, is board certilied in tax law and is a former chair of the Arkansas Bar Association's Section of Taxation and a former adjunct professor at the University of Arkansas at Little Rock School of Law. He is the author of several previous articles appearing in The Arkansas Lawyer. including "The Practicalities of the Orphan's Deduction" and "Estate Planning Under the Economic Recovery Tax Act of 1981." Our thanks to Peggy Matson and Price Gardner for their assistance in preparing this article.
You mentioned to me at lunch the other day that you've started dating since your recent divorce. Having just completed the divorce process, you certainly understand the considerable effect that a divorce can have on you, both financially and emotionally. The unexpected death of a spouse can have a similar effect. I assume that it is likely that you will remarry due to your age and circumstances. Based on this assumption, it is important that you begin now to consider the effects of a remarriage upon your financial situation. This letter will serve as an outline of some important lactors regarding premarital planning. It is public policy to support and encourage the sanctity 01 marriage. To this end, you are not allowed to contract after marriage with respect to property matters until there has been a separation and thus a rupture 01 the marriage, Modem lamily law does permit permarital asset planning but it must be done carelully and with exactness. Our lirm has been involved in numerous premarital planning situations which are olten more dlfficult to deal with than estate planning lor a dying client. Because 01 this, we have tried to develop techniques to minimize the negative psychological aspects 01 a premarital contract. In many separate property jurisdictions (such as Arkansas), you are permitted to create a "revocable trust" prior to marriage to assist in the premarital planning process. The revocable trust is created and lunded with most. If not all. 01 your premarital assets. Under the revocable trust, you (the grantor) will generally serve as your own trustee during your lifetime. As a grantor trust under Internal Revenue Code Section 671, all items 01 income, deduction and credit are reportable on your personal income tax return without the necessity 01 a lederal fiduciary income tax return being filed. However, an Arkansas fiduciary return is required. Provisions are included in the revocable trust lor your death. Generally, these provisions provide lor the retention, management and eventual distribution 01 assets to children by prior marriages. It is important that all major assets are correctly titled in your name as trustee. An exception can be, and olten is, made lor personal items, household goods, lurniture and furnishings. Unless they are 01 exceptional value or have been in your lamily lor a period 01 years, you may wish lor these items to pass to the new spouse upon your death anyway. It is important to create the revocable trust well in advance of remarriage. In Arkansas, there is an old case which holds that a revocable trust created on the eve 01 marriage is ineffective to deleat the new spouse's dower rights. The theory 01 the case is that the trust was obviously created to deleat the new spouse's dower rights and this should not be permitted as a matter 01 public policy. Thus, such a revocable trust should be created as early as possible to prevail against such claims. It is very important that thought be given to the division and distribution of assets in the event 01 death lollowing a marriage because a spouse acquires property rights immediately upon marriage which cannot be taken away. For example, a widow has the right in Arkansas to one-third 01 all her husband's personal property and has a lile interest in one-third 01 his real estate. These rights cannot be waived or contracted away lollowing marriage. The only protection is the creation 01 a revocable trust prior to marriage and/or the entering into 01 a premarital agreement. A premarital agreement with an intended spouse generally covers the division 01 property in the event 01 death or divorce. In the event 01 divorce, only marital property is generally subject to division between the parties. The division generally must be equal. unless one or more 01 the statutory lactors are utilized by the chancellor in making an unequal division 01 marital property. Speclfically excluded by definition lrom marital property is property which was held prior to marriage or acquired by gilt or inheritance. Likewise, this October 1987lArkansas Lawyerll33
This letter is addressed to a divorcee who might
be considering a second marriage. 11 can be modiJied for other single clients with enough assets
protection is extended to the exchange of one asset for another. provided that the non-marital character of the exchanged assets can be demonstrated. This is a "tracing" concept which is very important in protecting assets upon remarriage. Any assets which are non-marital under the divorce law, or which are otherwise protected by a revocable trust created prior to marriage or by premarital agreement. must be readily identifiable in the event of death or divorce. The use of the revocable trust created prior to marriage can be of great assistance in identifying the non-marital assets in the event of divorce. A premarital agreement can be used to explicitly identify the intention of the bride and groom with respect to some matters not covered in the divorce statutes or the developing case law. For example. a recent Arkansas decision holds that income from non-marital property is marital property. Thus, income from a non-marital asset which is reinvested could cause the assets acquired upon the reinvestment to be subject to division upon divorce. A premarital agreement could provide that income from a non-marital asset is to retain its non-marital character. The revocable trust is a good asset-holding device to identify non-marital income in such circumstances. The use of a revocable trust prior to marriage simplifies the provision of a premarital agreement in that the property which is to be protected in the event of death or divorce is more easily identified. Also. the terms of its disposition in the event of death are already specified in the trust agreement. Another important planning device to consider in a remarriage situation is the use of a qualified terminable interest trust (QTIP) for any assets which are to pass to a spouse. A QTIP trust must provide that the income from assets in it be paid at least annually to or for the benefit of the surviving spouse. The ability to invade principal for the benefit of the surviving spouse is optional and must be specified at the time that the instrument is prepared. Upon the death of the surviving spouse. the assets held in the QTIP trust pass in accordance with the terms of the trust. In other words, the grantor of the QTIP trust determines where the assets shall pass upon the death of the surviving spouse. Typically. these assets revert to the children of the grantor. In this way. the surviving spouse can enjoy the benefit of the income from the assets placed in the QTIP trust while permitting the grantor of the trust to make sure that the assets revert to his or her descendants upon the death of the surviving spouse. A QTIP trust can be created prior to marriage or in a will according to contractual provisions contained in the premarital agreement. For anyone considering remarriage who has an interest in a retirement plan. it is essential that an agreement be entered into prior to marriage providing for the necessary waivers under the Retirement Equity Act of 1984 with respect to the retirement plan benefits of the participant. Under REA, a qualified and joint survivor annuity and a qualified pre-retirement death benefit must be provided to the spouse of a participant. unless waived. This waiver cannot be entered into prior to marriage and still maintain its effectiveness. Therefore. it is critical that an effective agreement be prepared prior to marriage providing for the new spouse to make appropriate waivers alter the marriage so that the retirement plan benefits can be paid as contemplated upon the death or retirement of the participant spouse. The retirement plan benefits may be payable in whole or in part to the new spouse or to other intended beneficiaries of the participant. Any intended payment of retirement plan benefits to beneficiaries other than the new spouse must be covered by the premarital agreement. I trust that this letter has outlined for you some of the issues involved in remarriage and its effects upon assets acquired prior to the remarriage. If you would like to discuss any of these points further. please contact me. Cordially yours.
to need premarital planning.
Thomas L. Overbey
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SCHOLARS Balancing Out The Under-Representation October 1987/Arkansas Lawyer/135
- BY PHYLLIS HARDEN CARTER -
SCHOLARS I
n the WinthIOP Rockefeller Foundation's 1982 Annual Report, the following statement appears: "The prosperity of Arkansas is directly linked to the quality of education offered in the state." Taking this assertion one step farther. the conclusion is that the quality of life for blacks in Arkansas is inescapably tied to the education opportuniHes which are made available to them. The legal profession in Arkansas for many years has had a disproportionately low number of blacks. While Arkansas' black population is about 18 percent. only one percent of the state's lawyers are black, leaving the black community adversely affected in terms of political involvement. legal representation and the establishment of appropriate role models. In response to this problem, O. Fred Harris, Ir., a black and then as-
THERE IS A DRASTIC NEED IN THE BLACK COMMUNTIY FOR GOOD ROLE MODELS ... W1TII BLACK PROFESSIONALS MAKING TI-lEMSELVES AVAILABLE TI-IERE, THE HOPES, DREAMS AND VISION CAN BE RESTORED TO THE FACES OF OUR CHILDREN. - Austin Porter, 1986 Graduate
sociate professor of law al the University of Arkansas at Little Rock Law SchooL and Robert Walsh, then dean at the Law School. coauthored a proposal in 1980 to increase the number of black lawyers in Arkansas. InJormalion they had compiled on
young black Arkansans who had taken the law school aptitude test (L.S.A.T.) indicated that many were accepting ollers to attend law school outside of Arkansas due to the financial support available elsewhere. Apparently, tuition scholarships and living stipends were luring Arkansas' brightest black law students to other areas and keeping them there. When Walsh heard of a Rockefeller scholars' program al the University of Arkansas at Fayetteville which provided scholarships for minority engineering students, he decided to approach the Winthrop Rockefeller Foundation in Little Rock about establishing a similar program al the UALR Law School. The Foundation expressed an immediate interest. not SO much for the opportunity to provide a legal education to blacks, said Freeman
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"" Austin Porter. 1986 graduate "- -
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136/Arkansas Lawyer/October 1987
Troy Price. 1987 graduate
McKendra, program officer at the Foundation, but because lawyers tend to provide leadership in the black community. One of the Foundation's goals is to promote good leadership. "Our interest in the scholars' program at UALR is to ensure that the kind of leadership coming to the foreground will be leadership which is trained and which possesses a broad vision of what Arkansas can become," McKendra said. McKendra agrees with Walsh and Harris that the scholars' program provides an opportunity to keep Arkansas' brightest and best black law applicants at home where they can make a lifelong commitment. "Where you end up working for a lifetime is likely to be where you attend law schooL" he said. Since the program's inception and the first 12 scholars were funded
seven years ago. fOUf are in law school and eight have graduated and are practicing law and making a meaningful contribution to the community at large and to the profession. For example, Austin Porter, a 1986 graduate, is employed by Central Arkansas Legal Services in Little Rock and is proving himself to be a leader by taking an assertive role in issues which concern College Station, a poor black community on little Rock's east side. Porter, a native of College Station, continues to live there, convinced he can make a difference.
In Porter's words: "There is a drastic need in black communities for good role models so that our children can see that there is more to life than just hanging out on the streets, getting involved with drugs and living a life of crime. Living in a
place like College Station, 1 see too often talented kids just wasting their talents. 1 see a lot of faces filled with hopelessness and frustration. Unfortunately, in so many black communities like College Station, the children are without dreams or visions. With more black professionals making themselves available in these communities, 1 strongly believe the hopes, the dreams and the vision can be restored to the faces of our children." Porter adds that he wanted to be a lawyer to provide such a role model. "I want to be able to say to them that although you are faced with many obstacles, you can overcome them and you can achieve those goals that you thought were unreachable. The Rockefeller Foundation has helped me to achieve my goal. Now, 1 will work to help others achieve theirs," Porter said.
Alice Sprinkle. 1984 graduate While the minority students who have benefited from the scholars' program are different in terms of the
contributions they can make. all are regarded as capable of providing leadership in Arkansas for years to come.
October 1987/Arkansas Lawyerll37
Other Rockefeller scholars will- a timber contractor and is one of ing to shoulder leadership responsi- nine children. bility include: • Lisa Mathis, a third-year law • Troy Price, a 1987 graduate who student. Mathis clerked at the John is clerking for the Eighth Circuit Walker Law Firm in Little Rock last Court of Appeals in St. Louis and summer. was ranked third in his class at the • Raymond Easterwood, a 1985 end of his first year. Price plans to graduate. Easterwood beaded the return to Arkansas upon completion Law School's tutorial program in of his clerkship. 1984 and is an associate with the • Cynthia Davis, a 1985 gradu- Hollingsworth and Heller Law Firm ate. Davis, a Little Rock native who in Little Rock, grew up in Hot Springs, twice won • Jerry Malone, a 1985 graduate. the Law School's client counseling Malone is an associate with the Fricompetition. She is an associate day, Eldredge & Clark Law Firm in with the Mitchell Law Firm in Little Little Rock. He is a native of Earle Rock and works in the firm's general and the son of a sharecropper. Malone was managing editor of the litigation division. • Alice Sprinkle, a 1984 graduate UALR Law Journal and finished filth and the first Rockefeller scholar. in his law class. To qualily as a Rockefeller scholSprinkle is managing attorney of Legal Services of Arkansas in Little ar, black students must first gain Rock. A native of Rison, Sprinkle is admission to the UALR Law School. the daughter of a school teacher and Recipients are chosen by an inde-
pendent committee which looks at the applicant's ties to Arkansas, both personal and professional, and at his or her financial need, ''The committee tries to select pe0ple with a likelihood of succeeding in Arkansas:' said Paula Casey, associate dean of the Law School and coordinator of the scholars' progrcan. Currently, all members of the selection committee are black, with the exception of the Law School representatives. While the minority students who have benefited from the scholars' progrcan are different in terms of the contributions they can make, all are regarded as capable of providing leadership in Arkansas for years to come.
Ellen Brantley, former associate professor of law at the Law School and coordinator of the program, said that "the scholars represent a
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Raymond Easterwood. 1985 graduate
1381Arkansas Lawyer/October 1987
Jerry Malone. 1985 graduate
real variation in terms of what they can offer. All 01 the scholars are topnotch and all have the potential to be leaders in different ways. I suppose that a strength 01 the program is that the Law School is getting the kinds of minority students it wants: Brantley, now chancellor in the Pulaski County Chancery Court, Fourth Division, adds that all students benefit by having outstanding people in class, especially if those people have perspectives and life experiences which differ lrom the majority. McKendra looks at the scholars' program as an opportunity to develop a nurturing environment which can be .replicated regardless of the prolession. "If you set a system in place that is inviting, supportive, protective and motivating and put someone into that system, they are likely to succeed. We have a system
..
,
in place which lacilitates blacks getting through law school. They perform well - well enough that they are attractive to not only the black community, but to the entire corporate community: He points to Jeny Malone, the first black to clerk lor the Friday firm. Malone's performance was 01 such a high caliber that he was offered an associate's position and, according to Walsh, a member 01 the firm, he's doing an outstanding job. Likewise. Cynthia Davis was the lirst black to clerk lor the Mitchell firm. She was offered an associate's position belore graduation. As with most programs. the scholars' program is not without its laults. As Brantley quickly points out. with the exception of the second program year, the Law School has not been able to recruit as many black students as it wants.
Lisa Mathia. third路year student
"We thought there were lots 01 students out there. It has not been determined if the low numbers are based on the type 01 recruitment ellorts which the Law School engages in or just an over-estimation 01 the supply 01 the kind 01 black students the Law School wants to give the scholarship to," she said. Another weakness in the program is that the Law School does not have a black faculty member to act as an advisor and role model to the blacks enrolled at the school. There has not been a lull-time black laculty member with tenure since Harris left the law laculty in 1983 to go to the University of Cincinnati. Alice Sprinkle, the first scholarship recipient. puts it this way: "I received a lot 01 support from Fred Harris. He was the only black prolessor at the school and I'd go into his office, probably once a week,
Jeannette Denhammcclendon. 1987 graduate
October 1987/Arkansas Lawyer/139
THE SCHOLARS' PROGRAM PROVIDES AN OPPORlUNTIY TO KEEP ARKANSAS' BRIGHTEST AND BEST BLACK LAW APPliCANTS AT HOME WHERE THEY CAN MAKE A LIFELONG COMMITMENT. and just sit down and talk with him for a while about any kind of concerns that I had. He was always reassuring and he was a really good support person:' Malone said that when he arrived at the Law School in 1982, one of the most positive things he saw was that Harris was on the faculty. "He was very supportive and a person you could go in and talk to. He understood a lot of things. I don't think you should look to people to solve and work out your problems but just, at least, have somebody who can give you a shoulder to lean on sometimes. And that's necesMalone said. Brantley hopes the Rockefeller scholars' program will produce a black faculty member who will want to teach at the Law School. Another concern is that the search for students has centered in central Arkansas. mainly in Pine Bluff and Little Rock, leaving much of the state unrecruited. The program aims to educate blacks from throughout the state who will return to their respective communities to work. but those recruited have tended to remain in central Arkansas after graduation. Lawrence F. Averill. dean of the Law School. said this problem is not unique to the scholars' program, adding that many of the Law School's white graduates often remain in central Arkansas as well. McKendra notes that placement is often related to where a law student
sary:.
obtains a clerking position and "generally speaking. clerking opportunities do not exist in small. rural communities:路 This problem has no easy solution since the black population in Arkansas tends to be concentrated in the rural. eastern portion of the state and since there are many areas of Arkansas with no sizeable black population at all. A final problem involves finding a permanent source of funding for the program. When the program was begun in 1980, the Foundation paid all expenses for the 12 scholars, including tuition and living expenses of $5,500 to $6,500. After a few years, Harris asked that the living expense stipend be increased since the scholars were prohibited from working to supplement their scholarship. The stipend was increased to approximately $8,000 annually. However. UALR agreed to assume part of the cost of tuition. In April 1987. the Foundation renewed its grant, requiring a greater monetary commitment from UALR. During a scholar's first year, UALR provides the tuition and the Foundation provides the stipend.
The second year. UALR provides the tuition and part of the stipend by providing employment to the scholar at the Law School. The Foundation's grant pays the balance of the stipend. The arrangement for the third year is basically the same, except that the number of
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140/Arkansas Lawyer/October 1987
hours of employment at the Law School increases. If a scholar elects to work at a private law firm rather than at the Law School. the stipend is adjusted accordingly. The Foundation sees this as a commitment on the part of UALR to continue an effort which is obviously successful and which works to the benefit of black Arkansans who want to attend law school. The Law School sees this as an opportunity to continue to have a significant and dramatic effect on the training of black lawyers in the state for years to come. Dean Averill lakes the position that the Rockefeller scholars will make a difference over time. He wants the program to eventually build into an endowed program one which will continue long after the Foundation's support has ended. Since only two of the 12 scholars funded under the second grant are attending law schooL leaving 10 slots to be filled. it will be at least five years before this becomes an issue. Averill believes balancing out the under-representation of blacks in the legal profession in Arkansas is an important goal for the Law School. The Rockefeller scholars program is not all that's needed to make legal training available to qualified black Arkansans and increase the number of black lawyers in the state. It has. however. certainly proven to be a progressive. commendable and productive approach to a significant Arkansas problem. 0
Editor's Note: This is the second article in a threepart series on black lawyers in Arkansas by Phyllis Harden Carter. Carter is a former assistant city attorney for the city of Little Rock and received a law degree from MarshallWythe School of Law, College of William and MOlY, in Williamsburg, Virginia. in 1975. She is admitted to the Arkansas and Virginia bars.
THE PRESIDENT DOESN'T TAKE AN OATH TO DEFEND THE AMERICAN FLAG OR THE STATUE OF LIBERTI The President takes an oath to defend something even more important than a majestic symbol of our country.
The President takes an oath to defend the Constitution of the United States. A document that has been described as the greatest leap forward for freedom in human history. A document that is the foundation of our country. And the means by which we achieve the rule of law and protect our freedom. As we commemorate the Bicentennial of the Constitution, there is no better way for you as an American to reaffirm the principles for which our country stands than to learn more about the Constitution. The words we live by.
THE CONSTITUTION 1be words we live by
To learn more about the ConstiUJtion YJritt:: Constitution, Washington. D.C. :20599- The Commissim on the Bicententtial orThe U.S. Constitution.
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1421Arkansas Lawyer/October 1987
LAW AND LIFE B y
G A R y
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E E D
Brazil typically brings to mind images of lush jungles. tropical birds and Carnival in Rio de Janeiro. In a recent six-week tour of the country. sponsored by the Rotary International Foundation. six Arkansans. including two lawyers. a banker. a metalurgical engineer. a woodworker and a scrap iron business owner. visited nine cities in the central and western regions and got the opportunity to probe beyond Brazil's exotic image. What was discovered was contrary to their expectations. Of great surprise were the similarities between Arkansas and Brazil. Both are economically depressed agricultural regions largely dependent upon the world's soybean and rice markets. both lack high technology industries due to poorly educated labor forces and in both capital is scarce. Of course. many diHerences exist between the two. especially in their governments and legal systems.
T
he Brazilian government experienced a
dramatic political flux lor 25 years. From 1964 to 1979. a military government controlled the country and suppressed political dissent through imprisonment and torture. I In 1979. however. the government began easing its grip. allowing a transition to civilian rule. By 1985. with the inauguration of now-President Jose Samey. democracy was complete. Today the country is writing a new national constitution. Of more importance to most Brazilians. though. are Brazil's pressing economic concerns. including domestic in-
flation which rages out of control at about 20 percent a month and its tremendous foreign debt. Legal practice in Brazil is quite different than in Arkansas. In Brazil. most citizens distrust the government and the judicial system and. whether or not well-founded. believe corruption to be widespread. Attorneys there confirmed that despite the existence of many fair and competent judges. judicial corruption is common. I Dr. Duraid Ya8sim. an attorney in Ponta Pora on the Brasilian-Paraguayan border. said that being honest while practicing October 1987/Arkansas Lawyer/143
Brazil's inmate diet consists of large quantities of red beans and rice and "feijoada:' a potato and pork dish.
law costs him clients and money. "It's a hard price to pay to be honest:' Yassim said.... survive on the little things. includ路 ing family law. contracts and notes. For
the big things. the law is nothing. The point is that the whole country is corrup-
ted:' When asked why such rampant corruption is allowed to continue. one Brazilian theorized that since his country was colonized by Portugese prisoners. rather than for religious freedom as was the case in the United States. a tradition of weak moral values has developed. Ignored by this
1441Arkansas Lawyer/October 1987
theory are the many hard working, moral immigrants who have settled in Brazil and the sincere and honest Brazilians inter-
viewed during the tour. Regardless of the reasons for its corruption. one thing is certain - if Brazil is to become a first-class nation. corruption must be eliminated from the judicial system.
The two chambers of the national congress. composed of 72 senators and 500 deputies. now are sitting in a constitutional convention to draft a new constitution. The existing constitution was adopted in
1969 during the period of military rule. In-
Prisoners mark time at Insliluto Penal De Campo Grande.
a state prison in Mato Grosso Do
SuI. Approximately 220 inmates are provided vocational training and a work-release program there.
terviews revealed little consensus about the probable contents or the political implications of the new charter. Since Brazilians generally are skeptical about the effectiveness of the state and federal governments. it is not surprising that many feel the propertied elements of society will
Editor's Note: Gary Speed. of Little Rock and an associate with the Rose Law Firm. visited Brazil as part of a group/study cultural exchange sponsored by the Rotary International Foundation.
The Supreme Court Chamber in Campo
Grande. Mato Grosso Do SuI.
October 1987/Arkansas Lawyer/145
Antonio Duenhas Monreal. an attorney in Mirand6polis. SOo Paulo.
Sahid Maluf. a state Supreme Court justice in Mato Grosso Do
Sui.
146/Arkansas Lawyer/October 1987
Wilson Mendes. an attorney in
prevail at the expense of individual rights. The present economic problems. years of military rule and suppression and an un~ wieldy bureaucracy fuel their skepticism. Brazil currently has 24 states and a dual federal and state court system. The federal supreme court is located in Brasilia. the national capital. and has 11 justices appointed by the president. Sahid MoluL president of the state supreme court in Mato Grosso Do SuI in west路central BraziL explained that his court is composed of 10 justices. Two chambers of fOUf justices each hear ci vii and criminal cases respectively. Of the remaining two justices. one acts as the president of the court and handles administrative matters and the other is the "general corrector:' acting when the court is not in session. Judges in Brazil are career jurists selected by examination. Once they successfully pass the examination to become a judge, they are assigned to work in a small town. As they gain experience. they are promoted to larger cities and higher courts. Generally, promotions are made by the governor of the state based upon seniority. However, each state supreme court may refuse any promotion. If the nominated candidate is refused, the court then suggests three meritorious candidates. The governor chooses the new jurist from this list. The civil panel of Mato Grosso Do Sui's supreme court decides about 30 cases and its criminal panel about 25 cases each month. All oral arguments before the court are open to the public and almost all opinions of the court are published. No right to a jury trial exists in any civil case in Brazil and in most criminal cases, except those involving murder and abortion. In those cases, a seven-person jury is selected from 500 perspective jurors nominated by civic groups and businesses. An initial panel of 21 jurors is drawn by random for examination by the defense and prosecutor (or "promoter"). Each exercises three preemptory challenges. The seven are selected from the remaining 15. Once named. the jury determines guilt or innocence by majority vote and makes a nonbinding recommendation for sentence. Brazil has no death penalty and the maximum prison sentence is 30 years. Also in the Brazilian legal system, criminal suspects have no right to maintain their silence and must say "yes" or"I don't know" when questioned. Brazilians may divorce and remarry only once during their life (a divorce requires three years of separation before it can be final) and the statute of limitation is usually 20 years for civil claims and five to 10 years for criminal actions. A tour of the Instituto Penal De Campo Grande, a state prison in Mato Grosso Do SuI. revealed a penitentiary quite similar to the older prisons in the U.S. Approximately 220 inmates are provided vocation-
Silo Paulo. October 1987/Arkansas Lawyerll47
A color television. stereo and an electric Ian represent wealth in Brazilian prisons. 1481Arkansas Lawyer/October 1987
al training and a work-release program there. While part of the facility is modern. other parts show poor maintenance and decay. These areas are generally poorly lighted and dirty. From the wall. hang strips of peeling paint and in the exercise yard. inmate laundry. When a guard was questioned about a large color television in one cell. he said free world trappings are available to prisoners with money. The Instituto houses the regular inmate population and three special units for mentally ill prisoners. juveniles and work-release inmates. Pedro Carrelho Dearantes. warden at the Instituto, said a lack of adequate funding from the state has led to low salaries and an inability to hire and retain quali-
Hed correctional officers. "Advogados" and Law Practice Dr. Rubens Palacios of Arac;atuba. Sao Paulo. in south-central Brazil. said Brazil allows a person with a bachelor of law degree to practice law if he or she satisfies the bar's admission requirements. The bachelor of law degree is awarded after a two-year study in law and liberal arts on the university level. This program provides a basic education to future attorneys ("advogado" [odd-vo-GOD-ol] in Portugese). A master's degree is awarded after completion of two additional years of legal study and a doctorate is awarded after one more year. Brazilian attorneys with the educational equivalent of a juris doctorate degree are typically referred to as
Instituto Penal
De Campo Grande.
"doctor." Membership in Brazil's bar is required to practice law. explained Dr. Jose Buzelle. an attorney in Mato Grosso. The bar association in Mato Grosso - Orden Dos
Advogados Do Brasil Secao De Mato Grosso - is administered by 18 elected counselors and their six appointees. known as cultural ministers. The counselors authorize the admission of new attorneys based on either an examination or two years of supervised practice. Attorneys abide by a code of ethics and face disciplinary actions for infractions. As is the trend in Arkansas. an increasing number of attorneys in Brazil are female. Dr. Maria Jose da Silva. a labor attorney in Ara4):atuba. Sao Paulo. said that
Dr. Duraid Yassim. an attorney in Ponta Pora on the
Brazilian路Paraguayan border. October 1987/Arkansas Lawyer/149
women account for about 20 percent of Brazil's attorneys. In addition. more than 50 percent of the country's law students are women. According to Dr. Silva. many of these women come from wealthy fami· lies and will not practice law upon gradu-
ation. Dr. Silva's law practice centers
Dr. Jose Buzelle. an attorney in Mato Grosso.
•
,
11
An inmate in solitary confinement.
primarily on the complaints of sugar cane cutters and those employed to produce methyl alcohol (methanol), many of whom are unionized. (Methanol is produced by 400 plants in Brazil to fuel 73 percent of the country's automobiles.) Although she handles some workers' compensation matters. most of her cases concern wages. Wilson Mendes. an attorney in sao Paulo. the largest city in Brazil. said that the outlook for young attorneys in Brazil is not good. Since graduating from the University of sao Paulo law school four years ago. Mendes has struggled to find employment. He currently works part-time as an English teacher and for a financial firm which offers unsecured consumer loans to low-income persons. Despite successfully passing an examination to become a financial officer for a public agency. Mendes has waited two years for a job offer. One Brazilian attorney suggested that lawyers in the U.S. earn as much in one month as Brazilian lawyers make in a year. Attorneys in Brazil usually receive a fee of 10 percent of the value of the matter handled. according to Antonio Duenhas Monreal. an attorney in Mirand6polis. sao Paulo. rather than a fee based on any hourly rate. This may vary from zero to 20 percent. The percentage fee arrangement is used in all cases. whether they are labor. real estate or tax cases. (Dr. Palacios. a tax attorney. said tax attorneys in Brazil handle primarily tax controversies and engage in little or no tax planning.) As Brazil struggles to leave the Third World. their legal system is slowly evolving. With the transition from military to civilian rule the country entered into a democracy. Now a proposed new constitution promises to strengthen individual rights. The Brazilian people must develop greater respect for and confidence in their government. their courts and. most importantly. their law. The lawyers interviewed suggest there is hope. but it will just take time. 0
FOOTNOTES
Drs. Maria Jose Da Silva and Rubens Palacios, attorneys in Ara~atuba, sao Paulo. lSOIArkansas Lawyer/October 1987
fEn.
1
See Wright & Dessin, Torture in Brcuil (1986 ed.) glish translation of Brasil: Nunca Mai•. ]
2
The author wishes to thank the many translators who assisted in the various interviews in Brazil. Most of the tralUllators were exchange sludents. All of them were extremely helpful and friendly. How· ever, due to the difficulty of the legal concepts, the author apologizes for any inaccuracies which may have resulted because of the differences in Ian· guage and practice.
IN MEMORIAM
Judge William R. Overton United States District Judge William R. Overton, aged 47, of Little Rock, who gained world attention in 1982 when he struck down Arkansas' "creation-science" law, died Tuesday, July 14, 1987. Judge Overton was appointed U.S. district judge for the Eastern District of Arkansas by President Jimmy Carter, becoming, at age 39, the youngest appointee to the federal bench in Arkansas during this century. During his eight years on the bench, Judge Overton handled a variety of major cases but was best known for his January 5, 1982, decision that the state "creationscience" law was an unconstitutional effort to teach religion in the public schools in the guise of science. According to the Arkansas Gazette: ''Many in the press portrayed the trial as Darwinian evolution versus the Bible, in the same way the Scopes trial in the 1920s was portrayed, even though evolution was not an issue in the case. Judge Overton was praised by observers of the trial for keeping it on the proper legal tracks and not allowing
irrelevant issues to intrude." The case, tried in December 1981. attracted reporters from around the country and from other countries and generated several books as well as abusive criticism from some religious fundamentalists who believed that creationism should be taught along with evolution in public schools. Judge Overton collected all the papers in the case and donated them to the University of Arkansas at Little Rock for use by scholars. In November 1979, Judge Overton became the first federal judge to go into the Arkansas prisons to hold court, believing that it was easier in the long run to move only himseU and one or two others to the prisons than having numerous prison guards tied up by bringing prisoners to Little Rock, the Gazette reported. Born September 19, 1939, at Malvern, he was the son of the late Odis Ray Overton and Elizabeth Ford Kimsey, who survives. Judge Overton attended Malvern public schools before going to the University of Arkansas at Fayetteville, where he received a bachelor's degree in business administration in 1962 and a law degree in 1964. In law school. he was editor-in-chief of the Arkansas Law Review, In 1964 he joined the Little Rock law firm of Wright, Lindsey and Jennings. He was an associate in the firm until 1966, when he became a partner. Judge Overton earned a reputation as one of the best civil 'practice trial lawyers in the state. He was a 23-year member of the Arkansas Bar Association and a member of the Arkansas Trial Lawyers Association, National Association of Railroad Trial Counsel. International Association of Insurance Counsel and the American and Pulaski County Bar Associations. In 1976, he was selected as a Fellow in the International Academy of Trial Lawyers and in 1984 he was selected as outstanding alumnus of the University of Arkansas
Law School. Fayetteville. Before his selection for the bench, Judge Overton was named by Gavernor David Pryor to head a study commission to draft legislation to implement the newly adopted Amendment 55 that reorganized county government in the state. He also served on the Arkansas Constitutional Revision Study Commission in 1967. Judge Overton was on the board of Goodwill Industries of Arkansas. Survivors are his wife, Susan Linebarger Overton; two sons, William Ford Overton and Warren Webster Overton, both of Little Rock; and his mother, Elizabeth Ford Kimsey of Malvern.
Dr. Warren E. Banks. Jr. Dr. Warren Eugene Banks, Jr., aged 58, of Fayetteville, died Tuesday, August 18, 1987. Dr. Banks was a business administration and law school professor at the University of Arkansas at Fayetteville. A native of Hot Springs, he was a former head of the University of Arkansas Finance Department, a former Distinguished Professor of Finance and holder of the H.A. Dulan Finance Chair. Dr. Banks wrote more than 100 articles and books on law and finance and was recipient 01 the University 01 Arkansas Faculty Achievement Award. Dr. Banks was a graduate 01 the University 01 Arkansas and served as counsel to the Kincaid, Horne and Trumbo Law Firm. He was a 19-year member 01 the Arkansas Bar Association and a member 01 the American Finance Association. He was a veteran 01 the Korean and Vietnam Wars and was a lormer vestryman at SI. Paul's Episcopal Church. Survivors are his wile, Carolyn Duty Banks; a daughter, Karen Marie Banks 01 Little Rock; and a sister, Suzanne Vincent of Hot Springs. October 1987/Arkansas lawyer/lSI
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Lawson Edward Glover. Sr. Lawson Edward Glover, Sr., aged 74, of Malvern, died Friday, July 3, 1987. Glover was born August 12, 1912, in Malvern, the son of the late Congressman David D. and Roberta Quinn Glover. He attended Malvern public schools and was a graduate of Ouachita Baptist College and the Arkansas Law School. Upon admission to the bar in 1938, Glover began practicing law in Hope. In 1952 he established a law practice in Malvern. Glover was a former city attorney in Malvern and a former prosecuting attorney in the Seventh Judicial District of Arkansas. He was an active Baptist and served as a Deacon and departmental Sunday School superintendent of the First Baptist Church in Malvern for many years. He also served as a member of the Board of Trustees of the Baptist Memorial Hospital in Memphis, Tennessee, and was a founding member and former president of The Good Years, a churchsponsored community organization of retired persons. Glover served three and one-half years in the Army Air Corps during World War II and was discharged with the rank of captain. He was a 49-year member of the Arkansas Bar Association, a Fellow in the Arkansas Bar Foundation and a member of the Hot Springs County Bar Association. He was a former president of the Malvern Lions Club, a former president of the board of Arkansas Enterprises for the Blind and a district governor of the Lions Club of Arkansas. Glover helped establish the Malvern Little League and the Parkhill Swimming Pool and served as a 10eal Cub Scout Master for Boy Scouts of America, an organization he
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served for 37 years. He was a member of the board of the Ouachita Area Council and was the recipient of the Silver Beaver Medal and the District Award of Merit. Survivors are his wife, Maxine Glover; two sons, Dr. Lawson E. Glover, Ir., of Little Rock and David McGee Glover of Malvern; two sisters, Mrs. E.O. Kilpatrick of Little Rock and Olive Kyle of Pine Bluff; two brothers, B.J. Glover of Little Rock and W.H. Glover of Malvern;
and four grandchildren.
Edward Gordon. Jr. Edward Gordon. Jr.. aged 72. of Morrilton. a former state representative and former chair of the Arkansas Game and Fish Commission, died Thursday. July 2. 1987. Gordon was elected to the state House of Representatives in 1940 and resigned the seat in 1942 to enlist in the Navy. He served as a PT boat commander in the South Pacific in 1944 and 1945. He returned to his Morrilton law practice in 1946 after being discharged from the Navy. Gordon served as prosecuting attorney for the Fifth Judicial District of Arkansas from 1953-58 and as vice president of the Prosecuting Attorneys' Association from 1957-58. He also served on the War Memorial Stadium Commission. on the state Board of Education and on the state Game and Fish Commission. which he chaired from 1970..72. He was a 47-year member of the Arkansas Bar Association. serving in its House of Delegates from 197275 and chairing its Judiciary Committee from 1963-68. He was also a member of the Arkansas Trial Lawyers Association. the Association of Trial Lawyers of America. the American Bar Association. the American Judicature Society and the American Board of Trial Advocates. He was a member and former president of the Conway County Bar Association. The son of the late Edward Gordon. Sr.â&#x20AC;˘ and Ada Ruth Gordon, he attended the Morrilton public schools and graduated from Columbia Military Academy at Columbia, Tenn.â&#x20AC;˘ and the University of Arkansas School of Law. Fayetteville. Survivors are his wife. Marjorie Foster Gordon; a son. state Senator Allen Gordon of Morrilton; a daughter. Martha Gordon Clark of Little Rock; a brother. former Lieutenant Governor Nathan Gordon of Morrilton; a sister. Sara Lee Bentley of Morrilton; and four grandchildren.
August 10. 1987. McDaniel. a graduate of Harvard University and the University of Arkansas School of Law. Fayetteville, served as campaign coordinator for former Gov. Orval Faubus. A native of Craighead County. McDaniel was a lieutenant colonel in the Army during World War n. He was a 32nd Degree Mason. past president of the Kiwanis Club and Arkansas Oil Marketers Association and held membership in the Delta Theta Phi Law Fraternity and the Sigma Chi Fraternity.
McDaniel was a 3Q-year member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. Survivors are his wife. Doris Birkhahn McDaniel; a son, James E. McDaniel. Jr.. of Jonesboro; two daughters. Bonnie Casey of Anniston. Ala.. and Sally DeVazier of Jonesboro; a brother. Nathan McDaniel of Flint. Mich.; two sisters. Alice Clark and Edna Beauchamp. both of Flint. Mich.; and five grandchildren. D
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October 1987/Arkansas Lawyer/153
DISCIPLINARY ACTIONS May to August The Arkansas Supreme Court Committee on Professional Conduct from May to August 1987, issued two letters of reprimand, one letter of caution and two letters of warning. It filed a disbarment suit in Pulaski County Circuit Court against Wali Muhammed of Little Rock, suspended for one year the law license of Sam Sexton, Jr.. of Fort Smith and accepted the surrender of license from Jack W. Dickerson of Garland County. The Committee took no action on 131 informal complaints and voted "no action warranted" on 18 formal complaints.
theft by deception.
SAM SEXTON
Disbarment Suit A disbarment suit was filed on August 5, 1987, in Pulaski County Circuit Court against Wali Muhammed of Little Rock by the Committee on Professional Conduct, the Arkansas Gazette reported. The suit cited several complaints it had investigated concerning Muhammed's conduct as a lawyer and noted that the Committee in May 1986 had suspended his license for one year. "The Committee has shown an indulgent forbearance" toward Muhammed prior to the action for disbarment, the suit said. It added that Muhammed's "history of misconduct is so plenary that it suggests a conscious design." The Committee decided to file for disbarment due to a February 25, 1987, complaint. It did not elaborate on the nature of the complaint. Muhammed told the Gazette that the suit was just "a continuation of the
Suspension of License Sam Sexton, of Fort Smith, had his license suspended for one year on August 29, 1987, by the Committee on Professional Conduct for improperly entering into a business arrangement with a client. a violation of Rule 1.8(a) of the Model Rules of Professional Conduct, the Arkansas Gazette reported. Sexton said he will appeal the suspension within the 3D-day limitation and was granted authority by the Committee to practice law until his appeal is decided. According to the client. Sexton was hired to represent him in an insurance claim. The client said he was injured in a 1982 automobile accident and was awarded a lump sum of $9O,(XXJ, in addition to monthly payments of $650 for the rest of his life. Of the $9O,(XXJ lump sum, $40,(XXJ was to go to his attorney, whom he understood to be Sexton. The client said Sexton offered to allow him to loan $2O,(XXJ to RSC, Inc.. a coal mining firm in Sebostian County. Sexton guaranteed he would be paid $40,(XXJ in 40 months, he said. The client alleged that RSC went out of business and Sexton paid him only after the complaint was filed with the Committee. Sexton testified that he was RSC's president at the time and owned 49 percent of the stock, but that he was never the complainant's attorney. He said two attorneys who worked out of the same office and shared expenses with him represented the complainant. but that he had participated in a
harassmen t" from the Committee
deposition in the case and signed
and that he expected to win in the federal courts where he filed in late July a suit to have his law license reinstated. On August 4, 1987, Muhammed was charged in Pulaski County Circuit Court with one count of forgery, four counts of theft by deception and one count of attempted
the settlement with the insurance company. Sexton said he was acting as RSC's attorney when he offered the investment to the complainant. that he took up RSC's payments to the complainant when the company went out of business and that following a three-month ab-
WAU MUHAMMED
IS41Arkansas Lawyer/October 1987
sence due to heart surgery he returned to his office and found that the complainant had filed a suit against him seeking the rest of the $4D,(XXJ.
JACK W. DICKERSON Surrender of License Jack W. Dickerson, of Garland County, voluntarily surrendered his license to the Committee on Professional Conduct in July. The Committee accepted his surrender of license on July 20, 1987. According to the Arkansas Supreme Court clerk, Dickerson was arrested on May 29, 1987, and was charged with possession of a controlled substance, driving while intoxicated, felony hit-<md-run, reckless driving and refusal to submit to a urine analysis.
HAROLD FLOWERS Letter of Reprimand Harold Flowers, of Pine Bluff, was issued a letter of reprimand by the Committee on Professional Con-
duct in August for violation of Rule 1.4 of the Model Rules of Professional Conduct involving communication. Flowers' client said that he hired Flowers in 1985 to represent him in a divorce and was not notified by Flowers of a December 1985 hearing in which the divorce suit was dismissed. He said he still wanted the divorce but was denied a chance to testify. Flowers said he kept the client. who is now divorced, informed about his case "at all times," the Arkansas Gazette reported. He said the attorney for the client's ex-wife asked that the divorce be dismissed because the couple "was living together as man and wife."
ROBERT E. IRWIN Letter of Reprimand Robert E. Irwin, of Russellville,
was issued a letter of reprimand by the Committee on Professional Conduct in May for violation of Rules 1.3 and 8.4 of the Model Rules of Professional Conduct involving diligence and misconduct. Irwin's client said that Irwin won a $7,297.50 judgment for her in a 1983 trial but she learned in 1985 that the judgment hadn't been formally filed with the court clerk, which is required for collection. Irwin said the judgment was prepared sometime after the trial, but he did not recall when it was first submitted to the court or what happened to it after it was first prepared He said that he didn't know why it took nearly two years to resolve, but the judgment was filed in January 1986. Irwin said he did not file it "of record."
JOHN W. BEASON Letter of Caution John W. Beason, of Henderson, was issued a letter of caution by the Committee on Professional Conduct in June for violation of Rule 1.15 of the Model Rules of Professional Conduct involving the safekeeping of property. The action was the result of a complaint by an attorney for an insurance company who said that Beason represented a client insured by his company who was injured in an automobile accident. He said Beason settled the case with the adverse party and the settlement included the subrogation claim of the insurance company. He said Beason intentionally failed to advise the company or him of the settlement and refused to pay the amount involved. 0
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Arkansas IOLTA Program
IOLTA Celebrates First Anniversary By Susanne Roberts The impact of possible litigation is a factor which is always a consideration to attorneys. Any speculation about the legal status of the IOLTA concept should be put to rest. The California Supreme Court upheld its state's mandatory IOLTA program in December 1985. The United States Supreme Court denied certiorari. On June 19, 1987, the Eleventh Circuit Court of Appeals affirmed a district court decision which found the voluntary Florida IOTA program constitutional. Cone v. State Bar of Florida, No. 85-3993. The district court declined to exercise pendant jurisdiction over a state claim alleging breach of fiduciary duty. The Eleventh Circuit found that the plaintiff did not possess a specific and legitimate claim of entitlement to $2.25 generated on $13.75 held for her in her attorney's IOTA account. The Court's rationale is based on the following facts which show that no interest could have been earned on the plaintiff's money by any method other than IOTA: federal banking law restricts interestbearing checking accounts to individuals, certain charitable nonprofit organizations and public entities; the plaintiff's $13.75 fell short of the bank's minim urn balance requirements; and the law firm's administrative costs plus bank service charges would have devoured the estimated $.c.; per month earned by an individual account opened for the plaintiff. The court concluded that the plaintiff lacked a property right in the interest earned on the firm's IOTA account and the firm did 156IAIkansas Lawyer/October 1987
not appropriate her interest in violation of the Fifth Amendment nor deprive her of her property without due process. A Proud Endorsement The Arkansas IOLTA Foundation marked its first anniversary on June I. 1987. At year's end, we had 936 lawyers or 25 percent of the eligible bar participating and 66 financial institutions enrolled and we had collected $80,176.39 in interest earnings and awarded $40,lXXl in grants. Arkansas ranked 13th out of 29 voluntary IOLTA programs in the country in the percentage of eligible attorneys participating in IOLTA. We can be proud of our state's endorsement of IOLTA. Also in June, the IOLTA Foundation Board of Directors established the next grants cycle. Applications will be available on November I. 1987, and should be submitted by
February I. 1988. Grant awards will be announced on April 1. The Board is currently working on the application's format and criteria. Your support has allowed the Foundation's operations to become more sophisticated. The Board au路 thorized employment of a secretary to allow the executive director to spend more time out in the state recruiting participants in the program. I'm available to come talk to your bar association on the IOLTA program. The Foundation also bought a copier and a computer, which will enable us to give you more detailed information about our operations, and will begin publishing a newsletter later this year. The Foundation's purpose is to fund law-related charitable needs. You are our patrons and we will try to be responsive to your suggestions and inquiries. Please don't hesitate to give us a call.
IOLTA
FINANCIAL INSTITUTION HONOR ROLL (April 16, 1987 to July IS, 1987) Financial institutions denoted by a double asterisk have expressly waived all charges for IOLTA accounts and institutions denoted by a single asterisk have to date remitted interest to the Foundation without deducting a fee. JACKSONVILLE "First Jacksonville Bank LINCOLN Bank of Lincoln
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October 1987/Arkansas Lawyer/IS7
EXECUTIVE DIRECTOR'S PAGE
"
• . . In
the Spirit of
Public Service" By William A. Martin
"... In the Spirit 01 Public Service: A Blueprint lor the Rekindling 01 Lawyer Prolessionalism .. is the title 01 a report by the American Bar Association's Commission on Prolessionalism. The quotation is the response 01 Dean Roscoe Pound of Harvard Law School when asked to define a prolession: "The term refers to a group . .. pursu·
fig a learned art as a common calling
in the spirit of public service - no less a public service because it may incidentally be a means of livelihood. Purs\lil of the learned art in the spirit of a public service is the
primary purpose." One olten cited description 01 a prolession is lrom In Re Estate 01 Freeman, 34 N. Y. 2d 1; 311 N.E.2d 480, 483 (974): "A profession is not a business. It is distinguished by the requirements of extensive formal training and learn-
ing. admission to practice by qualifying licensure. a code of ethics imposing standards. qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a
system for discipline of its members for viola1ion of the code of ethics. a
duty to subordinate financial reward to social responsibility, ' . ,"
The term "professionalism" sometimes seems overused and must be placed in context to have a clearer meaning. Lawyers' "prolessionalism" relers to something lar beyond competency, Take, for example, several recommendations of the Commission on Prolessionalism: • (0.2.) Resolve to abide by higher standards of conduct than the minimum required by the Code of Professional Responsibility and the Model Rules of Professional Conduct, and • (0.4.) Resist the temptation to make ISS/Arkansas Lawyer/October 1987
the acquisition of wealth a primary gool of law practice,
Efforts are taking place on many lronts to rekindle lawyer professionalism. The ABA appointed J. C. Deacon of Jonesboro to chair its Special Coordinating Committee on Professionalism. H. William Allen 01 Little Rock. a member 01 the ABA Commission, chairs our Committee on Professionalism. In addition many bar publications contain articles and columns expressing concern about lawyers' lack 01 prolessionalism, using the term in a broad manner. One major concern cited is commercialism. Emphasis on lawyers' accumulating ever more billable hours, their conspicuous consumption (e.g. big houses and last cars), the publicity surrounding new associates' extremely high salaries and iawyer advertising which emphasizes lees and appears to stir up litigation makes it dillicult lor the. average citizen to believe we're interested in
anything other than maximiZIng profits. Reactions to such perceptions are seen in the strong support by the 1987 Arkansas legislature of Act 317 restricting lawyer advertising and the Federal Trade Commission's readiness to take over the regulation 01 lawyers from state supreme courts. II the public's perception is that commercialism has overtaken the obligation to practice law in the spirit 01 public service, then lawyers are in bad trouble. 01 course, to practice law an attorney must attract clients and observe proper law ollice management techniques so his income is sullicient enough to pay the costs of operation and provide an adequate standard 01 living. There is nothing wrong with lawyers being rewarded generously from their practice so long as the rewards are the result 01 quality, responsible legal services. While money will always be one of the attractions in practicing law, those who see it as the main attraction are missing out. The Bible tells us love of money is the root 01 all evil. The ABA's Commission observes that to solve most 01 our problems we must lirst subordinate the desire lor making money. We must remember that our legal education and the abilities which enabled us to pass the bar examination make up a sacred trust to be used in the spirit 01 public service. We need to think about prolessionalism, examine our own attitudes and conduct and discuss these things with our colleagues. Our Committee on Professionalism is interested in your ideas as to how all 01 us can perform our proper and effective roles in rekindling lawyer professionalism, 0
YOUNG LAWYERS' UPDATE
Run for the
Roses By Michael H. Crawford
question their sanity, too.
I challenge you to lay aside the excuses and try something new with the Young Lawyers' Section. It's not easy to make new acquaintances and approach new experiences, but things worth doing are seldom easy. Several standing and special committees of the Young Lawyers' Section have openings. Please join us this year and add a priceless asset to your practice. For more information, write or call the Arkansas Bar Center. And it's run for the roses As fast as you can,
How many times have you heard yourself say: "I need to do that:' ''I'm going to do that next time" or '1 just don't have the time for that? .. Those who have suffered the slings and arrows of law school and the bar exam are a special breed. They are proud and determined and members of an elite group and a demanding profession. But the practice of law for young lawyers is a challenging and sometimes frightening experience. Attorneys are expected to know the law and offer instant advice in a multitude of situations. Trial practice before several judges and against ever-changing adversaries tests one's perseverance. In addilion, today's office technology demands that attorneys
Your fate is delivered Your moment's at hand, It's the chance of a lifetime In a Iiietime of chance, And it's high time you join~ In the dance.
master new skills.
If the workload, the ever-changing law and the technology are not enough to distress young lawyers, the need to be aware of the ethical considerations of law practice and of legislative proposals to alter the practice of law are. How can today's young lawyer possibly contend with this potpourri of obstacles? One solution is to hire a team of lawyers and a hugh support staff, but such conveniences are usually beyond the reach of young lawyers. So why not associate with a group of attorneys knowledgeable in the latest in the law, learned in the "ins and outs" of modem technology and organized for effective legislative action - a group who can share all of this information and more at virtually no cost, year-round? The Arkansas Bar Association's Young Lawyers' Section offers these benefits. The time to t~ke advantage of them and grow professionally is now.
- Dan Fogleberg "Run for the Roses" • Attend the 1988 Trial Practice Semion March 25 to 26 and
nar in Hot Springs catch the races;
• Coach a group of high school students during the Annual High School Mock Trial Competition: • Attend the Arkansas Bar Association's Annual Meeting and share recent
case problems with seasoned attorneys; • Pick up a copy of the Senior Citizens'
Handbook for your valuable clients; • Speak to a group of high school students on drug and alcohol abuse; • Purchase the Criminal Law Handbook to bolster your criminal practice; • Enjoy a conversation with other
o
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IN-HOUSE NEWS LAW SCHOOLS, A.I.C.L.E. AND HOUSE OF DELEGATES
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FAYEITEVILLE By I. W. Looney Bob Laurence's article "At Home With the Bankruptcy Code: Residential Leases, Installment Real Estate Contracts and Home Mortgages" has been published by The American Bankruptcy Law Journal, He is author of an article in the Arkansas Law Review entitled "The Supreme Court and the Defaulting Garnishee" and coauthor 01 another, "Iustice Thurgood Marshall and the Problem of indian Treaty Abrogation." He moderated a panel at the Federal Bar Association's indian Law Conference in Phoenix. Rod Smolla received the American Bar Association's Gavel Award Certificate of Merit for his book Suing the Press; testified before the Committee on the ludiciary, Subcommittee on the Constitution of the United States Senate, in favor of new fair housing legislation: authored an article in the Mercer Law Review on "Taking Libel Reform Seriously" and
reviews in Constitutional Commentary on ''The First Liberty: Religion in the New Republic," in the New York Times Book Review of "The Burger Years: and in Academe of "Zechariah Chafee, Ir.: Defender of Liberty and Law." He also contributed a chapter on defamation to the Media Law Handbook. spoke to the Fayetteville Rotary Club, the Washington County Bar Association and Sons of the American Revolution and presented papers before the American Culture Association on "Libel and the American Character" and the International Communication Association on "The First Amendment and Propaganda." Professor Smolla was a panelist on "Libel in the Workplace" at an American
Bar Association program in Washington, D.C. He received a grant from the National Endowmen t for the Humanities to participate in a seminar on the Bicentennial of the United States Constitution and was one of two Arkansas delegates to the National Bicentennial Convention of the American Civil Liberties Union in Philadelphia. Howard Brill was elected vice-president of the Central States Law Schools Association, spoke at the Arkansas Bar Association's annual meeting on "What Went Wrong: Disciplinary Acts" and
ISO/Arkansas Lawyer/October 1987
to the Fayetteville Rotary Club on "Ethics in the Legal Profession" and was appointed by Governor Bill Clinton to the Code of Ethics Commission. lake Looney spoke at the annual meeting of the Arkansas Community Action Association on "Agricultural Policy: Time For a New Look:' to the Financial institutions Seminar on the new "Agricultural Lien Filing System:' to a seminar of the Forest Products Research Society on "An Overview of Federal Estate and Gift Taxation" and gave two presentations to the LeadAR program of the Cooperative Extension Service on water law. He participated in a conference at Michigan State University on U.S.Canadian legal studies and taught a short course at Drake University Law School on the "Legal Aspects of Biotechnology in Agriculture." He was appointed to the Arkansas Commission on Pollution Control and Ecology and to the editorial bocad for the Arkansas Form Book published by the Arkansas Bar Association. His article on ''The Effect of Tax Reform on Cattle Breeding" appeared in The Angus lournal. Richard Atkinson was appointed by Governor Clinton as special advisor to the Tax Reform Study Commission and spoke at a Washington County Bar Association
program on "Considerations in Drafting Wills and Trusts." Richard Richards has completed the manuscript for the second edition of his co-authored book, Federal Statutory Law of Employment Discrimination. Phillip Norvell has been appointed by Governor Clinton to the Oil and Gas Commission. David Malone was appointed to the ArkWlsas Parkway Commission Wld to the Special Oversight Subcommittee on Statutory and Regulatory Enactments Concerning Educational Reform. Lonnie Beard taught during the first summer session at Capital University School of Law in Columbus, Ohio. Carlton Bailey's article "Miranda Overwhelmed by impeachment" has been published by the Criminal Law Review. Bailey was appointed by Governor Clinton to the Commission on Arkansas Probation, Parole Wld Sentencing Procedures and was selected, along with Terry Kirkpatrick, to be a faculty-participant in the Fulbright School of Public Affairs in its Academic Enrichment for the Gifted in Summer program. lanet Flaccus has an article in the Arkansas Law Review entitled "Handicap Discrimination Legislation: With Such Inadequate Coverage at the Federal Lev-
el. Can State Legislation Be of Any Help?" She also authored '"!'he Lemon and Its Rejection: Code Language and Its Misconception" in the UALR Law Journal and "Bankruptcy Farm Relief: The New Chapter 12" in Agricultural Law Update. Robert B. Leflar represented consumers' interests in negotiations to draft H.R. 2595, the proposed Medical Device Amendments Reform Act of 1987. He also presented a paper at the Environmental Congress of Arkansas on "Access to Information on Chemical Hazards." Mort Gitelman was selected as commencement speaker by the law school graduating class and was appointed by Governor Clinton to the Arkansas Bicentennial Commission. Wylie Davis was a speaker at the Fayetteville Rotary Club on the "History of the U.S. Constitution." Lonnie Beard, Jake Looney and David Malone made a series of appearances on television stations concerning new state and federal legislation. Rod Smolla has been featured in similar discussions concerning the U.S. Constitution. Linda Malone's article on the recent "takings" decision of the Supreme Court appeared in the Agricultural Law Update. She spoke to the Ozark Society on water pollution and was named to the Board of Directors of Arts Foundation of Fayetteville. Student Activities Dina Wood of Huntsville was selected to serve as Tenth Circuit parliamentarian for the American Bar Association Law Student Divi-
sion and was appointed as liaison to the Section of Administrative Law. Don Parker of Fort Smith, Sandy Huckabee of Mountain Home, and Dina Wood attended the ABA's annual meeting in San Francisco. Holly Smith of Springdale received one of 12 National Membership Awards for the ABA Law Student Division. Jay Shell received the J.C. Barrett Commercial Law Award for academic performance in commercial law courses; Nancy Rahmeyer received the Arnold Trial Advocacy Award for outstanding trial advocacy skills and Holly Smith recei ved the Stearne Award for academic performance in taxation and estate planning. The 1987 class included the following high honor graduates: Benjamin S. Boyd of Little Rock; Sherry M. Gilbertson of Gravette; Elizabeth Ann Levy of North Little Rock; David B. Olsen of Two Harbors, Minn.; Nancy Steffen Rahmeyer of Springfield, Mo.; Norton S. Rosenthal of Fort Worth, Texas; Sam Sexton of Fort Smith; John Smart of Fayetteville; Jane Watson of Crossett; and Susan Elizabeth Webb of Greenwood. 0
UNIVERSITY OF ARKANSAS AT LITTlE ROCK SCHOOL OF LAW By Paula Casey A portrait 01 Professor
Emeritus Ruth Brunson was unveiled on June 9, 1987, at a party hosted by Mary Davies Scott for members of the UALR Law School Association and others who had contributed to its commission. The portrait has been hung on the fourth floor of the Arkansas Law Center. The Law School Ass0ciation held its annual meeting on June 12 in Hot Springs during the annual meeting of the Arkansas Bar Association. Jane Knight of Little Rock was named Association president and Phillip B. Farris of Batesville was named president elect. The Association honored Judge Steve Morley of North Little Rock with a plaque lor his service as president during 1986-
87. Kathryn Fitzhugh joined the professional staff of the UALR/ Pulaski County Law Library as the reference librarian. She holds a Master of Library Science degree from the University of Illinois and a J.D. degree from the UALR Law School. The Law School will have two visi ting professors during the 198788 academic year Griffin J. Stockley, a Little Rock attorney, will teach the legal clinic in the fall and Chip Lowe, assistant professor and director 01 the Criminal Clinical Program at the University 01 Nebraska, will teach during the fall and spring. Lynn Foster, director of the Law School Library, along with Jada Aitchison and John Tessner 01 the Law Library's professional staff, attended the annual meeting of the American Association of Libraries in July. Fos-
ter chaired the AALS Awards Committee and presented national awards for best legal bibliography, distinguished service and best law library publication. Dean Lawrence H. Averill, Jr .. Professor Robert R. Wright. III, Prolessor Frances Fendler and Professor Susan Webber Wright attended the Eighth Circuit Judicial Conference in July. Professor Susan Wright is a member of the Circuit Advisory Committee. Pro lessor Robert Wright and Dean Averill were panel members for a discussion of the United States Constitution. Other panelists included Judge Richard S. Arnold and Judge G. Thomas Eisele. Professor Fendler attended a workshop in Madison, Wisconsin, on federal securities laws sponsored by ALI-ABA. Prolessor Dent Gitchel participated in a panel discussion on the importance of language to lawyers during the Murphy Lecture Series at Hendrix College in February. Adjunct Pro lessors Sherry Bartley, Michael Johnson, Phil Kaplan and Judge John Forster served as visiting laculty members at the National Institute lor Trial Advocacy's Southern Regional Program at Southern Methodist University in June. Professor Gitchel was an assistant section leader for the program. Professor Robert Wright spoke to the Arkansas Planning Association in Conway on "Municipal and Individual Liability Under 42 U.S.C. 1983" and to the Arkansas Municipal Attorneys Association on
October 1987/Arkansas Lawyer/161
"Zoning and Planning Law: Recent Developments." He was elected secretary-treasurer of the Central States Law Schools Association in April. Professor Susan Wright published two articles in recent issues of the UALR Law Journal that are part of a short treatise on the Arkansas law of oil and gas. A supplement to Professor Glenn Pasvogel's book Mechanics and Materialmans Liens - The Law in Arkansas has been published. He authored an article, "Mortgage Substitutes - The Law in Arkansas," which appeared in the UALR Law Journal. "Direct Examination - Some Evidentiary and Practical Considerations," by Professor GitcheL was also published in the UALR Law Journal. 0
A.I.e.L.E. NEWS By Rae Jean McCall In his notes for a lecture, Abraham Lincoln stated: "The leading rule for the lawyer . . . is diligence. Leave nothing for tomorrow which can be done today. At A1CLE, plans made for new developments reflect our own dedication to this belief. At the June meeting of the A1CLE Board of Directors, the following items were approved: (I) An amendment to the Articles of Incorporation to allow three additional representatives of the AI-
kansas Bar Association's House of Delegates to serve on the AleLE Board of Directors;
(2) Goals and objectives for Fiscal Year 1987-88 to not 1621Arkansas Lawyer/October 1987
only increase and improve the quality of programs and services provided through AlCLE, but to develop a mechanism for
identifying the needs of Arkansas attorneys and a long-range plan for post-
graduate curriculum;
(3) A cooperative agreement between the Arkan-
sas Bar Association and AICLE which recognizes AICLE as the continuing
legal education arm of the Association and allows for discounts to Association members, revenue sharing
and a closer working relationship between the two organizations. The agreement was also presented in June to the Association's
House of Delegates. (4) The budget included the addition of a CLE program coordinator. We are pleased to announce the addition of Debra Williams Garrison to the AlCLE staff
effective July 20. Debra hrings a wealth of experience and enthusiasm to AlCLE and will work close-
ly with program planning committees to ensure the quality of live programs, in addition to managing the satellite teleconferences;
and (5) An annual award lor Outstanding CLE Program Planning to be presented at the Awards Luncheon during the Association's annual meeting. The first re· cipient of the award was
Garland W. Binns, Jr., in June for his leadership in planning the Securities Law Short Course conduct-
ed in March. Preview of Upcoming Programs • The Fall Legallnstitute is scheduled for October 22 to 23 at the Sheraton Inn in Fort Smith. The topic for this year's Institute will be Advising Arkansas Business Entities and will concentrate on various aspects of the Corporation Act of 1986 and other issues pertaining to business organizations. In addition to a timely
CLE program, the Sebastian County Bar Association is planning a terriflc evening of fun and fellowship on the 22nd. Don't miss this opportunity to keep abreast of this critical area of the law. • A different kind of CLE program is what you can expect on November 20 when James W. McElhaney, professor of law at Case Western Reserve University, presents two timely half-day programs. The morning seminar, Demonstrative Evidence: Making It Work for You!' examines and demonstrates effective ways to use a variety of these important tools throug hou t the trial. The afternoon session, Foundations and Objections Workshop. provides participants with a challenging opportunity to evaluate and improve their skills in the areas of foundations and objections. The afternoon session will be limited to 25 persons to allow for individual skill development. • It's not too early to mark your calendar for January 22 to 23. That's the date of the Mid-Year Meeting at the Excelsior Hotel in Little Rock. An exciting program is being planned that will concentrate on recent developments in the law. In addition to the in tensi ve program, plans are also underway to provide participants with an opportunity to visit the exhibition hall packed with products and services for the Arkansas attorney. • If you're into advance planning, plan to spend the day of March 11 with Irving Younger in
an intense program on trial skills. Younger is the most dynamic and entertaining CLE lecturer in the country. His unique perspective as a former prosecutor, judge, law professor and active litigator coupled with his exceptional talent as a speaker - ensures that this program will be informative and valuable to your practice. 0
ARKANSAS BAR ASSOCIATION HOUSE OF DELEGATES MEETING June
13. 1987
The annual meeting of the Arkansas Bar Association's House of Delegates was held on June 13, 1987, at the Arlington Hotel in Hot Springs. President Richard F. Hatfield presided. The minutes of the January 24, 1987, meeting of the House were approved as presented. An unaudited balance sheet and a statement of cash receipts and disbursements as of April 3D, 1987, were also approved. Philip E. Dixon, chair of the Membership Committee, reported that there are 3,440 members in the Association and expressed his appreciation to the members and staff who helped make this possible. President Hatfield thanked Dixon for his efforts in achieving a significant membership increase. W. Russell Meeks, III, reported that an increase in attorneys' li-
cense fees by the Arkansas Supreme Court will be necessary to pay for the administrative costs of mandatory CLE. Meeks moved that the House authorize the filing of a supplemental peti tion with the Supreme Court recommending an increase of an unspecified amount in fees. The increase will cover the costs associated with the administration of mandatory CLE. legal specialization and other matters. The motion was approved. Dr. Rae Jean McCall. executive director of the Arkansas Institute for Continuing Legal Education. presented AICLE's goals and objectives for the 1987-88 fiscal year and thanked members of the House and the sections for their support during 1986-87. Susanne K. Roberts, executive director of the Arkansas IOLTA Foundation, Inc., reported on the continuing growth and success of IOLTA throug h high lawyer awareness and participation. Roberts presented a plaque to President Hatfield in appreciation of his outstanding assistance to IOLTA, J.C, Deacon reported on the February meeting of the American Bar Association's House of Delegates at which a resolution was adopted urging that an increase in the monetary limitation on diversity jurisdiction to $50,000 be enacted by Congress. A uniform statute against perpetuities was approved, a special commission was created to study the liability insurance industry and positions were adopted by the House on various issues raised by tort reform.
H. Murray Claycomb reported for the Resolutions Committee and moved for adoption of Resolution 87-1, as revised. regarding principles governing the awarding of attorneys' fees in cases involving Social Security claims. The motion was approved. Claycomb further moved for the adoption of Resolution 87-2 providing that the Association support a petition drive to place a Judicial Compensation Commission constitutional amendment on the 1988 ballot. The motion was approved. Charles L. Carpenter outlined the needs for a bylaws change regarding the term of office for law student representatives in the House to provide that their terms of office begin at the close of the annual meeting and continue to the close of the next annual meeting - the same time the terms of the regularly elected members of the House commence and terminate. The motion carried. Barry Coplin presented a proposed Family Support Chart revised by the Family Law Section and members of the judiciary. The House approved the chart. Ralph M. Cloar, Jr., reported on behall of the Group Insurance Committee and moved that the House approve a nine and one-half percent increase in premiums for the group plan for major medical insurance effective September I, 1987. The motion carried. President Elect John F. Stroud. Jr., presented the proposed 1987-88 budget and moved for its adoption. The motion carried. Stroud presen-
ted the proposed committees and committee chairs for 1987-88 and moved for their approval. The motion carried. Carolyn B. Witherspoon nominated Sandra Wilson Cherry for rEH;!lection to the p0sition of secretarytreasurer. The nomina-
tion was approved by acclamation. Cherry announced that R. Gary Nutter. Carolyn Witherspoon. Madison P. Aydelott. m. and Robert L. Jones. m. have been elected to the Executive Council as representatives of their respective bar districts. She also certified the election of the following delegates to the House: Garvin Fitton; James H. McKenzie; Carolyn J. Clegg; David G. Henry; John N. Fogleman; Ralph E. Wilson, Jr.; David F. Guthrie; John G. Lile. III; Paul D. McNeill; John R. Beasley; Eddie H. Walker. Jr.; Don R. Elliott. Jr.; Peter G. Estes. Jr.; Daniel R. Carter; Ralph M. Cloar. Jr.; William D. Overstreet; Samuel A. Perroni; and J. Thomas Ray. Winslow Drummond and Robert G. Serio are new tenure delegates. Newly elected members of the Legislative Oversight Committee were announced as follows: Henry Hodges, Stephen M. Reasoner, Jr., Lamar Pettus and Claude S. Hawkins, Jr. Cherry certified that Philip E. Dixon has been duly elected president elect of the Association. President Hatfield presented Randall W. Ishmael a plaque in appreciation of his service as the 1986-87 Council chair. Hatfield then presented the gavel to incoming President John F. Stroud, Jr.
President Stroud reviewed the terms of the new AICLE agreement. It was moved and seconded that the agreement be approved. The motion carried. President Stroud also proposed the following members to serve in the newly created positions on the AICLE board: Dennis L. Shackleford and Wayne Boyce for three-year terms, Martha M. Miller for a two-year term and J. Thomas Ray for a oneyear term. It was moved and seconded that these members be approved. The motion carried. Martha M. Miller, the Association's lobbyist. reviewed the past legislative session, reporting that six of eight legislative proposals in the Association's legislative package were adopted. The Corporation Code and the new Arkansas Code were also adopted. President Stroud addressed plans for the coming year concerning the Bicentennial observance. continued growth of IOLTA, mandatory CLE. revisions of the Debtor/Creditor Handbook and other updates, a survey of the membership and plans for a lawyer placement service. He announced that Vincent W. Foster. Jr.. will serve as chair of the Executive Council for 1987-88. President Stroud praised the work done by outgoing President Hatfield. There being no further business. the meeting was adjourned. 0 Respectfully submitted. Sandra Wilson Cherry Secretary-Treasurer October 1987/Arkansas Lawyerll63
Index
Annual Meeting 89th Annual Meeting Joint BenchlBar Arkansas Code Attorneys Attitudes and Norms Black Complaints Against Defense Lawyers Disciplinary Actions
57 83 82 46 90,135 108, 109 30 14, 54, 108, 154 38, 158 83
Professionalism Stroud, John F. Jr Banking Environmental Risks 56 Blacks in Law Branton, Wiley 94 Davis, Cynthia 138, 139 Easterwood, Raymond 138 Haley, George , 94 Howard, George Jr. , ." 90 Malone, Jerry 138, 139, 140 Mathis, Lisa 138 Mercer, Christopher C. , 95 Porter, Austin .. , .. , 137
Price, Troy 138 Rockefeller Scholars 136 Shropshire, Jackie 94 Sprinkle, Alice 138, 139 Walker, John W. , 94 Brazil Law and Life , 143 Computers Courts , , .29 Domestic Relations Planning Ahead 131 Environmental Law Financial Institutions 56 Review............... . 40 Guardianship Act 345 of 1983 . . . . . .. 101 to 104 Act 535 of 1987 103, 104 Act 940 of 1985 103, 104 Probate Code of 1949 101 Reform 101 In Memoriam Atkins, James Wesley 67 Banks, Warren E. Jr. . , , .. 151 Bradley, Gene 67
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Cashion, Thomas Lee llO Clark, William M. . 26 Glover, Lawson E. Sr. 152 Gordon, Edward Jr 153 Hoggard. Jabe E. Sr. III Holman, J. Marvin ., III Hurley. Ruby E , 26 Kemp, Joseph C , , 27 Kieffer. Marvin L. , , , . . .. ., .. 26 Mann, John , .. 27 McDanieL James E 153 McGehee. Abner Jr. 67 Overton, William R 151 Purcell, Joe Edward 110 Screeton, Jerry J III Sloan, Frank 0 27 Whitlock, Robert L. ....•...... 28 Insurance Legislation II Tort Reform 2, 87 IOLTA First Anniversary . .. 156 First Quarter. ll2 Judicial Compensation Constitutional Change .. 83, 122 Judiciary Computers 29 Howard, George Jr. . 90 Judicial Compensation .. 83, 122 Reform ll5 Smith, George Rose 17 Labar Law Review 6 Legal Profession Blacks in Law School 135 Mandatory CLE 83,84 Premarital Agreements. . . . . .132 Right to Die Legislation , . . . . . . . . . . .74 Rockefeller Scholars UALR Law School., " 135 Sentencing Federal Guidelines 125 Terminally III Right to Die 74 U.S. Constitution Bicentennial 82, 122 Young Lawyers Too Few Volunteers ll7 Update........ .... . 31
Editor's Note: The index for Volume 21 was prepared by Mike Hankins, research consultant for The Written Law in Little Rock.
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