JUNE 11-14, 2014 HOT SPRINGS WHAT’S IN IT FOR YOU? The Arkansas Bar Association Annual Meeting is the largest legal event in Arkansas. Over four days, attorneys will come together for continuing legal education, receptions, award ceremonies, and entertainment. From traditional social events and receptions to cutting edge CLE, the ArkBar Annual Meeting is the place to be in June.
CLE PROGRAM HIGHLIGHTS ABOTA MASTERS IN TRIAL APPELLATE CNA PROGRAM CRIMINAL LAW
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TRADITIONAL SOCIAL EVENTS
TO MAKE NEW CONNECTIONS
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11 ETHICS INCLUDING CNA
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DID YOU KNOW… MARGARITAS ARE SERVED IN THE EXHIBIT HALL THURSDAY & FRIDAY AFTERNOONS?
EVENING ENTERTAINMENT FRIDAY FIRM RECEPTION
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TRADITIONAL SOCIAL EVENTS
8 7 6
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5 4 3 2 1 2011
PRESIDENTS’ RECEPTION TGIF RECEPTION
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116th ANNUAL MEETING JUNE 11-14, 2014 Become part of the tradition this June! Meet us in beautiful Hot Springs for a week of camaraderie and legal education. Pre-Registration ends June 6, 2014. Register for #ArkBarAM today at ace.arkbar.com/AnnualMeeting
“Come for the celebration
leave with the
PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Judge Wiley A. Branton, Jr. Keith L. Chrestman Judge Brandon J. Harrison Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Jim Simpson Board of Governors Chair Marie-Bernarde Miller President-Elect Brian H. Ratcliff Immediate Past President Charles L. Harwell President-Elect Designee Eddie H. Walker, Jr. Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Cliff McKinney BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chadick, Jr. Suzanne G. Clark Frances S. Fendler Amy Freedman Buck C. Gibson Amy L. Grimes Denise Reid Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Brant Perkins Troy A. Price John C. Riedel Brian M. Rosenthal Jerry L. “Jay” Shue, Jr. Shaneen K. Sloan Brian A. Vandiver Danyelle J. Walker LIAISON MEMBERS Judge Gary M. Arnold Harry Truman Moore Karen K. Hutchins Judge Mark A. Pate Paul W. Keith Richard L. Ramsay Jack A. McNulty Laura H. Smith The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, email@example.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2014, Arkansas Bar Association. All rights reserved.
Lawyer Vol. 49, No. 2
10 Family Law Cases: A View from the Bench By Judge Vann Smith 14 Joint Custody: Changes in Arkansas Child Custody Law By Chris Burks 20 Several Key Impacts of United States v. Windsor on Federal Tax Benefits and Laws Affecting Arkansans and Arkansas Businesses By Anton L. Janik, Jr., Brian A. Vandiver and Tod Yeslow 26 How Act 506 Changes Mental Evaluations Under Ark. Code Ann. § 5-2-305 By Lloyd Warford, Esq., Bettina E. Brownstein, Esq., Steven Doman, M.D. and Brian Rush Simpson, M.D. 30 Practice Tip—He Likes It! Hey Mikey! Making Life in Divorce Mediation Palatable By Cheryl Fisher Anderson 38 Book Review—The Ring of Truth by Tim Fox By Phillip H. McMath 40 Justice Townsend Dickinson—An Adventurer By J.W. Looney 42 ARJLAP—Through the Open Door: A Bipolar Attorney Talks Mania, Recovery and Heaven on Earth By Hilary Martin Chaney
Contents Continued on Page 2
Lawyer The Arkansas
in this issue
Vol. 49, No. 2
Member Spotlight-Members Giving Back Family Focus Feature
2014 Mock Trial Competition
ArkBar Governance Report
ArkBar Patron and Benefactor Members
Arkansas Bar Foundation Memorials and Honorarium
columns President’s Report
Young Lawyers Section Report
J. Cliff McKinney
Your Name in Print The Arkansas
A publication of the
Arkansas Bar Association
Vol. 48, No. 1,Winter 2013 online at www.arkbar.com
For information on submitting articles for publication, go to http://tinyurl.com/ thearkansaslawyermag or email firstname.lastname@example.org
Inside: ArkBar Judges & Lawyer Legislators Trial by Jury Generations of Attorneys
Arkansas Bar Association
2224 Cottondale Lane, Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. Vasser Delegate District A-2: Chad L. Atwell, Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Bob Estes, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Curtis L. Nebben Delegate District A-3: Aubrey L. Barr, C. Michael Daily, Lisa-Marie France Norris, Colby T. Roe, Samuel M. Terry Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade A. Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Jason W. Earley, Edie Ervin, Kenya J. Gordon, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson, Jamie Huffman Jones, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney, Chad W. Pekron, Gwendolyn Rucker, Shaneen K. Sloan, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Shana R. Woodard, Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, Jason Milne Delegate District C-4: Jobi J. Teague Delegate District C-5: Matthew Coe, Albert J. Thomas III, William “Zac” White Delegate District C-6: Michael L. Murphy, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, Jackie Bernard Harris, Jessica S. Yarbrough Delegate District C-9: John R. Byrd, Jr., Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: J. Joshua Drake, Michelle M. Strause Delegate District C-13: Cecilia L. Ashcraft, Brian M. Clary Law Student Representatives: Chris Brown, University of Arkansas School of Law; Dominique King, UALR William H. Bowen School of Law
The Arkansas Lawyer
The Annual HOT SPRINGS
The ArkBar’s Largest Annual Event
2014 Arkansas Bar Association Annual Meeting Registration Form
Final Step — Payment
Total Amount Due
For law student and CNA registration, go to www.arkbar.com
(add totals from steps 2-3)
Step 1 — Registrant Information
Supreme Court ID: ____________________Name: __________________________________ Address: ______________________________City: ___________State: ______Zip:__________ Phone: (______) ____________________ E-Mail: _____________________________________ Badge Name (First Name Only) ______________________Ribbons will be available at registration.
Mailed/Faxed Registration $349 OR Registrations received on or before June 4th Registrations not received by June 6th must register at the door for $399.
Non-Member Registration*$600 * Eligible non-Members may join and save up to $300 on registration. Renew your membership to qualify for discounted rates. Registrations not received by June 6th must register at the door.
The above registrations include all CLE Programs, Electronic Course Materials, Receptions, Hospitality Area, Exhibit Hall, Entertainment, Continental Breakfasts, Breaks, & Lunch. Lunch tickets provided for each registrant & will be collected at the door.
Step 2 Total ____________ Step 3 — Guest Registration & Additional Lunch Tickets
Guest Registration Extra Lunch Ticket
Card No.: _________________________ Exp. Date:__________________________ Signature: _________________________
3 Easy Ways to Register
Online: http://ace.arkbar.com/ AnnualMeeting/amregister Fax: 501-881-4251 Mail: Arkansas Bar Association 2224 Cottondale Lane, LR, AR 72202
Step 2 —Meeting Registration
VISA/MC AMEX CHECK Make check payable to Arkansas Bar Association
$75 each Licensed
attorneys cannot attend as guests and must __________ @ $30 each register using the regular meeting registration above.
Step 3 Total ____________
Lunch tickets are provided for each registrant. There is no children’s program this year. If you would like your children to attend lunch, we recommend registering them as a guest. Each registrant receives one ticket per day (Wednesday - Friday) for lunch. Additional tickets can be purchased with registration or at the door.
Registrations cannot be accepted by e-mail
Payment Information: Acceptable forms of payment include cash, money orders, checks and credit cards. Cash: Do not mail cash. Cash may be used only for inperson submittals. Checks: Please note that we will not accept checks that do not have an imprinted or preprinted name or address of the account holder on the check. For example, we will not accept temporary checks, such as those from a new account. Credit Cards: May be used for in-person, online or faxed transactions. We accept Discover, Visa, Mastercard, and American Express. Insufficient Funds: Any check that is returned to us due to Insufficient Funds will be charged a $40 processing fee. We reserve the right to reject any check due to previous bad checks. Photos: From time to time at ArkBar events, the ArkBar may take photographs of participants, attendees, and guests for use in its marketing or promotional materials, news publications or website. By attending such events, you are consenting to the ArkBar taking and using you and your guests’ photograph and name without compensation. Any photographs taken will be the sole property of the ArkBar.
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
ARKBAR NEWS LAWYER COMMUNITY LEGACY AWARDS Awards are presented each year in June at the Association’s Annual Meeting to attorneys and judges who have performed volunteer public services out of a sense of duty, professionalism, and a genuine desire to give back to the community.
RUSSELL GUNTER (POSTHUMOUSLY) Russell Gunter received the award posthumously in recognition of his years of service aiding in the administration of justice and the legal profession. Russell Gunter passed away February 13, 2013, leaving many to mourn the loss of an amazing man and mentor. Russell was a founding member of Cross, Gunter, Witherspoon & Galchus, P.C. where he practiced labor and employment law and served as the firm’s managing partner for 16 years. He was a member of the Arkansas, Texas and American Bar Associations, served as Chair of the Arkansas Bar Association’s Labor Section and as Director of Government Affairs for the Arkansas Society for Human Resources Management. As a member of the Society for Human Resources Management, he served as Chair of the National Legislative Affairs Committee, testified before U.S. Congress and appeared on “The Today Show” on behalf of the Society’s legislative positions. He was President and a Board Member of the Central Arkansas Human Resources Association, and also served on the Board of Directors of the Arkansas State Chamber of Commerce. “Russell’s legacy is immeasurable,” said Rick Roderick, CGWG’s managing partner. “His gentle presence touched the lives of those he worked with daily. His compassionate nature cultivated a feeling of family at our firm and his forward-thinking ideas regarding workplace practices earned CGWG local and national praise for familyfriendliness and flexibility, something Russell was extremely proud of.”
A. JAN THOMAS, JR. A. Jan Thomas received the Lawyer Community Legacy Award for his volunteer service assisting civic groups in a non-legal capacity, providing bro bono legal services, and volunteer service with youth groups. “In Crittenden County, and particularly the cities of Marion and West Memphis, Arkansas, A. Jan Thomas, Jr., is synonymous with volunteer,” said Warren E. Dupwe. “At the age of 75, Mr. Thomas is able to look back over more than 50 years of dedication and contribution to many civic, religious and nonprofit groups and has touched the lives of many, particularly young people. He has been most outstanding in the volunteerism shown in the area of young men Scouting and has been a Boy Scout leader from 1962 to the present day.” He is accomplished in his long legal career and has been honored by Legal Aid of Arkansas for his outstanding pro bono efforts. Thomas has lived his life as a dedicated mentor and as an example of exemplary citizenship. His local community is wellacquainted with his service to their community through serving on the Marion School Board since 1983. He has been very active in his First United Methodist Church of West Memphis for over 50 years. He has also been involved in his community through West Memphis Jaycees, Rotary Club and West Memphis Chamber of Commerce. 4
The Arkansas Lawyer
ArkBar Staff Anniversaries Two ArkBar staff members recently celebrated their five-year anniversaries with the Association— Jon Dor, Director of Finance & Administration, and Kristen Dor Scherm, CLE Coordinator. “Jon’s oversight of the day-today finances has worked well to help the Board of Governors focus on the future,” said Executive Scherm Director Karen K. Hutchins. “His continuous dedication has been invaluable to me as we strive to maintain and improve upon the financial success of the association.” “Kristen has a great personality for working with the membership of the Arkansas Bar Association,” Hutchins said. “Her polite persistence keeps our Continuing Legal Education efforts moving forward.” Arkansas Bar Foundation Staff Anniversary Joyce Bobbitt recently celebrated her 30th year with the Arkansas Bar Foundation. Joyce has served as the Bookkeeper and Administrative Assistant for the Bobbitt Foundation since 1984. “Joyce’s loyalty, hard work and commitment to the Foundation are invaluable, and her historical knowledge of the organization provides a vital source of information for Fellows and staff. It is an absolute pleasure to work with Joyce, and I am grateful for her years of service,” said Ann Dixon Pyle, Foundation Executive Director.
ABA Bar Leadership Institute
ACCOLADES Niki Cung of Kutak Rock in Fayetteville has been elected as chair of the Board of Directors of Legal Aid of Arkansas. Friday Eldredge & Clark was honored with the Arkansas Community Foundation’s Outstanding Philanthropic Corporations Award. Arkansas Legal Services Partnership Director Vince Morris received the National Legal Aid & Defender Association’s Innovations in Equal Justice Award.
APPOINTMENTS AND ELECTIONS Colette D. Honorable is serving as the president of the National Association of Regulatory Utility Commissioners. She is the first president from Arkansas and first president of color in the organization’s 125-year history. Trae Gray of LandownerFirm.com in Oklahoma has been recognized by Tulsa-based Oklahoma Magazine as a member in the statewide “40 Under 40” class of 2014. Chris Palmer, Little Rock, was appointed as Circuit Judge in the Third Division of the 6th Judicial District. Morril Harriman, Governor Beebe’s Chief of Staff, was appointed to the University of Arkansas Board of Trustees.
WORD ABOUT TOWN Quattlebaum, Grooms, Tull & Burrow PLLC announced that Joseph R. Falasco and J. Cliff McKinney II have become managing members of the firm. The firm also announced that R. Seth Hampton joined the firm as an associate. Seth Williams has joined the Perkins Law Firm as an associate. Ken Cowan has returned to private law practice with his own firm of Kenneth W. Cowan, PLC, located at 120 Belle Avenue in Fort Smith. Kristen S. Moyers, W. Carson Tucker, Erin S. Brogdon and David L. Jones have been named partners of Wright, Lindsey & Jennings LLP. Rebecca H. Stahl, David C. Jung and E. Lee Lowther, III have joined the firm as associates. We encourage you to submit information for publication in Oyez! Oyez! Please send to email@example.com.
Silkenat, Walker and Hubbard ArkBar President-Elect Designee Eddie H. Walker, Jr. (center) joined more than 300 other emerging leaders of lawyer organizations from across the country at the American Bar Association’s Bar Leadership Institute (BLI), March 12-14. The BLI takes place annually in Chicago. It offers incoming officials of local and state bars, special focus lawyer organizations and bar foundations the opportunity to confer with ABA officials, bar leader colleagues, executive staff and other experts on the operation of such associations. Walker joined ABA President James R. Silkenat of New York, NY, and ABA President-Elect William C. Hubbard of Columbia, SC, in sessions on bar leadership, governance and communications.
Father Son Federal Investiture
ABA Day in D.C.
Moody Jr. & wife Melinda with Moody
Brian Albright, Melody Peacock Barnett and Amy Johnson
Rosalind Mouser, Rep. Steve Womack and Jim Simpson
U.S. District Judge James M. Moody Jr., was sworn into office by his father, retired U.S. District Judge James Moody, in a ceremony at the federal courthouse on April 4, 2014. The U.S. Senate confirmed Moody Jr.’s nomination to the position on February 25, 2014.
To thank members for their commitment to the association, ArkBar celebrated member appreciation week April 7-11, 2014. Members entered to win prizes during the week and a kick-off reception was held on April 4, 2014.
Association leaders visited Capitol Hill during the American Bar Association’s ABA Day in Washington D.C. April 8-10, 2014.
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
What does membership mean? A lot… seasoned attorneys grow their practice, expand their knowledge, and connect with other legal professionals. By joining, you will have quick access to our carefully
The Arkansas Bar Association has equipped me with the tools to really grow my practice and enhance my involvement in the legal community.
Joining the Arkansas Bar Association helps new and
curated resources – like the new CLE Pass, Fastcase for research, our Career Center and networking opportunities.
Misty Wilson Borkowski
Now is the Time to Join or Renew for the 2014-2015 Bar Year Benefits to being a member ➤ ArkBar Docs Form Library ➤ The New CLE Pass – Big Savings & Convenience! ➤ Access to research, services and software ➤ Job postings and career opportunities ➤ New ways to connect with peers and practicing attorneys ➤ Discounts and insurance options ➤ Retirement
To join/renew and for more information on the benefits of membership visit our new membership website -- ArkBarBenefits.com
6 The Arkansas Lawyer www.arkbar.com
ONE BUSY YEAR
BY JIM SIMPSON This will be my last chance to write an article for The Arkansas Lawyer magazine as your president. Thanks for allowing me to serve. It has been extremely rewarding. Were there some surprises? Yes, for sure. One was that the Bar year has seemed to go by so quickly. Another astounding fact I under appreciated at the beginning was the countless volunteer hours our members contribute to extraordinary projects, task forces, committees, and sections without ever voicing complaints about the intensity and hard work required of them. Finally, it has been a pleasant surprise to learn how we fare versus other state bar associations and even the American Bar Association. Looking Back and Looking Forward: (Conceding that space does not permit me to mention more volunteers by name—the Association knows who you are and humbly gives you thanks): Annual Meeting Because of Annual Meeting Chair David Fuqua’s efforts, the Annual Meeting in Hot Springs has been “in the can” months in advance. There are many exciting CLE sessions, so check out the annual meeting program and plan to be there. Mock Trial Competition Wow, what a success! Hundreds of high school competitors and would-be trial lawyers worked unbelievable hours to present a fictional case. Volunteer lawyers and judges from the Association made this program a success. Taskforce on Professional Liability Insurance Larry Burks, past presidents Charlie Harwell and Rick Ramsay, and other invaluable volunteers continue to serve on this taskforce to study ways the Association looks at professional liability insurance to offer to our
members. These taskforce members have already put in more hours on this project than you can imagine. Legislation Affecting the Practice of Law One only has to look back to the spring of 2013 to be reminded of a feisty legislative session involving such issues as the Rules of Civil Procedure. Your Bar Association and the Bar’s Legislation Committee were knee-deep in meetings and conference calls trying to represent the Association admirably. The issues were at times divisive. The Association is looking at proposed bylaw changes for our Legislation Committee. During an active legislative session, members of the Legislation Committee are assigned bills, and we look at every one of them. I urge you to consider membership in the Arkansas Bar PAC for as little as $30.00 per year (contact the Association office) so that our members might secure election to the General Assembly. As you probably know, the Association has a full-time lobbyist, Jack McNulty, but we need even more help inside the legislature. Proposed Changes to Ethical Rules Recently you likely saw a Per Curium from the Arkansas Supreme Court offering proposed changes to our ethical rules for comment. Those changes started with the Professional Ethics Committee chaired by Brad Hendricks. Leadership Academy We found a group of future leaders for the Bar and, as in the past, put them to work learning how to become Bar leaders. Among many other efforts, they spent Saturday, April 5 working a Pro Bono “Wills for Heroes” event for first responders. The group helped 75 people and completed almost 300 legal documents including wills and power of attorneys.
Fastcase and the Arkansas Code We continue to make efforts to assist Lexis and Fastcase to come to an agreement so that our members can have access to the most recent Arkansas Statutes passed in the 2013 General Assembly. Fastcase is our legal research provider for the Association. Lobbying in Washington, D.C. In early April, Rosalind Mouser and I met with the Arkansas members of Congress on Capitol Hill. Our primary efforts were aimed at continued if not increased funding for Access to Justice. We also encouraged continued cash instead of accrual accounting so that lawyers, ranchers, farmers, etc., at a certain threshold would not be taxed on incoming fees never collected. Not So Miscellaneous As you can appreciate, there are many other issues at the center of lawyers’ lives and practices. As only one example, the Association is working with Arkansas Judges and Lawyers Assistance Program to help us recognize and assist lawyers with cognitive difficulties. Additionally, a special task force will establish best practices in the closing of solo practices following a lawyer’s death. Finally, I want to personally thank MarieBernarde Miller for serving as chair of the Board of Governors this year and Shaneen K. Sloan for serving as our new treasurer. You have been in good hands with these volunteers, and the future is very bright for the Association with Brian Ratcliff, my successor, and Eddie Walker, Brian’s successor. Karen Hutchins and the staff give us continuity and stability, and there is no way to thank them enough. This has been a real privilege and I thank you. ■
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
BuIldIng on 50 yeARs oF seRvICe to the legAl CommunIty.
The AbA RetiRement fundS pRogRAm is proud to celebrate its 50th year of providing comprehensive and affordable retirement plans exclusively to the legal community. Your membership has made the Program a success. Thank You. Find out what thousands of Program member firms already know about saving for retirement. Call an ABA Retirement Funds Program Regional Representative today! (866) 812-1510 I www.abaretirement.com I firstname.lastname@example.org
Please visit the ABA Retirement Funds Booth at the upcoming Arkansas Bar Association Annual Convention for a free cost comparison and plan evaluation. June 11-13, 2014 â€˘ Hot Springs, AR The Program is available through the Arkansas Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one anotherâ€™s products and services. CN0311-8581-0415
8 The Arkansas Lawyer www.arkbar.com
YOUNG LAWYERS SECTION
BY J. CLIFF MCKINNEY I started my first article as Chair of the Young Lawyers Section with the quote, “When someone has been given much, much will be required in return; and when someone has been entrusted with much, even more will be required.” (Luke 12:48 NLT). The Young Lawyers Section goal this year has been to focus on the fact that we have all been given much as lawyers and have a consequential obligation to give even more back. The goal is to give back to others through service to our profession, our community and to those less fortunate than us. I am happy to report that our Section worked hard to meet this obligation through numerous projects. The Young Lawyers Section gave back to others through many programs, a few of which were: 1. Providing volunteers for Pro Bono Week, which included helping the parents of patients at Arkansas Children’s Hospital with estate planning; 2. Developing a partnership with Habitat for Humanity of Pulaski County, Arkansas Access to Justice and the Center for Arkansas Legal Services called “Build A Will” to provide estate planning for Habitat for Humanity clients—and efforts are now underway to expand this program throughout the state; 3. Updating and supplementing 18 and Life to Go, the legal manual for young adults; 4. Working to develop a handbook for disaster relief services to help attorneys advise victims of disasters; and 5. The development of proposed legislation to improve the lives of young adults. The legislative initiative is particularly exciting as it is the first time in the current generation of young lawyers that our Section has
undertaken such a project. A dedicated team of young lawyers drafted two proposed bills that were recently recommended for inclusion in the Arkansas Bar Association’s 2015 legislative package by the Jurisprudence and Law Reform Committee. The first bill addresses the problem of binge drinking among underage drinkers. In numerous instances, underage drinkers died of a medical emergency when no one called for help because of fear of being arrested. If approved, this legislation will provide limited immunity from prosecution for underage drinking if the minors involved call for help and cooperate with authorities during a genuine medical emergency. The majority of states have similar legislation, which helps to save lives while not condoning underage drinking. The second bill addresses a growing problem known as “revenge porn.” This is a practice where a former romantic partner sends sexually explicit photographs or videos to other people or to social media sites for the purpose of embarrassing the ex-partner. This has become all too common and too easy with the pervasiveness of smartphones. In many instances, the victim has limited recourse because the photographs or videos were freely given to the perpetrator at the time they were created. Once these pictures become public, the victim can suffer serious lifelong consequences since the pictures or videos may never be removed and might be readily discoverable when looking up information about the victim on the internet. Though there may be some recourse to sue the perpetrator, doing so may be futile if the perpetrator has limited net worth. Many states are now criminalizing the act of embarrassing or humiliating a former partner by publishing sexually explicit pictures. If adopted, this bill will criminalize the practice
in Arkansas, but the bill is also narrowly tailored to protect the legitimate First Amendment rights of the parties involved. The Young Lawyers Section also gave back to our profession through the development of a series of mentoring videos for young lawyers. This series will be a growing set of short videos aimed at advising young attorneys on specific legal issues they may encounter. The Young Lawyers Section is also in the process of developing a social media handbook for attorneys to provide the latest practical and ethical advice regarding the use of social media. Additionally, the Section is continuing efforts to encourage people of diverse backgrounds to enter the profession and become an active part of the Arkansas Bar Association. It is with more than a touch of melancholy that I close my last report as Chair of the Young Lawyers Section. Serving in this role has been one of the greatest honors and privileges I have ever had in my professional life. I am resisting the temptation to list the many people I have to thank for their help and service to the Section this year because I do not have enough room to name them all and I am sure to inadvertently leave someone out. My sincere hope is that every young attorney will decide to become involved in the Young Lawyers Section. My service in this organization over the last 10 plus years has been incredibly rewarding. It has opened doors to amazing experiences, offered rewarding service opportunities and provided the chance to work with dedicated professionals who will remain my friends long after my time as a young lawyer is done. Every young lawyer should take advantage of the opportunity our Section provides. I am extremely glad and grateful that I did. ■
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
FAMILY LAW CASES A View From the Bench
BY JUDGE VANN SMITH
What’s involved in preparing for a family law case? I was asked to address that issue in this article. It sounded like a simple request—talk about divorce, discuss child custody and throw in some property issues and it’s done. But wait. Family law cases can be really simple to resolve or they can be as complicated and complex as any case you can imagine. Family law practitioners have to be able to address the legal issues involved in a case as well as the emotional concerns of their client. Anyone who has practiced in this area knows well that listening to and comforting the client can take as much time as the actual legal work of the attorney. Books have been written regarding how to deal with the emotional aspect of a client in a family law case, but for the purpose of this article, you’ll need to refer to those books for advice. So how does an attorney get started in representing clients in family law matters? More importantly, what does the attorney need to do to become competent in this area of the law? Becoming competent begins before you see your first client. Take the time to read the family law statutes and then review them on a regular basis. The same goes with reading all appellate decisions in the family law area. Most appellate decisions provide a thorough discussion of the issues and help put the law into perspective. Finally, become involved in bar activities that focus on family law issues and visit with experienced family law attorneys about your particular case. 10
The Arkansas Lawyer
The Beginning One of the first chores a lawyer will have in any family law case is to identify the issues as they will determine how you proceed. The issues could encompass virtually a smorgasbord of topics, from grounds for the divorce, to custody, visitation and relocation of the children, all the way to property division of personal assets (including the family pet and, of course, the pots and pans) and everything in between. A familiarity with the Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnapping Prevention Act are necessary in interstate child custody disputes. As one of the 81 circuit judges who heard over 53,000 family law cases filed in 2013, this article is my perception of what it takes to provide competent representation in any of the types of cases that fall under the definition of family law. Other judges will surely have different views on this issue, but from my 24 years serving as a circuit judge, here’s my take. An attorney’s representation of the client begins when the client walks in the door and you have your first interview. To be prepared, the lawyer has to learn as much as possible about the facts of the case and the motivation for the relief sought. This is the first opportunity to size up your client, determine weaknesses and strengths in the case and make an initial evaluation about how you will proceed. Your client may speak the gospel, but sometimes they misrepresent, embellish or minimize the
facts. Always be wary and vigilant as there are always two sides to a story. One caveat: never guarantee anything other than you will be prepared, will keep your client informed about the status of the case and will do everything you can to be successful. Discovery After the complaint is filed, some attorneys will proceed with discovery. Discovery is a wonderful tool to learn about the opponent’s case, but it can also be a tool for harassment and unnecessary costs. Arkansas Rules of Civil Procedure 33 and 36 establish the ground rules for discovery. Unfortunately, the rules do not limit the number of interrogatories and requests for admission that an attorney may submit. In this day of computers and electronic filings, it is easy for an attorney to pull up a stock set of 100 interrogatories with 300 subparts and send them over to the opposing side. In most cases, you have only increased the cost of the litigation. Expect to receive a similar set of discovery in the return mail. A better practice is to submit a set of discovery that is tailored to your particular case. Avoid the unnecessary overkill that does nothing other than waste time and money. Respond to discovery in the time period allowed by the Arkansas Rules of Civil Procedure. Some lawyers answer fully and completely within the time allowed by the rules. Other lawyers have adopted the view that no response is required until a Motion to
Compel is filed and a hearing has been held on the motion. Nothing delays a family law case more than having hearings on motions to compel when it is obvious that the information is available and discoverable. Tools of the Trade In child custody cases, as well as in guardianship cases, an attorney ad litem may be appointed to represent the interests of the child. An attorney ad litem must be certified through the Administrative Office of the Courts before state funds appropriated by the Arkansas legislature can be used to pay the attorney. These state funds are apportioned to each judicial circuit based on the number of divorce filings in the circuit. Mediation is another tool attorneys should consider in representing their client. Funds are available through the Administrative Office of the Courts to provide certified mediators in cases involving custody or visitation matters. Temporary Hearings In many family law cases, a temporary hearing is necessary to resolve a variety of preliminary issues before the final hearing. The contested issues may include temporary custody of the child, visitation and child support, temporary use of the marital home, payment of the mortgage, utilities, marital debt and temporary spousal support. When setting a temporary hearing, estimate the amount of time that you and your opponent will need to present both cases. Temporary hearings in Pulaski County are typically limited to 30 minutes, but upon request, additional time may be allowed. Other circuits may have a different method of setting temporary hearings. Be aware of the time allotted because other cases may be set after yours and those case settings need to be honored as well. I recall a particular attorney who would set a 30-minute temporary hearing but then bring four or five witnesses to trial and expect the court to allow more time because â€œthis case is so important.â€? All cases are important to the litigants so observe the time limits imposed. During the temporary hearing, an Affidavit of Financial Means is required to be presented to the court. Presumably, the affidavits have already been exchanged between the parties as required by Administrative Order No. 10. The attorney needs to assist his or her client in preparing the Affidavit of
Financial Means. A failure to do so borders on malpractice because the affidavits are relied upon by the courts in making decisions regarding temSo how does an attorney get porary child support, spousal support started in representing clients and the division of debt obligations. A poorly prepared affidavit may provide in family law matters? More false and misleading information that importantly, what does the could adversely affect the end result for the party preparing his or her own attorney need to do to become affidavit. competent in this area of the At the temporary hearing, be on time, address the issue to be presented law? Becoming competent and leave the other issues for another begins before you see your day. If the sole issue is temporary child first client. support, do not dwell on issues that are not relevant. As a courtesy to the court and as an aid to the court reporter, stand when speakhave been handed as many as five to 10 years ing. Not only does it show respect to the court but everyone can hear better, including of federal and state income tax returns with the court reporter who is trying to make sure an little explanation of their specific purpose. The exhibit notebook would at least orgaaccurate record is created. nize the presentation and make it easier to locate the information the presenter believes The Trial Lawyers need to be aware of electronic is important. The last thing I will say about the presendiscovery and take advantage of the information that electronic discovery may provide. tation of electronic evidence is the use of cell In divorce and child custody cases, an influx phones. All judges have been handed cell of information from social network postings, phones during trial and been asked to read a emails, texts, pictures and internet brows- text message. These text messages should be ing histories dominate many hearings. The copied prior to court and copies should be challenge for the attorney is not only acquir- submitted as evidence, not the cell phone. If a party is requesting a witness to appear ing this information but preparing a plan on how to logically and clearly present the at trial by telephone or Skype, the attorney should make arrangements prior to trial not information to the court. In a recent case, hundreds of emails and only for permission from the court to prestexts were introduced into evidence. For ent the testimony in that manner, but also these exhibits to be effective, they must be to make sure that the required electronic presented in an organized form. I would sug- equipment is available for use. At any hearing, be prepared to make an gest the exhibits be placed in an exhibit notebook in chronological order or by subject opening statement if requested by the court matter and tabbed with date and time. The or if the attorney believes it would be helpuse of bate stamping and indexing should be ful. Be succinct. State the issues in dispute and those that have been resolved. If there utilized for ease of reference. The same goes for income tax returns. I is a particular issue that is novel or unique, a
JUDGE VANN SMITH has served as circuit judge in the 6th Judicial Circuit since 1989, primarily hearing family law cases.
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
trial brief might be helpful. Remember, you are not arguing to a jury. When presenting exhibits to the court, I would suggest that the judge not only be handed the original exhibit, but also a copy of that exhibit so that the court can take notes on the exhibit. If the judge is fortunate enough to have a law clerk, I would suggest providing a copy of the exhibit to the law clerk as well. Keeping Up With the Joneses As stated earlier, to become competent in family law matters, it is important to keep up with changes in the law. In the 2013 legislative session, for example, significant changes were made in the areas of joint custody and alimony. Also, within the last couple of years, the Arkansas Supreme Court handed down opinions that require the trial court to look at relocation cases in a different light, and cases that begin to address issues involving same sex partners with children, among others. These cases are significant because they will affect the way courts have traditionally viewed these issues. Act 1156 of 2013 amends Ark. Code Ann. § 9-13-101 and states that “an award of joint custody is favored in Arkansas.” That simple statement changed the traditional view in Arkansas: joint custody was not favored. Act 1156 does not, however, create a presumption in favor of joint custody in Arkansas. The statute defines joint custody as “the approximate and reasonable equal division of time with the children by both parents individually as agreed to by the parents or as ordered by the court.” The parents may agree to the amount of time each parent has with the child, but if they cannot agree, the court has the authority to make that determination. The law remains that the welfare and best interests of the child are the polestar in any custody decision. Act 1156 further states that if a party willfully creates conflict with the purpose of disrupting the joint custody arrangement, such conduct may be a material change in circumstances sufficient for a change in custody from the “disrupting parent” to the innocent parent. Act 1487 of 2013 amends Ark. Code Ann. § 9-12-312 to add three circumstances for which the court can terminate alimony from one spouse to the other: (1) fulltime, intimate, cohabiting relationship with another person; (2) death of either party; or 12
The Arkansas Lawyer
(3) any other contingency that is included in the order. This Act further requires the party requesting rehabilitative alimony to provide a plan of rehabilitation to the court so it may determine whether the plan is feasible, and state the amount and duration of the award. The person paying rehabilitative alimony is entitled to petition the court for a review or modification of the award of alimony upon a showing of a significant and material change of circumstances. In the recent case of Moix v. Moix,1 the Supreme Court in a 4-3 decision ruled that a trial court must consider the best interests of a minor child in determining whether the prohibition of unmarried cohabitation in the presence of the minor child should continue. The Court found that “the public policy against romantic cohabitation is not a ‘blanket ban,’ but that the best interests of the child must be considered.”2 The Moix case has opened up an area of the law that had been settled for many years. I predict that significant litigation will follow in cases where a parent has a romantic relationship with someone of the same or opposite sex and desires to cohabitate with this individual in the same household with the minor child present. Children in Court It is not uncommon for children to testify in court. Most judges will excuse the parents while the child testifies, but on occasion, a parent will object to not being present. The appointment of an attorney ad litem sometimes removes the necessity of having the child testify as the ad litem is authorized to communicate the child’s desires to the court. A court is required to consider where the child may want to live, but is not bound by that desire. The age, maturity and mental state of the child are some of the factors to consider in evaluating the weight to place on the child’s testimony. The court will determine early on whether the child has been coached, so beware.
trace funds, locate hidden accounts or discover concealed income. CPA’s can testify about the parties’ tax consequences for the payment of child support and alimony. Vocational experts can give opinions regarding the earnings potential and employability of a party. Whichever witness testifies, make sure that person can be qualified as an expert. The End This article touches only a portion of the issues a lawyer will encounter in family law cases. So how does an attorney become competent in family law cases? Be thoughtful in preparation, take care to identify the issues, be diligent in presentation, follow the rules and continue to be aware of changes in this evolving area of the law. Endnote: 1. 2013 Ark. 478. 1. Id at 12. ■
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Vol. 49 No.2/Spring 2014 The Arkansas Lawyer 13 THE JURY TRIAL
JOINT CUSTODY: Changes in Arkansas Child Custody Law
BY CHRIS BURKS
Have Arkansas child custody laws been altered? That’s a question to which all Arkansas attorneys should know the answer. Family law practice remains brisk in Arkansas, and all attorneys know friends or family who turn to them for basic answers in times of familial turmoil. So what has changed in child custody law? Arkansas no longer disfavors joint custody. Act 1156 of 2013 enacts Senate Bill 901 of the 2013 Arkansas General Assembly.1 The specific statutory language of this change now reads: “In an action for divorce, an award of joint custody is favored in Arkansas.”2 What will this change mean? To better understand, it is useful to first look at the recent history of Arkansas custody law, what led to the change at the legislature, and arguments for and against the change, as well as to some examples of how the law plays out in practice. RECENT HISTORY OF JOINT CUSTODY For at least the past decade, Arkansas practitioners enjoyed relatively clear guidance about joint custody: joint custody was disfavored. As far back as 1984, courts found that equally divided custody of minor children may be ordered where the circumstances clearly warrant it, but it had to be shown that the interest of the child is better fostered by divided custody.3 In 2001, the Arkansas Court of Appeals 14
The Arkansas Lawyer
stated that joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action.4 In 2004, the Arkansas Court of Appeals reiterated that joint custody or equally divided custody of minor children is disfavored in Arkansas but that Ark. Code Ann. § 9-13-101(b)(1)(A)(ii) as amended in 2003 specifically permits the court to consider such an award.5 Again in 2006, the Arkansas Court of Appeals repeated the long-standing precedent that joint custody or equally divided custody is disfavored.6 However, a majority of the 2013 Arkansas General Assembly voted to make joint custody “favored in Arkansas.” To be specific, “joint custody” is defined as “the approximate and reasonable equal division of time with the child by both parents or as so ordered by the Court.”7
CHANGE AT THE CAPITOL To better understand the change, it is important to examine what led up to the vote to make joint custody favored in Arkansas. Senator Jon Woods of Springdale was the lead Senate sponsor of Senate Bill 901 of the 2013 Arkansas General Assembly, and Representative Mark Lowery of Maumelle was the lead House Sponsor. Senator Jane English of North Little Rock and Representative Randy Alexander of Fayetteville signed on as co-sponsors of the legislation.8 On March 8, 2013, Senator Woods filed the original Senate Bill 903 and the bill was referred to the Senate Judiciary Committee. However, on March 21, 2013, an amendment to the original bill was accepted by the Senate Judiciary Committee, with Representatives Eddie Armstrong, John Baine and Bob Ballinger added as cosponsors.9 Amendment Number One to Senate Bill 903 contained a few minor changes to the text of the original draft, but most notably added the clear descriptive language found in Arkansas Code Annotated § 9-13-101(a)(1)(A)(iii): “In an action for divorce, an award of joint custody is favored in Arkansas.”10 Amendment Number One clarified the intended impact of Senate Bill 903 by adding the very concise descriptive language of the intended change: “joint custody is favored.” (Emphasis added). Not to belabor the obvious, but imagine a
bill without the concise descriptive language of the intended change. Instead of analyzing the impact of the change, we would be questioning whether the previous version of the draft and the rest of the changes in the bill did in fact intend to favor joint custody. The Senate Judiciary Committee then passed the amended Senate Bill 903, and it went before the full Senate. On March 26, 2013, Senate Bill 903, as amended by Amendment Number One, passed the Senate by a vote of 28 to five, with two Senators not voting. Among attorneys serving in the Senate, Senators David Johnson, Robert Thompson, Stephanie Flowers and Jeremy Hutchinson voted for Senate Bill 903. Senators Michael Lamoureux and David Burnett voted against Senate Bill 903, with Senator Bruce Maloch not voting.11 On April 2, 2013, the House Judiciary Committee returned a “Do Pass” recommendation that moved Senate Bill 903 before the full House of Representatives. On April 8, 2014, the full House of Representatives passed Senate Bill 903 by a vote of 85 to four, with 10 members not voting and one member voting present.12 Notably, all four dissenting votes against Senate Bill 903 were cast by practicing attorneys. These four “nay” votes were from Representatives Kizzia, Vines, Steel and Wright. Attorneys and Representatives voting in favor of Senate Bill 903 included Broadaway, Julian, Nickels, Edwards, Shepherd, Whitaker, House, Williams and Walker.13 RATIONALES FOR AND AGAINST CHANGE Some saw the passage of Senate Bill 903 as a victory for “equally shared parenting.”14 According to this perspective, child custody laws have not caught up with many societal changes of the past 50 years.15 Specifically, some proponents of the change to favoring joint custody argue that many fathers in our society do not gain physical custody in divorces, and thus they are not as involved in their children’s lives as is good for their family and society for them to be.16 Other perspectives hold that the change is not a good public policy outcome. Some think there may be an increase in litigation over custody as a result of the change and think that will not be a good outcome for children involved. Similarly, others think that having more divorced parents with a joint custody arrangement will lead to the
children involved being exposed to the litigation process themselves, thus havJoint custody is no longer ing a negative impact on the children’s “disfavored.” That much is cerlives.17 tain. As with many statutory Still others think that the change will have a minor impact. Proponents changes, some of the details of this perspective contend that judgremain to be fleshed out by es will take note of joint custody’s favored status, but make factual findthe courts. In response to this ings that joint custody is not approchange, perhaps some say as priate when any other fact supports a custody arrangement other than joint do the French “plus ça change, custody, or when one party objects plus c’est la même chose.” to the joint custody arrangement and evidence supports such a finding. The But to others, perhaps this thinking is joint custody may not change will make a difference. bring much finality to litigation, and courts do not want continued postdecree filings. and activities and share the responAn opposing rationale holds that sibilities that come with the decision there will be something more akin to a joint to bring a child into the world. For custody presumption that will instead lead the others, though, there are those to decreased litigation, as the parties will uncomfortable Friday and Sunday have the settled expectations that joint cushand-offs and driveaways, big smiles tody is the presumption and thus fight less in one vehicle and an all-too familiar as the custody arrangement is likely known quiet in the other.20 prior to entering into protracted litigation.18 It is important to note that Arkansas “has the second-highest divorce rate in the nation, behind only Nevada. ... Caught in the middle of all these divorces are the children who get shuffled between parents one weekend or holiday at a time.”19 It is easy to examine the number of divorce filings in Arkansas, but the legal and public policy analysis makes more sense in the context of the personal experiences of the families involved: [T]here is no doubt that parents who work together despite their marital differences are helping ease the pain of the broken family. In some cases, the separated parents work together to raise the child or children. They both take interest in school work
These personal experiences with custody are largely what inform and underlie the debate of the change to a joint custody’s favored status here in Arkansas. Regardless of whether one is in support of favoring joint custody or not, the public policy goal of all child custody laws remains encouraging parents to work together in the best interest of their children. JOINT CUSTODY IN PRACTICE In practice, attorneys will have to put on evidence to show that joint custody is not in the best interest of the child and should thus not be awarded. In theory, this should not be too high an evidentiary burden to overcome. If a custody dispute has reached the point where a judge has to make evidentiary
CHRISTOPHER BURKS practices in Little Rock with the Sanford Law Firm, PLLC. His practice consists of a wide variety of domestic relations litigation as well as general civil and employment law litigation.
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
findings about the best interest of the child, it is likely that each party at that stage of the proceedings is pursuing some degree of legal or physical custody for themselves. There could then be enough evidence to present on the inapplicability of joint custody. Whether in the form of calendars, text messages or fact testimony, practitioners should continue to easily be able to gather such evidence. But, perhaps only time and further case law clarification will tell the level of proof required to overcome joint custody’s newly conferred “favored” status. However, a failure to present or make findings that joint custody is inappropriate is now something that cannot be ignored. Conferring “favored” status on joint custody changes the evidence that may be put before and considered by the court. The party, or parties, seeking joint custody no longer have to overcome joint custody’s disfavored status. Attorneys will continue to need to be aware of the distinction between different courts on this issue, as, like attorneys, each judge is different. Creative approaches to custody, including joint legal custody with one party being ‘primary’ physical custodian, or another party having ‘liberal’ visitation, may need to be revaluated in light of the change to favoring joint custody. POSSIBLE ISSSUES WITH THE CHANGE 1) Impact on Child Support Child support is issued at the discretion of the court in joint custody situations.21 Practically, this may or may not mean that a change to joint custody will lead to a decrease in child support payments, or in child support litigation. The Department of Finance and Administration found that “currently, approximately 40,000 of the 130,000 open enforcement cases originated from divorce actions. With ordered child support in joint custody cases being discretionary with the court, any quantification of the resulting increase or decrease of cases involving the Office of Child Support Enforcement is not possible.”22 It is important to note that child support payments make up only a part of the typical support arrangement in 16
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divorces, with various types of insurance for the children and other obligations playing an important part of any final court order or agreed disposition of the case. 2) Disruptions to the Custody Arrangement Act 1156 may need further clarification in one other area. After there has been an imposition of joint custody, Act 1156 allows for a modification to other types of custody in several circumstances. One such circumstance is when one party is “willfully creating conflict in an attempt to disrupt a current or pending joint-custody arrangement.”23 How is this “intent to disrupt” defined? Even though the language is clear, the definition seems open to further clarification as there is no definition of “intent to disrupt” in the statute. This lack of definition of “intent to disrupt” underlies the need for a thorough presentation of facts in a custody case, as well as a detailed finding of facts by the court. Regardless of the definition, facts on the issue must be presented. 3) What if a Parent Wants to Move? The Arkansas Supreme Court only recently clarified the standard that applies when one parent in a joint custody arrangement wants to relocate. The court in Singletary v. Singletary24 held that: “We clarify today that the Hollandsworth relocation presumption applies only in those cases where a parent has been granted sole or primary custody of a child.We further clarify that the Hollandsworth relocation presumption simply does not apply when the parents share joint custody of a child.”25 In a joint custody arrangement, a court must first find a material change in circumstances, and then
determine if a change of custody is in the best interests of the child.26 The case of Hollandsworth v. Knyzweski27 had previously announced a presumption in favor of a custodial parent’s relocation and that relocation alone would not constitute a material change of circumstances to justify a change of custody.28 The court in Hollandsworth listed five factors to consider when determining whether a noncustodial parent has sufficiently rebutted the presumption in favor of a custodial parent’s relocation and whether the move is in the children’s best interests: “(1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) the visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and (5) the preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.”30 CONCLUSION In conclusion, Arkansas custody law has changed. Joint custody is no longer “disfavored.” That much is certain. As with many statutory changes, some of the details remain to be fleshed out by the courts. In response to this change, perhaps some say as do the French “plus ça change, plus c’est la même chose.”29 But to others, perhaps this change will make a difference. Considering Arkansas’s long-standing statistics with family law, change may be good. ENDNOTES 1. 2013 Ark. Acts 1156 available at http:// www.acfc.org/acfc/assets/documents/legislation/Arkansas_SB901_Act1156.pdf. 2. Ark. Code Ann. § 9-13-101(a)(1)(A) (iii). 3. Hansen v. Hansen, 11 Ark. App. 104, 666 S.W.2d 726 (1984) (emphasis added). 4. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001) (citing Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998)). 5. Dansby v. Dansby, 87 Ark. App. 156,
MEMBER SPOTLIGHT MEMBERS GIVING BACK — FAMILY FOCUS FEATURE
Antwan Phillips of Little Rock has been a member of the Big Brothers Big Sisters of Central Arkansas (BBBSCA) Board of Directors since 2010 and was elected president in 2013. “I decided to start volunteering with BBBSCA because I believe that my life is different because of my mentors,” Phillips said. “I want to be able to help our kids have the same positive influence that I received.” BBBSCA’s mission is to provide children facing adversity with strong and enduring, professionally supported one-to-one relationships that change their lives for the better, forever. Norris
William David Carter and Caleb J. Norris volunteer for the Arkansas State CASA Association. CASA is a program where trained court-appointed volunteers represent the best interest of an abused or neglected child for whom a placement is being determined by the juvenile court. A CASA volunteer acts
ENDNOTES (CONT). 189 S.W.3d 473 (2004). 6. Bailey v. Bailey, 97 Ark. App. 96, 98, 224 S.W.3d 712, 714 (2006). 7. Ark. Code Ann. § 9-12-101(a)(5). 8. http://www.arkleg.state.ar.us/assembly/2013/2013R/Pages/ BillInformation.aspx?measureno=SB901. 9. http://www.arkleg.state.ar.us/assembly/2013/2013R/ Amendments/SB901-S1.pdf. 10. Id. at 1. 11. http://www.arkleg.state.ar.us/assembly/2013/2013R/Pages/ votes.aspx?rcsnum=1247&votechamber=Senate. 12. http://www.arkleg.state.ar.us/assembly/2013/2013R/Pages/ votes.aspx?rcsnum=1439&votechamber=House. 13. Id. at 1. 14. http://www.acfc.org/news/equally-shared-parenting-gainingnational-traction/. 15. “The New Battleground of Child Custody Reform: Shared Parenting,” Rachel Alexander, Townhall.com, accessed: http:// townhall.com/columnists/rachelalexander/2011/07/19/the_new_ battleground_of_child_custody_reform_shared_parenting/page/ full. 16. Id. at 1. “Child custody and support laws have become more onerous over the last 50 years due to fewer parents staying together and women becoming equally as capable as men at earning a living outside the home. Instead of reflecting these changes, the laws have lagged behind, continuing to favor mothers over fathers. The laws
as a fact finder of the child’s best interest, providing a judge with valuable information on the child to help the court make a sound decision about the child’s future. Sasha and Justin Bennett of Fayetteville recently became foster Sasha and Justin Bennett parents. They fostered their first child from just under 3 months of age until just shy of 10 months before he was placed in his forever home. They now have a five-yearold girl in their care, and they say that being foster parents has been one of the greatest and most Underwood Family rewarding experiences of their lives. Cathy Underwood and her husband Glen with their grandchildren Alex Allums (10), Tabatha Allums (12) and Brittanie Allums (17), during their first “official” Christmas together, 2013. They were appointed as guardians in early December. Glen and Cathy have a wonderful blended family of 7 children, 19 grandchildren, and three great-grandchildren. At times, there have been as many as 6 grandchildren living with them; Brittanie has been with them for six years. When asked what his hobbies are, Glen responds, “My family. There’s not much time for anything else! But I love my hobby!”
generally award primary custody to the parent who spent more time at home with the children and less time working, even if the difference was miniscule. The other parent is then ordered to pay a crushing amount of child support, sometimes on top of alimony. In a small percentage of situations, usually where the father was the primary caregiver, this situation is reversed and the laws punish the mother.” 17. 2/5/2014, Chris Burks, discussion with other Sanford Law Firm family law attorneys regarding change. 18. Id. 19. “48 Hours: When It’s Time to Go ‘Home’,” Rick Fahr, Log Cabin Democrat, Nov. 21, 2011, http://thecabin.net/interact/ opinion/columns/2011-11-21/fahr-48-hours-when-its-time-gohome#.Uu7OR_ldXZ0. 20. Id. at 1. 21. Arkansas Supreme Court Administrative Order No. 10. 22. DF&A Analysis: http://www.arkleg.state.ar.us/ assembly/2013/2013R/Fiscal%20Impacts/SB901-DFA1.pdf. 23. Ark. Code Ann. § 9-13-101(b)(1)(A)(iii). 24. 2013 Ark. 506. 25. Id. at 8. 26. Id. 27. 353 Ark. 470, 109 S.W.3d 653 (2003). 28. Id. at 485. 29. Id. 30. “The more things change, the more they stay the same.” ■
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
Arkansas High School Mock Trial
Judge Kristine G. Baker T. Scott Brisendine Judge Earnest E. Brown, Jr. Judge Thomas E. Brown Judge Waymond M. Brown Bart W. Calhoun Laura L. Calhoun Erin E. Cassinelli Tracy Lynn Cole Cathleen Compton Judge Vicki Shaw Cook Carl F. “Trey” Cooper, III Brandon Crawford Cory S. Crawford Judge Don N. Curdie Paul Davidson Judge Beth M. Deere Tracey Dennis Deborah S. Denton Margaret Diane Depper Natalie J. Dickson George Raff Ernst Judge William Price Feland Hugh A. Finkelstein Judge Victor A. Fleming Jimmy Gazaway Connie L. Grace Judge Wendell L. Griffen Adrienne Morris Griffis Milas H. Hale, III Christian Harris Stephanie M. Harris Michael McCarty Harrison Floyd A. Healy Michael Bailey Heister Samuel S. High Johnathan D. Horton James Owen Howe Judge Parker Sanders Huckabee Laura Dyer Johnson Shawn J. Johnson Leon Jones, Jr. David Chan Jung David W. Kamps Valerie L. Kelly Traci H. LaCerra Stephanie Ann Linam
THANK YOU TO THE ATTORNEYS & JUDGES WHO VOLUNTEERED FOR THE 2014 HIGH SCHOOL MOCK TRIAL COMPETITION
Tammy Lippert Lynn D. Lisk Jennifer Norsokapie Liwo E. Lee Lowther William C. Mann, III Heather Martin-Herron Judge Mary S. McGowan Anthony L. McMullen Carla L. Miller Sandy Bailey Moll Judge James M. (Jay) Moody, Jr. Barrett S. Moore Ali Brady Noland Gregory J. Northen Valerie Lynne Palmedo-Goudie Pamela Epperson Panasiuk John Pesek Constance Brown Phillips Judge Mackie M. Pierce Meredith B. Rebsamen Scott P. Richardson Bonnie Lee Robertson Danielle Elders Robertson Melissa Nicole Sawyer Charlotte A. Scott Laura K. Shue Jim Simpson Elizabeth Smith Ellen M. Smith Laura H. Smith Maggie Smith Andrea Catherine Stokes Robin L Sullivan Judge Richard D. Taylor Tasha Marie Terry Bruce B. Tidwell Jordan Brown Tinsley Brian A. Vandiver Judge Joe J. Volpe Karen V. Wallace John Jeffery Wankum Judge Morgan E. Welch, Jr. Matthew D. Wells Samuel J. West William Zac White Judge Phillip Whiteaker Colleen Alexandra Youngdahl
Congratulations to the 2014 Mock Trial Champions— Parkview High School Blue Team. (l to r:) Deborah Rookey, Melissa Vachon, Luke Kim, Melody Garrett, Hannah Burdette, Ramzee Williams, Jim Simpson, Claire Frueauff, and Colin Boyd. 18
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The competition was fierce, but Parkview Arts and Science Magnet High School’s Senior Blue Team came out on top over the Junior and Sophomore Parkview High Red team at the conclusion of the annual Arkansas High School Mock Trial Competition. Hundreds of high school students from across the state gathered in Little Rock on February 21-22 for the event, with 25 teams competing. The students from Parkview’s Senior Mock Trial Team represented Arkansas at the national Mock Trial Competition in Madison, WI May 9-10. This year’s competition was held at the Pulaski County Courthouse and the U.S. Federal Courthouse starting on Friday afternoon and concluding on Saturday afternoon. The final round of competition was held at the U.S. Federal Courthouse with Honorable Kristine Baker presiding, and Arkansas Bar Association President Jim Simpson and Arkansas Bar Foundation President Laura Smith serving as scoring judges. This year’s Mock Trial case was a criminal case involving aggravated assault. Special thanks to the ArkBar Mock Trial Committee, Greater Little Rock Legal Support Professionals, Arkansas Bar Association, Arkansas Bar Foundation, Craighead County Community Foundation and the Arkansas Bar Association’s annual sponsors. Volunteers are needed to coach and judge during the 2015 season. Go to ace.arkbar.com/ARMockTrial/Home.
Not only does volunteering for the mock trial competition allow you to positively influence high school students across the state, but it also provides you with uncanny insight into your own strengths and weaknesses as a litigator by forcing you to really think about what the students did well and what they needed to do better.” —Jordan B. Tinsley Chair, ArkBar Mock Trial Committee
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Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
Several Key Impacts of
United States v. Windsor on Federal Tax and Benefits Laws Affecting Arkansans and Arkansas Businesses
BY ANTON L. JANIK, JR., BRIAN A. VANDIVER AND TOD YESLOW
Enacted in 1996, the Defense of Marriage Act’s (“DOMA”) Section 3 provided that in “determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”1 Under DOMA, because same-sex marriages were not recognized for purposes of federal law, persons in same-sex marriages could not receive the rights and benefits of a married person that arose under federal laws including Social Security, employee benefits, veteran’s benefits, and federal tax benefits. This article focuses upon several of those benefits newly afforded by the overturning of Section 3. 20
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SEVERAL KEY TAX IMPACTS OF WINDSOR In United States v. Windsor,2 the Supreme Court ruled that the exclusion of same-sex couples from DOMA’s definition of marriage violates the Fifth Amendment’s equal protection clause and is unconstitutional. (Windsor does not force states like Arkansas that do not recognize same-sex marriage to permit same-sex marriage or to recognize same-sex marriages legally performed in other states.) While Windsor held that legally-married same-sex couples are married for purposes of federal law, there remained a question as to whether same-sex couples legally married under state law (the “state of celebration”) but living in a state that doesn’t recognize same sex marriage (the “state of residency”) should be considered married for purposes of
federal tax law, because federal tax treatment would differ from state tax treatment. The IRS resolved this issue in Revenue Ruling 2013-17, determining that for federal tax purposes, the state of celebration controls. Revenue Ruling 2013-17 requires that beginning with tax year 2013, same-sex couples in any state who were legally married as of December 31, 2013, must file their federal tax return as married. (This includes legally-married same-sex couples residing in Arkansas. However, legally-married Arkansas same-sex couples cannot file their Arkansas tax returns as married.) The Revenue Ruling also provides that Windsor’s application is retroactive to all previous, still open tax years, for purposes of filing original and amended tax returns as well as claims for credit or refund of taxes overpaid.3 As discussed below, in certain tax situations the refund process can generate tax savings for Arkansans. Over 200 provisions of the Internal Revenue Code and Treasury Regulations reference marital status or status as a spouse.4 We identify several that may have a significant impact upon legally married same-sex couples, either positively or negatively. None of these tax laws increase or decrease tax based upon the sexual orientation of the taxpayer. Instead, they are significant due to how they apply to married taxpayers versus single taxpayers. Since Arkansas does not use the federal adjusted gross income computation as the basis for its state tax returns, Windsor’s tax effects will have most impact upon the federal tax returns of Arkansans and Arkansas employers employing legally-married samesex couples. TAX ADVANTAGES TO ARKANSAS BUSINESSES AND THOSE NEWLY ABLE TO FILE AS MARRIED Employee and Employer Refunds of Overpaid Federal Insurance Contributions Tax (“FICA”). FICA includes both the Social Security and the Medicare tax, each of which are payable in part by the employee and in part by the employer. This becomes important where an employee has received benefits that should have been excluded from income, but were not. In that situation, both the employee and employer overpaid federal tax. In Notice 2013-61, the IRS issued guidance for adjusting the employer’s employment tax overpayments caused by the employer’s prior inclusion in income and wages of benefits (like health benefits provided to the
employee’s same-sex spouse, that were taxable as income before Windsor). Employers are not required to seek such refunds,5 and where an employer fails to file for refund, the employee may file for refund. Employee Refunds of Income Taxes Overpaid. If an employer provided health coverage to an employee’s same-sex spouse, the employee may claim a refund of income taxes paid on the value of coverage that would have been excluded from income had the employee’s spouse been recognized as the employee’s legal spouse for tax purposes. Similarly, if an employer sponsored a cafeteria plan that allowed employees to pay premiums for health coverage on a pre-tax basis, but required that coverage for non-employees (e.g., same-sex spouses) be purchased on an after-tax basis, the employee can file for a refund of income taxes paid on premiums for his or her non-employee same-sex spouse. The claim for refund must be filed within the three-year statute of limitations, and the employee may also claim a refund for the Social Security taxes and Medicare taxes paid on the benefits.6 Formation of a Qualified Joint Venture (“QJV”). Where a same-sex married couple wholly own an unincorporated business and meet certain other requirements, they may avoid federal partnership tax treatment by electing to be a QJV, an election which splits the income and deductions according to each spouse’s respective interest in the QJV. The primary benefit is that both spouses pay self-employment tax, which generates Social Security and Medicare credits toward retirement.
Seek Refund of Federal Unemployment Tax (“FUTA”) Paid for Employed Spouse. Where one spouse is employed by another in a trade or business, but the employee spouse is not a partner in the business, the employing spouse does not have to pay FUTA. Therefore, a same-sex spouse employer may seek a refund of the FUTA taxes paid for all prior periods still open under the three-year statute of limitations.7 Employ the Unlimited Deduction from Gift and Estate Tax. Legally married samesex spouses may now take advantage of the unlimited deduction from gift and estate tax for donations made to spouses.8 Use the One-Time Portability Catch Up Election. The IRS has allowed a one-time catch up election for a surviving spouse to benefit from any unused estate tax exemption from the decedent spouse.9 This applies to estates of persons who died during 2011, 2012, or 2013 but does not apply to estates that filed a timely return but failed to make this election. Under the current estate tax exemption of $5.34 million, this allows a surviving spouse to offset up to $10.68 million in income that would otherwise be subject to the estate tax owed by the surviving spouse at death. TAX DISADVANTAGES TO THOSE NEWLY ABLE TO FILE AS MARRIED Adoption of the Spouse’s Child. If a same-sex spouse adopts the child of his or her spouse, the adopting parent cannot claim the adoption credit for qualified expenses incurred in the adoption of a child, because qualified expenses do not include expenses
ANTON L. JANIK, JR. is a member of the Mitchell Williams law firm were he leads the Tax Controversy JANIK VANDIVER YESLOW and Litigation practice. BRIAN A. VANDIVER is a member of the Mitchell Williams law firm where he primarily represents employers in all areas of labor and employment law. TOD YESLOW is a member of the Mitchell Williams law firm where he practices exclusively in the area of executive compensation and employee benefits law. Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
incurred in connection with the adoption of a child of a spouse.10 If such expenses were deducted in a prior year, that deduction would be lost if a claim for refund was filed for that year. Net Investment Income Tax (“NIIT”). The new 3.8% tax on certain unearned income (including capital gains made on the sale of a personal residence) may impact the 2013 returns of certain high earning married taxpayers with unearned income11 and with an adjusted gross income in excess of $250,000 (if filing jointly) or $125,000 (if filing singly). For capital gains on the sale of personal residences, NIIT only taxes the excess gain left over after the Section 121 $500,000 capital gains exclusion is applied. Additional Medicare Tax. Beginning with taxable year 2013, an additional Medicare tax of 0.9% is imposed upon wages, compensation and self-employment income that exceed the threshold amounts of $250,000 (for those married filing jointly), or $125,000 (for those married filing separate). FMLA AFTER WINDSOR Unlike most other federal statutes which have utilized a “state of celebration” test, the Family Medical Leave Act of 1993 (“FMLA”) utilizes a “state of residency” test, where same-sex spouses are covered by FMLA if the state in which the employee currently resides recognizes same-sex marriage. This different test creates difficulties for employees and employers. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specific family and medical reasons, 12 or 26 workweeks depending upon the reason. An employee can take FMLA to care for a “spouse” among other reasons. The FMLA defines a “spouse” as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in states where it is recognized.”12 Before Windsor, DOMA precluded the application of a state law that recognized same-sex marriage for purposes of FMLA. After Windsor, employees who reside in a state that recognizes same-sex marriage are entitled to FMLA leave to care for a spouse. How does this change affect employers and employees? For employers, this change creates new challenges and questions. For example, 22
The Arkansas Lawyer
because the test asks where the employee resides, employers with an employee residing in a state that recognizes same-sex marriage must adjust their FMLA policy and practice. But this can lead to unequal application of FMLA for employees with a same-sex spouse in a state that does not recognize samesex marriage. To avoid this conflict, some employers are opting to voluntarily extend FMLA benefits to employees with same-sex spouses company-wide. Employers with all employees residing in states that do not recognize same-sex marriage are not required to change their FMLA policies or practices. Another concern is where an employer has employees traveling across a state line. Again, the test for FMLA is where the employee resides, not where the employee works. Thus, employees who reside in a state that recognizes same-sex marriage are entitled to FMLA coverage even if they travel for work to a state that does not recognize same-sex marriage. Yet another concern for employers is the overlap of FMLA with state family medical leave laws. Arkansas has no such state law, but some states have enacted their own family leave laws encompassing same-sex partners or spouses, further complicating employers’ leave obligations. Employers should revisit the potential overlap of state and federal coverage and leave awards, especially to determine if state and federal leaves can both be given and whether state leave now counts as FMLA leave. For example, if an employer has employees in states where same-sex marriage is not recognized, same-sex married couples can take leave under state leave laws, but the leave cannot be charged against the employees’ FMLA bank. On the other hand, if the employer has employees in states where same-sex marriage is recognized, employees in same-sex marriages are eligible for leave under both the FMLA and state law. Thus, the leave will count concurrently against the employee’s FMLA
bank. This can lead to an odd result that employees in same-sex marriages living in states where those marriages are recognized may receive less total leave by being FMLA eligible. Finally, employers with employees residing in same-sex marriage states should not administer FMLA leave any differently for employees electing to care for a same-sex spouse. For example, employers should not require a higher level of documentation of the marriage from an employee in a same-sex marriage compared to an employee in a heterosexual marriage. To do so might result in a claim of FMLA interference or retaliation. For employees, this change also creates challenges and questions. For example, spouses who work for the same employer have always been required to share the same 12 weeks of FMLA for the birth or adoption or foster care placement of a child or to care for a sick parent (the spousal limitation rule).13 Thus, same-sex spouses who work for the same employer actually are entitled to less unpaid leave after Windsor (because they are treated like other similarly-situated spouses). Another concern for employees is that this test only applies to a same-sex marriage, not a civil union, domestic partnership, or other similar non-marriage statuses. Thus, employees in those relationships are still not entitled to FMLA leave to care for a same-sex partner after Windsor. Because of these concerns, the Department of Labor (“DOL”) may eventually propose to change the FMLA regulations so that the FMLA utilizes a “place of celebration” test like other employment statutes. The DOL already updated its FMLA guidance documents in August 2013 to remove references to DOMA and add references to same-sex marriages. The Office of Personnel Management, which is essentially the federal government’s human resources department, has stated that all federal employees in a same-sex marriage, regardless of residency, are entitled to FMLA benefits. But until such clarifications are made, employers and employees should understand their respective obligations and rights under FMLA after Windsor. ADMINISTERING EMPLOYEE BENEFITS AS AN ARKANSAS EMPLOYER AFTER WINDSOR The federal agencies with enforcement
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Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
authority over employee benefits are: (i) the IRS that provides tax-favored treatment to the contributions to, earnings on, and distributions from, qualified employee benefit plans; and, (ii) the DOL that enforces participant rights and fiduciary responsibilities under the U.S. labor laws codified under the Employee Retirement Income Security Act (“ERISA”). Like many provisions governing employee benefit plans, the continuation health coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) is found in both the Internal Revenue Code (“Code”) and ERISA. Employers sponsoring employee benefit plans must comply with the requirements of both agencies. WINDSOR’S DISTINCT EFFECTS ON PENSION PLANS FROM WELFARE PLANS Employer-sponsored retirement plans which receive contributions on a taxdeferred basis payable at retirement and other events permissible under the Code and ERISA14 are categorized as “pension plans.” Employer group plans which provide for the reimbursement of health care expenses are referred to as “welfare plans.” Both provide tax-advantaged benefits to the employee and have different statutory schemes for protections for the employee’s spouse. For pension plans, an Arkansas employer must recognize same sex spouses when administering the plan. Under both the Code and ERISA, the spouse of an employee participating in a pension plan is afforded specific rights in the benefit that cannot be assigned except as provided by statute. The statutory scheme for welfare plans considers a spouse as a beneficiary without any rights as a participant. This distinction in treatment permits employers to eliminate spouses from coverage. The plan can be written to exclude same-sex spouses and cover opposite sex spouses. Disparate treatment of same-sex spouses no longer extends to continuation coverage under COBRA. Since Windsor, the IRS and DOL have required employers, including those in Arkansas, to provide same-sex spouses with COBRA notices and access to COBRA coverage consistent with their policies for opposite sex spouses. Disparate treatment of similarly situated participants in an employer-sponsored pension or welfare plan is a breach of fiduciary 24
The Arkansas Lawyer
duty under ERISA.15 Consequently, plan administrators must either extend their current administrative policies pertaining to the verification of marital status to same-sex marriages, expand their procedures for assigning a former spouse a benefit under a qualified domestic relations order (“QDRO”) or revise their existing policies and extend those to uniformly verify marital status for all participants. Like all administrative policies and procedures, the plan administrator satisfies one of its statutory duties when it administers the plan in accordance with guidelines written to comply with ERISA. Unless the third party administrator has affirmatively accepted these types of fiduciary duties, these duties reside with the employer or the designee identified in the written plan documents. Many employers mistake the third party administrator role as one that assumes fiduciary and ministerial functions, which is not a defense when challenged for breach of fiduciary duty. HHS PROHIBITS SEXUAL DISCRIMINATION IN INSURANCE OFFERED UNDER THE EXCHANGE The Patient Protection and Affordable Care Act (“ACA”) also includes important non-discrimination provisions. In January 2014, it became illegal for any of the insurance companies who offer coverage through the Marketplace to discriminate on the basis of sexual orientation or gender identity. HHS also strengthened the ACA’s civil rights provision, by clarifying that the new law’s prohibition on sex discrimination includes discrimination based on sex stereotyping, and on gender identity. The provision does not require insurance carriers who participate in the Marketplace to extend coverage to same-sex spouses, but it does prohibit insurers participating in the Marketplace from discriminating on the ground of race, color, national origin, sex, age, or disability under “any health program or activity, any part of which is receiving federal financial assistance … or under any program or activity that is administered by an Executive agency or any entity established under [Title I of ACA]….”16 The ACA’s Section 1557 is the first federal civil rights law to prohibit sex discrimination in health care. To ensure equal access to health care, Section 1557 also applies civil rights protections to the newly created Health Insurance Marketplaces established under the ACA.
NEXT STEPS FOR ARKANSAS EMPLOYERS THAT OFFER EMPLOYEE BENEFIT PLANS In 2014, employers are required to recognize same-sex marriages for purposes of its pension plans and should have written processes and procedures for doing so. Additional procedures should be at hand for processing QDROs. Even if the QDRO administration and plan administration is performed by a third party, it is the plan administrator’s responsibility to confirm that procedures are appropriate, consistent, and uniform and that they are formally adopted. For purposes of its welfare plans, employers can decide whether extending benefits to same-sex spouses and their families is consistent with the employer’s business objectives. Even as same-sex marriage equality is being currently determined in federal and state courts, the statutory scheme for welfare plans seems likely to stay true to its historical position that spouses are beneficiaries of welfare plans and do not have rights under the employer’s welfare plan program. ENDNOTES 1. 1 U.S.C. § 7. 2. United States v. Windsor, 133 S. Ct. 2675 (2013). 3. Pursuant to 26 U.S.C. § 6511, the open years are the later of those three years back from the date of filing or two years from the last date of payment. 4. Rev. Rul. 2013-17. 5. Rev. Rul. 2013-17. 6. See Internal Revenue Service, Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law, http://www.irs.gov/uac/Answers-to-FrequentlyAsked-Questions-for-Same-Sex-Married-Couples. 7. See 26 U.S.C. § 6511. 8. See 26 U.S.C. §§ 2523 and 2056. 9. Revenue Procedure 2014-18. 10. See 26 U.S.C. § 23(d)(1)(C). 11. Unearned income includes but is not limited to interest, dividends, annuities, royalties and capital gains. Wages are not considered unearned income, and are not subject to NIIT. 12. 29 C.F.R. § 825.122(b). 13. See 29 U.S.C. § 2612(f). 14. 26 C.F.R. § 4980B; 29 C.F.R. § 2590.606. 15. 29 C.F.R. § 1104. 16. ACA: Title I, Subtitle G, Sec. 1557, Pub. L. 111-148, 124 Stat. 119 (codified at 42 U.S.C. § 18116). ■
ARKBAR MEMBER SPOTLIGHT
A LIFE IN THE LAW IS SO MUCH MORE FULFILLING WHEN SHARED WITH MANY OTHERS WHO LOVE OUR CRAFT. In the Arkansas Bar Association I have found common interests and common purpose shared with so many other lawyers whom I otherwise would never have known. Even when our purposes diverge, I have found the perspectives from so many others to be a useful tool in understanding. The bar has been a great source of friendship and education for me. I’m especially grateful for the appointment to the Board of Governors made by past president Charles L. Harwell. It has been a tremendous experience.
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Arkansas Bar Association 2014-2015 Membership Renewal Payable by June 30, 2014 ✔ www.arkbar.com Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
MENTAL EVALUATIONS How Act 506 Changes Mental Evaluations Under Ark. Code Ann. § 5-2-305 BY LLOYD WARFORD, ESQ., BETTINA E. BROWNSTEIN, ESQ., STEVEN DOMAN, M.D. AND BRIAN RUSH SIMPSON, M.D.
WHAT IS ACT 506? Act 506, passed by the 89th General Assembly, is a revision of Ark. Code Ann. § 5-2-305, which governs mental examinations of criminal defendants—both fitness to proceed and criminal responsibility examinations—and bifurcates them. A fitness to proceed examination assesses the present ability of a defendant to understand the proceedings against him or her and to assist in his or her defense. A criminal responsibility examination assesses the capacity of the defendant to understand the nature of his or her act at the time of the alleged offense and to conform his or her conduct to the requirements of the law. Section 5-2-305 was enacted in 1975 and attempted to differentiate between the two types of mental examinations. However, in the years since its enactment Arkansas attorneys and judges largely ignored the bifurcated examinations and elected to obtain a combined examination that addressed both fitness and capacity during the same evaluation. As a result, Arkansas has had a de facto unitary examination system that mixed the two types of examinations together. 26
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WHAT IS WRONG WITH A SINGLE EXAMINATION SYSTEM? The combined examination process slowed the forensic examination system, leaving many mentally ill defendants to languish in jails and causing judges and attorneys to ignore important ethical and constitutional concerns. In some cases, a combined examination order resulted in violations of a defendant’s constitutional rights. These problems and the manner in which Act 506 addresses them will be discussed more fully in this article. HOW THE ACT CAME ABOUT More than 10 years ago, the ACLU of Arkansas sued the director of the Department of Behavioral Health Services (DBHS) in the Eastern District of Arkansas for violating the constitutional rights of pretrial detainees in the case of Terry v. Hill.1 The basis of the lawsuit was the claim that DBHS was perpetuating a system that caused unconscionable delays in performing mental evaluations of people held in custody. Judge Stephen Reasoner
held that DBHS had violated the Fourteenth Amendment to the United States Constitution, finding that the delays amounted to punishment of the detainees, because during the delays those with mental illness went untreated. Timeliness of evaluations and treatment improved for a few years, but by 2009 it became evident that DBHS was unable to consistently meet its obligations under both the settlement agreement and the law. Eventually, the ACLU threatened to petition the court to reopen Terry v. Hill. In response, DBHS admitted that the “system was broken” and that it did not have the resources to cope with the burgeoning number of court-ordered evaluations.DBHS asked the ACLU to join with it in finding ways to change the system so that the agency could fulfill the requirements of the Terry v. Hill agreement. A large group of stakeholders, including judges, defense attorneys, prosecutors, and mental health professionals, came together, and after a great deal of debate, achieved a broad consensus on three significant points: 1. The quality and speed of the forensic examination system could be improved by providing for a true bifurcated examination process in Arkansas as is the case in the overwhelming majority of other states. 2. Limits should be placed on the defense bar’s ability to request criminal responsibility examinations by DBHS when a DBHS examiner had previously concluded that, in the examiner’s opinion, the defendant does not have a disease or defect. 3. DBHS was not collecting sufficient data to support its contention that the system was failing to meet the demands placed upon it and to determine where failures were occurring. HOW BIFURCATED EXAMINATIONS WILL SHORTEN THE WAITING TIME A combined examination could move an individual case through the system faster if, in fact, both examinations are necessary for a particular defendant; however, both fitness and criminal responsibility examinations are rarely necessary. Routinely ordering both forensic examinations leads to an unnecessary expenditure of time and money. Under Act 506, defense attorneys
must file a notice of intent to pursue a disease or defect defense in order to request a criminal responsibility examination at the state’s expense. Nationally, less than one percent of felony defendants pursue a defense of mental disease or defect, and it is expected that with the bifurcated examination process, requests for criminal responsibility examinations in Arkansas will be in line with the nationwide rate. Also, language added by Act 506 restricts a defendant’s ability to request a criminal responsibility examination from DBHS if DBHS has already concluded that the defendant is both fit to stand trial and does not suffer from mental disease or defect. Therefore, with the bifurcated process, requests for criminal responsibility examinations should occur in only five or 10 percent of all criminal cases. Yet, even if defense attorneys ask for a criminal responsibility examination in every case in which a defendant is found to have a mental disease or defect in the fitness examination, less than 20 percent of all cases will require both examinations. This should reduce the waiting time for both types of examinations.
ETHICAL OBLIGATIONS ARE BETTER ADDRESSED BY THE BIFURCATED PROCESS Simultaneous examinations create a long list of troubling legal and ethical issues. Defense attorneys have an ethical duty to insure that their clients are fit at every stage of the legal process. A defendant has a constitutional right to be fit before a case can proceed against him. If the defense attorney reasonably suspects that the defendant is unfit, he or she is ethically required to request a medical opinion on fitness and to defer all other decisions concerning possible defenses and strategies in the case until there has been a determination of fitness. A defense attorney’s ethical obligations with regard to raising a constitutional right are very different than his or her obligations when raising a statutory affirmative defense. The client’s approval is not required in order for an attorney to raise the client’s constitutional right to fitness and to request an examination; the client need not even be consulted. An attorney need only have a good faith basis for his request. On the other hand, if an attorney is considering filing a notice of intent to proceed with a statutory affirmative defense, such as the mental disease or defect defense, the attorney has an ethical obligation to consult with his client concerning the risk of pursuing the defense, just as he or she would have with any other defense or strategy. However, a defense attorney may not waive a client’s constitutional rights without that client’s consent. In most cases, only the client can make decisions related to the waiver of constitutional rights. An attorney cannot ask a client to do this if the attorney believes the client to be unfit. The defen-
LLOYD WARFORD is a Capital/Conflicts Attorney at the Arkansas Public Defender Commission. BETTINA BROWNSTEIN is a Cooperating Attorney with ACLU of Arkansas and Arkansas Public Law Center. STEVEN DOMON, M.D., is an Assistant Professor, UAMS Dept. of Psychiatry, and the Medical Director, Arkansas State Hospital. BRIAN RUSH SIMPSON, M.D., is an Assistant Professor, UAMS Dept. of Psychiatry, and Section Chief of Forensic Services, Arkansas State Hospital. Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
dant must understand that by undergoing a criminal responsibility examination, he will be waiving his right to remain silent and that his statements may be used against him, that he may be required to waive his right to have his attorney present at all questioning, and that he will likely be required to submit to questioning by an examiner employed by the state. The defendant must also realize that if he or she raises the defense of not guilty by reason of mental disease or defect, he or she will often have to be willing to waive the right to a speedy trial and that medical records, school records, work records and other records are likely to become accessible to the prosecutors and admissible in court in ways that would not otherwise occur. Not guilty by reason of mental disease or defect is a high risk defense that is rarely successful and, in most cases, requires the defendant to admit committing the acts in question. Moreover, given the defendant’s rights that are likely to be affected by undergoing a criminal responsibility examination, any defense attorney who genuinely believes that his client is presently unfit must question whether he or she can ethically permit a combined examination. Forensic examiners have faced similar ethical concerns regarding the determination of criminal responsibility in defendants who are not competent at the time of the evaluation. While defendants are informed of the limitations of confidentiality within the context of a forensic evaluation, unfit defendants are often unable to adequately understand that information they provide to examiners may be used against them. Further ethical concerns relate to the fact that an acutely ill defendant in a mental state inconsistent with competency could potentially provide factually incorrect but incriminating information regarding the alleged crime. Bifurcation of the two types of examinations addresses, at least in part, these concerns. HOW A BIFURCATED SYSTEM BETTER PROTECTS A DEFENDANT’S CONSTITUTIONAL RIGHTS The most troubling constitutional issue prior to the passage of Act 506 was that it permitted a prosecutor to request a criminal responsibility examination over the defendant’s objection. Many prosecutors routinely requested a criminal responsibility examination if the defendant raised the issue of his 28
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or her fitness. Some judges regularly ordered a criminal responsibility examination sua sponte if the defendant raised fitness. The criminal responsibility examination process is directly focused on the facts surrounding the alleged crime and will necessarily produce statements that may be inculpatory. In contrast, fitness-to-proceed examinations are focused on the present; there is usually no need for an examiner to question a defendant in detail about the facts surrounding the alleged crime. A bifurcated examination process lessens the opportunity for a defendant’s Fifth Amendment right against self-incrimination to occur. While there are always risks to be considered, the risk of asserting a constitutional right to fitness should be sufficiently low so as to encourage defense attorneys to err on the side of raising the issue of their client’s fitness in all cases in which there is a genuine question in the mind of the attorney. In addition to creating a bifurcated process that minimizes the risks of inculpatory statements, Act 506 provides that the court may only order a criminal responsibility examination when a defendant has given written notice of his intent to rely on the mental disease or defect defense. This insures that a defendant is permitted to raise the issue of fitness without being forced to also submit to a criminal responsibility examination. A BIFURCATED SYSTEM MAINTAINS THE COURT’S AUTHORITY TO DETERMINE FITNESS Fitness is not just a medical diagnosis but a question of fact, law and science. The examining psychologist or psychiatrist may render an opinion as to a defendant’s fitness to proceed but may not make that determination. The determination of whether a defendant is fit to proceed is entirely within the province of the court. With a bifurcated system, because the two types of examinations are separate with separate reports, the examiner will render an opinion as to fitness in his or her report (and with testimony if requested to do so), but it is the court that will make the determination after a hearing if a finding of fitness is contested, or on the basis of the report if the finding of fitness is not contested. Only after there is a ruling by the court that the defendant is fit will the examiner be allowed to do an examination of criminal responsibility if such is requested by the defendant. When a combined exami-
nation is ordered, the court has effectively and impermissibly abdicated the court’s role in determining fitness.2 A WORK IN PROGRESS The stakeholders who labored to pass Act 506 view Arkansas’s forensic examination system as a work in progress and are committed to studying its effect and to making modifications to the law as needed. To aid in this effort, Act 506 significantly expands the data DBHS is required to record. DBHS must now maintain a database of all mental examinations performed pursuant to § 305 that includes a variety of information.3 The database is to be designed to permit future assessments of the system and to allow the stakeholders to address any shortcomings. CONCLUSION The post-Act 506 practice of law will require adjustment on the part of defense attorneys, prosecutors, forensic mental examiners, and judges. However, for the reasons discussed in this article, changes to the old, combined system were necessary both to streamline the examination process, shorten the waiting time for those in custody to obtain forensic mental examinations, and to protect the constitutional rights of defendants. ENDNOTES: 1. Terry v. Hill is 232 F.Supp. 2d 934 (2002). 2. This occurs because the court defers to the examiner’s decision concerning the defendant’s fitness when the examiner decides without the court that a defendant is fit and proceeds to do a criminal responsibility assessment. 3. The name of the judge ordering the examination, the attorney requesting the examination, the name of the examiner conducting the examination, the result of the examination, if found not fit to proceed whether the defendant was restored to fitness, and if found not guilty by reason of mental disease or defect, his or her progress through his or her commitment and conditional release. ■
Angie Hopkins, CPA/ABV/CFF, CVA, MAFF, CFE Angie has over 25 years of experience in auditing and consulting with expertise in: Fraud investigations and analysis Lost profits and damages claims Business interruption matters Forensic accounting Business appraisals and valuations To schedule a meeting or private consultation, call Angie today at 501.975.0132.
425 West Capitol Avenue, Suite 3300 | Little Rock, Arkansas 72201 | frostpllc.com Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
PRACTICE TIP He Likes it! Hey Mikey! Making Life in Divorce Mediation Palatable
BY CHERYL FISHER ANDERSON Do you recall the “Life” cereal commercial from decades ago? Three brothers were sitting at the breakfast table, trying to decide whether to eat the heaping bowl of “healthy” cereal they had been served. The older brothers decide to get Little Mikey to be their guinea pig. “Let’s get Mikey, he hates everything.” Amazingly, Mikey takes one bite and then starts shoveling the cereal in his mouth. The older brothers exclaim, “He likes it! Hey Mikey!” Attorneys who have been reticent to mediate remind me of Mikey sometimes. Initially wary of the mediation process, after a bite or two, it can start to grow on them if they let it. They see the weight of the pending fight and the uncertainty of the outcome lifted from their clients as settlements are reached. Maybe this mediation stuff is actually a good thing! Most attorneys spend more time honing their fighting skills than their settling skills. Good attorneys get geared for battle and look forward to the opportunity to prove their client’s case. Clients need them. With domestic relations matters, however, swift and final justice is often elusive. So when those same attorneys find a mediator whose approach works for them and they properly prepare their client for mediation, a good attorney can guide the client to a win that doesn’t have the same amount of collateral damage to the family members who will be living that case after the case file is closed. Clients need them too. So how should you prepare for mediation in family matters so you can get that “Hey Mikey” feeling? Timing •Introduce the possibility of mediation to your client from the time you get a case so that it isn’t viewed as an indication of weakness to explore mediation later. A fleeting mention about mediation during your initial consultation will make it less of a shock when it is ordered or suggested. •Opinions vary on when to mediate a case. Some say to mediate the case as early as pos-
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sible so that you are saving the client money and angst. Others prefer to wait until a trial date is looming so their clients feel pressure to settle. In general, you should mediate after having sufficient information to evaluate the facts, the law and the players. If major pieces of information are missing, the parties will be hard pressed to trust that they are getting a fair shake and they won’t be ready to commit to settlement. Exchange information and key documents in advance if at all possible. Preparation •It may seem like homework, but a mediation statement really does help and it doesn’t have to be a treatise. If you prefer, pick up the phone. Good mediation statements include the factual and legal issues, as well as any non-legal issues that may facilitate or hinder settlement. Including a sentence or two about the history of any settlement negotiations is helpful so we don’t inadvertently repeat previous steps. •Inform the mediator if you need assistance with client expectation, one of the parties has a personality quirk, or if there are hot button issues. If there are topics you don’t necessarily want to write in the mediation statement that your client may see, feel free to have confidential conversations between you and the mediator. Those brief interactions often contain the keys in getting the case to settle. Don’t be afraid of letting the mediator know the “back story.” Client Management •Set the expectation that mediation is a process and is not a “once and done” offer.
Sending your final offer as your first offer is often perceived as a lack of good faith. •Review the strengths and potential weaknesses of the case, as well as the risks and costs of going forward, with your client before and during the mediation. •Determine a range of acceptable outcomes but refrain from allowing the client to set absolutes before the mediation begins. Approach Joint Sessions with Care •Encourage your client to participate fully in the joint session if he or she is able to do so without attacking or alienating the other side. •Keep in mind that some clients will need to “speak their peace” fully in order to give up their day in court. Be patient. That venting may release enough pressure to allow a settlement to work. Collaborate with the Mediator •Be transparent about your position with the mediator so that we don’t work in one direction only to get there and learn that there is a second equally important direction to travel. •Encourage the client to be creative and help him or her use the mediator as a sounding board to explore strategies and options. •Think carefully before using hard line negotiation tactics that force a mediator to backtrack in the other room. In domestic matters, often these parties will continue to be entwined with one another and those affronts can be hard to shake. I urge you: Pick a file, any file. See if you can be Mikey. ■
CHERYL FISHER ANDERSON is actively involved as a Certified Mediator on the Roster for Circuit Courts in Civil, Probate and Domestic Relations cases and spends the majority of her attorney time helping families with their divorce and custody matters.
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Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
ARKBAR GOVERNANCE REPORT ARKANSAS BAR ASSOCIATION’S HOUSE OF DELEGATES AND BOARD OF GOVERNORS REPORT
BY KAREN K. HUTCHINS
The Association’s Board of Governors and House of Delegates met in January. The Board met in Little Rock and the House met in Memphis at the Peabody Hotel. Professional Ethics Committee Chair Brad Hendricks reported to both entities on the committee’s proposed changes to the Rules of Professional Ethics. The Board heard the initial report and recommended the House approve submission of a Petition to the Arkansas Supreme Court to initiate those recommended changes. The House approved the submission of the petition which was subsequently filed with the court. A ruling on the petition has not yet been rendered. The Board has also been extremely active with membership recruitment. Their efforts have resulted in a successful membership drive for this bar year and we applaud their hard work. The Board is considering alternative methods to help drive Association membership among all Arkansas attorneys. In their annual effort to streamline the committee structure of the Association the Board made the decision to disband the Membership Development Committee allowing the Board to continue to diversify recruitment efforts in place of that committee. The Public Information/Find a Lawyer Committee was also disbanded. The Governance Committee recommended to the Board bylaw updates that would allow committee and section meetings to be held “telephonically or through electronic media.” This change will be instrumental to committee and section chairs as they convene their meetings and conduct the business of their respective groups. It is vital to the success of the Association to have full participation of our 32
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membership in supporting the work of our committees and sections. A new member benefit unveiled at the Board meeting was the concept of a CLE Pass. The CLE Pass will allow members to purchase a “pass” that will cover multiple CLE registration fees at a reduced rate versus what would be paid to register for each event individually. Members can take advantage of our “one-stop shop” by adding the pass to their membership renewal for a quick and easy way to get a head start on next year’s CLE requirements. Another great new tool is now available for attorneys considering opening a new practice. “Office in a SNAP–Starting a New Arkansas Practice,” is located on the Law Practice Management, or LPM, page in ACE. SNAP covers topics such as how to start a virtual practice, putting together a business plan, marketing, office technology, and many more. Suggestions for additional topics that should be added to SNAP should be directed to Associate Director Lorrie Trogden. The Association’s Leadership Academy is underway for this bar year. One of the initiatives for the 2014 class was a Wills for Heroes pro bono program to assist first responders by completing wills, powers of attorney and other legal documents. The group helped 75 people and completed almost 300 documents. It was an excellent
example of combining leadership development with community service and we applaud those members who participated. Graduates of previous Leadership Academy classes have elected to maintain the networks established through their shared experience by creating a Leadership Alumni Section. The Board of Governors approved the new section at their January meeting. Amy Freedman will serve as the chair of the new Leadership Alumni Section. The next big event on the horizon is the Association’s 116th Annual Meeting. One of the most publicized trials in 2013 was the George Zimmerman case. This year, Mark O’Mara, who successfully defended Zimmerman, will be the keynote speaker at our Annual Meeting. Mark your calendars to attend all four days of the meeting, June 11-14, 2014. The House of Delegates meeting will move this year to Friday afternoon, June 13, 2014, at 1:00 p.m. at the Hot Springs Convention Center. The Mid Year meeting in January marked the end of more than 15 years at the Peabody Hotel in Memphis. New plans are to return the 2015 Mid Year Meeting to Little Rock on February 19–20, 2015. Full meeting details are still in the planning stage, but efforts are underway to create an event that you will not want to miss. Keep an eye out for more information. ■
KAREN K. HUTCHINS, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
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Arkansas Bar Association Patron and Benefactor Members Patrons Tina Louise Adcock-Thomas Mark H. Allison Philip S. Anderson Elizabeth Ann Andreoli Ben F. Arnold Marcia Barnes Melody Peacock Barnett Fines F. Batchelor, Jr. David L. Beatty Paul B. Benham III M. Stephen Bingham Robert R. Briggs Fred E. Briner Larry W. Burks Robert D. Cabe John C. Calhoun, Jr. Jerry L. Canfield Mary C. Caroom Douglas M. Carson Jerry Winston Cavaneau Suzanne G. Clark Roger U. Colbert Randy Coleman Jon B. Comstock Barry E. Coplin James E. Crouch Tom Curry C. Michael Daily Thomas A. Daily Steven B. Davis Judge Robert T. Dawson Judge Beth M. Deere Terry Don Dugger Warren E. Dupwe Charles B. Dyer, Jr. Don R. Elliott, Jr. Stephen Engstrom Bob Estes Judge Audrey R. Evans Judge William Lee Fergus Robert M. Ford Judge Harry G. Foster II Amy Freedman Matthew L. Fryar Price C. Gardner Charles Alan Gauldin Sam E. Gibson Charles Clifford Gibson III Pamela B. Gibson 34
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Buck C. Gibson Martin Greeson Gilbert Dent Gitchel Dorsey D. Glover Judge Donald Goodner Ronald L. Griggs Judge David F. Guthrie Betty J. Hardy Judge Eugene S. “Kayo” Harris Rosanna Henry Paul F. Henson Joseph Hickey R. H. “Buddy” Hixson Cyril Hollingsworth Don Hollingsworth Robert Howard Hopkins Karen K. Hutchins Judge Michael E. Irwin Donald T. Jack, Jr. Amy Dunn Johnson Leon Jones, Jr. Robert S. Jones Jim Julian Philip E. Kaplan Sean T. Keith Paul W. Keith Robert D. Kelly Lance Lee John C. Lessel Robert O. Levi R. Stark Ligon Judge James R. Marschewski David R. Matthews James A. McLarty III James E. McMenis T. Ark Monroe III Charles A. Morgan Stephen E. Morley Rosalind M. Mouser C. Mac Norton R. Gary Nutter Debby Thetford Nye James E. O’Hern III Conrad T. Odom Edward T. Oglesby William L. Owen Rhonda J. Parish Claibourne W. Patty, Jr. Walter A. Paulson
Kristin L. Pawlik Brant Perkins Dale E. Plaxco Judge Charles E. Plunkett Donald C. Pullen Joseph H. Purvis Brian H. Ratcliff Robert Jeffrey Reynerson William S. Robinson Colby T. Roe Judge Charles B. Roscopf Charles D. Roscopf Robert R. Ross Don M. Schnipper James V. Scurlock, II Frank B. Sewall Stephen M. Sharum William Farrar Sherman Lynn J. Skinner J. Timothy Smith Aaron L. Squyres Thomas S. Stone
Jocelyn A. Stotts William R. Stringfellow N. Walls Trimble Judge Annabelle Imber Tuck Glenn Vasser William A. Waddell, Jr. Wyman R. Wade, Jr. Eddie H. Walker, Jr. Danyelle J. Walker Judge John C. Ward David Smilie Watkins John Dewey Watson Timothy Fagan Watson, Sr. David J. Whitaker W. Jackson Williams, Jr. Philip M. Wilson Carolyn B. Witherspoon Marsha C. Woodruff Megan Elizabeth Wooster Truman E. Yancey Cary E. Young
Benefactors Earl Buddy Chadick, Jr. Griffin W. Collie Frances S. Fendler Frank S. Hamlin David Michael Hargis Charles L. Harwell Denise Reid Hoggard Justice Clifton H. Hoofman Robert E. Hornberger Judge Alice F. Lightle William A. Martin Cliff McKinney II Jack A. McNulty Charles B Mitchell, Jr. Harry Truman Moore John V. Phelps Jim Simpson James D. Sprott John Cogan Wade Tony L. Wilcox Tom D. Womack Judge Susan Webber Wright Dennis Zolper
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OUR JOB AS LAWYERS IS TO THINK. So in planning the 2014 Annual Meeting, I wanted to incorporate programs that demonstrate the uses lawyers can make of technology, such as in trial practice, as well as the risks we face as members of a technological society. We have a CLE track this year devoted to privacy, including presentations on the evolving jurisprudence of privacy, as well as the practical and legal implications of information technology. My goal is to present programs that bring technology issues up to the cutting edge but reinforce the core values of legal analysis and the all-important human component of the practice of law.”
—David M. Fuqua Fuqua Campbell, P.A.
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
BOOK REVIEW The Ring of Truth Tim Fox (Sufficient Press LLC, 2012) BOOK REVIEW BY PHILLIP H. McMATH The problem fiction writers have today is that people are reading it less and less. In fact, people read books less and less. Indeed, it seems as if it weren’t for airplanes, people wouldn’t read at all. How many times has one heard, “I’ll read it on the plane.” But is there really a worse place, other than perhaps an emergency room or bus station, to read anything? So, you better hook ‘em early. In the trade it’s called a “grabber” that seizes and draws the reader in, almost against his will. Gone is the long, languidly delicious fiction that folks never wanted to end, like Dickens’s great law novel Bleak House. (Dickens moiled away much of his early days as a solicitor’s clerk and court reporter.) Today any publisher would make Charles speed up and slim down for the airport crowd. Maybe it’s all this electronic stuff. The postmodern android mind has trouble holding a thought, image or idea for more than a few milliseconds—faster and faster go the books, plays and flicks, as language and theme are erased by racket, wreckage and rampage. The paradox of the “Communication Revolution,” it seems, is the decline of communication. This brings us to Tim Fox’s legal mystery and intriguing first novel, The Ring of Truth.” Here’s a sample. They took the Chief’s car to the crime scene. Flash assumed they were going to Jimmy Dick’s house, but instead they traveled to an unfamiliar part of town, stopping at a small pink bungalow festooned with yellow tape. Officers and crime scene investigators were everywhere, going and coming at a feverish pace. It looked like about half the entire force was milling about. They entered through the front door, went down a short hall, and took a right into the living room. Flash looked around, his mouth fall38
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ing open. There were fragmented photos, furniture shards, slashed draperies, and dozens of books with their spines spitefully broken. They stepped carefully through the detritus of someone’s life, then back to the hallway to the second door on the right, the master bedroom. Nicely done! Who can stop? Did you get that tantalizing detail about the books with broken spines? What sort of felon would do that? This, indeed, is a real “grabber,” so move over John Grisham and Cormac McCarthy. Well, not quite yet; this is a marvelous beginning, but these two paragraphs appear on page 65—the lead-in to Chapter 13. Most flyers will be flipping through the slick emptiness of “Delta Magazine” by then. The pre-65 material is really “back-story” that could be weaved in slyly with a fast move forward, as the curious reader is raring to find out more. But Tim does frame a foxy plot. It goes like this: Once upon a time there was this hot-dog trial lawyer named “Flash” Stephens, a/k/a Ulysses, who starts losing cases to juries that look like “arms crossed carved granite.” And who among the trial race has never seen them? Chilling cold is what it is, but Flash is pro enough not to let them see him sweat. He wins yet loses the opening case, but let’s not tell how, as a strangely gorgeous sorceress named “Searcy Rosa Cruz” steps into his heart just before his friend and opposing counsel, Jimmy Dick, is found with holes in his head on page 65. Then Flash assumes the defense of a tattooed hulk named “Thor” who is falsely accused of killing Jimmy Dick by Thor’s girlfriend, Searcy, who does The Witness for the Prosecution thing for the evil prosecutor with the ironic name of Fairbanks. Why? Well, maybe it’s because Flash, as in lightning was once struck by something and
can’t decide whether it was blind energy or a psychotic break. Thor, of course, is the god of thunder and his last name is Odinson, get it? What follows is not a straightforward legal whodone-it with a little serious material and melodrama thrown in for a surprise ending, which Fox could easily write—that would delight us to Dallas or Atlanta—but a confection of semi-plotted mythology, symbols and etymology that leads to a climax involving misplaced “fylfot” and “pentacles”—not to be confused with swastikas and “Stars of David.” The “fylfot” we learn is a “cross cramponned,” and the Hindu version has a dot and in Japan it’s called a “Wan.” And, before taking off, one needs to brush up on Asgard, Ahasuerus and Abu Musa Jabir ibn Hayyan. There is lots more—too much—an unresolved concoction, really. Yet much of it is really entertaining and this reviewer learned some truly new things, like the etymology of “elixir” is Arabic, and alchemy is as metaphysical as chemical. So, if you’re turned toward semiotics and myths, you’re in for a fun flight. Just make sure you’re traveling transoceanic and have lots of ancillary references loaded in the kindle. Hey, Tim, you’ve got real talent, and since you’ve now exorcised all this arcanum overfill, why not craft us a thriller for Little Rock to Los Angeles? Phillip H. McMath is a partner with the McMath Law Firm in Little Rock and an oftpublished author or articles, plays and books.
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ARKANSAS SUPREME COURT HISTORICAL SOCIETY
Justice Townsend Dickinson —An Adventurer
BY J.W. LOONEY Townsend Dickinson, one of the three original members of the Arkansas Supreme Court, came to Arkansas seeking adventure, wealth and influence. He achieved all three with a rapid rise in politics and early success in his business ventures in his 30 years in Arkansas. Dickinson came to Arkansas from New York in 1821, first to Lawrence County then to Batesville in Independence County. There he practiced law and was involved in real estate ventures and was registrar of the Land Office. An eloquent and polished speaker, he was elected to the Territorial Legislature and was instrumental in getting the capital moved to Little Rock from Arkansas Post. (He was an investor, along with other speculators, in land around the site of the new capital.) Dickinson served as a prosecuting attorney in two territorial district courts and was a delegate to the Constitutional Convention in 1836. He was elected to the first state legislature but his service was shortened by his selection as one of the first three justices of the Arkansas Supreme Court along with Daniel Ringo and Thomas J. Lacy. In the election he received more votes than either Ringo or Lacy. On the court, Dickinson was considered “quick to comprehend” the complexities of cases. During his tenure he wrote fewer opinions than either Ringo or Lacy and generally wrote concise and direct opinions with little of the flair of Lacy nor the technicalities of Ringo. Dickinson could, however, exhibit depth of thought when the situation demanded. For example in State v. Buzzard1 the constitutionality of a state statute prohibiting the carrying of concealed weapons was before the court. Each justice wrote a separate opinion with Ringo and Dickinson upholding the validity of the statute. In Dickinson’s view the Second Amendment did not apply to weapons kept or carried for private purposes but only to those used to provide for the common defense. The act was a “mere police regulation.” One of Dickinson’s memorable opinions was Pyeatt v. Spencer,2 a dispute over a warranty given on the sale of a female slave. The court 40
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reviewed the punishment inflicted on the slave by her master. Dickinson summarized the conclusion succinctly: It is with pain and sensibility, that the court feels itself constrained to remark, that whatever wildness and aberration of mind might be perceived in the slave, it is but reasonable to suppose, was caused by grief, and the excessive cruelty of her owner. Dickinson authored a response to Governor Archibald Yell’s request that the court reconsider its opinion in ExParte Conway3 in which Dickinson and Lacy had upheld the transfer of assets of the Real Estate Bank to trustees in the fight over control of the bank. In a tactful statement of the concept of separation of powers, Dickinson chastised the Governor for seeming to infringe on the powers of the judiciary. Dickinson anticipated the possibility that he would not be re-elected. He said: It has been my pride, while sitting here, to settle the law, if possible, upon a firm and sound basis; to extend protection to every individual, however humble he might be; to guard every interest, whether of the public or of individuals; to secure the confidence of the citizen, by rendering the judiciary respected at home, and elevating the character of the State abroad. If I have failed at any one of these objects, it has not proceeded from a fear to travel the path of duty, when sufficiently plain to follow it. And if, in the discharge of my public duty, I am not sustained by those upon whom it devolves to judge of my judicial act, I must bow to their decision in silence.4 Because of the controversial nature of his “probank position,” he was not re-elected when his initial term ended in 1842.
Justice Townsend Dickinson Courtesy of Arkansas Supreme Court Historical Society and Arkansas Secretary of State’s Office
Justice Dickinson was described as small and slender, weighing perhaps 125 pounds with dark gray eyes and auburn hair. He married Mariah Moore, the daughter of a prominent member of the Batesville community. After his service on the court Dickinson tried various ventures, including the mercantile business, with less success. He was featured (but not a party) in what became a well-known commercial law case in Arkansas which approved the concept of negotiability.5 Dickinson was not in Arkansas when the case was tried and was referred to in it as “notoriously insolvent.” When he left Arkansas he spent time in New York and then in Pennsylvania, eventually ending up in Texas where he drowned while trying to cross a swollen waterway in 1860. Endnotes: 1. 4 Ark. 18 (1842). 2. 4 Ark. 563 (1842). 3. 4 Ark. 302 (1842). 4. Id at 408. 5. Bertrand v. Barkman, 13 Ark. 150 (1852). Further Reading: 1. John Hallum, Biographical and Pictorial History of Arkansas (Albany: Weed, Parson’s and Company, 1887). 2. Dallas Tabor Herndon, Centennial History of Arkansas Vol. I (Chicago and Little Rock: S.J. Clarke Publishing Co., 1922). Judge J.W. Looney is a Circuit Judge, 18-W Judicial Circuit (Polk and Montgomery Counties) and Distinguished Professor, Emeritus, University of Arkansas School of Law. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society: 501-682-6879.
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Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
Through the Open Door: A Bipolar Attorney Talks Mania, Recovery and Heaven on Earth
BY HILARY MARTIN CHANEY
I am a Social Security disability attorney. I just won another bipolar case for the most deserving of clients. I have a soft spot for her myriad problems: psychotic breaks, commitment to psychiatric hospitals, deep depression, panic attacks . . . you name it. Today was a glorious day when I feel proud of my profession and lucky that I have found somewhere to do good while living with a mental illness. Yes, living with a mental illness. I am 37 years old and was diagnosed with bipolar disorder in February 2000. I was an overachiever in high school and went to Washington and Lee University on a full academic scholarship. Upon graduation I got a good job at Capital One in Richmond, Virginia. The future looked bright. But then things started to speed up. I found I couldn’t eat and couldn’t sleep. My mind raced and I began having delusions that I was God and could save the world. I walked in heaven on earth and believed I saw the way to take us all there. I felt an enormous empathy for those around me. It felt like a knife to the heart anytime anyone else hurt, and the converse was true, too. Others’ joy was multiplied a hundredfold in my heart. This overwhelming tidal wave of love can be unbearable in its power. During 20 to 30 manic episodes over the last dozen years, I have had conversations with God, I have returned to heaven on earth many times, and I have unlocked the grail that I believe will deliver us all to a post-religion Eden. I detail the revelations I have experienced about the imminent Heaven on Earth and how to get there 42
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in the second section of my book, titled “Graduating from God.” We would later find out that heightened religiousity is a touchstone of mania in bipolar sufferers. It sometimes runs wild in me, and it colors almost everything I do. After six days of not sleeping or eating, I checked into Norfolk Psychiatric Center. I spent a total of two and a half weeks in the hospital. My doctors told my parents bipolar disorder was the “good mental illness.” It hasn’t been so good to me over the years. I believe wholeheartedly that medication is the answer to mental illness, and I started a regimen immediately. I would learn that the right recipe of medications makes all the difference. At that time though, the right recipe eluded me. I slipped into a deep depression in the summer of 2000. Depression comes on like a thief in the night and only after you rise from its darkness do you see how pervasive it was. When depressed, you are stuck in a cruel mental suspension: you don’t think things are that bad but you also don’t think they can get better. So you make no great effort to change the status quo. In spite of a major manic break and a severe depression in 2000, I decided to go to
Washington and Lee Law School in 2001. My therapist recommended against this; she warned of the stress that comes with being a lawyer and cautioned against addictions that plague attorneys. I insisted on going to law school. I struggled with the side effects of medication and didn’t make the grades I was accustomed to. Law school was fun and heady, but mental illness made it an uphill battle. There were treasures in that time, though. It was at W&L that I met my brilliant and compassionate husband, patent attorney Nathan Chaney, a man who does not flinch in the face of mental illness. He’s loved me through the very worst times, the times when I wanted to give up on everything. EVERYTHING. My grades did improve and I got a job clerking for a federal judge in Virginia. In 2005, I passed the Arkansas Bar Exam, married Nathan, and moved to Fayetteville. The highs and lows a normal lawyer experiences were exacerbated in me, and I took to chaotic mood swings every few months. There was no room for any shearing of intellect or for any departure from reality in the practice of law. Lawyers do not have disabilities. For those of you out there who are practicing
HILARY MARTIN CHANEY handles Social Security disability claims at the Chaney Law Firm in Arkadelphia. She is a volunteer with Arkansas Judges and Lawyers Assistance Program.
ARKBAR MEMBER SPOTLIGHT
MEMBERSHIP IN THE ARKANSAS BAR ASSOCIATION provides me with cutting edge legal research resources and a wide variety of continuing legal education courses. And now that the bar association has ACE, the ArkBar Community Exchange, I have all those legal resources and a great professional network on my smartphone, tablet, and desktop computer. I also enjoy the many opportunities to reconnect with law school classmates and meet new friends at the mid-year meeting, annual meeting, and CLE events.”
—Laura E. Partlow Hale, Young & Partlow, Marion
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while suffering from mental illness, I know the hell that is your every day. I never seemed to get my feet under me, or escape the weight of the illness in Fayetteville. After a suicidal time in 2009, when I sat on the floor of my kitchen and held the boning knife, wondering how long it would take to bleed to death, we moved back to Nathan’s hometown of Arkadelphia to be close to family while we raised our young son. During that pregnancy, I came off all my medications pursuant to my doctor’s advice, and as a result suffered 18 months of post-partum depression. For my second pregnancy in 2011, my new psychiatrist in Little Rock, Dr. Leigh Anne Bennett, kept me on my medications and that meant for a much smoother experience. My sons are healthy and happy. When we moved to Arkadelphia in 2009, I found a groundswell of support and my father-in-law Don Chaney at the Chaney Law Firm gave me the outlet to practice in a way that accommodates my illness and lets my talent shine. I practice part-time, enjoying a busy Social Security disability practice. I can stretch my legs as an attorney on my own schedule, and because my boss knows I am bipolar, they understand if I need to take time off. I had the opportunity to argue in front of the Eighth Circuit Court of Appeals in February of last year. I take such pride in how far I’ve come. Thirteen years ago they put me in the room with the padded walls in the psychiatric hospital, and now I’ve argued in front of a panel at the Eighth Circuit. If I can do it, anyone can. My path has led me to become a mental health advocate and I volunteer for the Arkansas Judges and Lawyers Assistance Program (www.arjlap.org). JLAP is a wonderful program that offers free treatment for judges, lawyers and families who struggle with mental illness, addiction, stress, anxiety, and the like. Simply put, JLAP is saving lives. The beauty of JLAP is that it’s proactive; based on a corroborated report of illness, JLAP can take immediate action to treat those suffering from mental illness. The infrastructure is in place, the therapy is free, the medications are available, and it’s never been easier to help the colleagues you care about, the ones you know are drowning. 44
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If you need someone to talk to, call or email us today (501) 907-2529 firstname.lastname@example.org http://www.arjlap.org JLAP is funded by a $30 portion of your Arkansas Bar License Fees. That funding pays for two staff members, who travel throughout the state to treat those suffering. Fundraising dollars have provided the capital to contract with therapists across Arkansas so JLAP can treat attorneys in every corner of the state. A simple call to JLAP can get someone help. If you think someone is in trouble, simply call Sarah Cearley or Laura Laser at JLAP (501-907-2529) and explain the situation. They will not take anonymous calls, but you are completely protected in a number of ways. First, the person you are calling about will not know you called unless you wish them to be informed. Second, the Arkansas Rules protect both the person calling and the one receiving treatment. JLAP staff and volunteers are immune from subpoena and relieved of the duty to disclose. JLAP will not talk to anyone without the client’s signed release of information. The important thing to know is that for JLAP, treatment is more important than discipline. JLAP staff will absolutely NOT call the ethics committee. They are not allowed to. Treatment is completely confidential, except in the case of physical harm, when an authority must be called in. Let’s talk about the law students. Here are the staggering numbers. Eight to 10 percent of the general population is suffering from addiction or depression. For attorneys, that figure is doubled. For third-year law students, that number shoots to 40%. Think about that. Forty percent are battling addiction or depression in their third year! It is unbelievable.
JLAP treats law students, too. One third of JLAP’s clients are students. Ten years ago when I applied for bar admission, there was a question about whether I had been hospitalized for psychiatric care, and I had to say yes, with no opportunity for explanation. I had no chance to tell them I was in treatment and doing better on my medications. Now, although you still must divulge psychiatric care, JLAP has stepped in to offer a lifeline. If you get in treatment with JLAP during law school, they will make a report to the bar exam committee, who will look favorably upon the application if you have followed JLAP’s recommendations. I am proof that with proper treatment, and accommodation from an employer, an attorney with mental illness can shine brightly. I share my story and message by presenting CLE and CEU for professionals across Arkansas and beyond. My book is for sale at my speaking events and on Amazon, and is titled “Through the Open Door: A Bipolar Attorney talks Mania, Recovery, and Heaven on Earth.” Please contact me at the Chaney Law Firm (870-246-0600) to book a speaking event. I hope my frankness can spur an open dialogue among lawyers and employers about how to tackle mental illness in our profession. Diagnosis is not a death sentence, and there is hope for those suffering and those who love them most. ■
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Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions
Attorney Disciplinary Actions
On February 6, 2014, the Arkansas Judicial Ethics Advisory Committee issued an Opinion No. 2014-04 to Judge Gerald Kent Crow of Berryville, Arkansas and Opinion No. 2014-01 to Judge Bart Virden of Morrilton, Arkansas.
Final actions from January 1 - April 3, 2014, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]
On March 6, 2014, the Arkansas Judicial Ethics Advisory Committee issued Advisory Opinion No. 2014-02 to Ernest Sanders, Jr., of Little Rock, Arkansas. On March 21, 2014, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Admonishment was issued to the Craighead County District Court Judge of the Jonesboro Division, Judge Keith Blackman of Craighead County, in Commission cases #09-345 and #10-361. Copies of the press release can be found online at http://www.state.ar.us/jddc/ press_releases.html.
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John Dewey Watson
SURRENDER OF LICENSE: DAVIS, LISA DIANE, Bar No. 2001072, of Piggott, was disbarred by the Supreme Court by per curiam issued April 3, 2014, in Supreme Court Case No. D-13-428. The petition for disbarment recited complaints
Richard L. “Rick” Ramsay
John E. Jennings
against Davis regarding the Bracken adoption case and the Brown and Crenshaw matters that a committee panel referred to disbarment, as well as the Bernard Lack Estate matter, the Kacey Johnson case, and the Franks-Cornett case which all went before a committee panel after the filing of the original petition for disbarment and resulted in public sanctions, to which Davis did not respond. Also included in the petition for disbarment under “overall fitness” were prior disciplinary sanctions against Davis since March 2012, including a three month license suspension in the Dalton matter, reprimands in the Knighten and Branson matters, and a 24-month license suspension in the Wolfenbarger matter. Davis failed to file a response to the petition for disbarment, failed to respond to a first motion for default judgment, failed to appear at a hearing in November 2013 on the motion for default, failed to file any response to a second motion for default judgment, and failed to file any brief to the Court. REES, F. DAVID, Bar #79238, of Jonesboro, surrendered his Arkansas law license when
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DISCIPLINARY ACTIONS the Arkansas Supreme Court accepted his petition to surrender by per curiam issued April 10, 2014, in No. D-14-263, at 2014 Ark. 163. Rees’s disbarment trial in case No. D-11-359 was set to start April 29, 2014. In his petition Rees acknowledged that the Office of Professional Conduct had sufficient evidence of multiple rule violations to present which would likely be proven, that would constitute “serious misconduct,” and lead to either his disbarment or a lengthy suspension sanction. INTERIM SUSPENSION: DAVIS, ANDREA L., Bar No. 2008056, of Hot Springs, in Case No. CPC 2014006, was placed on interim suspension by order filed February 5, 2014, as a result of a petition filed by the OPC Executive Director alleging Davis presently posed a substantial threat of serious harm to the public and her clients if she continued to practice law, as a result of multiple grievances filed against her, her personal situation, and pending criminal charges.
From the ordinary to the most complex, no appeal is too small or large Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court
REPRIMAND: KEETER, BOBBY K., Bar No. 77076, of Mena, in Case No. CPC 2013-028, on a complaint by Karen Duke, was reprimanded, fined $2,500, and assessed $382 costs by Hearing Findings & Order filed January 3, 2014, for a violation of AR Rule 1.4(a) (3). In December 2011, Duke engaged Keeter to represent her in her father’s estate, and paid a $500.00 retainer fee. In April 2012, Duke emailed Keeter expressing her frustration with the “stand-off” between the executrix and Duke. She requested that Keeter schedule the earliest possible hearing date. Between March and May 2012, Duke placed at least five phone calls to Keeter. Only one of those phone calls was returned. In May 2012, Duke sent Keeter a certified letter asking Keeter to promptly schedule a hearing, or send an itemized statement of services rendered along with reimbursement of funds remaining from the retainer. Keeter notified Duke that a hearing was set for 1 p.m. on June 13, 2012, in Mena. On June 12, while Duke and her roommate Smith
were en route to Mena for the hearing, Duke and Keeter spoke. Keeter informed Duke that there was no need for her to attend the hearing. Keeter then scheduled a meeting with Duke for 11 a.m. on June 13 to discuss the case. On June 13, Keeter advised Duke and Smith that John Maddox, a Mena attorney, had been appointed Special Executor of the Duke Estate. In August 2012, Duke made several telephone attempts to obtain information from Keeter but got nothing of substance. On one call, Keeter answered and told her he would get an update from Maddox. On August 28, Duke called Maddox to discuss the Estate. Maddox denied being appointed Special Executor. By letter to OPC in March 2013, Maddox confirmed that he had never been appointed Special Executor of the Estate and was not familiar with the Duke estate. On August 29, 2012, Duke mailed a certified letter to Keeter terminating his representation. She requested a copy of her file, an itemized statement of services, and an appropriate reimbursement of funds remaining from the $500 retainer. Duke
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DISCIPLINARY ACTIONS received no response from Keeter. In his Response, Keeter stated that he had informed Duke he was only hoping to have the hearing scheduled on June 13, 2012, he had informed Duke it was probably going to be necessary to have a Special Executor appointed, and Keeter did contact Maddox about such appointment but Maddox declined. He did not tell Duke that the hearing was set for June 13 or that Maddox had been appointed as Special Executor of the Duke Estate. He sent Duke a letter in September 2012 enclosing a copy of his office file on the Duke Estate and informing her he had fully earned the $500 retainer paid and there would be no refund. By a unanimous vote, Keeter’s conduct was found to have violated AR Rule 1.4(a)(3), when Keeter failed to keep Duke reasonably informed about the status of probate proceedings in that he failed to return her phone calls or emails requesting information regarding the Estate. By a 4-3 vote the hearing panel found Keeter’s conduct did not violate AR Rule 1.3 (diligence). By a unanimous vote, Keeter’s conduct was found not to have
violated AR Rule 1.16(d) (return to client of property and papers at termination of the attorney-client relationship) or AR Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). CAUTION: BENNETT, JAMES BRUCE, Bar No. 81014, of El Dorado, in Case No. CPC 2013-062, by Consent Findings and Order filed January 14, 2014, on his representation of Ms. Doris Johnson’s daughter in a criminal matter, was cautioned for violations of AR Rules 1.3, 1.4(a)(3), and 8.4(d). In March 2012, Johnson hired Bennett to represent her daughter and paid him $1,500. Bennett failed to enter an appearance in the daughter’s case or file any motions. Neither Johnson nor her daughter were able to speak with Bennett after hiring him. Johnson attempted to call Bennett several times, but she was never able to speak with him. Bennett was contacted by the Office of Professional Conduct (“OPC”) about Johnson’s complaint. OPC received a written response from Bennett
in March 2013 in which Bennett admitted that he did not enter an appearance in the daughter’s case, nor did he file any motion for discovery. Bennett also acknowledged that he had not spoken with Johnson until early 2013. Bennett failed to follow through on the case. Bennett refunded Johnson the $1,500 fee she paid him following her filing the complaint with OPC. DAVIDSON, CHARLES D. “SKIP,” Bar No. 73026, of Little Rock, in Case No. CPC 2013-066, by Consent Findings & Order filed March 21, 2014, on a complaint generated from an appellate file, was cautioned and fined $500 for violating AR Rule 5.1(a) (a supervising or managing lawyer in a firm shall make reasonable efforts to ensure the firm has in effect measures giving reasonable assurance all lawyers in the firm conform to the rules of professional conduct). Davidson’s firm represented a contractor (May) in a dispute with the owner over a substantial lien on a project. The dispute went to arbitration, where an award for the contractor of $393,995 plus
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DISCIPLINARY ACTIONS attorney’s fees was made in September 2007. May sought to enforce the arbitration award in circuit court, for a declaration that the May lien was superior to a bank lien. May lost and appealed. In October 2010, the Court of Appeals found there was no appealable order and remanded the case to circuit court to settle the “finality” issue. Proceedings on remand resulted in the Order filed in August 2011, where the circuit court again found in favor of the bank and against May on the priority of liens issue. On August 25, 2011, May, through attorney Kent of Davidson’s firm, filed its Motion for New Trial and Motion for Reconsideration. On September 9, 2011, the Order denying the May motions was filed. The Davidson law firm was unaware of the order. On October 28, 2011, Kent filed May’s Motion to Request an Extension of Time to File Notice of Appeal, and Kent’s affidavit in support, stating that a firm employee (Wall) had made telephone contacts with the trial judge’s chambers to obtain information about the status of the post-trial motion and to set a hearing on the motion. In his response, Kent offered that he reasonably relied upon information given to him by Wall about her claimed contacts with the trial court. For several weeks after October 28, Davidson personally directed an in-house firm investigation to find evidence that would support statements made by Wall, and relied upon by Kent, in their affidavits to the court. He notified the court on November 21 that the firm had obtained telephone records that did not support certain facts in the affidavit given by Wall. On November 22, the circuit court entered its Order Denying Motion and Order to Appear and Show cause on December 1, 2011, directed to Kent and Wall. In April 2012, the trial court issued a letter to the circuit clerk, among other matters stating at the hearing in December 2011 there was what the court termed “[F]rankly, unethical and improper conduct” with a firm employee lying to the trial court and submitting fraudulent documents to the court.” The court stated its view that these actions by the firm were an attempt to get around the fact that the firm missed an appeal deadline. The court also stated it should have turned [Kent] over to the ethics committee. In July 2012, the firm tendered
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the May record to the Supreme Court Clerk. The clerk declined to file the record and the firm was directed to file a motion for rule on the clerk, which the firm soon filed. On August 14, 2012, the Supreme Court denied the motion and May’s effort at a legal remedy was concluded.
HASS, J. REBECCA, Bar No. 2000172, of Fayetteville, in Case No. CPC 2013-047, by Findings and Order filed March 5, 2014, in her representation of Jennifer Harvey was cautioned and ordered to pay $1,500 restitution for violations of AR Rules 1.3 and 8.4(d). Hass was engaged in November 2009
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
to defend Harvey on a petition to modify divorce decree and to pursue Ms. Harvey’s counterclaim for contempt for failure to pay child support and alimony. Harvey paid Hass a $5,000 retainer. After trial on December 16, 2009, Hass asked to submit a brief. The brief was due by December 18. On that date, Hass asked the court for
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additional time, and was given until December 21. Hass did not file her brief until January 19, 2010. On January 20 the ex-husband filed a motion to strike Hass’s brief, which brief the court struck on February 4. The court entered an order reducing Mr. Harvey’s child support payments for his three children retroactive to February 3, 2009, the date he filed his petition. On February 22, 2010, Hass filed a motion for reconsideration on the issues of the reduction in child support and attorney’s fees for Ms. Harvey. The court took no
action on the motion, and after it was deemed denied, Hass filed a notice of appeal from both orders. Hass informed Ms. Harvey that she would charge a non-refundable retainer of $3,000 for the appeal, due on the date the transcript was lodged, and an additional $250 per hour to complete the appeal. Hass also informed Ms. Harvey she would be required to pay a $750 retainer to pursue a contempt action for unpaid child support and alimony. Because she was unable to pay those fees, Ms. Harvey did not pursue an appeal. KENT, BENJAMIN A., Bar No. 2006273, of Little Rock, in Case No. CPC 2013-067, by Consent Findings & Order filed March 21, 2014, on a complaint generated from an appellate file, was cautioned and fined $500 for violating AR Rules 1.1 (failure to monitor the status of a pending post-trial motion), 1.3 (lack of diligence), and 8.4(d) (conduct prejudicial to the administration of justice, by causing his client to lose the right to an appeal). This is a companion case to that involving Charles D. “Skip” Davidson (above), with the same facts. ■
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period January 1, 2014, through March 31, 2014: In Memory of William C. “Bill” Adair John C. Calhoun, Jr. Patti and Charles Coleman Cathi Compton and Judge Bill Wilson Mary Ellen and Justice Bradley Jesson Hayden and Gordon Rather Fred Ursery
In Memory of F. J. Howell Jennifer and Randy Coleman Mary Lynn and Justice Robert Dudley
In Memory of Thomas E. “Tom” Allen Jennifer and Randy Coleman
In Memory of Robert C. Low Mike Wilson
In Memory of Gary P. Barket Patti and Charles Coleman Cathi Compton and Judge Bill Wilson Hayden and Gordon Rather B. Jeffery Pence Fred Ursery
In Memory of Diane S. Mackey Judge James G. Mixon Scotty Shively
In Memory of Sam H. Boyce Jeffrey McKinley Mary Lynn and Justice Robert Dudley In Memory of John A. “Jack” Davis, III Designated to the John A. “Jack” Davis III Scholarship Fund Martha Barnes Allen W. Bird II Sam N. Bird Jennifer and Randy Coleman Cathi Compton and Judge Bill Wilson Mr. and Mrs. Ted Drake Mary Lynn and Justice Robert Dudley Grant E. Fortson Hamlin Dispute Resolution, LLC Cyril Hollingsworth Philip E. Kaplan Tabitha Lee Sidney H. McCollum Jack A. McNulty Rosalind and Kirby Mouser B. Jeffery Pence Scotty Shively Laura Hensley Smith Joseph A. Strode Judge John F. Stroud, Jr. Fred Ursery In Memory of Richard F. Dodge Cathi Compton and Judge Bill Wilson In Memory of Robert M. “Bob” Ford Cathi Compton and Judge Bill Wilson Judge Graham Partlow Laura E. Partlow
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Judge John M. Pittman Judge and Mrs. Richard L. Proctor Hayden and Gordon Rather
In Memory of S. Hubert Mayes, Jr. Judge Graham Partlow In Memory of Judge James G. Mixon Carolyn F. Anderson Bankruptcy Clerk’s Office – Fayetteville Joe C. Barrett Bond Law Firm Patti and Charlie Coleman Judge Robert Dawson James F. Dowden Mr. and Mrs. Byron Eiseman, Jr. Greater Houston Convention and Visitors Bureau Kay Holcomb, Mardi Blissard, Priscilla Gibbs Harvey and Shelly Flint* Fran and Joe Holmes Mrs. Lee Margaret Jackwig Judges and Magistrate Judges of the U. S. District Court of the District of Minnesota Sally and Jim McLarty Jeffrey and Lester McKinley Rosalind M. Mouser Judge John M. Pittman Rice & Associates, P.A. Roscopf & Roscopf, P.A. David Solomon James D. Sprott Sandy and Ken Stoll Judge Richard Taylor Mike Wilson Wright Lindsey & Jennings LLP – Rogers Leigh Anne Yeargan H. David Young *designated to the Ernest Lawrence, Jr. Scholarship Fund In Memory of Sloan Rainwater, Jr. Cathi Compton and Judge Bill Wilson
In Memory of Dennis L. Shackleford Designated to The Shackleford/Phillips Scholarship Fund Marsha and Jim Allbritton Mr. and Mrs. Philip S. Anderson Linda and Don Bacon R. Robert Bailey Jeanne and G. Thomas Baumgardner Mr. and Mrs. Rick Beard Dorothy P. Benson Suzanne and H. David Blair Mrs. Johnnie Burns Dr. Peter and Suzanne Carroll Roger Colbert Cathi Compton and Judge Bill Wilson Betty Cowger Mr. and Mrs. Calvin Czeschin, Sr. Debbie and Tom Daily Eleanor F. Day Mary Lynn and Justice Robert Dudley Jeanette and Charles H. Eddy Janie and Tommy Foltz Betty and Buddy Formby C. C. Gibson III Kim Hiller and Andrew Yancey Bob Hamilton Linda and David Hargis Cyril Hollingsworth Anne and Dick James Jane and D.R. James, Jr. The Janes Family Dr. and Mrs. Robert Jones Philip E. Kaplan Paul W. Keith Henry C. Kinslow Rose and Rick Kuonen Jo Lewis Pat and John Lile Bettie Humphreys Mahony Elizabeth and Stephen Matthews Mary and Melvin Mayfield Judge Robin L. Mays Peggy McLarty Kay McVay Margaret S. Myer Lisa Foster and Judge James M. Moody Rosalind and Kirby Mouser Suzanne and Madison Murphy Mr. and Mrs. R. W. Newell Theodosia Murphy Nolan and Family Thomas L. Overbey Judge Graham Partlow Charlotte, Suzanne and Tripp Phillips Mr. and Mrs. Herman I. Ratcliff, Jr.
IN MEMORIAM Arkansas Bar Foundation Memorials and Honorarium continued In Memory of Dennis L. Shackleford Designated to The Shackleford/Phillips Scholarship Fund Hayden and Gordon Rather Gloria Phillips Ray Dan Reynolds Company Melanie and John Reynolds Paula Sewell Reynolds Yancey Reynolds Jean and Rob Robinson Mr. and Mrs. Ron Robinson Roscopf & Rosopf, P.A. Billie and Skip Rutherford Mary Ann and Don Schnipper Carolyn Scruggs James Scurlock II Seller Eye Clinic, PA Kathryn Shaddock Carol and Steve Shoup Mr. and Mrs. Doug Smith, Jr. Laura Hensley Smith Julia and Craig Spears Jim Stinson Marietta and Judge John Stroud Judge Richard D. Taylor Peter Owen Thomas, Jr. John E. Tull III Fred Ursery Jill and Jerry Watkins Julie and Bill Weidower Frances Wharton Claire and Susan Whatley Jennifer Wilson-Harvey Teresa Wineland Carolyn B. Witherspoon Sheryl and Louis Wray HONORARIUMS AND SCHOLARSHIP CONTRIBUTIONS James. H. Larrison, Jr. Scholarship Fund Diane Allen and Rene Bressinck Sebastian County Bar Association Scholarship Fund Sebastian County Bar Association In Honor of David Solomon, designated to the David Solomon Scholarship Fund Helena Bridge Terminal, Inc. Helena Marine Service, Inc.
Dennis Lee Shackleford of El Dorado, died February 6, 2014, at the age of 83. A lifelong resident of El Dorado, Dennis graduated from El Dorado High School in 1948. He attended the SHACKLEFORD University of Arkansas where he was a member of Sigma Chi fraternity. In 1953 he graduated from the United States Air Force Pilot Training School and served his country during the Korean Conflict as a helicopter pilot for the Air Rescue Service. In 1958, Dennis earned his J.D. from the University of Arkansas School of Law and returned to El Dorado to join his father and brother in the practice of law, forming the law firm Shackleford, Shackleford and Shackleford. Dennis wanted to be a lawyer from an early age, following in the footsteps of his grandfather, father, uncle, and brother. His profession was also his passion. Practicing law for over 50 years, he became one of the most respected trial lawyers in Arkansas, serving his profession in many capacities and earning recognition on state and national levels. Members of the legal community often referred to him as a lawyer’s lawyer. During his legal career, he was elected and served as President of the Arkansas Bar Association and President of the Union County Bar Association. He was a Fellow of the American College of Trial Lawyers serving as state chairman from 1982-1984 and serving as a Regent from 1990-1994. He was also a Fellow of the American and Arkansas Bar Foundations. Dennis was a past president of the Arkansas Institute for Continuing Legal Education and served as a member of the Arkansas Supreme Court Board of Law Examiners, a member and former president of the Arkansas Association of Defense Counsel, and as an Advocate and former state Chairman of the American Board of Trial Advocates. He was listed in “The Best Lawyers in America” from 19832013. He was recognized by the Arkansas Bar Foundation as the recipient of the C. E. Ransick Award of Excellence in 1986; the recipient of the Outstanding Lawyer of the Year in 1992; and the recipient of the James H. McKenzie Professionalism Award in 2004. He was recognized by the Arkansas Association of Defense Counsel as Outstanding Lawyer of the Year in 1997.
John Alexander “Jack” Davis, III of Little Rock died January 30, 2014, at the age of 81. He graduated from Bryant High School, where he served as student body president in the 11th and DAVIS 12th grade. From 195355, he served in the Army. He attended the University of Central Arkansas and the University of Maryland before earning a Bachelor of Arts degree from the University of Arkansas at Fayetteville. He was president of the U of A student body in 1958, the same year he earned his juris doctorate degree. He was also a member of The Law Review and served as attorney general of the student body. After law school, he moved to Pine Bluff to join the Bridges law firm. The firm’s name was changed to Bridges, Young, Matthews & Davis when Jack became a partner. From 1979-93, he worked for United Dominion Industries, Inc., in Hanover, New Hampshire ,and Charlotte, North Carolina, having served as senior vice president, General Counsel and Secretary. After retirement and moving back to Little Rock, he became of Counsel to the Rose Law Firm from 1993-1998. In 1998, he helped establish ADR Inc., the first alternative dispute resolution firm in Arkansas. While doing mediations and arbitrations, he continued to practice law, one of his greatest passions in life. He joyfully worked until becoming ill in mid-December. He served as president of the Arkansas Bar Foundation and was a Fellow of the Foundation. He was a member of the Arkansas Bar Association where he served as chair of the Young Lawyers Section, chair of the Executive Council and chair of the Legislation Committee. He served as president of the Jefferson County Bar Association and was a member of the Society for Professionals in Dispute Resolution and Arkansas Conflict Resolution Association. He was a board member and secretary of the Association of Attorney-Mediators. He earned numerous Golden Gavel Awards for his contributions to the work of the Arkansas Bar Association. Elza Clifton Bond, Jr. of Monticello died on Monday, February 17, 2014, at the age of 86. Known by all as Judge Bond, he was licensed to practice law by the Arkansas Supreme Court in 1953, and thereafter was admitted to the Bar of the
Vol. 49 No.2/Spring 2014 The Arkansas Lawyer
IN MEMORIAM United States Supreme Court as well as the other federal and state courts of Arkansas. He opened and operated a private law practice in Monticello for over a half century. He was elected Judge of the Monticello Municipal Court in 1960 and presided over that Court for 26 years until his retirement in 1986. William (Bill) Curtis Adair of Little Rock died February 24, 2014, at the age of 75. The Adair family moved to Fayetteville where he attended public school and graduated in the class of 1957. He ADAIR received his B.A. from the University of Arkansas in 1961. Bill served in the U.S. Army before returning to Fayetteville where he received his Juris Doctorate. He spent the last 25 years of his career as an Assistant United States Attorney in Little Rock. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. Gary “Sparky” Barket of Little Rock died on February 25, 2014, at the age of 67. He graduated from the University of Arkansas and the University of Arkansas Law School in Fayetteville. He was a BARKET well-respected member of the bar for almost 43 years. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. John Logan Burrow of Fayetteville died March 10, 2014, at the age of 67. He graduated from Fort Smith Senior High School in 1964 and received his law degree from the University of Arkansas. John was active in the Democratic Party and in local politics. He served in a number of capacities, the last being a member of the Washington County Election Commission which he served as Chairman. He also served as the Washington County Coroner. Susan Kay Gordon Gunter of North Little Rock died on March 4, 2014. She earned her undergraduate degree from Hendrix College and her Juris Doctorate at the University of Arkansas in Little Rock in 1981. 54
The Arkansas Lawyer
Susan practiced law for Hilburn, Calhoon, Harper, Pruniski and Calhoun, Ltd. for ten years before pursuing an independent law practice. In transitioning to a private practice, Susan took on a heavy pro-bono GUNTER work load, making herself available to her friends and neighbors who needed legal assistance. She became dedicated to not only her work in law, but invested heavily in her family and local community. Charles M. Kester of Fayetteville died March 3, 2014, at the age of 46. As an undergraduate, Charles attended John Brown University where he wrote the first constitution and bylaws for the JBU Honors Program. He graduated from Liberty University in May 1991 with a degree in religion and philosophy. He received his juris doctorate from the Georgetown University Law Center. He served as a law clerk to the Honorable Frank J. Magill of the U.S. Court of Appeals for the Eighth Circuit. He was a member of the American, Arkansas, Benton, and Washington County Bar Associations. He served as a member of the Arkansas Bar Association’s Appellate Practice Committee and served as treasurer, secretary, and chair of the Arkansas Bar Association Labor and Employment Law Section. He was a member of the American and Arkansas Trial Lawyers Association, where he served as a member of the Arkansas Trial Lawyers’ Amicus Curiae Committee. He was also a member of the National Employment Lawyers Association, the National Association of Criminal Defense Lawyers, and the Arkansas Association of Criminal Defense Lawyers. He was the owner of the Kester Law Firm since 1996 and proprietor of St. Wulfstan’s Books since 2004. John T. “Jack” Lavey of Little Rock died March 24, 2014, at the age of 81. Jack played football and worked his way through the College of the Holy Cross and then continued at the New England Law School. He LAVEY graduated in 1957 and joined the Marine Corp., where he became a JAG officer where he tried cases for the next two years. This created the foundation of his
54-year career spent as a lawyer fighting for the civil rights of workers, minorities and the poor. He was recognized for his lifetime of work protecting civil liberties when awarded the 2010 Civil Libertarian of the Year award. From 1969 to 1971, Jack joined Philip E. Kaplan, John W. Walker and Richard Mays, to form the first racially integrated law firm in Arkansas. He was chief counsel for the state Labor Department in the administration of Gov. Dale Bumpers. He hired Melva Harmon and John L. Burnett to form their own labor and civil rights practice, with whom he practiced until his death. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. Judge James G. Mixon of Little Rock died on Monday, March 10, at the age of 72. Jim attended the University of Central Arkansas before graduating from the University of Arkansas School of Law MIXON at Fayetteville in 1968. He served for two years in the United States Navy. Jim was admitted to the Bar in August 1968 and served one year as a law clerk to the Hon. John Fogelman on the Arkansas Supreme Court. He served as an Assistant United States Attorney from June 1969 until February 1973. Following the advice of Judge Fogleman, he left the United States Attorney’s office in 1973 and practiced in Bentonville, Arkansas, until 1984. He was appointed a Chapter 7 Panel Trustee in 1980 and served until he was appointed United States Bankruptcy Judge for the Eastern and Western Districts of Arkansas on March 24, 1984. He served as the Court’s Chief Judge from February 1, 1993, to December 31, 2002. He retired in 2006, though he served as a recall bankruptcy judge and carried a full case load. His career and enduring legacy on the bench spanned 30 years In Little Rock. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. He was a member of the Pulaski County Bar Association, the Debtor/Creditor Bar Association, and the National Conference of Bankruptcy Judges. He was awarded an Ike Scott Fellowship in 2012. The information contained herein is provided by the members’ obituaries.
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MAGISTRATE JUDGE POSITION UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS
PUBLIC NOTICE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
The Judicial Conference of the United States has authorized the appointment of a full-time United States magistrate judge for the Western District of Arkansas in Fort Smith. The position is currently held by James R. Marschewski who is retiring effective January 2, 2015. Application forms and other detailed information on the magistrate judge position may be obtained from the court’s public website: www.arwd.uscourts. gov. Applications must be received by June 27, 2014. Applications should be mailed or delivered to the following address: Christopher R. Johnson, Clerk of Court United States District Court Western District of Arkansas Isaac C. Parker Federal Building Room 1038, 30 S. 6th Street Fort Smith, Arkansas 72901
The current term of office of United States Magistrate Judge Beth Deere is due to expire on January 3, 2015. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eightyear term. More information on the duties of the magistrate judge may be obtained from the court’s public website: www.are. uscourts.gov. Comments must be received no later than June 16, 2014. Comments from members of the Bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the Court and should be directed to: Magistrate Advisory Committee c/o Clerk’s Office, U.S. District Court Eastern District of Arkansas 600 West Capitol Avenue, Room A149 Little Rock, AR 72201-3325
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