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The Arkansas

Lawyer

A publication of the

Arkansas Bar Association

2012-2013 Arkansas Bar Association President Charles L. Harwell

Vol. 47, No. 3, Summer 2012 online at www.arkbar.com

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YOUR CLOUD STARTS HERE

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 Mary Beth Matthews, Chair Judge Wiley A. Branton, Jr. Keith L. Chrestman Brandon J. Harrison Anton Leo Janik, Jr. Jim L. Julian Philip E. Kaplan Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Charles L. Harwell Board of Governors Chair David R. Matthews President-Elect Jim Simpson Immediate Past President Tom D. Womack Secretary F. Thomas Curry Treasurer William A. Martin Assistant Treasurer Shaneen K. Sloan Parliamentarian Marie-Bernarde Miller Young Lawyers Section Chair Vicki S. Vasser BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chaddick, Jr. Tessica C. Dooley Richard C. Downing Frances S. Fendler Amy Freedman Buck C. Gibson Amy C. Grimes Denise R. Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Brian H. Ratcliff John C. Riedel Brian M. Rosenthal Jay Shue, Jr. Brock Showalter Danyelle J. Walker Dennis Zolper LIAISON MEMBERS Paul W. Keith Thomas A. Daily Jack A. McNulty Harry Truman Moore Judge Mark A. Pate Richard L. Ramsay Karen K. Hutchins Judge Vann 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, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2012, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 47, No. 3

features

10 Meet the President: Charles L. Harwell 2012-2013 Arkansas Bar Association President Cover photo by ThinkDero, Inc.

16 Googling...blogging...texting... tweeting...posting...OMG! Judge J.W. Looney and Rodney P. Moore 22 Stranger in Town: Arkansas’s Single-Action Rule W. Christopher Barrier 26 Are Your Files Really Yours? Devon Holder

30 Colonel and Chief Justice Henry Gaston Bunn J.W. Looney

Scan the QR code to go to www.arkbar.com on your smartphone

Contents Continued on Page 2

Lawyer The Arkansas Vol. 47, No. 3

in this issue

2012-2013 Association Officers

4

Association News

6

columns President’s Report

Arkansas Bar Foundation 2012-2013 President 14

Charles L. Harwell

Member Spotlight–Attorney Musicians

Young Lawyers Section Report

20

CLE Calendar

31

114th Annual Meeting Photo Recap

32

Arkansas Bar Foundation/Association Awards

34

House of Delegates Report

36

2012 Annual Meeting Sponsors

37 38

In Memoriam

50

Arkansas Bar Foundation Memorials and Honorarium

51

Classified Advertising

52

9

Vicki S. Vasser

Your Name in Print The Arkansas

Lawyer

A publication of the

Attorney Disciplinary Actions

5

Arkansas Bar Association

Vol. 47, No. 2, Spring 2012 online at www.arkbar.com

For information on submitting articles for publication, go to www.arkbar.com Publications/AR_Lawyer_magazine.aspx

Inside Attorney Oath of Admission Revised to Add a Pledge of Civility 175th anniversary of the first published Arkansas Supreme Court decision

or email ahubbard@arkbar.com

Arkansas Bar Association

2224 Cottondale Lane Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew Curry, Leon Jones, Kristin Pawlik, William J. Trentham Delegate District A-2: Chad L. Atwell, Stan B. Baker, Suzanne Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Matthew L. Fryar, Tina M. Hodne, Joshua D. McFadden, Curtis L. Nebben, W. Marshall Prettyman, Jr. Delegate District A-3: Aubrey Barr, C. Michael Daily, Shannon Foster, Lisa-Marie France Norris, Colby Roe Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Michael E. Kelly Delegate District B: John T. Adams, Amber Wilson Bagley, James Paul Beachboard, Eric Scott Bell, M. Stephen Bingham, Phillip M. Brick, Jr., Franki Coulter, Grant M. Cox, Jason Earley, Khayyam Eddings, Stephen R. Giles, Christian Harris, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Justin Hinton, Matthew House, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, Cliff McKinney II, Whitney F. Moore, Chad Pekron, Gwendolyn L. Rucker, Shaneen K. Sloan, Aaron L. Squyres, Adam Wells, Thomas G. Williams, Dan C. Young, Kimberly Young Delegate District C-1: Roger Colbert Delegate District C-2: Michelle Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, G. S. Brant Perkins Delegate District C-4: Jobi Teague Delegate District C-5: Albert J. Thomas III, A. Jan Thomas, Jr., William “Zac” White Delegate District C-6: Charles E. Clawson III, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Paul T. Bennett, Jackie B. Harris, Jessica Yarbrough Delegate District C-9: John R. Byrd, Jr., Timothy R. Leonard, Leslie Jo 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, Wade T. Naramore, Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson, Law Student Representatives: John Crabtree, University of Arkansas School of Law; Matt Pedicini, UALR William H. Bowen School of Law

2

The Arkansas Lawyer

www.arkbar.com

At the end of the day...

Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you? YES

NO

Does your firm’s 401(k) feature no out-of-pocket fees? Does your firm’s 401(k) include professional investment fiduciary services? Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email joinus@abaretirement.com to learn how we keep a close watch over your 401(k).

Who’s Watching Your Firm’s 401(k)? The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. 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, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C12-0201-010 (2/12)

Meet the 2012-2013 Arkansas Bar Association Officers

4

The Arkansas Lawyer

Charles L. Harwell President Cypert, Crouch, Clark and Harwell, Springdale

William A. Martin Treasurer Attorney at Law, Little Rock

David R. Matthews Board of Governors Chair Matthews, Campbell, Rhoads, McClure & Thompson, P.A., Rogers

Shaneen K. Sloan Assistant Treasurer Hyden, Miron & Foster, PLLC, Little Rock

Jim Simpson President-Elect Friday, Eldredge & Clark LLP, Little Rock

Marie-Bernarde Miller Parliamentarian Williams & Anderson, PLC, Little Rock

F. Thomas Curry Secretary McMillan, McCorkle, Curry & Bennington, LLP, Arkadelphia

Vicki S. Vasser Young Lawyers Section Chair Matthews, Campbell, Rhoads, McClure & Thompson, P.A., Rogers

www.arkbar.com

President’s Report

by Charles L. Harwell

Lessons from the Woodshop When I am working in my woodshop, I am able to use the time to think. Sometimes it is to develop the themes of a speech. Or I can polish my argument for a motion or hone my closing. Often my hobby allows me to truly relax and use the time to think about my current woodworking project or my next one. Now, I get to use shop time to ruminate about my column for The Arkansas Lawyer. Through the years I have learned that the lessons of the woodshop apply to my law practice, if not life itself. One example is the old adage all woodworkers should follow: “Measure twice, cut once.” We all know, if you rush into the task, it is more likely a mistake will follow. If you speak before thinking, you may regret the result. In the woodshop, a mistake most often means you start over with a new stick of wood or figure out a fix to the problem. Maybe you start over on that project. The experienced woodworker knows the careless error can have a more grievous outcome. So it is in our work as lawyers. We need to plan our effort so that real benefit flows to our client–each and every time. This is who we are and who we strive to be. This is what it means to be a professional. The Arkansas Bar Association has planned, both long range and short term, to bring value to each of you. We are member focused, just as you are centered on your clients. The membership renewal form sent you this spring listed the many benefits your association provides. We strive to expand those benefits each year through the Membership Benefit Committee. In the woodshop, if there is a task that will be repeated, a woodworker builds a jig to shorten the time involved or add precision. Repetitive tasks are a part of a lawyer’s practice. A woodworker will tell you that you can never have enough clamps when

you are trying to glue-up your projects. For lawyers, it is forms; you need all you can get. The Arkansas Bar Association has had a strong tradition of providing handbooks which provide forms, simplify those repetitive tasks or provide consistency to the work we do. Thanks to many volunteers, we have several revisions underway and plan to publish those updated handbooks soon. We hope to bring greater advancements in the future to integrate forms into your word processing programs. Watch for the announcement of these great tools. I have to confess that collecting the tools is part of the attraction of my woodworking hobby. There is always one more tool that will make a project go easier. There is also a parallel to the technology and software improvements we see in law practice. These tools, both in the shop and in the practice, are expensive. Your Association has invested significantly in technology for the members, all made available through the newly designed website to better provide each of us with useful tools: Fastcase, a powerful legal research product; improved access to the member directory; and the ability to easily access your favorite sections and committees, thus giving each of us opportunities to dialogue with colleagues through the various listservs. Make use of these tools. Although I have been a woodworker all of my adult life, I have not taken a woodworking class since junior high. Okay, I admit I was a faithful, regular viewer of the “New Yankee Workshop” and I have been known to wear plaid flannel shirts like my woodworking guru, Norm Abrams. While I am largely self-taught in my woodworking, I realize that I could have benefitted from a class or two along the way, especially in the use of some basic hand tools. Similarly, I did not have the benefit of a structured learning system to learn about opportunities for

volunteerism both in my community and in the Bar Association. But we now have the Leadership Academy expressly established to groom new leaders for our Association. I commend it and encourage those of you interested to watch for the call for applications to the next class which will begin later this year. One other thought about my woodworking experience. I have been a solo practitioner. I have not joined any guilds or had an experienced woodworker teach me important skills. In that regard, I have been fortunate to have avoided any serious problems. To make up for not having a mentor, I have read books and magazines to help me learn safe practices, tips and short-cuts. To draw a contrast, in my law practice, I have had the great fortune to work with some great lawyers, learning so much from each. I cannot imagine going into the practice of law without having mentors like I had, not only to teach me the basics of the practice of law, things not taught in school, but also to bounce ideas off. Yet, the tight job market is forcing more and more law school graduates to consider hanging out their shingle as a solo practitioner. To address this issue, the Bar Association has a mentoring program. We need seasoned attorneys to volunteer to be mentors and we need newly admitted lawyers to recognize they could benefit as a mentee. There will be many projects this year. To get started, the staff and your leadership have drawn our plans and made a materials list. We have sharpened our tools. We are ready to create some dust and shavings en route to building several beautiful pieces. We are driven by the satisfaction of completing the task and doing it well, whether in the woodshop, in the practice or for the Arkansas Bar Association. All hands are needed. Thanks for your help. n

Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

5

Association News Applications for the Next Leadership Academy due October 1, 2012

2011-2012 Leadership Academy Graduating Class

January 10-12, 2013: March 4-5, 2013: April 19-20, 2013: June 12-15, 2013: June 13, 2013:

Take Leadership to the Next Level. The Leadership Academy is an exciting program designed to enhance the knowledge and skills of participating attorneys and produce higher level leaders with skills that can transform the community and revolutionize the legal profession. Go to www.arkbar.com/ pages/LeadershipAcademy.aspx for more information.

2013 Schedule Opening Retreat, DeGray Lake Resort Legislature & Judiciary, Little Rock Community & Bar Involvement, Mt. Magazine State Park Arkansas Bar Association 115th Annual Meeting, Hot Springs Pro Bono Agenda & Graduation Ceremony

Congratulations to the 2011-2012 graduating class: John T. Adams, S. Renee Brida, Cory D. Childs, Joel M. DiPippa, Sonya J. Dodson, Tessica C. Dooley, Joseph W. Ghormley, Lauren White Hamilton, William M. Jones, Shelly Hogan Koehler, Jessica Middleton-Kurylo, Angelia Esparza Muldoon, Kevin O’Dwyer, Erin S. O’Leary, Andrew M. Parker, Melissa N. Sawyer, Patrick L. Spivey, Shannon Holloway Vaughan, Jessica S. Yarbrough

Casey Begins Tenure as Interim Dean at UALR William H. Bowen School of Law UALR William H. Bowen School of Law Professor Paula Casey has assumed the position of interim dean while a national search for a permanent dean to replace Dean Emeritus John DiPippa continues. UALR announced Casey’s new position in February, and DiPippa announced his return to the classroom late last year. Casey graduated with her bachelor’s degree from East Central University of Oklahoma in 1973 and her JD from the University of Arkansas – Fayetteville School of Law in 1977. Just two years after graduating law school, she became a professor at the UALR William H. Bowen School of Law and has been a member of the school’s faculty – on and off – since 1979. Casey left the law school temporarily from 1990 to 1992, when she went to Washington to serve as chief counsel and legislative director to Sen. Dale Bumpers, and again from 1993-2000, when she was appointed and served as U.S. Attorney for the Eastern District of Arkansas. She returned to Bowen in 2001 and has since taught courses including Lawyering Skills, Criminal Procedure, Evidence, Advanced Litigation, and Property. Article courtesy of UALR William H. Bowen School of Law. 6

The Arkansas Lawyer

www.arkbar.com

2012-2013 Committee Chairs

Arkansas Bar Commission on Diversity: Ron D. Harrison, Co-Chair, Harold J. Evans, Co-Chair; Arkansas Bar PAC: Dennis Zolper; Arkansas Law Review, Inc.: Patrick D. Wilson; Audit: Anthony A. Hilliard; Continuing Legal Education: Paul W. Keith; Editorial Advisory Board - The Arkansas Lawyer: Mary Beth Matthews; Editorial Board for Handbooks: Brian M. Rosenthal; Finance: William A. Martin; Governance: Frank B. Sewall; Investment: Jackson Farrow, Jr.; Judiciary: Harry Truman Moore, Co-Chair, John F. Stroud, Jr., Co-Chair; Jurisprudence and Law Reform: Dennis Zolper; Law Related Education: Mark W. Hodge; Law School: Eddie H. Walker, Jr.; Lawyers Assisting Military Personnel: Steven S. Zega; Lawyers Helping Lawyers: Suzanne G. Clark; Leadership Academy: Gwendolyn Rucker; Legal Forms: J. Clifford McKinney II; Legislation: Bob Estes; Long Range Planning: Zane A. Chrisman; Member Benefits: Brandon K. Moffitt; Membership Development: Tessica C. Dooley, Co-Chair, Michael Harrison, Co-Chair; Mock Trial: Johnathan D. Horton; Paralegal: Karen Sharp Halbert; Past Presidents: James D. Cypert; Personnel: Denise Reid Hoggard; Professional Ethics: Brad L. Hendricks; Public Information/Findalawyer: Laura E. Partlow; Unauthorized Practice of Law: F. Thomas Curry; Uniform Laws: G.S. Brant Perkins, CoChair, Elisa M. White, Co-Chair; Website/Technology: David M. Fuqua; Women in the Profession: TBD

Association News

Oyez! Oyez!

Filing Petitions Due October 31 For 2014 President of the Association

Accolades Ray B. Schlegel was named Top 40 under 40 by The National Trial Lawyers. Legal Aid of Arkansas announced the following outstanding county volunteers: Rick Hebar, Ray Bunch, Joshua Meister, Mary Schneider, Tom D. Womack, Patricia Virnig, Steven Davis, R. Dawn Allen, Jeanette Robertson, Lorie Whitby, Ed Boyce, Tim Watson, Joe Perry, Michael Kelly, Bruce Harlan (posthumously), Charles Halbert, Mitchell Cash, John Bridgforth, Douglas Gramling, Dana Watson, and Jason Boyeskie. The Hosto Buchan Law firm received two national awards at the National Association of Retail Collection Attorneys conference. Arkansas Business selected the following members for inclusion in the 2012 “Forty Under 40” class: Anton Janik, Jr., Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.; J. Carter Fairley, Barber, McCaskill, Jones & Hale, P.A.; Joey Nichols, Friday, Eldredge & Clark LLP; Matthew Finch, Gill Ragon Owen PA; Patrick D. Wilson, Wright, Lindsey & Jenings LLP.

Appointments and Elections Bilenda Harris-Ritter of the Ritter Law Firm in Maumelle has been chosen to serve a twoyear term on the board of directors of the National Organization for Victim Assistance. Karen K. Hutchins will serve on the National Association of Bar Executive Board of Directors as Secretary for the 2012-2013 year. David L. Rush of Rush & Rush has been elected District Judge for the Northern District of Logan County.

Word About Town

Next President-Elect will come from Bar District C The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position is rotated each year among the three state Bar Districts. The next President-Elect will come from Bar District C. Nomination petitions must be filed with the Secretary at the Association’s office no later than October 31, 2012. The petitions must be signed by at least 75 Association members, with at least 25 signatures residing in each of the three state Bar districts of the Association. The member elected this fall will assume the office of President-Elect at the June 2013 Annual Meeting in Hot Springs and will become the Association President in June of 2014.

Quattlebaum, Grooms, Tull & Burrow PLLC announced that C. Ryan O’Quinn and Patrick H. Murphy have joined the firm as associates. Adam Reid has been hired as of counsel at the Barber Law Firm in Little Rock. We encourage you to submit information for publication in Oyez! Oyez! Please send to ahubbard@arkbar.com.

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2012-2013 Section Chairs Administrative Law: P. Drake Mann; Agricultural Law: J. Grant Ballard; Alternative Dispute Resolution: Melva Harmon; Business Law: Robert E. Riley; Civil Litigation: TBD; Construction Law: James E. Smith, Jr.; Corporate & In House Counsel: Sara H. Batchellor; Criminal Law: Marjorie E. Rogers; Debtor/Creditor Law: Mardi Blissard; Disability Law: Alan Nussbaum; Elder Law: Lori Holzworth; Environmental Law: Kendra Jones; Family Law: Jocelyn A. Stotts; Financial Institutions: William Lance Owens; Government Practice: Maggie Smith; Health Law: Breck Hopkins; Intellectual Property Law: Kathyrn B. Perkins; International & Immigration Law: TBD; Juvenile Justice & Child Welfare: Misty Bowen Eubanks; Labor & Employment Law: TBD; Probate & Trust Law: S. Renee Brida; Real Estate Law: Stephen R. Giles; Securities Law: Randall K. Pulliam; Solo & Small Firm: William P. Allison; Tax Law: Brian C. Smith; Tort Law: S. Taylor Chaney; Workers Compensation: Joseph R. Purvis For more news and photos find Arkansas Bar Association on facebook

Celebrating 50 Years of Practice

Congratulations to members of the Arkansas Bar Association celebrating their 50th year of practice. The members were honored with a luncheon at the Association’s Annual Meeting on June 7, 2012.

• • • • • • • • • • • • •

Richard J. Byrne John P. Gill Paul L. Giuffre Lance L. Hanshaw Everett E. Harber Eugene S. “Kayo” Harris Victor Francis Hlavinka John G. Lile III Philip E. Meadows George E. Pike, Jr. John B. Plegge Judith M. Rogers James A. Ross, Jr.

Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

7

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2224 Cottondale Lane, Little Rock, AR 72202 | www.arkbar.com 8

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Young Lawyers Section Report

by Vicki S. Vasser

Relay Team of Service for the Arkansas Bar The Summer Olympic Games occur every four years. This July, we had an opportunity to watch athletes from around the globe compete in London at the Games of the XXX Olympiad. Following the U.S. teams on their quest for Olympic gold, track and field has been my favorite sport to watch, in particular the relay events. As a former track athlete myself, I admire the dedication and the determination of track athletes. If you have ever watched an Olympic 4 x 400 relay team or observed a relay team at a local meet, you are probably aware that in order for the team to finish the race, a baton must successfully travel around the entire track, four separate laps, without error, each leg playing a critical role of carrying the baton a complete lap. The American Bar Association is much like the United States Summer Olympic team—comprised of thousands of attorneys from across the country, who collectively possess expertise in every legal area imaginable. Similarly, our Association is analogous to a team participating in the summer Olympics—the US track and field team. Likewise, our Young Lawyers Section (YLS) could be viewed as a track relay team in the Olympics. YLS has several standing committees or relay team members: Citizenship Education, Communication, Disaster Relief, Legal Education, Minority Outreach, Pro Bono, and Recruitment/Social. Collectively, these standing committees and their members resemble members of a track relay team. Just as Olympic track relay teams must carry a baton during their race, so do the YLS committees and their respective members carry the “baton” throughout the Bar year on the relay of service—making a difference in our profession, our Bar, and our local communities. Without each leg of the team, the relay of service would not be a success.

At the June 2012 Annual Meeting, the baton of the YLS Chair leadership was passed from Brian Clary to me. The 2012-13 YLS “relay teams” have an exciting year ahead and have dynamic “anchor legs” leading each team: Citizenship Education Co-Chairs: Grant Cox & Erica Miller; Disaster Relief Chair: Brian Clary; Legal Education Co-Chairs: Matt Fryar & Kristen Lausten; Minority Outreach Co-Chairs: Cory Childs & Tessica Dooley; Pro-Bono/Community Co-Chairs: Stephanie Linam & Ryan Wilson; Recruiting/Social Co-Chairs: Jennie Clark & Jessica Yarbrough. As a part of the Legal Education team, YLS will build upon the successful foundation laid by Brian Clary and Tasha Taylor by creating additional tools for the Lawyer2-Lawyer Mentoring Program, including the 10-Minute Mentor video clips and a New Admittee Survival guide. By now, you should be familiar with “18 and Life to Go: A Legal Handbook for Young Arkansans.” The Citizenship Education team will be continuing the distribution of this valuable resource through the newly developed iPhone application and through actual copies of the handbook, targeting high school seniors, public libraries, and youth organizations across the state. Distribution will be focused on Constitution Day & Law Day. A priority for YLS in 2012-13 is pro bono and community service. Throughout the Bar year, the YLS Executive Council meets four to five times. At each Council meeting, YLS will conduct a community service project or pro bono legal service project. This initiative will be called “Lawyers for Change.” The first of these projects commenced in July when the Council met in Northwest Arkansas. “Serving Our Seniors” is a pro bono estate planning project created by the American

Bar Association. Members of the first two classes of the Leadership Academy program have had an opportunity to participate in such a program, partnering with Legal Aid of Arkansas and Mercy Senior Center to provide estate planning services to area senior citizens. Similar programs have been conducted partnering with Legal Aid and the state’s two law schools to benefit first responders. YLS would like to continue this partnership and provide at least two similar pro bono estate planning workshops during the next year. This past year, Cory Childs did an outstanding job chairing the Minority Outreach efforts. Because of the great work of Cory and his committee, YLS received a $1,000 grant from the American Bar Association, which will enable YLS to expand its College Road Tour program. An outreach event is scheduled for Southern Arkansas University this fall, and plans are developing to expand outreach to Hispanic students interested in law. Our state was quite fortunate to avoid major natural disasters in 2011-12; however, the YLS Disaster Committee stands ready to react when disaster strikes with the activation of the ABA hotline. Additionally, YLS will be developing a disaster preparedness guide. Our Section membership is huge! The Social/Recruitment team will be working to get YOU more involved this year by conducting a variety of social events. YLS will also have a presence at both law school campuses, targeting the future YLS members. The 2012-13 YLS relay team has an ambitious race ahead! The relay team has officially left the starting blocks and is off and running on its relay of service for the Association. To make the relay of service a success, it will take participation in each leg of the race, each Committee, each YLS member. Won’t you get involved in the YLS relay of service? n

Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

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Charles L. Harwell

2012-2013 Arkansas Bar Association President Meet the President

Charlie is a partner in the firm of Cypert, Crouch, Clark and Harwell in Springdale. The firm is the oldest in Springdale, having been established back in 1947. He is the third president from the firm to serve as president of the Association. He is a graduate of the University of Michigan, College of Literature, Science and Arts. He and his then young family transplanted to Arkansas in 1979 when he was admitted to the University of Arkansas School of Law, where he was a member of the National Moot Court team and Associate Editor of the Law Review.

Law Practice

Charlie has been an attorney for more than 30 years, all at the same firm. His professional time is divided between litigation and non-litigation matters. His general law practice has been varied, with an interesting mix of clients, including individuals, corporations and institutions—sometimes plaintiffs and sometimes defendants. He has represented Springdale School District, Northwest Medical Center, and Springdale Water & Sewer Commission most of his years in practice. In the last few years he has served as City Attorney for the City of Goshen and the attorney for the Northwest Arkansas Conservation Authority.

Association Leader

Charlie has been active in the Association serving in various leadership roles, including two terms on the Board of Governors, one term on the Executive Council, and three years as chair of the Sustaining Member Committee. He is a tenured delegate of the House of Delegates having served two separate stints of six years each. He served on the Finance Committee for 12 years. He was awarded the Charles L. Carpenter Award for his exemplary service to the Association.

Community Leader

For many years, he has provided pro bono services, both as organized through the Arkansas Volunteer Lawyers for the Elderly and for individual clients whose need was apparent. He has also served on the boards of a number of non-profits through the years. He has served as president of the Board of Life Styles, an organization serving the developmentally disabled of Northwest Arkansas. He acts as its attorney on a pro bono basis as well.

Family Man

Although he is capable of serious work, he tries not to take himself too seriously. He is married to Linda, his bride of 37 years, and they have three grown children and seven grandchildren. When he is not playing with his grandchildren, you will find him trying out a new recipe in the kitchen or working on a project in his wood shop. He is active in his church where he sings in the choir. He considers himself blessed to have been able to practice in a great community at a small family-like firm with great colleagues and staff; to have had the opportunity to be involved in important matters; to have practiced with an excellent bar, before a marvelous bench and at a time when civility among lawyers is still the rule not the exception; and to be truly invigorated each day to come to work, not knowing exactly what challenge that day will bring, but not to be so stressed as to have burnt out. He says that he is not looking to retire any time in the near future because he truly enjoys the practice of law with all of its ups and downs. Not only has it provided a comfortable living, he reports that solving problems for his clients is extremely gratifying and keeps him coming back for more. 10

The Arkansas Lawyer

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Meet the President Date and place of birth: 1953, Detroit (home of the Detroit Tigers), Michigan (sister state of Arkansas) Most memorable case: First jury trial, eons ago, civil case which was a wrongful death case where I defended the property owner and won. Didn’t know enough to know how scared I should have been in front of that jury. Favorite food: Anything ending in “a.” Favorite books: Abraham Lincoln, The Prairie Years and The War Years, both by Carl Sandberg; All the King’s Men by Robert Penn Warren; Anatomy of a Murder by Robert Traver (pen name of John Voelker, Associate Justice of Michigan Supreme Court); To Kill a Mockingbird by Harper Lee; The Complete Sherlock Holmes (4 novels and 56 short stories) by Sir Arthur Conan Doyle. My friends don’t know that: When I grow up, I want to be an architect. One word to sum me up: Devoted

Raising the Bar for the Arkansas Bar By Charles L. Harwell Charles L. Harwell was sworn in as the 115th president of the Arkansas Bar Association on June 8, 2012. The following is excerpted from his investiture speech.

Michigan, I was given a timely transfusion. Just the happenstance of where and when I was born dramatically altered the life I would have. Indeed, I have always been blessed. My father is and has always been the hardest working person I have known. His work No man is an island. No significant ac- ethic has provided an example to the rest of complishment is achieved without support. the family. Even now at age 82 as a gentleman Both personally and professionally, I have farmer in Alabama, he can easily out work been richly blessed to have had many angels me any day of the week. While I cannot say I in my life—those who encouraged me, nur- have his drive and determination to do physitured me, picked me up when I was down, cal labor, I acknowledge the work ethic I have shared in the successes, provided reality when is his legacy. We lost Mom two and a half years ago, perspective was foggy, inspired me to pursue excellence, and allowed me to find my way a victim of one last stroke. She would have through a very satisfying and fulfilling career. enjoyed this moment more than anyone. She The first group due credit for my standing took great pride in the achievements of her here today is my family; a goodly number of sons. Her motherly pride was a part of her unending love. It was Abe Lincoln who said, them are here. I am the youngest of three sons. Although “All that I am owe to my angel mother.” So my oldest brother, Hugh Jr., who lives in it is for me. I would like for my father, Hugh Harwell Michigan was not able to be here, I acknowledge his generous nature and steadying in- Sr., and my dear brother, Arthur Harwell, fluence in my life. He is the big brother that both from Cherokee, Alabama, to stand. I have always been able to look up to, even Thank you both for coming. Also from that “neck of the woods” are though when I was 16 I passed him in height. The greatest inspiration in my life is my Dad’s two brothers and their wives. We are next oldest brother, Arthur. He was born in a close knit family and my aunts and uncles Alabama at a time when they did not know who are here are especially close. They came what to do about the conflict between the to my graduation from law school 30 years antibodies in his and our mother’s blood. ago and I am delighted they came today. Let The doctors waited two days to give him the me introduce you to Sammie and Janice Harblood transfusion he needed at birth and the well from Cherokee, Alabama, and Bruce and result was the crippling condition known as Ann Harwell from Iuka, Mississippi. Linda and I have three children all of whom cerebral palsy. His challenges were many. But the nurturing love he received in our fam- we are most proud. Our oldest daughter, ily permitted him to overcome so many of Amy, is an attorney and works for the Unithose obstacles. My mother, who was a strong versity of Michigan Law School from which woman, willed his every accomplishment, in- she graduated. She was not able to join us. deed his every step by her maternal love. A She earned a pass by delivering her third son narrow-minded doctor told my mother she and our seventh grandchild, Rohen Charles should put my brother in an institution. She Sankaran, on May 25th. Our daughter, Megan, followed her mothemphatically told him “No” and never returned to that doctor. Rather than closeting er’s path and became a nurse. She is married Arthur, Mom and Dad made him central to to her soulmate, our wonderful son-in-law, our family and who we are. Part of my close- Chris Daniel. They have four children, two connectedness to my brother stems from the boys and two girls, ranging from age seven fact that I was born with the same blood fac- years to five months. They live in Springdale tor issues but because my birth occurred in giving us many opportunities to spoil them. Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer 11

front row: Cooper Daniel, Ella Daniel, Jackson Daniel; Middle row: Ann Harwell, Janice Harwell, Linda Harwell, Kristin Harwell, Megan Daniel holding Corie Daniel; Back row: Bruce Harwell, Sammie Harwell, Arthur Harwell, Hugh Harwell, Charles Harwell, Shawn Harwell, Chris Daniel My two grandsons are attending the children’s program. Our granddaughters, Ella, who is three and Corrie, just five months, are accompanied by their parents and I ask them to stand. Thanks for the joy you bring to our lives every day. My baby boy just turned 30 on Sunday. That milestone birthday hit home with me. Time certainly marches on. My very tall son, Shawn, and his lovely bride, Kristin, live in Little Rock. Shawn is a manager in the media department at Children’s Hospital. I admire the man my son has become and acknowledge his wife, Kristin, as our daughter. We are grateful you are here. My wife, Linda, serves many roles in our family. For example, as chief medical officer of the Harwell family, she is the go-to person for all our ailments or medical issues. I mentioned she is, proudly, a nurse, like her mother before her. Among her many traits is the professionalism with which she has approached her work with the several employers she has had through the years. Her commitment to professionalism and to her profession was demonstrated by her service as President of the Arkansas Nurses Association. Part of my inspiration to take on this role stems from the example she set by leading her profession. Come August, while we are at the American Bar Meeting, Linda and I will celebrate our 37th anniversary. I cannot imagine my life without her love and support. In a life filled with so many blessings, my life partner is, without question, my greatest blessing. 12

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The practice of law presents many challenges. When I graduated from law school, I was fortunate enough—again blessed—to be offered a position at one of the best firms in the state. Because of the people in the firm, I have remained there my whole career. My colleagues at Cypert, Crouch, Clark and Harwell are fine lawyers, but they are even better people. The firm has nurtured me personally and professionally. We have a bond forged in the battlefield, tested by the pressures of an increasingly hectic world, and strengthened by the shared values of excellence, professionalism and love of family. I am present at this podium today because my firm has a proud heritage of participating in the Arkansas Bar Association. My partners have served this bar and served it well. The founder of our firm, Courtney Crouch, was president in 1965. Jim Cypert was sworn in as President in 1981. I proudly stand before you as the third President from our firm. I ask that the lawyers in my firm stand with their spouses. Past President Jim Cypert and former First Lady of this bar, Gaye Cypert. Jim and Cathy Crouch. Bill and Connie Clark. Jeff and Lori Reynerson. Matt and Cori Fryar. My personal thanks to each of you for your help, encouragement, and continued friendship as we embark upon this journey. There is one other person I need to introduce. If you have the good fortune, as I have, to have over 15 years of an association with a very talented person who can almost read your mind, you are indeed blessed. My assis-

tant, Brandi Samuels, has been my right hand and talented helpmate for more than half my career. She has been key to the success I have enjoyed. I am most grateful for her dedication, loyalty and hard work throughout the years. Thank you for all you do. As is obvious, I count relationships as extremely important. My relationship with the Arkansas Bar Association and its members is an important, but ever evolving one. I pledge to you my dedication to the many tasks at hand. You have witnessed excellence in my predecessors, the 114 that have gone before. Their dedication is my guiding star. Their triumphs set the bar for the Arkansas Bar Association. I see it as my challenge to raise the bar for our Bar even higher. In order to raise the bar, it is imperative that each of you renew your commitment to serve. We are a proud gathering of volunteers, whose accomplishments are many—indeed legendary. Only through our corporate efforts can we accomplish our lofty goals. We are a collection of many parts. Each Section and Committee is a vital cog in the wheels which turn our Association. We have assembled an all-star team again for this next year. My exhortation to each chair and to each member of those groups is be firm in your resolve to do that which you have volunteered to do. But we know that the chairs individually cannot do all that needs to be done. We require each member of each committee to help with this important work. We need dedicated volunteers—dedicated as those who have gone before. A chain is only as strong as its weakest link. Be strong, each of you, so that our chain is pulling the load. We lawyers love words. To raise the bar, we need more than just words. Oh, the words remain important. Words of aspiration and inspiration. To thrive as an Association, however, we require direction lest we be rudderless. And so it is that I embrace the helm of leadership to continue the great work of those who have guided this ship before. I want to congratulate Tom on a marvelous year. I have learned from your leadership and want to thank for your service. I also want to acknowledge our wonderful staff, led by our Executive Director, Karen Hutchins, all of whom are so vital to our success. So how are we to raise the bar? We first acknowledge that our greatness as an organization comes from within. It starts with our members. We are challenged, indeed called, every day to make this Associa-

above left: Charlie and Linda with their daughter Amy in Alaska; above center: Charlie reading to his grandson Kiren; above right: Charlie’s first grandchild Jackson standing in the crib that Charlie built tion relevant to you, its members. As leaders we hope to maintain our finger on the pulse of this body to know what you need. But as we examine those vital signs, we need your input. Tell us what is important to you. Next, we embrace our rich heritage and without sounding trite, seek to be true to ourselves and who we are. We are lawyers, the noblest profession of all. Without law and those to defend it, there is anarchy. That is the point of the line from Shakespeare so often taken out of context. As defenders of often unpopular positions, we find ourselves defending our proud profession. As an Association of professionals, we must beat back the attacks on lawyers. Not because we are thin skinned, but because our values remain just as relevant as they have ever been. Justice for all is not a campaign slogan, it is our core. Our role in the administration of justice is a constant. We must not shrink from it. And in an age where access to justice shrinks as the need grows, our advocacy is needed more than ever. At a time when we need to stand taller, our reputation is lacking the credibility needed to carry the argument. The public’s eye on us does not see our ideals, but our grimy, seedier self-interest. In order to promote the virtues we hold dear, we must do a better job in improving our image so our message is not lost by attacks on the messenger. It is perhaps old school, but many of us built our practice on volunteering in our community. Good works is just as important as it always was in building reputation, but a good bit more promotion of those quiet, selfless acts is needed. One small way is to nominate someone for the Association’s Lawyer Community Legacy Award. But we must do more to raise the bar. Lawyers have been under attack for genera-

tions. Our task to set the record straight of “who lawyers are” and “what we stand for” is made more difficult by the sensory overload to which we are all exposed in this busy society. No doubt, we long for the days when the central drama being played out was the trial taking place in the courthouse with people coming from miles around to view it. That exposure to the justice system has been displaced with slick dramatizations written by Hollywood script writers. We bristle at those depictions because short shrift is given to our important values of civility and professionalism. We cannot and should not abide with others’ definitions of who we are and who we strive to be. Yet we must refine our approach to our work so that we remain relevant. I call on each of you to harken back to the ideals that led you to become a lawyer. Boiled down to its essence, you and I work to help people, our clients. Service to others is our way of life. I hope you derive the same satisfaction I do when I solve someone’s problem. The desire to help people naturally leads to public service. Lawyers are uniquely positioned to serve their communities and those in need. In a time when we need to jettison our use of legalese and speak more plainly, I nevertheless urge you to remember the short Latin phrase, pro bono publico. We are called as a profession to give back. Our ethical rules encourage 50 hours per year of serving the public. I saw a disturbing statistic the other day. Forty percent of Arkansas attorneys reported doing no pro bono work. Only 15% had done 50 hours. To all of you I say, we can do better. We have to do better. Let us follow the lead of those graduates of the Bar Association Leadership Academy who yesterday gave so generously to help seniors needing basic estate work done.

“In order to raise the bar, it is imperative that each of you renew your commitment to serve.” I challenge you all to serve those most in need. Let’s stretch ourselves to do the extra—to raise the bar. For every hour of pro bono, we are better for it, both as individuals and as a profession. The Association’s mission statement, although adopted some years ago, remains relevant today: • Advance the Administration of Justice. • Encourage Attorneys to maintain integrity and high standards of conduct. • Assist the legal profession in performing their responsibilities to the public. • Conduct a program of continuing legal education for attorneys. • Provide a forum for the discussion of subjects pertaining to the practice of law. • Improve the judicial and legal process, and advance law and order. • Encourage practices that improve the honor and dignity of the legal profession. We will do all of these during the next year. Leading this Association the next year is my greatest honor. I am truly humbled and fully energized by your trust in me. We will continue to build on our past accomplishments. We will continue the work to prove our worth and provide value to our membership. We will continue to raise the bar, so that when the day is done, it can be said that we made a difference. n

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Thomas A. Daily 2012-2013 Arkansas Bar Foundation President Thomas A. Daily, of Fort Smith, began his term as President of the Arkansas Bar Foundation Board of Directors on July 1, 2012. Daily is a member with the law firm of Daily & Woods, P.L.L.C. He practices primarily in the area of oil, gas and mineral law, and he is also an adjunct professor of law at the University of Arkansas School of Law. After receiving his Bachelor of Arts Degree from the University of the South, Daily earned his Juris Doctorate from the University of Arkansas School of Law. He has been a Fellow of the Arkansas Bar Foundation since 2001, is a Sustaining Fellow and has served the Foundation on the Board of Directors as Secretary-Treasurer and Vice President. He is also a Fellow of the American Bar Foundation. He is a member of the American, Arkansas and Sebastian County Bar Associations. Daily has been an active leader serving the Arkansas Bar Association as President in 2003-2004, as a member of its Board of Governors and the House of Delegates as well as Chair of the Association’s Natural Resource Law Section. Tom and his wife Debbie have two sons, Mike and Chris.

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Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer

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Googling…blogging…texting… tweeting…posting…OMG! A guide for lawyers and judges clutching No. 2 yellow pencils

By Judge J.W. Looney and Rodney P. Moore “Online communities are really no different than . . . ancient Roman bathhouses, where people came to talk, relax and entertain themselves, while baring all. And bandwidth, like currents of water, is the well that draws people together.”1 Vibrating, music-playing, flashing gadgets abound: allowing instant connection to the world—and its unfettered information. An allure so irresistible that most habitually annex these devices onto their bodies and incorporate their operations as naturally as breathing. Not surprisingly, when these gadget-appended souls are selected to fulfill their civic duty and serve on a jury, they continue to breathe—and connect to the world. This phenomenon gives rise to interesting questions for lawyers and judges who participate in a legal system that insists on controlling information and access. Two recent Arkansas cases demonstrate the quandary. In a civil case, a sitting juror tweeted: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” Another judge confronted two juror problems: one was sleeping and one was tweeting. He questioned both, provided coffee to sleepy, and gave stern admonishment to the texting juror. Despite his efforts, the persisting snoring and texting of the jurors became the published story of the trial and upended all else.2 The issues are not limited to jurors. Judges are “friending” lawyers in social media and conducting internet research on matters other than the law. Lawyers are texting witnesses and seeking to introduce Facebook pages into evidence. Witnesses are blogging and posting. The courts are frantically scribbling with their No. 2 yellow pencils: “Help!” This article grapples with a few of these issues and makes suggestions along the way. A juror tweeted… Stories of juror misconduct involving technology are rampant. A prospective juror in Seattle posted on a blog that the defense attorney was cute and that she wanted to go to lunch with him. She went on to indicate the prosecutor was a “Mr. Cheap Suit.” The judge’s instructions prohibited texting but said nothing about blogging. During a corruption trial in Baltimore, five jurors became Facebook friends. One posted a remark about the judge. When confronted, he 16

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responded “hey Judge, that’s just Facebook stuff.” In Los Angeles, a prospective juror tweeted “Guilty! He’s guilty! I can tell!” At the time he was in the juror assembly room before he was even chosen for the jury. The juror/technology issues fall into the following categories: • Improper conduct with parties or witnesses • Broadcasting details of deliberation • Do-it-yourself research • Blogging or tweeting juror’s opinion • Anonymous accusations …Amputate the appendage! So far, the most pervasive response to the juror texting and researching problems is prohibition. Arkansas Model Jury Instruction 101 reflects this position instructing jurors to not use any device to search the internet to find anything out about the case, not to communicate about the case using any device, and to turn all devices off while in the courtroom and during deliberation. And, in most courthouses, signs are posted prohibiting use of cell phones and the like—sometimes prohibiting them to even be brought into the courtroom. As shown by the case where the texting juror continued even after specific instructions from the judge, the effectiveness of this approach is questionable. And, the cost is significant. A Reuters Legal analysis found 90 challenges to verdicts in 10 years, with new trials or reversals in 28.3 It doesn’t stretch the mind to imagine those numbers will be much larger over the course of the next 10 years. If this approach prevails, it will likely be necessary to provide more specific details about which technologies are prohibited. For example, the Tennessee Pattern Jury Instructions state: You may not communicate with anyone about the case on your cell phone, through email, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including but not limited to

Facebook, My Space, LinkedIn, and You Tube.4 But, this instruction does not deal with the internet research problem. A more detailed instruction on this point might state: It is imperative that you understand that the prohibition against research and communication applies to the Internet and other electronic mediums. For example you cannot Google anything about the trial. You cannot Wikipedia definitions or concepts that are applicable to the case….This court prohibits you from conducting any online research or engaging in any communication with outsiders during trial about the case.5 If misconduct does occur, how should a court deal with it? If the violation occurs during deliberation, the general premise that jurors may not testify about the deliberation process comes into play.6 One exception, however, is an inquiry as to whether extraneous prejudicial information or outside influence affected the jury’s verdict. The Ninth Circuit has effectively summarized the factors to be considered: • Whether the extraneous material was actually received, and if so, how; • The length of time it was available to the jury; • The extent to which the jury discussed and considered it; • Whether the extraneous material was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and • Any other matters which may bear on the issue of the reasonable possibility of whether the introduction of extrinsic material affected the verdict.7 Juror misconduct discovered before the verdict raises a different set of questions. The court must determine whether the juror may be removed or whether a mistrial must be declared. Inquiry as to the exposure and its prejudicial effect must be made immediately. …A bit of history and the notion of “selfinforming” jurors A big source of the rub on juror issues is that our legal system insists upon controlling information—both incoming and outgoing. Jurors are expected to be neutral and decide the case on the evidence presented—entire courses of law school curriculum are devoted

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to teaching soon-to-be-lawyers the rules of evidence for this purpose. It’s no wonder we are uneasy about unfettered and unscreened access to information. But, this restriction on the flow of information in this age is unique for sure, troubling for some, and perhaps, as some of the examples above suggest—naïve. The origins of our jury system trace back to Medieval England, but unlike expectations of today, jurors were expected to conduct their own research and come to court with preexisting knowledge of the facts. Eventually, the notion of self-informing jurors gave way to neutrality and controlled presentation of evidence.8 But, as courts grapple with these issues, they should consider to what extent the jurors’ seemingly uncontrollable

Judge J.W. Looney is a Circuit Judge, 18-W Judicial Circuit and Distinguished Professor, Emeritus, University of Arkansas School of Law.

instincts to self-inform using technology can be embraced? The judge Googled… During oral argument before the United States Supreme Court, Chief Justice John Roberts surprised one of the lawyers by stating that he had checked a website that morning regarding an Act at issue in the case. According to Chief Justice Roberts the website indicated the Act had been passed “to level the playing field,” and he inquired as to whether that indication was clear evidence the Act was unconstitutional.9 This raises the basic question of whether it is appropriate for a judge to investigate pending cases on the internet. (Note: The issue is not the question

Rodney P. Moore is a partner with Wright, Berry, Moore & White, P.A. where his practice focuses on appellate advocacy and civil litigation.

Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

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Refer to Law Offices of Gary Green, P.A. We Share the Work We Pay the Costs We Pay 1/3 Associate Counsel Fees In Compliance With Rule 1.5(e) of the Arkansas Model Rules of Professional Conduct

Personal Injury Product Liability Medical Negligence Nursing Home Cases 1001 La Harpe Blvd., Little Rock, AR 72201 501-224-7400 1-888-4GARY GREEN (442-7947) www.gGreen.com ggreen@gGreen.com of legal research but the search for information posted about the specific case.) The Arkansas Code of Judicial Conduct specifies that a judge shall not investigate facts in a matter independently. The comments add that this extends to information available in all mediums, including electronic.10 The Vermont Supreme Court, reviewing a custody case, reversed a judge’s decision because he conducted internet research after the hearing to evaluate the father’s decisionmaking. The father (a native of Zimbabwe)

wished to take his daughter for a visit with relatives. He testified that he checked newspaper websites regarding current events in the country. Following the hearing, the judge visited the internet sources and apparently relied on the information in reaching his decision. This was outside the record.11 Beyond the question of internet research other issues are implicated if judges use social networking sites. These sites, such as Facebook, permit users to interact, communicate, and collaborate by viewing and post-

ing content, to send messages and to share information from videos to pictures to words. The variations are endless and the amount of information available about its users is constantly expanding. Elected judges have discovered social networking sites to be valuable campaign tools. Some judges have used the sites to monitor lawyers and even defendants. What are the ethical implications? • A judge in North Carolina who communicated with counsel concerning a pending child custody trial, accessed the website of the opposing party and posted and sent messages about the case was reprimanded. • A Georgia judge contacted a defendant with suggestions about her plea. He retired. • A New York judge frequently posted information about his life, including pictures from his courtroom made while he was on the bench. He was transferred.12 Such concerns have led some states to suggest restrictions on the use of social media by judges. A New York judicial ethics opinion advised judges to comply with rules governing judicial conduct and to be aware of the appearance created if connected with lawyers or anyone else appearing in Court. Kentucky and Ohio have issued similar opinions. A Florida judicial ethics advisory committee ruled that judges may not friend lawyers or allow lawyers to friend them.13 Oklahoma and Massachusetts have also restricted such contact.14 Googling continued on page 44

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Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

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Member Spotlight — Attorney Musicians

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1. Arnie Jochums playing with his band the Jellies. 2. Larry Cross playing his mandolin at the Pickin’ Porch in Mountain View. 3. Judge David Bogard plays the harmonica in local blues bands. 4. Stephen Giles plays the keyboard and piano in a variety of bands. 5. Dent Gitchel plays the guitar in a variety of settings. 6. Greg Jones plays the drums in local bands. 7. Phillip Raley plays the drums with local bands 8. Michael Loggains playing the upright bass for Christmas festivities at the Veterans Facility in Fayetteville. 9. (left to right) Chet Lauck, Jerry Sallings and Greg Jones play with local bands. 10. (left to right) Joe Purvis “Little Joe” and Martha Harriman singing at one the Association’s Annual Meetings. 11. Lauren Ruff has a Bachelor of Music degree in vocal performance and performs in a variety of venues from salsa and jazz to opera. 12. Rachel Hampton is a member of the Arkansas Chamber of Singers and has extensive performance experience including the opera. 13. Judge John C. Finley III serves as the organist of the Ashdown First Baptist Church. 14. Jobi Teague serves as the organist of the First United Methodist Church in Marked Tree 15. Charlotte Scott plays the viola in the Fort Smith Symphony and is a member of the Fort Smith Symphony String Quartet and Ozark Bronze, a community hand bell ensemble in Northwest Arkansas.

Represent USA.

With all of Arkansas, we are proud to be represented at the 2012 London Olympics by our state’s own Tyson Gay (100m) Wallace Spearmon, Jr. (200m) and Michael Tinsley (400m hurdles). We champion their pursuit of excellence and wish them the best of luck.

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Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

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Stranger in Town: Arkansas’s Single-Action Rule

By W. Christopher Barrier An earlier discussion presented a suggested checklist for use by an Arkansas lawyer reviewing an out-of-state mortgage preparatory to giving an Arkansas law enforceability opinion as to that mortgage.1 Two of those checklist items—(a) partial foreclosures/single action/ non-merger, and (b) limitations on use of statutory foreclosure—warrant additional attention because they can have ramifications here at home well beyond opinion issues. 1. Partial Foreclosures, Single Action, Non-Merger Lenders whose deals involve a single note secured by real estate mortgages encumbering land in more than one Arkansas county or in different states want to be able to foreclose on those mortgages one at a time. Both foreign and Arkansas mortgages frequently contain elaborate recitations authorizing the mortgagee to foreclose in another state or on only part of the collateral and pursue the matter to judgment on the note. The lenders want to know that such provisions are enforceable in Arkansas. What those lenders do not want is to pursue that note to judgment in one state or county and then discover that their Arkansas or second county mortgage has evaporated, because the note it secured has merged in the judgment, that merger being the result of partial foreclosure in violation of the single-action rule. If that happens, due to the absence of the necessary drafting, the only remedy left will be to record the lender’s foreign judgment (assuming there is a deficiency) in that Arkansas (or second) county, foregoing any better priority than a vanilla judgment lien on a par with other such liens. In other words, what the lender can foreclose is not the mortgage, but only a judgment lien. In the opinion context that certainly does not look like a minor qualification to most lenders. A properly drafted “dragnet” clause which establishes that it is the debt in all its forms that is secured by the mortgage, not merely the note, should keep the Arkansas (or second county) mortgage alive as securing any deficiency judgment generated in the foreclosure of the primary mortgage, without merger or loss of priority. As suggested in the earlier discussion, careful review is called for, especially since an adequate “dragnet” clause appears to be the exception, not the rule, especially in form documents. In the opinion context or when reviewing a lender’s preferred form, if the mortgage document itself is not as clear as to available remedies and what is secured by the mortgage as the opining lawyer would prefer, she can add the following “dragnet” clause to the mortgage: 22

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Remedies. The specific provisions of this Mortgage providing for certain remedies, including but not limited to Sections _____ and _____, are qualified and limited, no remedy to be pursued hereunder in such a manner so as to in any way impair the priority of this Mortgage, those remedies including but not being limited to partial or single-property foreclosure or similar proceedings. In this regard, Mortgagor acknowledges that this Mortgage secures the Note, the debt represented thereby, any guaranties thereof, any deficiency judgments rendered in other proceedings, and any and all other indebtedness or obligations from Mortgagor to Mortgagee from any source whatsoever, without limitation. In the process of warning an opinion recipient or lender client of the perils of partial foreclosures or of violating Arkansas’s “single-action” rule (which are essentially the same thing), many lawyers go on to cite Steelman v. Planters Production Credit Ass’n (“Steelman I”)2 cited in an earlier discussion, although not so frequently its evil twin of the same name which appears in a later version, which the Supreme Court intended as clarification of Steelman I (“Steelman II”).3 The referring lawyer or lender may well ask what that case means, so the lawyer should be ready to explain,4 and go on to point out that there is no reference in either Steelman decision to a “dragnet” clause in the secondary mortgage, either using the term or describing its function. Hence, it has to be assumed (a) that there was not one and (b) that, had there been one, the result would have been different. There is at least some suggestion in Steelman II that merger of the primary note and mortgage into the judgment could have been avoided, even without the “dragnet” clause, by instituting an ancillary proceeding in the secondary mortgage’s county to preserve the lien or by referencing both mortgages in the primary suit and seeking a single

W. Christopher Barrier practices real estate and business law with Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. in the firm’s Little Rock office.

commissioner to conduct a sale.5 For years, many lawyers have advised just such a course. That would simply not be practically possible were the primary suit to have been commenced in another state.6 On the other hand, the possible unfairness attendant to having to litigate twice which is mentioned in Steelman I7 would not occur, since there should be no other lien claimants who claimed liens on both mortgaged tracts. Instead of instituting an ancillary proceeding in the secondary mortgage’s county, a better course would appear to be to describe the secondary mortgage in the primary mortgage foreclosure and to file a lis pendens in the county of the secondary mortgage referencing both mortgages and negativing a possible merger, upon institution of foreclosure of the primary mortgage. An actual suit in the secondary county could trigger litigation with local lien claimants that might later prove unnecessary, as in the absence of a deficiency. Hence, that is not a recommended strategy. Frankly, the Steelman cases don’t really provide that much detailed guidance, but these suggested procedures would appear to flow naturally from these cases, and Ark. Code Ann. § 16-60-101 et seq. On the other hand, it is difficult to fit the non-judicial foreclosure notices and other requirements of Ark. Code Ann. § 18-50-101 et seq. into a two-jurisdiction framework, and added Section 117 (discussed below) may make that impossible. Hence, two judicial actions may be unavoidable.8 2. Limits on Statutory Foreclosure Pretty clearly an out-of-state mortgage lender is not required to qualify to do business in Arkansas in order to make loans secured in part by Arkansas real estate, so no opinion wobbles arise there.9 But, the out-of-state lender’s mortgage also may contain explicit procedures for statutory foreclosure, which the lender will tell the reviewing lawyer are important to it. Our statutory foreclosure statute does not seem to limit that use. Or it didn’t until 2003, when Ark. Code Ann. § 18-50-117 was added. That section arguably says that a foreign lender cannot avail itself of the statute without qualifying itself and its trustee (although substituting a qualifying trustee is the simpler and more likely option if you assume that suffices). With regard to who may serve as trustee, interpretative clarity has been improved by Act 901 of 2011, but without resolving the Section 117

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conundrum, as to many lenders. The qualification question as to national banks wishing to utilize statutory foreclosure was in fact answered in May 2012 when U.S. District Judge Leon Holmes ruled in In Re Johnson that Section 117 was preempted by the National Banking Act (“NBA”).10 What about lenders not subject to the NBA? As Judge Holmes makes clear, words matter, and they vary from statute to statute. The “foreign investors” statute (Ark. Code Ann. § 4-31-201 et seq.) applies basically to banks and insurance companies, which could exclude some very significant lending entities. And, instead of saying they do not have to register, it says that lending by those entities does not constitute “doing business,” even though it clearly does, in normal usage. On the other hand, the Statutory Foreclosure Statute’s definition of “mortgage company”11 covers virtually any entity that regularly makes mortgage loans, an inconsistency Judge Holmes would no doubt find “curious.”12 But, he would almost certainly rule that, by a plain reading of the statutes, a “foreign investor” might well avoid any requirement of registration in order to make a mortgage loan or pursue conventional foreclosure on it, but face registration in order to utilize the Statutory Foreclosure Statute. The General Assembly, he would say, could have simply straightforwardly exempted those activities from the Wingo Act. It did not. In any event, in view of Section 117 and its remaining ambiguities, if the foreclosing entity is not a national bank, the opinion-giving lawyer may very well have to say something such as the following to be safe: While the Mortgagee and the other lenders appear to qualify as “mortgage companies” under the applicable statute (Ark. Code Ann.

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§ 18-50-101) and are, hence, eligible to utilize non-judicial foreclosure, the Mortgagee could be required to appoint an Arkansas-based trustee, pursuant to Ark. Code Ann. §§ 18-50-102, -116 and -117 to be eligible to utilize these remedies through that trustee, and to itself qualify to do business in Arkansas as a foreign entity. Conclusion Virtually any time a lawyer is faced with a note and with mortgages in more than one Arkansas county or in more than one state, she has potential Steelman single action/merger issues, whether the context is opinions, drafting, document review or litigation.13 Her responses may call for (a) opinion qualifications, (b) document revisions or (c) ancillary proceedings, depending on that context. Doing nothing is not an option. And every time statutory foreclosure is commenced, (absent clarifying legislation) a Section 117 inquiry is called for—is the debt holder “authorized”? As In Re Johnson demonstrates, borrowers’ lawyers are already raising the question. *** As with the checklist offered earlier, none of this is unknown to most Arkansas practitioners. The purpose of this article is merely to identify some of the more troubling drafting or practice problems and offer solutions for some and solace for others. Endnotes 1. See Barrier, W. C., Crossing Borders Stirs Opinions, The Arkansas Lawyer, Spring 2011, at 24-25. 2. 285 Ark. 217, 683 S.W.2d 800 (1985).

3. Steelman v. Planters Production Credit Ass’n, 287 Ark. 464, 701 S.W.2d 119 (1985). In Steelman II, the Supreme Court of Arkansas held that when a mortgagee that held a mortgage in two counties obtained a judgment and decree of foreclosure on the land in one county, but did not attempt to foreclose on the realty in the second county, the mortgagee substituted the judgment for its note and therefore could not initiate a separate action in the second county on that additional mortgage to collect a deficiency. 4. See Endnote 3. 5. Steelman II, 287 Ark. at 466. 6. Cross-border real estate tussles are sticky enough as it is. Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 882 (1938). 7. Steelman I, 285 Ark. at 220, citing Hazard & Jones, Civil Procedure 542-543 (2d ed. 1977). 8. Steelman II, 287 Ark. at 466. 9. See Ark. Code Ann. §§ 4-31-201–205. 10. JPMorgan Chase Bank, N. A. v. Daniel L. Johnson; Susan Diane Johnson; Tracy Lea Estes; and Tammy Renae Peeks; No. 3:11CV00249 JLH (LEAD), No. 3:11CV00250 JLH, No. 3:11CV00251 JLH. Karen Rivera v. JPMorgan Chase Bank, N. A; No. 3:11CV00198 JLH; Jere T. Jones and Teri Jones v. JPMorgan Chase Bank, N. A.; No. 3:11CV00172 JLH. 11. See Ark. Code Ann. § 18-50-101(5). 12. See Footnote 4, page 8, of the Memorandum Opinion. 13. We all know bankruptcy court might as well be more than one country. A debtor with mortgaged properties both in and out of a bankruptcy proceeding may create exceptions to essential merger analysis, but that is beyond the scope of this article. Bisbee v. Decatur State Bank, 2010 Ark. App. 459, at 4. n

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Are Your Files Really Yours? Recent case questions whether the lawyer or the client owns the legal files

By Devon Holder Arkansas Rule of Professional Conduct 1.16(d) states that “papers and property” must be turned over to the client when representation ends. In Travis v. Supreme Court Committee on Professional Conduct,1 the Arkansas Supreme Court, without reaching the merits of the issue, explained that other states have developed two different approaches to what makes up “papers and property.” Some states generally allow lawyers to retain their work product while other states require lawyers to return their work product. This article discusses both approaches and related issues. I. Introduction Imagine you are a partner at a small corporate law firm. Over the last 16 months, you have spent the majority of your time working on a huge, complex merger for two securities companies. This afternoon you finally closed the deal. You get home and relax, looking forward to leaving tomorrow for a long-awaited vacation to the Colorado Rockies. As soon as you get home, your cell phone rings. The new chief executive officer at the company wants to switch counsel and demands that you bring her absolutely everything related to the merger in her file. When you tell her that you have already given her all the documents related to the merger that she could possibly need—except your work product—she demands that you give her your work product immediately. Must you spend the week sorting through your firm’s documents to give her your personal notes for the merger, or have you satisfied your legal obligations and set yourself up for a much deserved vacation? II. Arkansas Law and Travis Arkansas Rule of Professional Conduct 1.16(d) requires attorneys to return a client’s “papers and property” when representation ends.2 Yet, the above scenario begs the question: “What exactly constitutes ‘papers and property’?” In Travis, the client switched lawyers, and the new lawyer demanded all of the previous lawyer’s legal files. The previous lawyer refused to turn over the files, and the new lawyer brought disciplinary charges. The issue was one of first impression in Arkansas. The Arkansas Supreme Court pointed out that there are two general approaches to this issue: the “endproduct approach,” and the “entire file” approach. Yet, the Arkansas Supreme Court did not rule on the issue because the previous lawyer 26

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would not have satisfied either approach; he did not turn over any files at all. The previous lawyer was fined $1,000 and reprimanded. Arkansas lawyers aware of Travis might be left scratching their heads. What are the approaches, and which approach might Arkansas choose? What other issues might arise in this context? III. A Brief Summary of the Approaches Mentioned in Travis a. The End-Product Approach: Federal Land Bank and Corrigan In Federal Land Bank v. Federal Intermediate Credit Bank,3 a bank tried to recover some of its documents from its former attorneys,4 but the court denied the bank access to the attorney’s work product documents.5 The court reasoned that the client only had a reasonable expectation of receiving the attorney’s non-work product documents, or the “end product documents.” “[End product documents] are the documents for which the client has paid, or for which the client can anticipate paying, and they are the type of document which both the attorney and the client expect to become property of the client,” explained the court.6 A similar fact pattern arose in Corrigan v. Armstrong, Teasdale, Schlafly, Davis, & Dicus,7 and the court used a different analysis. It compared the attorney’s work product to that of an accountant’s working papers in the sense that each helps produce a final product.8 The Corrigan court rejected a property analysis and explained that the attorney’s fiduciary duty just meant that he had to give the client access to the files to the extent necessary for the client to understand the attorney’s end product.9 Federal Land Bank and Corrigan have been the leading cases for the end product approach.

Devon Holder is a solo practitioner and part-time public defender in Pocahontas, Arkansas.

b. The Entire File Approach: The Restatement of Law Governing Lawyers and Sage Realty The Restatement (Third) of Law Governing Lawyers section 46(2) embodies the entire file approach. It states: “On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.”10 Comment c to section 46(2) makes it clear that the entire file does not necessarily have to be turned over because there are a few exceptions. The exceptions include when compliance would violate another lawyer’s duty to another client,11 and when the documents are “reasonably intended only for internal review,” such as: (1) when a memorandum discusses which lawyers should be involved in a case; (2) when the document discusses whether a lawyer should withdraw due to the client’s misconduct; and (3) when the document discusses the firm’s possible malpractice liability to the client.12 In Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P.,13 New York’s highest court built on section 46 of the

Restatement of Law Governing Lawyers and adopted the entire file approach.14 It explained that an attorney’s fiduciary relationship requires openness and conscientious disclosure.15 New York’s highest court could “discern no principled basis” where an attorney’s right to his or her work product in a client’s file would be in the attorney’s favor.16 Further, Sage Realty explained that when a dispute arises, the end-product approach unfairly puts the burden of justification on the client because the client needs to show a need for a work product document while the attorney is in possession of the work product documents to begin with.17 Sage Realty remains the leading case for this approach. c. Analysis Each approach has its advantages and disadvantages. Advantages of the end product approach include privacy for the lawyer in the sense that the lawyer’s work product may reflect weak ideas that are later rejected and other aspects of the case that turn out to be irrelevant in retrospect.18 Lawyers may also have a property interest in their work product—novel, unique programs, and files

that lawyers create and plan to reuse in the future that they do not want in the hands of their competitors.19 The disadvantage is simply that it might be placing the lawyer’s interests above those of the client. The advantages and disadvantages of the entire file approach are reciprocal to those of the end product approach. The lawyer’s loyalty and fiduciary duty are not questioned, but his property and privacy rights in the work product are cut short. IV. Potential ethics violations relating to Travis that Arkansas lawyers should be aware of a. Not returning the entire file or everything except your work product immediately once representation ends In spite of the demands of his client’s new attorney, the attorney in Travis did not return any documents to his client. The Arkansas Supreme Court stated that the attorney in Travis would have violated either approach because he did not return any files at all when representation ended. Arkansas law does not specify exactly how soon the documents must be returned, but the Travis court noted that an earlier case, Cortinez v.

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Sup. Ct. Comm. on Prof’l Conduct,20 made it clear that this is an affirmative duty; the client does not need to ask for the documents. According to Arkansas Rule of Professional Conduct 1.16(d), it is the lawyer’s duty to wrap things up once representation ends, and at a minimum, attorneys must return non-work product files. b. Enforcing your attorney’s lien on the files when the next lawyer might need them Arkansas Rule of Professional Conduct 1.8(j) states: “A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer’s fee or expenses.” Arkansas recognizes three kinds of attorneys’ liens: (1) a common law retaining lien,21 (2) a charging lien,22 and (3) a judgment lien.23 However, University of Arkansas Ethics Professor Howard Brill notes that an attorney’s lien “may be modified by the client’s need for a successor attorney to use the papers in order to complete the representation.”24 Right now it is unclear how a lawyer’s retaining lien and the need of a successor attorney to obtain the files may weigh against

one another. Whether Arkansas expects an attorney to turn over his or her work product may further complicate the issue.

approaches but declines to tell Arkansas lawyers what to do. Both approaches have their advantages and disadvantages that turn largely on the lawyer’s property and privacy rights or on his fiduciary duties. Arkansas lawyers should be aware that whichever approach Arkansas decides to use will have far-reaching consequences regarding who owns what during and after the attorneyclient relationship ends.

c. Not paying for your copies of the client’s files If the lawyer’s engagement letter does not cover who pays for copies of the client files, whether the lawyer or the client owns the attorney’s work product may determine who has to pay for the files when the attorneyclient representation ends and the files need to be copied. If the documents are not work product, such as those that have intrinsic value and are provided to the attorney by the client, then the lawyer should probably bear the copying expenses. But suppose the attorney turns over the entire file, including his work product, but charges the client for all copying expenses. If the client owns most of the attorney’s work product, should it be the lawyer who pays for copies? The answer to this will require knowing which approach Arkansas chooses.

Endnotes 1. 2009 Ark. 188, 306 S.W.3d 3. 2. In its entirety, Arkansas Rule of Professional Conduct 1.16(d) states: Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain

V. Conclusion The Travis decision may raise more questions than it answers when it mentions both

Files continued on page 48

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Arkansas Supreme Court Historical Society

Colonel and Chief Justice Henry Gaston Bunn by J.W. Looney Chief Justice Henry Gaston Bunn was the first member of the Arkansas Supreme Court to be defeated for re-election after popular election of judges was instituted in 1864. He was defeated by Joseph M. Hill in a hard fought campaign which centered on a controversy surrounding delay in the work of the court. Hill was critical of the delay during Bunn’s Chief Justiceship, which had apparently increased to well over 24 months compared to 12-15 months when Bunn took office. The controversy over the court’s handling of pending cases had received attention for some time. During both the 1900 and 1902 annual meetings, the Arkansas Bar Association adopted resolutions suggesting methods for addressing the delay. Bunn, and others, saw the solution as the addition of another justice to the bench and the use of panels or divisions to hear cases. Hill suggested longer sessions, summary disposal of some cases and shorter opinions. Criticism of the court’s work had also received public attention during the 1902 race for governor between Jeff Davis and Justice Carroll Wood. One of Davis’s favorite attacks was on the work schedule of the justices. These judges are an awfully overworked set of fellows. They come down to their offices about ten in the morning, leave at noon, come back at two and leave at four. They must be worked to death to stand such a constant strain. Upon what meat do they feed, that they are enabled to do such heavy work. Bunn had been considered for a position on the court in 1884, 1885 and 1889, but his support was limited to his home area. When Chief Justice Sterling Cockrill resigned in 1893 Governor William Fishback appointed Bunn to the position. He was then elected later in the year and re-elected in 1896. Hill defeated him in the 1904 election. Bunn was born in North Carolina June 12, 1838, and came to Arkansas in 1846. He 30

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spent his early years in Ouachita County, then enrolled in Davidson College in 1859 and was a student there when war broke out. He enlisted as a private, saw duty in the Battle of Pea Ridge where he was injured, captured, then escaped, and then fought in many of the major battles in Tennessee, Kentucky, Mississippi and North Carolina. He was wounded multiple times. He rose to the rank of Colonel and wore that title proudly. He returned to Ouachita County following service in the Confederate Army. He was admitted to the bar in 1866, served as a delegate to the Constitutional Convention in 1874, and was elected to the State Senate that same year. In the 1904 election Bunn was warmly praised by the Arkansas Gazette for his ability as a jurist and for his honesty and integrity. He had gained some attention as a result of a confrontation with then Attorney General Jeff Davis during oral arguments before the court in the well-publicized prosecution of insurance companies under a statute that, on its face, prohibited price fixing by companies regardless of where they were organized and where the acts occurred. During oral argument, Davis was putting on a histrionic performance, became heated and started to remove his coat. Chief Justice Bunn told him a gentleman would not appear in his shirt sleeves before the Supreme Court. In his later campaigns, Davis would ask audiences if he could take off his coat reminding them that the “five jackasses” of the Supreme Court would not permit him to do so. Bunn drew some attention in 1903 when he was the lone dissenter on the court in a test case involving Governor Davis’s mass veto of over 300 bills at the end of the 1903 legislative session. This action had been challenged by the Attorney General, but Davis’s action was sustained by the court with Bunn dissenting.1 In one of Bunn’s first cases when he arrived at the court, he also dissented.2 In that case, the court was con-

Colonel and Chief Justice Henry Gaston Bunn Courtesy of Arkansas Secretary of State

sidering the validity of an 1889 Act requiring payment of wages in full to the date of discharge of a railroad employee or risk payment of 60 days continued wages. Justice Burrill Battle wrote the opinion applying the right to regulate domestic corporations to this legislation. Justice Bunn disagreed. Interestingly, in future years Bunn and Battle almost always agreed in divided opinions. Bunn was married twice, first to Louisa Holmes who died a short time later. His second wife was Aralee Conolly by whom he had nine children. Justice Bunn died in El Dorado July 17, 1908, and is buried in Oakland Cemetery in Camden. Endnotes 1. Monroe v. Green, 71 Ark. 527 (1903). 2. Leep v. St. Louis, Iron Mountain and Southern Ry., 58 Ark. 407 (1894). 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, Justice Building, Email: rod.miller@arkansas.gov; Phone: 501-682-6879.

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The 114th Arkansas Bar Association

Annual Meeting 2012

June 6-9, 2012, Hot Springs, Arkansas

114th Annual Meeting

Strengthening Our Profession

June 6-9, 2012, Hot Springs Hot Springs Convention Center & The Arlington Hotel

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Tom and Linda Womack Tom and Linda Womack, Tom and Jeanie Curry, Sally and Judge Ralph Wilson, Jr., Charles and Linda Harwell Georgia and Judge Kayo Harris and Donna and Lamar Pettus George P. Bush, Jim Julian, Tom Womack and Zane Chrisman Chief Justice Jim Hannah Judge Wiley Branton, Charlotte Brown, Stephanie Branton, Justice Robert Brown Heartsill Ragon III, John Gill, and Charles Owen Steve Quattlebaum Ashley, Walter and Judi Cox, Brook Clavey, Brian Dandy and Lance Cox Andrew, Erin, Jeanie and Tom Curry UALR Bowen School of Law Plus Program Students Matthew, Cindy and Scott Strauss Color Guard Kirby and Rosalind Mouser Charles Harwell and Tom Womack J. Shepherd Russell III and Price Gardner Dean John Dippa and Dean Stacey Leeds Lyn Pruitt and Harold Hamlin (first row l to r) Debbie and Mark VanPelt, (second row l to r) Charlie Coleman, Bill Clark, and Tom Hardin Amanda Simmons and Cory Childs Melissa Sawyer, Brian Clary and Grant Cox Sean Keith and Tom Womack Jim Simpson and Martin Kasten Paul Keith Association Past Presidents in attendance at the 2012 Past Presidents’ Dinner: (bottom row, l to r): Donna Pettus, Jim Cypert, Charles Roscopf, Phillip Carroll, Dennis Shackleford, Jim Shaver, Carolyn Witherspoon, (top row l to r): Jack McNulty, John Stroud, H.T. Moore, Tom Daily, Jim Sprott, Glenn Vasser, Rick Ramsay, Don Schnipper, Jim Julian, Lamar Pettus, Billy Roy Wilson, Fred Ursery, Dick Hatfield 2013 Dates Mid Year Meeting January 24-24, 2013, Memphis 115th Annual Meeting June 12-15, 2013, Hot Springs Summer 2012 The Arkansas Lawyer

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Arkansas Bar Foundation/Arkansas Bar Association 2011-2012 Annual Joint Award Recipients Outstanding Lawyer: Walter B. Cox,

James H. McKenzie Professionalism Award: T. Ark Monroe, III,

Cox & Estes, PLLC, Fayetteville, received the award in recognition of excellence in the practice of law and outstanding contributions to the profession.

Walter B. Cox

T. Ark Monroe, III

Outstanding Lawyer-Citizen: Wyman “Rick” Wade, Jr.,

Equal Justice Distinguished Service Award: Lori A. Chumbler,

Daily & Woods, P.L.L.C., Fort Smith, received the award in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct. Wyman “Rick” Wade, Jr.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, received the award in recognition of sustained excellence through integrity, character and leadership to the profession and the community.

Lori A. Chumbler

C. E. Ransick Award of Excellence: Steven W. Quattlebaum,

Walmart Legal Department, received the award in recognition of her commitment to and participation in equal justice programs, including pro bono efforts through legal services programs.

Outstanding Local Bar Associations:

Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, received the award in recognition of outstanding contributions to the profession.

Recognizing outstanding activities which enhance the position and standing of the legal profession. Benton County Bar Craighead County Bar Pulaski County Bar Sebastian County Bar

Steven W. Quattlebaum

Arkansas Bar Foundation Writing Awards Best General Writing Category: Tom Overbey, “The Paperless Law Office,”The Arkansas Lawyer, Spring 2011

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Best Legal Writing Category: Scott M. Strauss, “The Arkansas Several Liability ‘Catch 22’: The Civil Justice Reform Act Post Johnson,”The Arkansas Lawyer, Fall 2011

Arkansas Bar Association 2011-2012 Award Recipients

2011-2012 Association President Tom D. Womack presented the following awards on June 8, 2012, at the Annual Meeting. Mark W. Hodge

Zane A. Chrisman

Zane A. Chrisman received a Golden Gavel Award for her work as chair of the Annual Meeting and the CLE Award for her outstanding contributions to providing quality Continuing Legal Education.

Brian M. Clary, Saline County Deputy Prosecuting Attorney, received a Golden Gavel Award for his work on the Lawyer-2-Lawyer Mentor Program Brian M. Clary and the Judith Ryan Gray award for his service towards improving the administration of justice.

O. Milton Fine II

O. Milton Fine II, Administrative Law Judge, Arkansas Workers’ Compensation Commission, received the Maurice Cathey Award for his valued contributions to The Arkansas Lawyer magazine.

William A. Martin

Mark W. Hodge, Chisenhall, Nestrud & Julian, P.A., Little Rock, received a Presidential Award for his work on the Arkansas Teachers Law School. William A. Martin, Attorney at Law, Little Rock, received a Presidential Award for his work as Association Treasurer and Chair of the Finance Committee.

Tasha Taylor, Taylor & Taylor Law Firm, Little Rock, received a Golden Gavel Award for her work on the Lawyer-2-Lawyer Mentor Program and the Frank Tasha Taylor Elcan II Award for her outstanding contributions to the Young Lawyers Section.

Gordon S. Rather, Jr.

Gordon S. Rather, Jr., Wright, Lindsey & Jennings LLP, Little Rock, received a Golden Gavel Award for his work as chair of the Editorial Advisory Board.

Brian Rosenthal

Brian Rosenthal, Rose Law Firm, Little Rock, received the Charles L. Carpenter Award for his exemplary service to the Arkansas Bar Association.

Gwendolyn L. Rucker, Law Clerk to United States Magistrate Judge Jerome Kearney, received a Golden Gavel Award for Gwendolyn L. Rucker her work as chair of the Membership Development Committee.

E. Lamar Pettus

Matthew D. Wells

E. Lamar Pettus, Attorney at Law, Fayetteville, received a Golden Gavel Award for his work as chair of the Governance Committee.

Matthew D. Wells, General Counsel/Chief Compliance Officer, USA Drug, Little Rock, received a Golden Gavel Award for his work as chair of the Mock Trial Committee.

Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

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Arkansas Bar Association’s House of Delegates Wrap up Annual Meeting By Karen K. Hutchins President Tom Womack presided over the House of Delegates meeting held June 9th in Hot Springs. This was the final event of the 2012 Annual Meeting, which was attended by over 1350 attorneys, judges, and their families. Each year approximately 25% of our members attend the Annual Meeting, making it one of the premier state bar meetings in the country. Annual Meeting Chair Zane Chrisman was commended on the outstanding job she did in organizing the event. Delegates were apprised of the Association membership’s recent vote to approve the recommended updates to the Association’s Constitution. Election results for positions on the House of Delegates, Board of Governors and as an American Bar Delegate were also announced. Treasurer William A. Martin shared with the delegates the 2012-2013 budget, which was approved by the Board at their April meeting. Carolyn Witherspoon provided the American Bar Delegate report. Dennis Zolper reported for the Arkansas Bar PAC. He was joined by Representative John Vines who reinforced how important the PAC was in helping attorneys run for the legislature. Both reminded the delegates of the need for more attorneys in the legislature and encouraged them to run. Lobbyist Jack McNulty reviewed the 2013 legislative process and described the challenges involved. A primary agenda item was the adoption of the Association’s 2013 Legislative Package. The Jurisprudence and Law Reform Committee received numerous bills by the January 30th deadline but only recommended two of them for inclusion in the Association’s package. They are An Act to Amend a section of Arkansas Code Title 27 and An Act to amend Article 9 of the Uniform Commercial 9 Code, to Declare an Emergency. The House approved both recommendations. A caucus of the Association’s three state bar districts was held to elect representatives to the Legislation Committee. Kristen Pawlik of District A, Aaron Squyres of District B, and Jobi Teague of District C were each elected to 2 year terms. Other 2012–2013 Legislation Committee members are Robert Estes, Chair; Charles Harwell, President; Jim Simpson, 36

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President-Elect; Charles Schlumberger; Dennis Zolper, Chair of the Jurisprudence and Law Reform Committee and Brian Ratcliff. The caucus also elected members to the House Advisory Committee. Matt Fryar of District A, James E. Hathaway III of District B, and James McMenis of District C were elected to serve two-year terms on that Committee. The Charles L. Carpenter Memorial Award was presented to Brian Rosenthal in recognition of his work as chair of the Long Range Planning Committee. Associate Justice Robert Brown updated the House on the progress of the Task Force on Judicial Elections, and Amy Johnson, Executive Director for the Arkansas Access to Justice Commission, presented an update on Commission activities. Tom Curry, 2011-2012 President of the Arkansas Bar Foundation, reported that the Foundation is continuing its Fellows campaign encouraging attorneys across the state to join the Foundation for the 2012-2013 year. He announced that Tom Daily will take the helm as Foundation President for the upcoming year. President Womack reported on ABA Day in Washington where each state sends representatives to lobby on issues important to Bar Associations and the practice of law. Our delegation addressed the Legal Services funding shortage with Arkansas’s representatives and senators. Womack also announced the creation of a Veteran’s Assistance program. Interested attorneys met to discuss providing more information for veterans and attorneys assisting veterans on the Association’s website and the need to offer more CLE to assist with training attorneys on Veteran’s issues. The second graduating class of the Leadership Academy received their certificates at the Annual Meeting in a ceremony highlighted with comments by President Womack. Membership Development Committee Chair Gwen Rucker reported that membership in the association stayed strong for the 2011-2012 year ending with 5352. YLS Chair Brian Clary reported on a very successful year led by three main initiatives. They include the Lawyer-2-Lawyer mentoring program, “18 and Life to Go,” and diversity

Delegates caucus to select Legislation Committee representatives

efforts to encourage college age minorities to enter the legal profession. Executive Director Karen Hutchins debuted the new member benefit brochure highlighting this year’s addition of a FedEx discount and a mobile website provider, Association Benefits International (ABI). President-Elect Charles Harwell named Brian Clary as the 2012-2013 Annual Meeting Chair and announced that William A. Martin would serve his final year as Treasurer in 201213. Ms. Shaneen Kelleybrew Sloan will serve as Assistant Treasurer and as an At-Large member of the Board of Governors. He reminded all delegates to plan to attend the Mid-Year Meeting in Memphis on January 26, 2013. President Womack recognized outgoing Board of Governors Chair Harry Light and Parliamentarian Sean Keith for their work over the past year. Plaques were presented to outgoing Delegates Stephanie Harper Easterling, Jerrie Grady, Shane A. Henry, Jodie Lynn Hill, Mark W. Hodge, Joel D. Johnson, Emily Sprott McIllwain, Anthony Noblin, Paul D. Reynolds, Charles D. Roscopf, James V. Scurlock, Shivali Sharma, Brock Showalter, Patrick L. Spivey, Cathy Underwood, Curtis J. Walker, Carolyn Witherspoon, and Victor D. Wright III. President Womack thanked the House for his opportunity to serve and completed his duties as President by presenting the President’s Pin and Gavel to incoming President Charles Harwell. Incoming President Charles Harwell presented Womack with a plaque to recognize his accomplishments as the Association’s President. Harwell concluded the meeting with the announcement of David R. Matthews of Rogers as the upcoming Board of Governors Chair and introduced incoming PresidentElect Jim Simpson of Little Rock. n Karen K. Hutchins is the Executive Director of the Arkansas Bar Association.

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Attorney Disciplinary Actions Final actions from April 1, 2012, through June 30, 2012, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

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REPRIMAND: Q. BYRUM HURST, JR., Bar No. 74082, of Hot Springs, Arkansas, in Committee Case No. CPC 2012-008, by Findings and Order filed on May 22, 2012, on conduct related to the representation of Richard Federick in a criminal appeal from a conviction in Saline County Circuit Court, for violation of AR Rules 1.3 and 8.4(d), was reprimanded and fined $1,000.00. Mr. Federick entered a conditional plea of guilty and a timely notice of appeal was filed on October 11, 2011. The deadline for filing the record on appeal was January 9, 2012, pursuant to Rule 4(b) of the Arkansas Rules of Appellate Procedure–Criminal. Mr. Hurst tendered the record to the Arkansas Supreme Court Clerk on January 10, 2012. On January 11, 2012, Mr. Hurst filed a Motion for Rule on the Clerk. The motion was granted and the Arkansas Supreme Court referred Hurst to the Committee on Professional Conduct. Mr. Hurst stated that his office had installed a new time management system program which crashed, resulting in the loss of previously entered dates and deadlines. Mr. Hurst’s prior disciplinary record included four prior sanctions involving missed appeal deadlines. DANA A. REECE, Bar No. 87142, of Little Rock, Arkansas, in Committee Case No.

Attorney Disciplinary Actions CPC 2011-085, by Findings & Order filed April 24, 2012, on conduct related to the representation of Bruce Pennington in an appeal from the denial of post-conviction relief in Poinsett County Circuit Court, for violation of AR Rules 1.1, 1.3, 5.5(a), and 8.4(d), was reprimanded and fined $1,000.00. Ms. Reece was also reprimanded and fined another $1,000 for failing to file a timely response to the Complaint. Ms. Reece was also suspended for a period of thirty-six months from representing clients before the Arkansas Supreme Court or Arkansas Court of Appeals. On November 3, 2010, the Poinsett County Circuit Court denied Bruce Pennington’s Petition for Rule 37 Post-Conviction Relief. Ms. Reece filed a timely notice of appeal on November 4, 2010. The record was timely filed on January 26, 2011, and pursuant to Rule 4-3 of the Arkansas Rules of Supreme Court, a brief was to be filed on or before March 7, 2011. On March 2, 2011, Ms. Reece’s Arkansas license to practice law was suspended for failure to pay the annual license fee. On March 4, 2011, Ms. Reece filed a Motion for Extension of Time to File Brief in the Pennington matter. The motion was granted and a brief was due to be filed on April 6, 2011. On April 6, 2011, Ms. Reece filed a second Motion for Extension of Time to File Brief. Ms. Reece was notified that her license had been suspended on March 2, 2011, and that she was to pay her license fee and a motion for belated brief. On April 7, 2011, Ms. Reece paid her license fee and was reinstated. She also filed a Motion for Belated Brief but failed to tender a brief along with the motion. On May 5, 2011, the Arkansas Supreme Court denied the motion as there was no brief tendered. Ms. Reece filed a second Motion for Belated Brief on May 11, 2011, and again failed to tender a brief with the motion. The Court again denied the motion. On August 31, 2011, Ms. Reece filed a third Motion for Belated Brief along with a tendered brief. The Court granted the motion and referred her conduct to the Committee on Professional Conduct. Ms. Reece was served with the Complaint, and failed to file a timely response. Ms. Reece’s prior disciplinary record included five prior sanctions involving missed appeal deadlines. RALPH THEODOR STRICKER, Bar No. 80139, of Jonesboro, Arkansas, in Committee Case No. CPC 2012-007, by Consent Findings & Order filed May 18, 2012, on complaint by Jerry Harrison and Mark Rees, Esq., for violation of AR Rule

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1.8(j) waswww.facebook.com/McMathWoods, reprimanded and ordered to pay settlement of $25,000.00 was reached with the www.twitter.com/McMathWoods costs of $50.00. Mr. Stricker represented Harrisons’ insurance company. The settlement www.linkedin.com/company/mcmath-woods-p-aLeesia Harrison in a personal injury matter had not been finalized and the funds were not that occurred in 2009. Mr. Harrison states disbursed to the Harrisons and Mr. Stricker that at the time of their February meeting with until July 29, 2010. Mr. Stricker he began giving them unsolicited On May 15, 2010, Mr. Stricker filed a advice on their marriage. On April 28, 2010, Complaint on behalf of Ms. Harrison for using another lawyer, Ms. Harrison filed for another motor vehicle accident Ms. Harrison divorce from Mr. Harrison. The personal was involved in on April 8, 2010. On May injury matter was still pending during the 20, 2010, Mr. Stricker filed a Complaint on Harrison divorce proceeding. In May 2010, a behalf of Ms. Harrison against both the owner Vol. 47 No. 3/Summer 2012 The Arkansas Lawyer

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Attorney Disciplinary Actions of the vehicle and driver of the vehicle from the August 2009 motor vehicle accident. In addition, Mr. Stricker also represented Ms. Harrison on her Social Security Disability Claim. During a hearing held on August 23, 2010, in the Harrison divorce matter, Ms. Harrison testified to her personal relationship with Mr. Stricker, stating that she and her son moved into the apartment over Mr. Stricker’s Law Firm. When asked by Mr. Rees on cross-examination, if she was sexually involved with Mr. Stricker, Ms. Harrison responded, “Yes, I am.” Ms. Harrison also confirmed in her testimony that Mr. Stricker was still representing her on the pending personal injury claims. Ms. Harrison also testified that she took a couple of out of state trips with Mr. Stricker, once to Las Vegas and another to Seattle, Washington. Ms. Harrison testified that Mr. Stricker and she shared a hotel room together. In his written response to an investigation letter, Mr. Stricker admitted that he and Ms. Harrison developed a romantic and sexual relationship, and that he was still representing her in a personal injury civil suit. GARLAND WATLINGTON, Bar No. 95223, of Jonesboro, Arkansas, in Committee Case No. CPC 2011-072, by Findings and

Order filed June 1, 2012, from a complaint prepared following a Panel of the Committee directing that an audit be conducted of Mr. Watlington’s IOLTA trust account, for violations of Rules 1.5(c), 1.15(a)(1), 1.15(a) (5) and 1.15(b)(1), was Reprimanded and fined $7,500. The audit revealed that Mr. Watlington failed to maintain client funds separate from his own, failed to obtain the proper endorsements on settlement checks, and failed to maintain a minimum balance in his trust account at all times for the benefit of his clients. Mr. Watlington used funds of his clients for purposes other than the permissible one of paying his clients and / or their medical providers. There were overdrafts in his trust account which are never permissible. On at least one occasion Mr. Watlington’s trust account balance was over $90,000 short what should have been present in the account as funds of multiple clients. JIMMIE LEE WILSON, Bar No. 73128, of West Helena, Arkansas, in Committee Case No. CPC 2011-048, by Findings & Order filed April 24, 2012, on a complaint by Byron Freeland, Esq., for violation of AR Rules 1.1,

1.3, 3.2, 3.4(c), 4.4(a), 5.5(a), and 8.4(d), was reprimanded, fined $1,000.00, and ordered to pay $2,176.00 restitution for Helena Housing Authority, and also was reprimanded and fined another $1,000 for failing to file a response to the Complaint. Mr. Wilson, an experienced trial lawyer in both state and federal courts, in September 2005, filed a breach of employment contract suit in state court in Helena for his client Mr. Miller against the Helena Housing Authority, its Executive Director, and others. Wilson never served any of the defendants with the suit, and on April 8, 2009, an order dismissing the suit without prejudice was filed. On April 28, 2010, Wilson filed the identical suit against the same defendants in state court. Helena Housing filed a motion for summary judgment based on the bar of the five year statute of limitations. Wilson neither filed a response to the motion nor appeared at a hearing on it in June 2010. The motion was granted and the 2010 suit was dismissed with prejudice by an Order filed July 16, 2010. Helena Housing asserts it was forced to expend $2,175.69 in legal fees and costs defending what was clearly time-barred and unsupportable in the second lawsuit filed in 2010.

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Attorney Disciplinary Actions Mr. Wilson’s 2011 Arkansas law license renewal fee was due and payable by March 1, 2011. He paid his 2011 fee on May 20, 2011, and his license was then restored to good standing. As a result of his failure to timely pay the required fee, Mr. Wilson practiced on a suspended law license from March 2 - May 20, 2011. Mr. Wilson practiced law and filed and participated in litigation while his law license was suspended in 2011. Mr. Wilson was “late” in paying his annual law license fee in 2006, 2007, 2008, and 2010, resulting in the license suspensions during parts of those years. In assessing the sanctions, the Panel stated Mr. Wilson’s prior disciplinary record was a factor.

Tree, had its appeal dismissed after Mr. Burns failed to file a brief in the matter after receiving three (3) extensions of time to do so. In the underlying matter, Mr. Burns failed to comply with the requirements of Rule 9(c)(1) of the Arkansas District Court Rules which resulted in an order dismissing his client’s Circuit Court Complaint. It was from the dismissal of the Complaint in Circuit Court that Mr. Burns took the appeal in which he failed to file a brief. When the Appellee filed a Motion to Dismiss, Mr. Burns tendered a Response setting out that his client did not want to pursue an appeal anyway.

JONATHAN T. LANE, Bar No. 98172, of Little Rock, Arkansas, in Committee Case No. CPC 2012-010, by Consent Findings THOMAS WILLIAM BURNS, Bar No. & Order filed April 25, 2012, by self-referral 2002006, of Bryant, Arkansas, in Committee and Arkansas Supreme Court Per Curiam, Case No. CPC 2011-077, by Findings and for violation of AR Rules 1.3 and 8.4(d), was Order filed April 13, 2012, from information cautioned and ordered to pay costs of $50.00. obtained through Order of the Arkansas Court Mr. Lane filed the Notice of Appeal in Mr. of Appeals in Case No. CA2011-51, Capitol Lemmond’s criminal case on August 4, 2011, City Tree Service and Landscaping v. Bowen, for making the time to lodge the record with the violations of Rules 1.1, 1.3, 8.4(c), and 8.4(d), Arkansas appellate court due on November 2, 1210421 ADR Summer 2012 Ad:ADR Ad 6/18/12 12:59 PM Page 1 was Cautioned. Mr. Burns’ client, Capitol City 2011. Mr. Lane did not file the record until CAUTION:

November 3, 2011. On December 8, 2011, the Arkansas Supreme Court granted Mr. Lane’s Motion for Rule on the Clerk. After obtaining an extension, Mr. Lane filed his client’s brief on February 23, 2012. RHONDA McCAULEY, Bar No. 2000024, of Fort Smith, Arkansas, in Committee Case No. CPC 2011-033, by Findings and Order filed June 8, 2012, on a complaint filed by Ahmad Alhamwi, for violations of Rules 1.2(a), 1.3, 1.4(a)(3) and 8.4(d) was Cautioned after a hearing. Ms. McCauley represented Mr. Alhamwi and his family in several immigration matters. After the Alhamwis requested asylum and were denied, Ms. McCauley was hired and paid to pursue an appeal to the Board of Immigration Appeals. Ms. McCauley advised the Alhamwis that it could take several years to have a decision. The Alhamwis trusted Ms. McCauley. In October 2009, the Alhamwis learned that the appeal had been dismissed in July 2008. Ms. McCauley did not give notice to them and the Alhamwis hired new counsel to assist them. During the course of her representation of the Alhamwis, Ms. McCauley did not abide by their decisions with regard to

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and continues to be Marie Calcaterra. Mr. Ramsey represented Mr. Ash through completion of the matter by way of an Agreed Order in 2006. In October 2011, Mr. Ash was served with a Motion to Modify the 2006 Order, filed on behalf of Ms. Calcaterra by Paul Schmidt, Sr., of the Schmidt Law Firm, where Heath Ramsey is still associated. There has been no informed consent, in writing or otherwise, given by Mr. Ash for the representation of Ms. Calcaterra against him. Mr. Ramsey is prohibited from representing Ms. Calcaterra in the same legal matter and the prohibition is imputed to Mr. Schmidt.

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Googling continued from page 18

ly, in juror selection, client evaluation, and for witness background. Formal discovery requests for social media have become standard fare in litigation. Subpoenaing information raises a separate set of issues.

At the heart of these rules is the need for judges to instill confidence in the judiciary and to avoid the appearance of impropriety. Moreover, there are also safety concerns for judges. The U.S. Marshals Service, National Center for Judicial Security, recommends opting out of all internet postings and to avoid displaying any personal identifying 44

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information about the judge or family members on any site. For example, personal schedules or future plans or photographs potentially could make the judge vulnerable.15 The Lawyer friended‌ Lawyers and law firms use social networking sites as marketing tools and, increasing-

‌let me see your posts The issues related to discovery of social media information are not significantly different from those involved with email, text messages or instant messaging. The issue may arise in the context of requests for production of documents and whether the request is tailored to include such communications. Federal Rule 26 specifically includes discovery of information stored in any medium. Rule 26.1 of the Arkansas rules was added in 2009 specifically to deal with electronic discovery issues. This rule is optional in the sense that the parties must agree that it applies or the circuit court must order it. The rule sets out in great detail what is to be addressed in any order governing discovery of electronically stored information. It also addresses requests for production and conditions that may be imposed including the need to provide protection to non-parties from undue burden or expense. A more difficult question may arise if it becomes necessary to subpoena information from a social media website especially if the ISP argues that the federal Stored Communications Act applies.16 This act was apparently designed to protect electronic communications expected to be private and seemingly prohibits third party internet service providers from disclosing certain private information. (It was enacted prior to the development of current technology.) A California case, Crispin v. Audinger,17 attempts to apply the act to social networks such as Facebook and My Space. The court granted a motion to quash a subpoena, in part, finding that providers were prohibited from divulging private communications without the user consent. The public aspects of the accounts (Facebook wall and My Space comments) were not protected as users have no reasonable expectation of privacy in this information. As one court stated: In this environment privacy is no longer grounded in reasonable expectations, but rather in some theoreti-

cal protocol better known as wishful thinking.18 …you remember me A third area of concern relates to lawyers’ attempts to gain information in more informal ways. Indexes of the public pages are easily found (e.g. Google) and may be accessed with relative ease depending on the privacy setting chosen by the user. Even so, attorneys may be able to directly or indirectly access social media profiles without formal discovery. Ethical issues arise if access is obtained relating to a witness or an unrepresented party through fraudulent means. Some bars have addressed the issue with specific guidance for attorneys. For example, the Philadelphia Bar Association Professional Guidance Committee has stated that a lawyer may not friend an unrepresented person whom the other side intends to call as a witness without revealing that the lawyer is seeking information that could be used for impeachment purposes. The New York City Bar has indicated that the creation of a fraudulent profile to pose as, for example, a long-lost classmate, prospective employer or friend of a friend would be affirmatively deceptive behavior and would violate ethical duties.19 *** The questions facing lawyers and judges about how to address technological issues in the judiciary are widespread and everchanging. Even before the answer arrives for an issue, the technology changes (seemingly, by the hour) and a new unanswered question appears. But, one thing is clear: lawyers and judges must react quickly in addressing the latest developments and continually monitor the effects on the administration of justice…..ttyl.20 Endnotes 1. Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 Pace L. Rev. 228 (2011) at note 186. 2. Dimas-Martinez v. State, 2011 Ark. 515. 3. Brian Grow, “As jurors go online, U.S. trials go off track,” Reuters Legal (Dec. 8, 2010). 4. Article: Is Play-by-Play Tweeting OK in Court?, 47 Tenn. B.J. 22 (March, 2011). 5. Laura Whitney Lee, Comment: Silencing the Twittering Juror: The Need to Modernize

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Banks Law Firm Expands Agricultural Law Practice Adding Grant Ballard as New Associate Grant Ballard has joined Chuck Banks at the Banks Law Firm as it expands practice areas to better serve mid-south farmers. Ballard is a Cum Laude graduate of the University of Arkansas School of Law in Fayetteville, receiving his Juris Doctor in May 2011. He also recently earned his LL.M in Agricultural and Food Law from the University of Arkansas School of Law in Fayetteville. Specific practice areas include Crop Insurance, Litigation and Arbitration, and USDA Farm Program Compliance and Litigation. For more information, please contact Chuck Banks, cbanks@bankslawfirm.us, or Grant Ballard, gballard@bankslawfirm.us.

Banks Law Firm, PLLC 100 Morgan Keegan Drive, Suite 100 Little Rock, Arkansas 72202 501-280-0100 BanksLawFirm.us To download two recent agri-law articles authored by Grant Ballard – “Changing Times Demand a New Approach to Farm Risk Management” and “Filing a Crop Insurance Claim: An Overview for Producers” – please go to BanksLawFirm.us. Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic Age, 60 DePaul L. Rev. 181 (2010). 6. See, Ark. R. Evid. 606(b) which prohibits jurors from testifying as to matters occurring during deliberation. 7. Bayramoglu v. Estelle, 806 F.2d 880 (9th Cir. 1986). See, Timothy J. Fallon, Note: Mistrial in 140 Characters or Less? How the Internet and Social Networking are Undermining the American Jury System and What Can Be Done to Fix It, 38 Hofstra L. Rev. 935 (2010). 8. See Dialogue on the American Jury: We the People in Action Part 1 the History of Trial by Jury (American Bar Association Division for Public Education). 9. Ira Pilchen, “Social Media Has Benefits and Pitfalls for Courts, Panelists Say” (American Bar Association, Aug. 7, 2011). 10. Rule 2.9(c) and Comment 6. 11. Rutanhira v. Rutanhira, 2011 VT 113, 35 A.3d 143 (2011). See, David H. Tennant and Laurie M. Seal, Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case?, 16 Professional Law 14-16 (2005). 12. Kathleen Elliott Vinson, The Blurred 46

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Boundaries of Social Networking in the Legal Field, 41 U. Mem. L. Rev. 355 (2010). 13. Angela O’Brien, Comment: Are Attorneys and Judges One Tweet, Blog or Friend Request Away from Facing a Disciplinary Committee?, 11 Loy. J. Pub. Int. L. 511 (2010). 14. See, New York Advisory Opinion, 08-176; Kentucky Advisory Opinion JE-119 (2010); Ohio Advisory Opinion 2010-7; Florida Advisory Opinion 2009-20; Oklahoma Advisory Opinion 2011-3; and Massachusetts Advisory Opinion 2011-6. 15. John F. Muffler and James R. Brandlin, “Judicial Security: Implementing Sound Protective Intelligence Methodologies Case in Point,” National Judicial College (2011). 16. 18 U.S.C. § 2701 et seq. 17. 717 F. Supp. 2d 965 (C.D. Cal. 2010). 18. Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. 2010). 19. See Peter S. Kozinets and Aaron J. Lockwood, Feature: Discovery in the Age of Facebook, 47 AZ Attorney 42 (2011) and Dee Studebaker, What’s New in Social Networking: An Overview for Trial Lawyers, ATLA Docket (Summer 2011). 20. Texting abbreviation for “talk to you later.” n

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papers relating to the client to the extent permitted by other law. 3. 127 F.R.D. 473 (S.D. Miss. 1989), rev’d on other grounds, 128 F.D.R. 182 (S.D. Miss. 1989). 4. Fed. Land Bank, 127 F.R.D. at 474. 5. See id. at 479.

6. See id. (quoting San Diego Bar Ass’n, 25 Dicta, May 1978, at 19 (Op. 1977-3, n.d.)). 7. 824 S.W.2d 92 (Mo. Ct. App. 1992). 8. Id. at 98 (citing Ablah v. Eyman, 365 P.2d 181, 188 (Kan. 1961)). 9. Id. at 97. 10. Restatement (Third) of Law Governing Lawyers § 46(2) (2000). 11. Id. at § 46 cmt. c (2000) (citing the

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Restatement (Second) of Agency § 381 (1958)). 12. Id. 13. 689 N.E.2d 879 (N.Y. 1997). 14. Id. at 882. 15. Id. 16. Id. 17. Id. 18. Fred C. Zacharias, Who Owns Work Product?, 1 U. Ill. L. Rev. 127, 146 (2006). 19. See id. at 128. 20. 332 Ark. 456, 466, 966 S.W.2d 251, 256 (1998). 21. See Crosby v. Hurst, 149 Ark. 11, 231 S.W. 194 (1921). 22. See Ark. Code Ann. § 16-22-304. 23. See Ark. Code Ann. § 16-65-118. 24. Howard Brill, Arkansas Professional and Judicial Ethics 156 (8 ed. 2011). n

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In Memoriam Brett Gary Blakney Brett Gary Blakney of Clinton died on May 4, 2012, at the age of 43. He earned a Bachelor’s Degree in technical writing and rhetoric from the University of Arkansas at Little Rock, according to an obituary in the Arkansas Democrat Gazette. He earned his Juris Doctor Degree from the University of Arkansas at Little Rock William H. Bowen School of Law in 2005. He was in private practice in downtown Clinton. He was a member of the Arkansas Bar Association. Brett is survived by his parents, Gloria and Gary Blakney and his sister Jane Anne Blakney-Bailey. Charles Richard Crockett Charles Richard Crockett of Little Rock died June 16, 2012, at the age of 79. He graduated from the University of Arkansas and earned his Juris Doctor Degree from the University of Arkansas School of Law in 1956. After serving as a Jag Officer in the United States Air Force, he moved to Little Rock, Arkansas, where he lived and enjoyed the practice of law for 50 plus years, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association where he served on the Lawyers Helping Lawyers and Debtor/ Creditor Law Committees. He is survived by his wife of 39 years, Sylvia Carr Crockett; four sons, James Richard Crockett, John David Crockett, Robert Charles Crockett, Matthew Carr Crockett; step-sons James Scott Johnson and Thomas Neal Johnson; and one daughter, Diane Crockett Warfield (Thomas).

Joe Hal Hardegree Joe Hal Hardegree of Mena died May 28, 2012, at the age of 83. He earned his Juris Doctor Degree from the University of Houston and served as a State Representative in the Texas Legislature at age 21, according to an obituary in the Mena Star. He was a captain in the U.S. Air Force during the Korean Conflict. Joe practiced law in Mena for 52 years. He served for many years as Mena City Attorney, Deputy Prosecuting Attorney and Prosecuting Attorney from 1965-1971 and 1983-1991. He was a member of the Arkansas Bar Association. He was recently honored by the Polk and Montgomery County Bar Associations. He is survived by his wife, Betty; and daughters, Alison Hout and Jennifer Hardegree. Gene Harrelson, Jr. Gene Harrelson, Jr., of Texarkana died July 5, 2012, at the age of 68. He earned a B.A. from Henderson University in 1966 and his Juris Doctor Degree from the University of Arkansas at Fayetteville in 1969. He practiced law in the Texarkana and surrounding area for more than 40 years, according to an obituary in the Texarkana Gazette. He was a member of the American, Arkansas and Texarkana County Bar Associations. He served a president of the Texarkana County Bar Association from 1987-1988. He was a member of the Arkansas Trial Lawyers Association. He was a Vietnam War veteran. He is survived by his wife, Terri Tackett Harrelson and two sons, Jeff and Sen. Steve Harrelson with whom he practiced law at the Harrelson Law Firm in Texarkana.

Memorial Wall at the Arkansas Bar Center For information on purchasing a medallion in memory of a deceased member of the legal profession, please contact Ann Pyle at the Arkansas Bar Foundation at 501.375.4606. 50

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James (Jim) Edward Harris James (Jim) Edward Harris of Little Rock died July 25, 2012, at the age of 64. Jim graduated from Princeton University in 1969 as a Distinguished Military Graduate with a Bachelor of Science Degree in Electrical Engineering (with computer science emphasis). In 1972, Jim received his Juris Doctor Degree from the University of Arkansas at Fayetteville, where he was a member of the Arkansas Law Review from 1970-1972. In 1975 he completed a Master of Laws Degree (L.L.M.) in Taxation from Boston University School of Law. From 1972 to 1976, Jim served as a Captain in the United States Air Force in the positions of Judge Advocate and Area Defense Counsel. Jim joined the law firm of Friday, Eldredge & Clark in October of 1976. At the time of his death, he was the head of the firm’s Trust & Estates Practice Group and a member of the firm’s Management Committee. Jim represented family businesses, highnet-worth individuals, foundations, fiduciaries, hospitals, and corporations in estate planning, trust and taxation matters. Jim was a Fellow in the American College of Trust & Estate Counsel and served as the Arkansas State Chair for the organization from 2001 to 2006. Jim was a member of the American, Arkansas and Pulaski County Bar Associations and of the Tax and Probate Sections of the American and Arkansas Bar Associations. He was a Fellow of the Arkansas Bar Foundation. He was a frequent speaker on topics pertaining to taxes, estate planning, trusts and estates, family partnerships, foundations, and charitable giving. He is survived by his wife of almost 41 years, Cheryl Marstellar Harris; his son, Jonathan Oren Harris and his daughter, Catherine Michelle Hughes.

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 May 1, 2012, through July 31, 2012: In Memory of Ann Patton Dawson Judge James G. Mixon Hayden and Gordon Rather

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In Memory of Judge John M. Graves Justice and Mrs. Robert H. Dudley Joe D. Woodward In Memory of Carl Madsen Hyden, Miron & Foster, PLLC In Memory of Brenda Nelson Priest Don A. Eilbott In Memory of Miriam Solomon Designated to the David Solomon Scholarship Fund James A. Ross, Jr. In Memory of Judge Robert C. Vittitow James A. Ross, Jr.

Honorarium In Honor of Judge Robert “Bobby” Fussell John C. Calhoun, Jr. In Honor of Colonel Nicole Keesee, USAR Hayden and Gordon Rather In Honor of David Solomon Designated to the David Solomon Scholarship David P. Solomon Lafe E. Solomon

In Memory of Robert M. (Bob) Wilson Designated to the Wilson & Associates Ethics Scholarship Fund UALR William H. Bowen School of Law Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work. Contributions may be sent directly to: Arkansas Bar Foundation 2224 Cottondale Lane Little Rock, Arkansas 72202 Please feel free to call the Arkansas Bar Foundation at 501.375.4606 for further information.

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