PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Judge Wiley A. Branton, Jr. Clark J. Brown Keith L. Chrestman Judge Brandon J. Harrison Anton Leo Janik, Jr. Philip E. Kaplan Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Jim Simpson Board of Governors Chair Marie-Bernarde Miller President-Elect Brian H. Ratcliff Immediate Past President Charles L. Harwell Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Cliff McKinney II BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chadick, Jr. Suzanne G. Clark Frances S. Fendler Amy Freedman Buck C. Gibson Amy L. Grimes Denise Reid Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Brant Perkins Troy A. Price John C. Riedel Brian M. Rosenthal Jerry L. “Jay” Shue, Jr. Shaneen K. Sloan Brian A. Vandiver Danyelle J. Walker LIAISON MEMBERS Judge Gary M. Arnold Harry Truman Moore Karen K. Hutchins Judge Mark A. Pate Paul W. Keith Richard L. Ramsay Jack A. McNulty Laura H. Smith
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, firstname.lastname@example.org. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2013, Arkansas Bar Association. All rights reserved.
Lawyer Vol. 48, No. 4
features Veterans law This issue of The Arkansas Lawyer magazine is dedicated to veterans law issues with a special feature recognizing members who have served. “To our active and former military personnel: How can we ever thank you adequately for your service? Words fail. You are our heroes. Thanks for the ways you guard and protect us. Know that you are in our thoughts and prayers,” Association President Jim Simpson.
Member Spotlight Members Who Have Served in the Military
A Life Changing Experience Paul Suskie
Reflections on the Rule of Law Brigadier General LeAnne Burch
International Rule of Law Keith N. Wood
Arkansas Bar Association’s Lawyers Assisting Military Personnel (LAMP) Committee Bilenda Harris-Ritter
Resources 22 Military Divorce in Arkansas Steven S. Zega
Report from the 2013 National Conference of Commissioners on Uniform State Laws Lynn Foster
Daniel Ringo: First Chief Justice of Arkansas J.W. Looney
Contents Continued on Page 2
Lawyer The Arkansas
in this issue
Vol. 48, No. 4
Congratulations to New Members
Arkansas Bar Foundation Memorials and Honorarium
Board of Governors Report
2013-2014 Leadership Academy
Judicial Discplinary Actions
Attorney Disciplinary Actions
columns President’s Report
Young Lawyers Section Report
J. Cliff McKinney
Arkansas Bar Association
2224 Cottondale Lane Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. Vasser Delegate District A-2: Chad L. Atwell, Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Bob Estes, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Curtis L. Nebben Delegate District A-3: Aubrey L. Barr, C. Michael Daily, Lisa-Marie France Norris, Colby T. Roe, Samuel M. Terry Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade A. Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Jason W. Earley, Edie Ervin, Kenya J. Gordon, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson, Jamie Huffman Jones, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney, Chad W. Pekron, Gwendolyn Rucker, Shaneen K. Sloan, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Shana R. Woodard, Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, Jason Milne Delegate District C-4: Jobi J. Teague Delegate District C-5: Matthew Coe, Albert J. Thomas III, William “Zac” White Delegate District C-6: Michael L. Murphy, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, Jackie Bernard Harris, Jessica S. Yarbrough Delegate District C-9: John R. Byrd, Jr., Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: J. Joshua Drake, Michelle M. Strause Delegate District C-13: Cecilia L. Ashcraft, Brian M. Clary Law Student Representatives: Chris Brown, University of Arkansas School of Law; Dominique King, UALR William H. Bowen School of Law
The Arkansas Lawyer
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The Program is available through the Arkansas Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services. Vol. 48 No. 4/Fall 2013 The ArkansasCN0311-8583-0415 Lawyer 3
Association News ArkBar Mock Trial Competition Announces Big Changes for 2014 The Mock Trial Competition will be held on February 21–22, 2014. There are some big changes this year. To provide more trial time and a better experience for our students, we will be hosting a two-day round robin tournament in Little Rock. There will be three preliminary rounds of competition, and the championship round will be held Saturday evening. We need over 100 attorneys and judges who are willing to serve as scoring judge or presiding judge in February. The Mock Trial Committee hopes that you will consider volunteering to serve as a judge for the competition this year. If you would like to serve as a judge this year, please complete the online form at http://tinyurl.com/MockTrial2014. For more information on Mock Trial, visit: http://ace.arkbar.com/ARMockTrial.
ArkBar Associate Director Celebrates Five-Year Anniversary with Association Associate Director Lorrie P. Trogden recently celebrated her five-year anniversary with the association. “Lorrie’s focused determination has helped drive the association’s member outreach to new levels, and she makes it fun in the process,” said Executive Director Karen Hutchins. “Her forward-thinking efforts have been noticed on both the state and national association levels.” Lorrie assists Karen in providing overall management and direction of the association, including serving as the staff liaison for committees, member outreach and staff human resources. She serves on national and local association committees and has facilitated presentations on human resource and bar association management. Lorrie helps keep the association on track and finds fun ways to engage members and staff. This past annual meeting, she challenged members with a Facebook competition and initiated a fitness challenge to help staff prepare for the annual meeting. Prior to joining the Association, she worked for two Fortune 500 companies in both human resources and management. She is currently working on a Masters of Science in Operations Management from the University of Arkansas. She earned a Bachelor of Arts in Political Science from the University of Central Arkansas. She and her husband Matt recently celebrated their one-year wedding anniversary. They live in Maumelle with their two dogs Bella and Zoie. She volunteers for CARE and the Women’s Foundation of Arkansas. 4
The Arkansas Lawyer
Congratulations to members of the Arkansas Bar Association celebrating their 25th year of practice
Julie Benafield Mark Beutelschies James H. Bingaman Eric T. Bishop Anthony W. Black Abraham Bogoslavsky Charles S. Bohannon Michael D. Booker David O. Bowden Henry H. Boyce Mark S. Breeding Mary Lile Broadaway Tim L. Brooks Bruce Buck Julia L. Busfield Randall L. Bynum Jo Ellen Carson Dr. Don Lloyd Cook Garry J. Corrothers Wm. Webster Darling II Jeffrey H. Dixon Charles B. Dyer, Jr. Judith Elane Monte D. Estes Louis A. Etoch Uche Ewelukwa Kelly Hooks Fields Elizabeth Ann Fletcher Tammy B. Gattis Jeffrey J. Gearhart Pamela B. Gibson Daniel W. Gilbreath Audrianna Grisham Thomas P. Guarino J. Eric Hagler Michael Joe Hamby James A. Hamilton Patricia Hannah Hunter J. Hanshaw John T. Hardin Terry D. Harper Raymon B. Harvey Bryan Hosto
D. Michael Huckabay, Jr. Karen J. Hughes Clementine Infante Judge Charles Scott Jackson LaJeana Jones John S. Kitterman Joseph F. Kolb James R. Langley Sharon Gail Laster Margaret M. Lickert Louis “Whit” Light Harry A. Light Patty Lueken Holly Smith Martin Michael E. McAlister Robert M. McDonald Judge David E. Miller Judge James M. (Jay) Moody, Jr. John Robin Nix II C. Duff Nolan, Jr. D. John Ogles Edward T. Oglesby Ranko Shiraki Oliver Steven Owings Donald Parker II Brant Perkins Kathryn A. Pryor Susan M. Purtle David R. Raupp Alvin H. Rebsamen Brian M. Rosenthal Tonie B. Shields Valerie Barnes Speakman George R. Spence Don A. Taylor Paul H. Taylor Kent Tester John L. Tidwell Marcus L. Vaden Steven C. Wade Jason Lee Watson John B. Welch Stephen B. Whiting John C. Wilson Katharine C. Wilson Kyle R. Wilson Michael F. Wong Dina C. Wood Carol L. Worley Richard E. Worsham Judge Herb T. Wright, Jr. Jane M. Yocum Judge Stacey Zimmerman
Association News Eddie H. Walker, Jr. New Arkansas Bar Association President-Elect Designee
Oyez! Oyez! Accolades Cross, Gunter, Witherspoon & Galchus, P.C. was recently honored with the inaugural Benchmark Award at the Best Places to Work luncheon sponsored by Arkansas Business. Northwest Arkansas Business Journal selected Vicki S. Vasser, Matthews, Campbell, Rhoads, McClure, & Thompson, P.A. for inclusion in the 2013 “Forty under 40” class.
Appointments and Elections Judge Wiley Branton, Jr., and D’lorah Hughes were reappointed to the Arkansas Coalition for Juvenile Justice Board. Judge Joyce Warren was reappointed to the Children’s Behavioral Care Commission. Bryan Hosto of Hosto & Buchan Law Firm was recently elected to serve on the Board of Directors of Make-A-Wish Mid-South. Hosto & Buchan Law Firm recently won the Community Service Award from the National Association of Retail Collection Attorneys. Louis “Bucky” Jones, Jr., of Fayetteville was reappointed to the Crime Victims Reparations Board. Phil Kaplan of Williams & Anderson was reappointed as Chair of the Martin Luther King, Jr., Commission. Kenny R. Hall was recently named the President of the Arkansas Society of Associate Executives.
Word About Town Quattlebaum, Grooms, Tull & Burrow PLLC announced that Madeline L. Kurrus and Thomas H. Wyatt joined the firm as associates to the law firm. Vincent M. Ward has been named a partner of Wolff Law Firm in Little Rock, and the firm’s name has been changed to Wolff & Ward. H. Barret Marshall, Jr., was recently promoted to partner with Hawkins Parnell Thackston & Young, LLP. We encourage you to submit information for publication in Oyez! Oyez! Please send to firstname.lastname@example.org.
2013-2014 Arkansas Bar Association Section Chairs Administrative Law: Drake Mann; Agricultural Law: J. Travis Baxter; Alternative Dispute Resolution: Larry W. Burks; Construction Law: David Allen Grace; Corporate & In-House Counsel: Serena Thompson Green; Criminal Law: Melissa Nicole Sawyer; Debtor/Creditor: Joseph F. Kolb; Elder Law: Lori Holzwarth; Environmental Law: Chad Wood; Family Law: Natalie J. Dickson; Financial Institutions Law: William Lance Owens; Government Practice: James F. Goodhart; Intellectual Property: Rashauna Norment; Juvenile Justice and Child Welfare: Elisabeth M. McGee; Labor and Employment Law: Denise Reid Hoggard; Natural Resources Law: Matt Davis; Probate & Trust Law: S. Renee Brida; Real Estate Law: Stephen R. Giles; Section of Taxation: J. Nicholas Livers; Solo, Small Firm and Practice Management: William P. Allison; Tort Law: Nathan P. Chaney
Arkansas Bar Foundation Mid Year Scholarship Dinner Friday, January 31, 2014 Next Level Events at the Historic Union Station in Little Rock
Eddie H. Walker, Jr., of Fort Smith is the new President-Elect Designee of the Arkansas Bar Association. He was elected without opposition at the close of nominations on October 31, 2013. Eddie is a partner with Walker, Shock & Harp, PLLC, in Fort Smith. He has been an active member of the Arkansas Bar Association for more than 30 years. During that time he has served on the House of Delegates, the Executive Council, and numerous committees including the Judicial Nominations Committee and the Committee on Professionalism. Eddie has chaired the Board of Governors and the Workers’ Compensation Section. He is currently the chair of the Law School Committee. Eddie is a Fellow of the Arkansas Bar Foundation and a recipient of the C.E. Ransick Award of Excellence. Additionally, he has chaired the Arkansas Supreme Court Committee on Professional Conduct. He has also served as president of the Sebastian County Bar Association. In addition to having served as a Special Associate Justice of the Arkansas Supreme Court on several occasions, he has also served as a Special Commissioner for the Arkansas Workers’ Compensation Commission. Eddie earned his undergraduate degree and his Juris Doctorate from the University of Arkansas at Fayetteville. Eddie will serve a one-year term as President-Elect beginning in June 2014 before assuming the office of President at the Association’s 2015 Annual Meeting.
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
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The Arkansas Lawyer
by Jim Simpson
New Territory Ahead for the Bar Year Does anyone else remember taking a class in civics in school? If so, apparently we have become the dinosaurs. Recent studies show that citizens lack basic knowledge of our precious democracy. I am told that according to these studies only one in five citizens is able to name all three branches of government. When asked about the branches of government, some have apparently responded, “Democrat, Republican and Independent.” At a very well-attended and successful Arkansas Bar Association annual meeting in June 2013, Chief Justice Jim Hannah in his State of the Judiciary Address announced the creation of the Arkansas Courts and Community Initiative. It has lots of interesting puzzle pieces and, true to his word, Chief Justice Hannah is now rolling out the particulars of this new program. The Arkansas Supreme Court has a new program director, Sam Kauffman, for the Arkansas Courts and Community Initiative. Sam’s email is Samuel.Kauffman@arkansas. gov and phone is 501.682.6803. While Sam is young and energetic, he cannot (and is not expected to) do this alone. Here are some of the pieces: Court Open Houses. Circuit and District Courts will be asked to invite members of the community to tour their local court in every county and receive information on the major role the courts fill in the day-to-day lives of Arkansans. Pre-Prepared Multi-Media Presentations. We will be asked to present, using modern interactive technology, educational materials across the state for easy and instant use in schools and civic organizations. Law School for Journalists. How many times does an inexperienced (as far as the judiciary goes) journalist get it wrong when reporting on a proceeding or a trial? Unfortunately, too often. This program will seek to re-energize information provided to journal-
ists to assist in their coverage of the courts, including the legal process, the roles of attorneys and judges, legal terminology, and the overall administration of justice and safeguarding of constitutional rights. Ride-Alongs for Every Senator and Representative. While some trial judges already make this a practice, our judiciary will expand this program so that legislators get a first-hand view of courts and the judicial process. Gubernatorial Candidates Forum – October 17. This program allowed members of the bench and bar to ask questions and raise concerns with each of the announced candidates for governor. Moderated Business Leaders Forum. This will allow members of the bench and bar to meet corporate and small business owners in a forum event to discuss the value of fair and impartial courts to Arkansas’s economy. Law Day – 50 Years. On May 1, we will mark the 50th anniversary of the passage of the Civil Rights Act of 1964, emphasizing the role of the courts in protecting individual rights. Lawyers and Judges Speakers Bureau. Materials already prepared will be provided to judges and lawyers to speak to Arkansans in all 75 counties in Arkansas. Inter-Branch Forums. These forums will provide a place for local circuit judges, lawyers and legislators to address issues affecting the judicial and legislative branches and, more importantly, to engage in dialogue about ways to improve those relationships. Guest Articles. The court will be urging guest articles for local newspapers and magazines by members of the bar and bench. These Op-Ed efforts will try to explain to members of the public the obligation of members of the bench and bar to be accountable to the rule of law. Pro Bono Day. This will be a “boots on
the ground” effort to work with partners in the legal services community and emphasize access to justice for all Arkansans. I was very impressed by a speech I heard recently as part of Red Mass to this effect: We all have daily routines, but for the people who come to us, often the step they are about to take in our presence, or the matter that weighs heavily on their hearts, means that this day is not even close to routine for them—it is one of the most important days of their lives. So each of them should be the most important person in the world to us at that moment, and everyone deserves the full attention and respect that should be afforded to them at this most important time. These are our clients and prospective clients. While many of us have lots and lots of experience, that experience does not need to jade us so that we forget the importance of every word, every legal event and every legal matter. And hopefully we can all recognize and remember that each of us shapes the public’s view of all of us every day. ■
The Return of Rendezvous 2014 Mid-Year Meeting January 23-24, 2014 Dinner at the Rendezvous Friday 5:45 - 7:45 p.m.
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Association News Congratulations to the new members admitted to the practice of law October 2013 Two swearing-in ceremonies were held at the Arkansas Supreme Court on October 4, 2013. Association President Jim Simpson presented the 147 new admittees to Chief Justice Jim Hannah who administered the Attorneyâ€™s Oath of Admission. The Young Lawyers Section hosted a reception at the courthouse to welcome the newest members to the association. Photos by Nelson Chenault.
The Oath of Admission was revised to include a pledge of civility on February 23, 2013.
Thomas Edward Allgood Charles Scot Allison Erin Nicole Anderson Christopher Bryant Arnold Ryne Heath Ballou Kelsey Kaylyn Bardwell John Benjamin Barnett Drew Courtney Benham R. Alec Berry Michael Clayton Bristow Guy Beau Blann Britton, Jr. David Brophey Kirk Allen Brown Robyn Ashley Brown Christopher Michael Bryant Jack Dale Burns Luke Kent Burton Katherine Church Campbell Joseph Shane Charlson Angela Shay Cole Lauren Katherine Collins Kitty Lynn Cone Sarah Elizabeth Cowan Andrew Whitley Cox John Benjamin Crabtree Sarah Creasman Bryant Evans Crooks Patrick Ryan Culver Dustin Keith Doty Wesley Grant DuBois Sean Rahmani Dugan Katelyn Marie Eaves Susan Kate Fletcher Christopher Michael Floyd Kelsey Eaton Fohner Matthew Michael Ford Billy Jack Gibson 8
The Arkansas Lawyer
John Colton Gregory Ebony Gulley Lucas Warren Harder Danielle Kayrene Hasty Brandon Michael Haubert Lesley Gail Haught Aaron Marshall Heffington Juan Carlos Hernandez Mark Adam Holt Ellen Kathryn Howard Lori Denise Howard Cassandra Renee Howell Kasper F. Huber Darlene Marie Irwin Adam Donner Jackson Brooke Jackson Samuel Randolph Jackson Joshua Dean Jacobs Michelle Loren Jacobs Andrew Garrett Johncox April Michelle Jones David Chan Jung Michael Allen Kee John Daniel Kennedy Jack David Khavinson Nikki Lynn Killingsworth Alexandra Constantina Kosmitis Emily Beth Kostelnik Joanna Bates Kuhn Michael Alan Lafreniere Barbara Gregory Lagasse Christina Dawn Lasdavanh Sidney Latture Leasure Nathan Daniel Lewis Sonya Evette London E. Lee Lowther Joseph Karl Luebke
Molly Summers Magee Robert D. Malin John Alexander Mallory Bryan K. Malloy Danica Eliana Maslov Stefan Kane McBride Dillon McClain Mary Catherine Molly McGowan Scott Christian Mcintosh Rachel Lyn McKay Ben Ross Mclintock Abtin Mehdizadegan Lanie Michele Miller Katherine Elizabeth Moffett William Kirkman Montgomery Ethan Rowe Moore Madeline Kurrus Moore Natalie Jo Morrison Donald Ryan Mullenix Harold D. Nations Robert Milan Naumoff Zoe Elizabeth Naylor Joshua Thomas Ogle Jonathan Chad Owens Michael L. Owens Thomas M. W. Parker Dana William Patton Kara Ann Petro Alyssa Jo Pipho B. R. Price Cortney Vonne Price Kendra Khrystal Pruitt Melanie Ann Reese Andrew Scott Ritchie Christopher Allan Rittenhouse Bradford T. Rose M. Elizabeth Brooks-Tolley Rose
Stewart Calhoun Rose Jennifer Rose Rovetti Mallory Aaron Sanders Marissa Amerine Savells Brian J. Shepherd John Thomas Shepherd Jong Min Shin David Finlayson Slade Candice Morgan Smith Sylvester L. Smith Ariel Jonella Snyder Sarah Elizabeth Solomon Brooke N. South Mark Evan Stallings Matthew Beau Stephens John Siever Stobaugh Andrea Catherine Stokes Roger Dennis Sumpter Sonia Anne Sylls Robert Marcus Terrell George Robert Toombs Jesus Amador Torres Cole A. Truitt Elizabeth Leigh Tucker Matthew Eugene Weisenfels Anna Marie Williams John Charles Williams Tyler LeaAnne Williams Robert Martin Wilson Zibilla Lee Wolfe Kerry Nicole Wood Kimberly Renae Woods Jacob Wooley Thomas Hartley Wyatt Paul Bradley Younger Aliya Hussaini Yousufi
Young Lawyers Section Report
The theme for the Young Lawyers Section (YLS) this year is the fulfillment of the ideal that those who have been given much have an obligation to do and give even more in return. As lawyers, we all fall into the category of those who have been given much. I am happy to report that young lawyers across the state are meeting the challenge to give even more in return. YLS is the home for the state’s young attorneys—providing social and networking opportunities, service opportunities and support services to help lawyers launch their careers. The section traditionally acts as the service arm of the Arkansas Bar Association and has a tremendous history of service. This year, the section is exploring new ways to serve others. The section’s outreach will touch young adults, attorneys, members of the public who cannot afford legal services and victims of disaster. The Disaster Relief Committee is hard at work developing a handbook to help lawyers who provide assistance to disaster victims. The Disaster Relief Committee is also on standby to literally answer the call in the event a natural disaster happens in our state, though the committee hopes its services will be unnecessary. The Legal Education Committee is building a library of videos of experienced attorneys and judges providing advice for young attorneys. The committee is also updating several of YLS’s most important handbooks, including 18 and Life to Go. The committee also recently attended the Swearing in Ceremony and presented every new attorney with a copy of the section’s newest handbook, The New Admittee Survival Guide. The Citizenship Education Committee is considering possible legislation to improve the lives of young adults and protect their
by J. Cliff McKinney
legal rights. YLS has a unique perspective and opportunity to advocate for the needs of young people. The Minority Outreach Committee is continuing its initiative to encourage people of diverse backgrounds to enter the legal profession and, once in the profession, to excel. The committee is reaching out to diverse young people to encourage them to consider a career in the law.
The American Bar Association recently honored YLS with two awards.
The Communications Committee is expanding the YLS newsletter, InBrief, with the addition of “Hot Topics” articles by practitioners from many legal fields to help attorneys keep up with current issues. InBrief will continue to keep young lawyers informed about the various happenings in the section and the accomplishments of its members. The Pro Bono Committee is working on several new avenues of service, including a new partnership with Habitat for Humanity of Pulaski County, Arkansas Access to Justice and the Center for Arkansas Legal Services called “Build A Will.” This new program will offer pro bono estate planning to recipients of Habitat for Humanity homes. The program is starting in Central Arkansas but could spread throughout the
state if successful. The Recruitment & Social Committee recently hosted a Razorback watch party at the Bar Center that was a great success and gave young lawyers and law students an opportunity to socialize. The committee continues to plan great networking and socializing activities for young lawyers. The volunteers of YLS participate without expectation of reward or recognition. However, it is always nice when recognition is received—especially national recognition. It is my exceptional privilege to report that the Arkansas Young Lawyers Section was honored twice by the American Bar Association Young Lawyers Division at the Annual Meeting of the American Bar Association in San Francisco this August. YLS received first place in the category of Newsletter for our publication, InBrief. The section also received first place in the category of Service to the Bar for The New Admittee Survival Guide. These awards would not have been possible without the excellent work of Vicki Vasser, last year’s YLS Chair; Tasha Taylor, last year’s Editor-In-Chief of InBrief; and Matt Fryar, chair of the committee that created the The New Admittee Survival Guide. The activities of the section would not be possible without the very dedicated efforts of these and many other young lawyers. However, there is always room for more to get involved in the activities and opportunities of the section. I challenge all young lawyers—and anyone else who would like to be involved—to find ways to help. It is our hope that many more will become actively involved as the year progresses. As lawyers who have been given so much, it is incredibly important and rewarding to give back. ■
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Special Member Spotlight
Members who have served in the military This list is not inclusive and was compiled from member contributions. Special thank you to all members who have served our country.
Overton Anderson, Officer, U.S. Naval Reserve, Judge Advocate General’s Corps, 1968-1972; stationed in Newport, Orlando, the Philippines and Memphis. USS Midway (photo courtesy Camp)
Philip S. Anderson, Second Lieutenant, U.S. Army Adjutant General’s Corps, 19591960, Captain in the Reserves 1968. Frank Bailey, Sergeant, U.S. Army; served in country DaNang/Camp Eagle, Vietnam; attached to the 23rd Infantry and 101st Airborne; Vietnamese language trained counter intelligence agent; honorable discharge, 1971.
Judge Harry Barnes, Colonel (Ret.), U.S. Marines Reserve, Annapolis Grad. Jonathan W. Beck, Sergeant, U.S. Army Reserves, 755th Postal, 1998-2006, including active duty service in support of Operation Iraqi Freedom in 2003.
Joe Benson, First Lieutenant, U.S. Air Force; 1972-1976; 21st Special Operations Squadron, Nakhon Phanom Royal Thai Air Force Base, Thailand 1973-1974; 601st Tactical Air Support Squadron, Wiesbaden and Sembach Air Bases, Germany, 1974-1976. Ed Bethune, Sergeant, U.S. Marine Corps, 1954-1957. Allen W. Bird II, Lieutenant Commander, U.S. Navy Reserves, 1968-1973.
Judge Denzil Keith Blackman, Lieutenant Colonel (Ret.), U.S. Army Reserve.
The Arkansas Lawyer
John S. “Jack” Cherry, Captain, U.S. Army Reserves; served two years as a signal officer in Germany and remained in the Army Reserve for several years in the 1970s. Judge Gerald K. Crow, U.S. Army; Vietnam 1967-68 and 1972. He entered the service as a private and left the service as a captain to attend law school. He served with the Recon Platoon, E Company, 2/506 Infantry, C Company, 2/506 Infantry, as an enlisted man; served as a Warrant Officer helicopter pilot with the 23rd Artillery Aviation Section and with the 192nd Assault Company; served as a company Commander with the 2nd Infantry Division (Korea) and as an Operations Officer and Battalion Executive Officer for the 7th Infantry Division. He received the Bronze Star for Valor, Purple Heart, Meritorious Service Medal, Air Medal, Combat Infantry Badge, Army Aviator, Parachutist badge and a few others. Tom Curry, Colonel (Ret.), U.S. Army Judge Advocate General’s Corps; commissioned 1979; law school deferment 1979 -1982; active duty 1982-1987; U.S. Army Reserves 1987-2009. Jerry Dodd, U.S. Air Force, 1975-1986; AF Judge Advocate General’s Corps, 1979 -1986. Jack Else, U.S. Air Force, 1971-1991.
William Jackson Butt, II, Major, U.S. Army Judge Advocate General’s Corps, active duty; regular Army 1972-1979, airborne ranger qualified with duty at the Pentagon, Germany, Korea, and Army Security Agency; Reserves 1979-1992.
Worth Camp, Captain (Ret.) U.S. Navy Reserve, active duty 1957-1960 with deployment on the USS Midway, CVA 41, to the Western Pacific, during the Matsu-Quemoy Crisis of 1958 when General Eisenhower was President.
LeAnne Pittman Burch, Brigadier General, U.S. Army Judge Advocate General’s Corps, active duty 1986-1998; U.S. Army Reserves 1998-present.
Bob Estes, U.S. Army, 1969-1972. Mark Fryauf, Commander (Ret.), U.S. Navy Reserves, active duty 1979-1987. Thomas P. Guarino, U.S. Navy, 19771979, Ocean Systems Technician, E-3. David Gibbons, U.S. Army Infantry, 1970 -1973.
Sam Gibson was commissioned into the U.S. Army Reserve through the University of Arkansas ROTC program in June 1968. He was transferred to the Retired Reserve 22 November 2002 at the rank of Brigadier General. John P. Gill, Lieutenant Colonel, U.S. Marine Corps, 1960-1988. Morton Gitelman, Sergeant, U.S. Army, 1954-1956. James C. Graves, U.S. Navy, 1967-1971. Ron Griggs, U.S. Navy. Garrett Ham, currently serves in the U.S. Army National Guard. Don F. Hamilton, U.S. Marine Corps Reserve, 1955-1957; U.S. Army Reserve, 1958-1964, serving two years active service 1958-1960, 1st Lt., Artillery, Korea (DMZ) for 13 months with “D” Battery, 2d Howitzer Battalion, 8th Artillery, 7th Infantry Division, Forward Observer and Liaison Officer. Stuart W. Hankins, First Lieutenant, U.S. Army, 1966-1969; Served as Infantry Platoon Leader with 199th Lt. Inf. Bde. in Vietnam in 1968 and 1969. Alan Harrel, U.S. Air Force, 1969-1976. He was a pilot and flew in Vietnam from 19711972 as a Forward Air Controller flying an O-2 light reconnaissance aircraft. He then returned to the states in the Strategic Air Command where he flew as a co-pilot in the B-52G bomber stationed at Fairchild AFB, Spokane, WA. Judge Eugene S. “Kayo” Harris received an NROTC scholarship to attend Duke University; served 3 years on active duty and 17 years in the Reserve, retiring with the rank of Commander. Dick Hatfield, First Lieutenant, U.S. Army (Branch, Armor) stationed at U.S. Military Academy, West Point, N.Y. (Football Office), 1967-1969. Matthew M. Henry, Arkansas Army National Guard 1991-1997. He was a Specialist upon discharge and a clerk for the 217th Maintenance Battalion Headquarters in Russellville. Donald C. Hill, Captain (Ret.), U.S. Navy, 33 years of service: jet carrier pilot (Intelligence);
Attorney, Adjunct Instructor at the U.S. Naval War College, Oceans Law and Policy (International Law Department); an editor of the “Commander’s Handbook on the Law of the Sea” and the department’s Blue Book Series associated with the Department’s prestigious “Stockton Chair;” member, War College Foundation; served during Vietnam conflict and flew in the combat zone of the Gulf War before being selected to serve at the U.S. Naval War College. One-half of his practice is volunteer work for disabled veterans residing overseas, seeking VA benefits. He is licensed before the U.S. Court of Appeals for Veterans Claims, among others. He is a “Distinguished Naval Graduate” of the Naval Flight Training School.
Greg S. James, U.S. Air Force, 1991-1995; Arkansas Air National Guard, March 1996 to present. Glenn W. Jones, Colonel (Ret.), U.S. Army Reserves; served 30 years in the Army Reserves; former Commander of the 431st Civil Affairs Company (now Battalion); received two Army Commendation Medals and a Humanitarian Service Award. Tim Leathers, Captain, U.S. Army Reserve, Judge Advocate General’s Corps, nine years. Fletcher C. Lewis, First Lieutenant, U.S. Army, 1968-1974. Stark Ligon, Colonel (Ret.), U.S. Army Judge Advocate General’s Corps; served in the Arkansas Army National Guard from 1968-2003; served as State Judge Advocate. Robert M. Lyford, Captain, U.S. Army Judge Advocate General’s Corps, 1971-1976. William A. Martin, served 28 years as an Air Force lawyer, retiring as a colonel in October 1983. Major Air Force assignments included: Chief of Claims and Tort Litigation Division, Headquarters U.S. Air Force; Staff Judge Advocate (General Counsel), Oklahoma City Air Logistics Center; Legal Advisor to Commander, U.S. Forces, Japan and Staff Judge Advocate (General Counsel), Fifth Air Force; and Staff Judge Advocate (General Counsel), Air Training Command. His decorations include the Legion of Merit with one oak leaf cluster, Meritorious Service Medal with two oak leaf clusters, Joint Services Commendation Medal, and Air Force Commendation Medal with one oak leaf cluster.
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Philip McMath, Captain, U.S. Marine Corps, active duty from 1967-1970. He was a tank platoon commander and company commander with 1st. Tank Bn, 1st Marine Division in Vietnam. He was a tank platoon commander and Assistant S-3 2nd Tank Battalion, 2nd Tank Bn at Camp LeJeune, NC. James McMenis, Major (Ret.), U.S. Army, Judge Advocate General’s Corps, active duty with JAG 1973 to 1993.
Lee Muldrow, Captain, U.S. Air Force, 1968-1973. Edward Nelson, First Lieutenant, U.S. Air Force, 1974-1978, stationed at Little Rock AFB with 308th Strategic Missile Wing serving as a Missile Combat Crew Commander for Titan II missiles in Arkansas. Frank B. Newell, U.S. Army Reserve, 431st Civil Affairs, 1969-1975, enlisted.
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Richard C. Ourand, Jr., Lieutenant Colonel (Ret.), U.S. Air Force; served 28 years in the Air Force (1979-2007). He is currently a government attorney in Indianapolis, Indiana, with the Defense Finance and Accounting Service (DFAS) handling military/civilian/ retired pay issues and claims. Hugh Overholt, U.S. Army Judge Advocate General’s Corps, Major General and U.S. Army JAG Major General and Judge Advocate General. His military education includes the JAGC Basic and Advanced Courses, Airborne School, Command and General Staff College and the National Defense University. General Overholt has been awarded the Distinguished Service Medal (Oak Leaf Cluster), Legion of Merit, Department of Defense Meritorious Service Medal (Oak Leaf Cluster), and the Army Commendation Medal (Two Oak Leaf Clusters). William L. Owen was commissioned in the U.S. Army Reserves on 5 June 1965. Active service and reserve duty. Transferred to the Retired Reserve as a Major, JAGC. Ellis Lamar Pettus, Commander, U.S. Naval Reserve; served as Repair Officer and Damage Control Officer on board the USS Oklahoma City, CLG 5 and as Engineer Officer on board the USS Hammerberg, DE 1015 during his active duty career from 1968-1971. He was awarded the Navy Commendation Medal, the Navy
Achievement Medal, the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with Device and the Armed Forces Expeditionary Medal (Korea). After leaving active duty, he continued his service for the next 17 years by remaining active in the U.S. Navy Reserve. In addition to serving his annual active duty obligation, Pettus also attended the Navy War College for reservists. Toward the end of his career, he moved from surface warfare to the Judge Advocate General’s Corp. In 1988, CDR Pettus retired as a Commander, U.S. Navy Reserve (JAG). George E. Pike, Jr., U.S. Army National Guard, 1955-1961. George Plastiras, U.S. Army, 1955-1956. David M. Powell, U.S. Army, active duty in military intelligence, 1970-1971, with service in Vietnam. Brian D. Rabel, U.S. Air Force, 1994- 2000. T. Scott Randall, Major, U.S. Army Judge Advocate General’s Corps, assistant professor at the Judge Advocate General’s Legal Center and School in Charlottesville, VA (the third University of Arkansas graduate in a row to serve in that position). He has been in the Army since 2003. Prior to that (19932001), he was a mortarman in the Marine Reserve serving with 3/23 India Company, 4th Marine Division at Camp Robinson, AR. Gordon S. Rather, Jr., Lieutenant, U.S. Navy. Active duty from 1961-1965 and Navy reserve from 1965-1968. Served as Operations Officer on a Destroyer based in Mayport, Florida. Ship made three six-month deployments as part of the U.S. Sixth Fleet in the Mediterranean. Richard A. Reid, Captain, U.S. Army Judge Advocate General’s Corps. Byron Cole Rhodes, Lieutenant Commander (Ret.), U.S. Navy, 1978-1994. George Ritter, U.S. Naval Academy, 1961. Allen P. Roberts, Private (E-1), U.S. Marine Corps, 1959-60, U.S.M.C. Reserves, 1960-1965. William S. Robinson, Major (Ret.), U.S. Army National Guard.
Adam Rose, Captain, U.S. Army, serves with the 142d FiB headquartered in Fayetteville, which is a Brigade of the Arkansas Army National Guard. He is a Judge Advocate and serves as Trial Counsel for the Brigade. He has been in the Guard since August 2011. James (Jim) A. Ross, Jr., Lieutenant, U.S. Navy Judge Advocate General’s Corps, 1962-1965. Herb Rule, First Lieutenant, U.S. Marine Corps Reserve, Artillery and Intelligence officer, 3d Marine Division 1959-61. Stationed in Okinawa, Japan, Philippines, N. Borneo. Thomas S. Russell, U.S. Army, 1969 -1971, the last five months in Vietnam. Corey Seats, Lieutenant Colonel (P); served over 21 years in the active army and the Arkansas Army National Guard. He deployed to Iraq in 2006-2007. William F. Sherman, Brigadier General (Ret.), U.S. Army National Guard. Commissioned as a Second Lieutenant from ROTC, University of Arkansas, in branch of Infantry, June 1960. Assignments included Platoon Leader, 2D Battle Group 9th Infantry Reg., Ft. Benning; four years with 9th Special Forces Gp and 12th Special Forces Gp, USAR (Co. D, served as A Team Ldr, S1 and S-2); Judge Advocate General’s Corps officer Advanced Course (1973); Staff JA, 39th IN Brigade, four years; Operations & Training Off, Assist. Dir., AR ARNG; Commander, 2nd Bn, 153rd Inf. Reg.; SJA, STARC (State Judge Advocate); Special NG Assistant to Judge Advocate General, U.S. Army (1986-1990).
Group as an Aerial Gunner on a B-17. Flew 35 missions between March 1944 and August 1944. Received the Distinguished Flying Cross and Air Medal with Oak Leaf Clusters. Visit https://www.dailyrecord.us/default/ view?id=4546 for feature story in the Daily Record, February 12, 2012. Lonnie C. Turner, First Lieutenant, U.S. Army, commissioned 1966 spending 19671968 with 1st Infantry Division in Vietnam as 1st Lt. of MP platoon. Todd Turner, U.S. Army National Guard, 1988-1992.
Edward Ward, served with the U.S. Army in Germany & Vietnam from 1968-1969.
Raymond Weber, U.S. Army, 1970-1972; he used the GI bill to pay for his law school education. Kit Williams, Lieutenant, U.S. Army, 19711973; he used the GI bill to pay for his law school education. Judge Billy Roy Wilson, Lieutenant, Junior Grade, U.S. Navy, 1966-1970, Vietnam Veteran. Philip M. Wilson, U.S. Army Reserves, 28 years.
William R. Stringfellow, Staff Sergeant, U.S. Air Force, Crew Chief & Flight Engineer on Troop Carrier and Cargo Aircraft, 1953-1957 (active duty), 1957-1961 (reserve duty).
Daniel H. Woods, First Lieutenant, U.S. Army, 1949-1954. Active duty during Korean War, 1950-1952, serving as Company Commander, Company B, 10th Medium Tank Battallion, 5th Armored Division. Also on active duty, served as defense counsel for the Division General Court.
William L. Terry, U.S. Air Force, World War II Veteran. Served in the European Theatre with the 8th Air Force, 388th Bomb
Judge Rice VanAusdall, U.S. Army, three years active duty.
John C. Wisner, III, U.S. Marine Corps, 1972-1976.
Paul Suskie, Lieutenant Colonel, Deputy State Judge Advocate, Arkansas Army National Guard.
Fred Ursury, Spec. 5 enlisted man with the 6th Battalion 77th Artillery of the U.S. Army. Served in Vietnam from 1968-1969.
James E. Smith, Jr., First Lieutenant, U.S. Marine Corps, active duty 1968-1972.
Judge John F. Stroud, Jr., Lieutenant Colonel, U.S. Air Force, 1951-1956, active duty, reserves 16 years.
Judge Wm. Randal Wright, U.S. Army National Guard JAG Corps, 1972-1981. Steven S. Zega, Lieutenant Colonel, Arkansas Army National Guard. He is a Judge Advocate (JAG), and the State Military Judge for Arkansas. ■
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
A Life Changing Experience By Paul Suskie In January 2005, I left the comforts of Arkansas for a deployment to Afghanistan. Three years later, I left again for Iraq. Although these deployments were five and eight years ago, they seem like yesterday. My tour in Afghanistan changed my perspective on life dramatically. Upon my return, my wife and parents both sensed this change as I tried to put into words what I saw during my tour. As an attorney, I came away with a greater appreciation for the rule of law we are blessed with in the United States. The War-torn Country of Afghanistan Upon arriving in Afghanistan, I found the country to have a Mars-like landscape. The mountainous, remote, red and desolate land was full of images of what three decades of war can do to a country. Almost every corner of the country was war-torn. The carnage of destroyed Soviet tanks from the 1980s could be seen on every major thoroughfare. Whether traveling through underdeveloped, small towns or overpopulated cities, the devastation was visible. Ruined homes, damaged business districts, and bullet and bomb-scarred government buildings were commonplace. A less obvious effect of decades of war was the presence of landmines. In 2005, Afghanistan had the most landmines per capita in the world with 9-12 million landmines in a country with a population of 24 million— a ratio of a landmine for every 2-3 people. The reports of American service members or local civilians being maimed or killed by an unmarked landmine seemed like a daily occurrence. I will never forget the day a local boy was killed in an open field while innocently flying a kite. Despite the best efforts of dedicated international organizations, 30-60 Afghans encounter landmines each month. A Struggling Legal System While in Afghanistan, I had the honor to serve with Judge Advocate General officers
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from each of the branches of our military. We had the opportunity to interact with Afghanistan’s struggling judicial system in several capacities. At the upper level of government, we met with members of Afghanistan’s Supreme Court which was created just one year earlier in Germany as a result of the Bonn Agreement. A majority of the court’s members were not trained in civilian law; they were religious scholars trained in Shura law. Surprisingly, the Supreme Court did not have a courtroom. As a consequence, judges did not hear cases
Suskie with Iraqi soldiers in open court; they met parties individually behind closed doors. Bribery was often alleged in media reports. At a lower level, we met with a very small group of Kabul attorneys attempting to form a bar association. We also visited with a group of European legal professionals who were traveling to remote areas in an attempt to restore provincial governance by reestablishing local government records in government buildings damaged by combat operations. After listening to the stories of these public servants, I was left with the impression that despite serious obstacles, they were dedicated to our mutual goal of creating a structured legal system in the wake of a tyrannical Taliban government that destroyed so many institutions in the name of religion. I was pleased to later read that the local attorneys were successful in establishing Afghanistan’s first ever bar association in 2008.
The biggest challenges facing Afghanistan’s young, struggling legal system are in the more remote areas. Young females are sometimes given by one tribe to another as restitution for a wrong caused by the girl’s tribe. There are also well-documented reports of females being stoned for simply talking to a male outside of her family. The rural parts of Afghanistan offer an unimaginable way of life for females. It is unfathomable to me that the first person throw stones at a stoning victim is most often the girl’s father or brother because their family has been dishonored. Return Home Since my return from Afghanistan eight years ago, my increased appreciation for the way of life we enjoy cannot be put into words. We are truly blessed. Our legal system is a part of our country’s foundation that makes all of our freedoms possible. Whether it is through advocating for individual freedoms, improving our legal system via professional organizations, or ensuring that due process remains a sacred part of our jurisprudence, we should always be mindful that many men and women have made tremendous sacrifices for the freedoms we enjoy today—freedoms that millions of people worldwide yearn to have. ■
Paul Suskie serves as Senior Vice President and General Counsel for Southwest Power Pool, Inc. and is a Lieutenant Colonel in the Arkansas Army National Guard’s Judge Advocate General Corps. Prior to joining SPP in 2011, Suskie was appointed as Chairman of the Arkansas Public Service Commission.
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Reflections on the Rule of Law By Brigadier General LeAnne Burch While many definitions exist for the concept of the rule of law, the ability to define it is not required to live with, embrace, and cherish it. The foundational concept that “no one is above the law” and that the law applies equally to all Americans, including political leaders and our judiciary, is simply understood—and perhaps too often taken for granted. Yet imagine living in a world where illiteracy is the norm; where rules are created and applied selectively by those with the most might, charisma, or wealth; and where discrimination based on gender, ethnicity, and religion is a way of life. Imagine a place where a child treasures the gift of a single pencil and dreams of attending school—if only there were teachers. Such places exist, and they cry out for the justice, the peace, and the safety of the rule of law. Military Judge Advocates have participated in rule of law operations for more than a hundred years in both civilian and military environments.1 In 2008-2009, I had the opportunity to work in Afghanistan as a deployed U.S. Army Reservist. In post-Taliban Afghanistan, many military and civilian players and agencies are at work to help the Afghan government and its people develop systems to stabilize and protect themselves. I gained insight working with the Afghan National Army (ANA) and the Ministry of Defense senior legal officials and learned to appreciate the challenges of teaching legal concepts to individuals who have little legal training and little confidence in their government. Many had even less confidence that justice and basic human rights will be promoted or protected. After a year as a legal mentor, I returned home to Arkansas with a renewed sense of appreciation and gratitude for the rule of law, which many Judge Advocates fondly describe as the “3 C’s”, cops, courts, and corrections, or alternately, as the “3 P’s”, police, prosecutions, and prisons. Regardless of your preference, it takes all three “C’s” or all three “P’s” for the rule of law to prevail. In Afghanistan, the military legal system within the ANA is a limited and contained environment where the rule of law may operate while the nation’s leaders struggle separately with the concept. The ANA was created 16
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by presidential decree in 2002, and a military code was subsequently implemented. The ANA has five ground maneuver corps and one air corps, each with headquarters areas that now include courtrooms and offices for judges and legal advisors. All soldiers are subject to the code and violators are investigated and prosecuted. The current senior ANA legal advisor, Brigadier General Kwahari, served as the senior judge of the ANA’s Military Court of Criminal Appeals when I met and worked with him. His legal training, experience, and commitment to the rule of law give me hope that credibility and the fair implementation of
Burch and LTC Steve Logan, USMC, in Kabul with legal advisors and judges from the Afghan National Army and the Afghan Ministry of Defense. justice will continue to develop and be fairly applied throughout the still-young Army. I do not envy him his job. My immediate mentor team included a civilian contract attorney, another Army and also a Marine Judge Advocate, a Canadian military attorney, and several dynamic interpreters. We focused efforts on developing basic legal training for prosecutors and defense counsel, and I came away with a renewed appreciation for America’s law schools, which teach open and critical thinking rather than rote memorization of archaic rules. Professors who dedicate themselves to the overall development of students into lawyers are a basic, necessary, and welcome component to the foundation of America’s rule of law. Students who are free to think and free to challenge accepted norms become lawyers who will stand against abuses and who will push to
bring progress and protections to those unable to do so themselves. My military service has also impacted my appreciation for the sanctity of our courts, including the physical environment of our courtrooms. While the U.S. military justice system is, by its nature, “portable” to wartime environments, the significance of practicing law in a courtroom cloaked in the aura of justice, with a trained judiciary and room for witnesses able to report the fairness of the process to the public, is monumental. Transparency in our courtrooms, in the selection of our juries, and in the election of our judiciary is not only a luxury to cherish, but it is a freedom to protect with our very lives. In America, we awake each day confident in a judicial system that values fairness, cultivates a culture of lawfulness, and inspires confidence in our ability to make a positive impact on this world. Such is the blessing, and the empowerment, of living in a nation that embraces the rule of law. Endnote: 1. Rule of Law Handbook – 2010, publication of The Judge Advocate General’s Legal Center and School, U.S. Army, p.1. The views expressed in this article are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government. ■ Brigadier General LeAnne Burch is an attorney in Monticello, Arkansas. In her U.S. Army Reserve capacity, she is the Commander of the U.S. Army Reserve Legal Command, which exercises command and control over 28 Legal Operations Detachments with over 1,790 soldiers nationwide.
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
International Rule of Law Working with Formal and Informal Justice Systems in Kosovo and Afghanistan
By Keith N. Wood Attorneys from the United States, as well as from other western developed countries with advanced legal systems, have long been active in rule of law efforts in underdeveloped countries. Many such efforts have been led by the American Bar Association (ABA), and several state bar associations. Arkansas Bar Association member, Keith N. Wood, Hope, took part in rule of law/judicial development efforts in Eastern Europe and Afghanistan over the past six years. The opportunity to participate in postwar Kosovo, and conflict-riddled Afghanistan, arose when Wood completed a Governorappointed position as 8th Judicial District Circuit Judge. The first assignment was with the United Nations Mission in Kosovo’s (UNMIK) Justice Department, Judicial Inspection Unit (JIU). Duties involved investigating, developing cases, and prosecuting Kosovar prosecutors and judges accused of various improprieties. These included, but were not limited to, corruption in the form of bribes, favoritism, and non-performance in office. One noteworthy case involved a judge who ordered a telephone wire-tap in a major credit card fraud scheme under investigation by the FBI and several international law enforcement agencies, then allegedly disclosed the fact to outsiders, thereby causing total collapse of the case. The judge was removed from office, and subsequently withdrew from an attempt to seek re-appointment as judge in the nation-wide judicial appointment process. Initially, UNMIK hired dozens of western attorneys, primarily from the United States, Western Europe, Canada, and Australia. However, by early 2008, the U.N. began to scale back its efforts after Kosovo declared its independence from Serbia nearly 10 years following the 1999 NATO bombing and years of U.N. efforts at stabilizing the country. In 2007, the JIU had 10 international attorneys and about 25 Kosovar attorneys, translators/ interpreters, and support staff. Kosovo’s independence spelled a change in the international development effort as Wood became manager of the JIU; the Kosovo Judicial Council trimmed the unit’s local staff down to about 15. This posed an opportunity to focus on 18
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more intense training/mentoring of the local attorneys in trial advocacy skills and working together as a unit to improve case development and prosecution. The final international effort in the JIU included the securing of all its investigation records for their use in the next stage of Kosovo’s judicial reform. Seizing an opportunity and following it through often leads to new opportunities in the international rule of law community, and such was the case as the JIU transitioned from an international to a Kosovo government effort. The opportunity arose as the international community, through the UN, had passed a resolution for establishment of the Kosovo Independent Judicial and Prosecutorial Commission (IJPC), constituting the next stage in the evolution of Kosovo’s justice system. The IJPC was an independent commission funded by the United States Government and the European Union, tasked with vetting, screening, interviewing and appointing all judges and prosecutors country-wide. The commission drew upon the experiences of a similar commission’s efforts in Bosnia a few years prior, but undertook an unprecedented effort by incorporating ethics testing of all applicants for judge and prosecutor. The ABA had previously assisted in the drafting and adoption of ethics codes for attorneys, prosecutors and judges. However, while these codes were the basis of much of the JIU work in enforcing high standards of conduct by judges and prosecutors, otherwise their effect was minimal, and certainly no one had advocated for a requirement of passing tests on ethics as a prerequisite to serving in these positions in Kosovo. During its nearly two-year life-span, the IJPC successfully administered the country-wide judicial and prosecutorial applicant ethics exams, and appointed or reappointed nearly 400 judges and prosecutors.1 As the end of the IJPC efforts neared in late 2010, international rule of law efforts in Afghanistan were experiencing a surge, led by the United States State Department and United States Agency for International Development, principally with new foreign service officers who were hired on a non-career basis as the needs demanded. These efforts
were similar to those employed in Iraq with Provincial Reconstruction Teams (PRT) and District Support Teams (DST), which were staffed with mixed military/civilian personnel. After the United States had helped oust the Soviets in 1989, it diverted its attention to Iraq rather than stay in Afghanistan with a protracted development effort. When the US returned in 2001 to unseat the Taliban, its policy reflected a commitment to shore up the new Afghan governing regime with broad-based development efforts. Rule of law became one of the central focus of this effort. For 10 years, much of the development effort had been through military civil affairs officers and non-government organizations (NGOs). The surge in 2010-2011 was designed largely to incorporate more civilians to address the concern that transition to effective Afghan self-government was not progressing at a satisfactory pace. Taking part in the Afghan rule of law effort required new hires to undergo extensive training prior to deployment to the field. When this was completed in-country, further training was conducted upon arriving in Afghanistan. The training was not rule-of-law related, but focused primarily on survival, cultural awareness and agency policy and practice. Many assignments in all disciplines, including rule of law, were not finalized until arrival in Kabul. While stateside, Wood was recruited for a specific position in the South Region of Afghanistan, which was made up in part of Kandahar, Uruzgan and Zabul Provinces, the latter two of which bordered Pakistan, and which were the birthplace of the Taliban. While security was an ever-present focus of attention with U.N. employees in Kosovo, in Afghanistan, U.S. civilian government employee security was a higher priority; therefore movement outside the secured facilities was restricted to military escort at all times in the South Region. Early during the twoyear deployment, movement was primarily by helicopter or fixed wing aircraft between the South Regional Command site and the region’s PRTs and district facilities (DSTs) where meetings were held with field staff and local citizens. Incidents involving American
civilian targets were rare, but proved critical at times in Kandahar and Zabul provinces. As the mission was scaling back in 2013, movement restrictions were more pronounced, and efforts were implemented to conduct business with locals by bringing them into the more secure locations, rather than traveling out to the less secure venues. For over 10 years, rule-of-law efforts in Afghanistan primarily targeted the formal justice system. This system was designed by the international community to replicate as nearly as possible the westernized attitude of justice with formal court systems comprised of judges, prosecutors, and defense attorneys, and to satisfy the international communityâ€™s attitude regarding human and property rights as broadly expected in structured modern-day democracies. Although the Afghan publicâ€™s perception is that the formal court system is corrupt, slow and ineffective, substantial efforts continued to build and shore it up. These efforts were often hampered in the South Region as many Afghan legal professionals were unwilling to live in or travel in Kandahar and other southern Afghanistan locations. The Afghan Independent Bar Association (AIBA), through United States Government funding, was expanded to Kandahar Province in 2013 to increase the ability and availability of attorneys to criminal defendants at a time when fewer than 10 criminal defense attorneys practiced in the South Region. The AIBA began scheduling weekly meetings in Kandahar City, and an effort was underway to insure that all attorneys represented at least three indigent clients per year, as required by Afghan law. Other American-funded initiatives included furnishing several judges and prosecutors with law books, and providing
law books for a newly-built library at Kandahar University. While the primary focus of the international community was upon building up the formal justice sector, years into the effort the informal justice system, which has been relatively effective in Afghanistan for hundreds of years, began to receive more attention. The informal justice system functions more in the nature of reconciliation or mediation, rather than Keith N. Wood in Kandahar Province, Afghanistan, in an adversarial manner. Disputes in a meeting with village elders. and conflicts are resolved by village and religious leaders according to tradition and religious law, a mode of justice that is widely embraced what they have been only recently. Kosovo by the Afghan population. The informal continues to receive international assistance, justice system is relatively inexpensive when however, primarily through the European compared to the high costs of building struc- Union rather than the United States and the tures such as jails and courthouses, training United Nations. Efforts in Afghanistan, and and educating police, prosecutors, lawyers, similar war-torn nations, on the other hand, judges and court administrators, and raising are expected to come less from United States public awareness of rights and responsibili- governmental efforts, but more from internaties under the formal written law. Therefore, tional development NGOs and the United though the efforts continued to develop the Nations. While the future direction of world formal justice system, programs to improve events is uncertain, American attorneys will the informal justice system with a primary continue to be valued in efforts to assist other view to the protection of rights, particularly nations to develop legal systems that afford of women and children, became a focus of the protection of human and property rights concerted effort from 2011 into 2013. This desired by people throughout the world. was particularly true in Southern and Eastern Afghanistan where the literacy rate, very low Endnotes: throughout the country, was as low as 10 1. A report of the IJPCâ€™s work can be accessed percent by some estimates. at http://www.kgjk-ks.org/repository/docs/ As 2013 draws to an end, the rule of Official_Final_Text_of_Final_Report.pdf. law development efforts in Kosovo and Afghanistan by the international legal com- Keith N. Wood is an attorney in Hope and munity have been significantly reduced from an international rule of law consultant.
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Arkansas Bar Association’s Lawyers Assisting Military Personnel (LAMP) Committee Established to Help Active-duty Military Personnel and Veterans
By Bilenda Harris-Ritter As an adjunct professor at the University of Arkansas at Little Rock, I have heard my share of stories from students who couldn’t get to their early classes on time. Last spring was no exception, but the student was different. Instead of dodging me and just not coming to class, she told me she was having trouble sleeping. Further conversation revealed she had just returned from a one-year deployment in Afghanistan and was not used to actually being able to sleep all night. I cut her some slack on attendance early-on and she finished the class with great contributions to our discussions and excellent grades on her exams. Sometimes a little understanding and encouragement is all it takes to solve a problem. Other times that is not enough. Our military personnel are returning with problems that run the gamut from simple problems that are easily solved with a little understanding to serious issues that need a dedicated attorney to bring closure to the situation. The Arkansas Bar Association Lawyers Assisting Military Personnel (LAMP) Committee was developed to serve our military personnel. Not just those now in the military, like my student, but also those who have finished their service. Some voluntary attorneys represent veterans with their service-related issues and some represent those currently serving who have civilian law issues—issues that may or may not also involve the military justice system. Some attorneys do both. Arkansas has a significant number of military personnel and veterans who may need help from time to time. Sometimes just a little understanding of the rules is necessary and there is a quick solution. Sometimes representation in court is very necessary. The need for lawyers is crucial. There is a backlog of disability claims alone at 20
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the Department of Veterans Affairs (VA) totaling 633,000 claims nationwide, most of which were pending longer than 125 days. That is 70 percent of the cases filed. Progress is being made, but it is slow to occur. Recently, 65,000 cases that had been pending longer than two years had been cleared, although about 2,000 such cases were still pending. Cases where veterans are
Oklahoma Bar Association’s Clinic in Box not represented move the slowest. The VA is making changes to address the backlog but the need will remain great for a very long time. In addition to disability claims, veterans need legal assistance with upgrading discharge status or other non-disability claim issues. Lawyers representing veterans must be accredited by the VA. The accreditation process is extremely bureaucratic but can be achieved by submitting an application and Certificate of Good Standing to the Office of the General Counsel. Once accredited, continuing legal education is required that must meet very specific criteria. The Association’s LAMP committee has developed CLE opportunities that can meet these requirements.
Those still in the military, including the Arkansas National Guard, can develop issues that need to be addressed in the civilian legal arena. For instance, a relatively new issue pertains to the custody of children of divorced parents who are both deployed at the same time. Another concerns a service member being arrested for a DUI. How that is resolved in civilian court can impact the individual’s military career, or possibly end it. Bankruptcy or foreclosures can occur if a service member owns a home that can’t be sold when he or she is transferred. Sometimes there are employment issues that are covered under the Uniformed Services Employment and Reemployment Rights Act that could be resolved by a lawyer writing a letter to an employer. Housing issues can arise that fall under the Service Members Civil Relief Act. Often the problem is that a landlord or lessor is unaware of the law and the problem can be quickly resolved with a letter from a lawyer. Sometimes, however, legal situations become protracted and more in-depth representation is needed. The LAMP committee’s CLE seminars are designed to address various areas of civilian law and how they relate to the military. Many of our presenters are in the Judge Advocate General Corps (military lawyers), and their expertise is invaluable in teaching Bilenda HarrisRitter, Army brat, Navy wife and partner, Ritter Law, Maumelle
voluntary attorneys how to assist in these cases. Training of new volunteer attorneys will continue, but we are ready to add the next step to assist military members and need more lawyers to become involved. LAMP Committee Chair Steve Zega has spearheaded the effort to establish a veteran’s assistance program in Arkansas. Patterned after the Oklahoma Bar Association’s “Clinic in a Box,” the Arkansas Bar Association is now ready to roll out our program. The “Clinic in a Box” will be available in several locations statewide. Attorneys can check out the program materials and hold a clinic at a shopping center, civic center, military sponsored event, or other venue where those in the military might find them. Past President of the Oklahoma Bar, Ms. Deb Reheard, described it as having “everything you need except the donuts.” What more could you want? You can volunteer your time with LAMP and help someone who was willing to put his or her life on the line to defend our liberties. Training is available to guide you through an entire “Clinic” with intake forms and other related supplies (except donuts) also
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included. Also, the Association has purchased professional liability insurance to provide primary coverage to those working with LAMP. You are, however, required to have your own insurance policy in place as secondary coverage should there be a claim. The LAMP Committee meets regularly throughout the year. You can attend the meetings to ask questions or contact Chair Steve Zega for further information. Committee members can communicate via their ACE community which is accessed through the Association’s website and even
has a mobile app. There are specific financial criteria related to those we can serve. Volunteers who represent veterans may do so pro bono or follow the guidelines set by the VA regarding fees. Those representing other military clients may also do so pro bono. If charging a fee, LAMP requests that the fee be no greater than your regular fee and recommends a military discount be considered. Don’t just tell those in the military you are thankful for their service, show them! Join our team today. ■
Cheryl F. Shuffield, CPA/ABV/CFF, CVA Cheryl has more than 30 years of experience in taxation and consulting. Her expertise includes: Lost profits and damages claims Fraud investigations and analysis Domestic relations matters Shareholder disputes Income gift and estate taxation Business valuations To schedule a meeting or private consultation, call Cheryl today at 501.975.0100.
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Resources Legal Aid of Arkansas Announces Community Impact Project to Aid Veterans Legal Aid of Arkansas has initiated a community impact project aimed at providing education and legal services to veterans in need. The program’s leading mission is to target at risk Smith veterans experiencing legal difficulties. Leading the charge in this project for Legal Aid was veteran Kim Smith, retired Washington County circuit judge. Kim enlisted in the Missouri Army National Guard in November 1971, serving for over six years in the 203rd Engineer Battalion as a Specialist E-5. Legal Aid of Arkansas would like to recognize Judge Smith for his service to our country and his continued contribution through legal services to veterans in the Northwest Arkansas area. As part of his effort in this project, Kim Smith recruited over 60 area attorneys to serve as pro bono resources upon referral by Legal Aid of Arkansas to represent veterans determined to be in need of services. The program’s pilot was implemented in Northwest Arkansas for its veteran community with goals to establish a medical legal partnership with the Veterans Health Care
System of the Ozarks; establish a presence and provide outreach services at a local shelter; and provide outreach and screening for secondary legal issues to veterans currently enrolled in the veterans’ court program. The initiative was led by Jonathan Udoka, AmeriCorps service volunteer and Arkansas attorney; Joey McGehee, AmeriCorps volunteer and University of Arkansas law school student; and retired Washington County Circuit Judge, local attorney, and AmeriCorps volunteer Kim Smith. The pilot exceeded its goals in each area. Services to veterans currently implemented include a weekly help desk that is manned in conjunction with the Veterans Health Care System of the Ozarks; a weekly help desk manned in conjunction with 7 Hills Homeless Shelter in Fayetteville; screening services in both Washington and Benton County veterans’ court; and the creation and maintenance of a pro bono resource database of Arkansas attorneys willing to provide services to these veterans upon referral by Legal Aid of Arkansas. Expansion of the project’s service area is currently underway in the West Memphis area, and is expected to reach veterans in need of services in the neighboring communities. Attorneys who would like to become involved should contact Legal Aid of Arkansas at 800-952-9243 or email the pro bono coordinator, Heidi Jamison at firstname.lastname@example.org. Announcement courtesy of Legal Aid of Arkansas.
Veterans International Exchange Program Work is underway by Arkansans to develop a Veterans International Exchange Program. The primary concept of the program is to engage veterans and their families who may have emotional problems like PTSD or for those who may be homeless or those who have had an addiction to illegal substances. Sherman Banks, CEO of Banks International Consulting in Little Rock, has been working with Tony Wright, a Winston Churchill Fellow and a member of the British Parliament. Local groups involved in developing the program include Judge Mary McGowan of the Veterans Treatment Court and Rob McDonald, coFounder of the Veterans Treatment Court. Banks said the intention of the program is to expose veterans and their families to the cultures of the United States, particularly Arkansas, and the North of England. It is also an avenue to meet veterans from another culture who may be experiencing the same difficulties re-entering civilian life. Walmart and Sam’s Club Veterans Hiring Commitment Walmart and Sam’s Club announced that they expect to hire 100,000 veterans by 2018. For more information visit http:// walmartcareerswithamission.com/
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Angie Hopkins, CPA/ABV/CFF, CVA, MAFF Angie has over 25 years of experience in auditing and consulting with expertise in: Fraud investigations and analysis Lost profits and damages claims Business interruption matters Forensic accounting Business appraisals and valuations To schedule a meeting or private consultation, call Angie today at 501.975.0132.
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Resources Violated Veterans Arkansan Paulette Smith* was called an “office slave” by an Air Force instructor during her training to become a C-130 Load Master. After experiencing sustained sexual harassment from this instructor, one day he shoved her into a bathroom in plain view of other service members, closed the door, and raped her. “I never reported the rape because I knew, especially because I was still in training, that if I reported it, if I went over his head, it would come back on me and my career would be over,” she said. Deployed twice, once to Afghanistan and once to Iraq, she suffered not only combat trauma, but perpetual sexual hostility from fellow male service members. She was honorably discharged from the Air Force in 2005 and began the arduous task of seeking treatment for military injuries and severe combat post-traumatic stress disorder (PTSD). Eight years later, rather than receiving the vital services that she needs, she continues to fight the Department of Veterans Affairs (VA) quagmire, excruciating delays, record inaccuracies, and the denial of her procedural rights. Unfortunately, Paulette’s experiences are not unique. A 2010 Department of Defense study revealed that 19,000 military service members, men and women, had been sexually assaulted, but less than 14 percent reported the incidence. Only 15 percent of active duty military are women, yet they are twice as likely to be raped as their civilian counterparts. It
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is estimated that one in three women service members is sexually assaulted and almost 75 percent know their attackers—many of whom outrank their victims, which complicates reporting. Studies also show that service members are four times more likely to be raped when sexual harassment is tolerated or ignored. Service members with combat PTSD and military sexual trauma (MST) face a daunting maze of procedures, hearings, evaluations, and appointments, particularly when the culture of sexual harassment, sexual assault, stigmatization, and intimidation are part of a veteran’s experience. The need for legal assistance through expertise and advocacy is paramount to helping veterans acquire appropriate services, care, and compensation. Legal counsel for military veterans recently became more than the subject matter of an article for one of this piece’s co-authors when her son recently returned from a very difficult deployment to Afghanistan to discover his marriage was over and his money was gone. It was not through his base’s JAG office that he found the counsel he needed, but through an Arkansas attorney who knew both military and Arkansas divorce law. The legal community can become a powerful agent of change through pro-bono representation, offering workshops, and serving as advocates with government agencies. In addition to advocacy with VA and military red tape, service members often face intimidating legal challenges regarding domestic law, employment law, and consumer credit catastrophes.
Two recovery resource groups, Committed to Freedom and Harvesting Happiness for Heroes, have formed a collaborative relationship to address the needs of veterans who suffer from combat PTSD and MST through a new program called Reclaim and Regroup (R&R). The first R&R retreat will take place in central Arkansas in February 2014. This collaborative effort will then be duplicated across the country to care for violated veterans. Budget cuts and the threat of sequestration have placed the already stretched resources of military service members to the breaking point, and the need for pro-bono legal representation has never been greater. Whether challenging the military system due to MST or fighting for custody of their children, facing the trauma of post-combat stress combined with divorce, the threat of bankruptcy, or civilian employers not protecting jobs for deployed Guard, the legal community has an opportunity to say more than “thank you for your service” for those who lack personal resources, who are overwhelmed when returning to civilian life, and who are plagued with ensuing health issues that have left them vulnerable to inefficient and abusive agencies and systems. *Name changed to protect her privacy By Sallie Culbreth, M.S., founder, Committed to Freedom (www.committedtofreedom.org); Lisa Cypers Kamen, M.A., founder, Harvesting Happiness for Heroes; (www.hh4heroes.org) and Anne Quinn, Co-Director, Committed to Freedom.
Ted Duncan, CPA/ABV, CVA Ted has over three decades of experience in auditing, financial reporting and business valuation services. His expertise includes: Estate and gift tax valuation Appraisal of partial interests in shareholder disputes Construction contract litigation support Small business consulting and value planning Assistance with shareholder and partnership agreements To schedule a meeting or private consultation, call Ted today at 501.975.0248.
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Military Divorce in Arkansas
By Steven S. Zega Arkansas recognizes the concept of “divisible divorce.”1 In any given divorce case, there are three distinct issues, “tried” independently of each other: (a) the status of the parties’ marriage; (b) child custody, visitation and support; and (c) division of property and debts and spousal support, if any. There are unique considerations when representing either party in a divorce where one or both are military members, and this article will seek to explore many of the most common considerations in military divorce cases. This article is designed at least as much to alert the family law practitioner to some of the potential issues surrounding divorce with one or both of the spouses in the military as it is to give black letter law answers. Often, the resolution of those issues will be fact-intensive and based on the circumstances of the case at the time of the complaint or decree. The first question in any divorce is the divorce itself: “Are these parties going to be married anymore?” But before we even consider the merits of the case for dissolving the marriage, there is a jurisdictional prerequisite to filing a complaint for divorce: one of the parties must be a resident of Arkansas for at least 60 days before the filing.2 Although the jurisdictional question has elements of what we consider to be personal jurisdiction, i.e. presence in the state where the suit is to be filed, the Arkansas Supreme Court has addressed it for divorce cases squarely in terms of subject matter jurisdiction.3 Lack of residence in Arkansas of one of the parties for the required time before filing will effectively end the case.4 For example: your potential client is married to a soldier who is currently stationed with 1st Armor Division in Bad Nowheresdorf, Germany. About 18 months ago, the potential client moved from Little Rock on a command sponsorship to Germany to be with his wife. While there, he discovered her in an affair with another soldier from her unit. Distraught, 26
The Arkansas Lawyer
he cancelled his command sponsorship and returned home to Little Rock about 40 days ago. He has always maintained his Arkansas driver’s license and voter registration in Pulaski County and paid Arkansas state income taxes last year. He wants you to file for divorce tomorrow. Can you?5 What if your client is an airman who has a Texas driver’s license and voter registration but who has been stationed at Little Rock Air Force Base for six months before seeing you about a divorce?6 While waiting for your Arkansan to reestablish his residence in the state, you begin to draft the complaint for divorce. Because one of the parties is on active military duty and you know that, you have an affirmative duty under the Servicemembers’ Civil Relief Act to inform the court of that fact.7 The court cannot enter a judgment against the soldier who files no answer or otherwise fails to plead and appear without appointing an attorney for him or her.8 After drafting the complaint, you have now decided that your client has fulfilled residency or domicile requirements and is eligible to file a divorce complaint in an Arkansas court. You have filed the complaint and had the clerk issue a summons. You now need to serve the defendant in accordance with Ark. R. Civ. P. 4. Bad Nowheresdorf is (a) in Germany and (b) a completely federal reservation that will not allow private process servers (assuming you can find one in Germany that a Pulaski County judge will recognize) onto the post. The defendant will not sign for her certified mail. What do you do?9 Now that you have filed and properly served your military defendant and she has answered,10 you need to turn your attention to pretrial matters. The military spouse and your client have a child in the second grade, who your client brought back to Arkansas when he cancelled his command sponsorship. Your client has no job, having given it up when he moved to Germany to
be with his wife. Your complaint asked for temporary spousal and child support. The odds that you are going to get a temporary hearing that the other side can attend are slim. The soldier is not providing any kind of financial support to your client. Fortunately, all services provide that in the absence of a court order or a written, signed agreement to the contrary, service members are required to financially support their geographically separated family members, including spouses.11 Turning to discovery, you want to depose the defendant. Are you going to agree with her lawyer that you can take the deposition by video conference/ Skype/Facetime?12 What if, despite the lack of motion for a stay, the defendant is currently on a 45-day field training exercise and just cannot avail herself to a whole day’s deposition? Furthermore, in providing you with the potential witness list, you discover that every one of your client’s potential witnesses to corroborate his grounds is in Germany. The defendant has answered your complaint and contested the grounds13 for divorce. You have moved to have corroboration provided by video conference testimony, and your judge has denied your motion. What do you do? You now need to get a trial setting. The soldier properly moved for a stay, which the court was obligated to grant for a period Steven S. Zega is a partner at Parker and Zega PLC in Prairie Grove. He is the chair of the Arkansas Bar Association Lawyers Assisting Military Personnel Committee.
of at least 90 days.14 Ninety days have now expired, and your client understandably wants the trial set.15 What if the soldier is deployed to Afghanistan for a year and her commander has not yet determined when she, or any of the soldiers in the unit, will be able to take leave?16 Leaving initial drafting considerations and other pretrial matters aside for the time being, custody, visitation and support are now your primary concerns. The basic premise in custody17 and visitation18 is constant: the court is to make determinations in the best interest of the child. The military, on the other hand, will not get involved in deciding core issues around child custody. That being said, our soldier’s commander will order her to abide by any valid Arkansas court order with respect to custody and visitation.19 And as with other aspects of a divorce case involving military members, there are special considerations when dealing with child custody and visitation. When deciding how to advocate for custody of children when one or both parents are on active duty, I look at a number of factors: traditional best-interest-of-the-child factors such as educational, cultural, extracurricular
and social opportunities with each parent; relative family support (financial, help with transportation or childcare, etc.) from each parent’s family; each parent’s history with the child; relationships with step and halfsiblings; any adverse personal history of the parent such as substance abuse or cohabita-
tion; and the wishes of the child (if appropriate to the case). For military members, in arguing for custody or the appropriate visitation, I consider: (a) the military parent’s regular duty position, hours and schedule; (b) the military parent’s base, post or regular geographic location; (c) the military parent’s history of past deployments to unaccompanied zones and likelihood of future deployments to unaccompanied zones; (d) transportation issues for the non-custodial parent in getting to the child to exercise visitation or vice-versa; and (e) the military parent’s past direct involvement in the child’s day-to-day life. There are also considerations unique to reservists and Guard members:20 In addition to any and all of the above, for a Guard or reserve member, a lawyer has to consider his or her deployment and training schedule. Does being in the Guard disqualify an otherwise fit and proper parent from being a custody candidate?21 Does the reserve’s training schedule (often the first weekend of the month) mean that a reservist simply misses that time with her children? Also, frequently, a military member will sign a power of attorney or make some other designation of a current spouse to exercise
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
custody or visitation while the military member is deployed. In the absence of an agreement between the parents, this is borrowing trouble, and probably unenforceable as between two fit parents.22 In Arkansas, child support is presumed to be set in accordance with the Arkansas Family Support Chart unless the Circuit Judge finds and writes in the Order a reason to deviate from the Chart.23 Support is calculated by finding the payor’s net pay as defined by Administrative Order 10 and applying it to the chart with the appropriate number of children. Determining net pay for a military member may be difficult at best, as many if not most members receive multiple kinds of pay and allowances,24 for example: (a) Base pay;25 (b) Basic allowance for housing; (c) Basic allowance for subsistence; (d) Special skill pay (airborne, dive pay, flight pay, drill instructor pay, etc.); (e) Hazardous duty/hostile fire/imminent danger pay; (f) Family separation allowance; (g) Enlistment/reenlistment bonuses; and (h) Combat zone tax exclusion.26 Modification of child support also presents unique issues when the payor is in the military. Going to a tax-free zone will almost always involve
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an increase in net income for the military member, even though base pay may not change.27 Any change in military pay status, up or down, should trigger an immediate filing of a petition to modify because of a combination of state and federal laws and regulations makes a retroactive decrease in child support impossible.28 I counsel service members paying support who deploy to tax free zones that they should set aside and pay additional support to the person having custody of their children to avoid a giant bill when they get off the plane. Spousal support is more often at issue in a military divorce than a non-military divorce. Frequently, the non-military spouse has limited his or her own economic opportunities to support the military spouse and move frequently, as the career of the military spouse demanded. The core questions for spousal support are the needs of one spouse and the ability of the other to pay.29 Traditional property and debt division are not affected much by the status of a military party in the divorce—if an Arkansas court has jurisdiction to determine issues of property and debt in the marriage, then it will proceed in accordance with Arkansas
marital property law.30 However, the ax meets the grindstone in Arkansas with military retirement. Prior to the enactment of the Uniformed Services Former Spouses’ Protection Act,31 Arkansas courts did not divide military retired pay as marital property. In order for an Arkansas court to divide a military member’s retired pay, Arkansas must have jurisdiction over the service member through: (a) Residence in Arkansas, other than by military assignment; (b) Domicile in Arkansas; or (c) Consent of the service member.32 Vested33 military retirement benefits are subject to division under The Uniformed Services Former Spouses’ Protection Act (USFSPA) and Arkansas law.34 On the other hand, VA disability payments are not marital property and not subject to division. A retired veteran who is receiving military retired pay (subject to marital division and taxes) must waive, dollar-for-dollar, that pay if he receives VA disability benefits. VA disability payments are not subject to taxes, so the retired service member has an incentive to choose VA disability over military retired pay. In Arkansas, at least, a retired service member cannot take unilateral action after a divorce that reduces
his former spouse’s benefit.35 Hopefully, this article has helped alert you to the issues you could come across as a matter of course in handling a divorce with one or both parties in the military. Endnotes: 1. Woods v. Woods, 285 Ark. 175 (1985); Estin v. Estin, 334 U.S. 541 (1948). 2. Ark. Code Ann. § 9-12-307(a)(1)(A). 3. Roberts v. Roberts, 2009 Ark. 576, 349 S.W.3d 886: “The issue of residency, in a suit for divorce, deals directly with the authority, power, and right of the circuit court to act.” 4. See, e.g., Cassen v. Cassen, 211 Ark. 582 (1947). 5. In almost all cases, I would advise the potential client to wait the additional 20 days, given the jurisdictional nature of residence and domicile. For further development, see Ark. Code Ann. § 9-12-307(b). 6. Unless he has some connection to Arkansas besides military duty, he isn’t eligible to file for divorce here based on his presence in the state. Mohr v. Mohr, 206 Ark. 1094 (1944). 7. 50 U.S.C. Appx. § 521.
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my experience is that the plaintiff has to pay with judges essentially holding that if the
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
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plaintiff wants the relief, he has to pay the reasonable and necessary expenses to obtain that relief. Divorces are among the types of actions where a court can award attorney’s fees to a prevailing party (Ark. Code Ann. § 9-12-309), and I would argue that a prevailing plaintiff should have and recover those fees from the defendant. 30
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9. If your answer is “file and publish a warning order,” that’s valid, but tread with caution. I am convinced that a warning order won’t get you past 50 U.S.C. Appx. § 521, and you will need to have the court appoint and your client will have to pay for an attorney to represent the defendant. 10. And did not move for a stay; see Ark.
Code Ann. § 12-62-406 and 50 U.S.C. Appx. § 522. 11. Air Force: AFI 36-2906; Army: AR 60899; Navy/Marine Corps: OPNAVINST 1740.40D and MILPERSMAN § 1754030; Coast Guard: CG COMM NOT 1000, Ch. 8.M. 12. Is this contemplated by Ark. R. Civ. P. 26.1? 13. As a collateral matter, if adultery is the grounds for divorce and the adulterer is the service member, you need to keep in mind that adultery is a UCMJ offense (Art. 134, ¶ 62). Conviction at court-martial or other sanctions will almost certainly have a farreaching impact on your client and any children. Other grounds for divorce in Arkansas would also constitute UCMJ offenses or reasons for adverse personnel action and deserve the same thought. Even if no courtmartial ensues as the facts are brought to light, adverse implications for reenlistment, security clearances, duty assignments and promotion are all at issue. 14. 50 U.S.C. Appx. § 522. 15. See also Lenser v. McGowan, 358 Ark. 423 (2004), for a discussion of the interplay between the SCRA’s stay requirement and the court’s ability to order temporary custody. Short answer—the SCRA does not divest a court of jurisdiction to make a temporary order, even considering the stay provisions. Absent from the court’s analysis is any discussion of Ark. Code Ann. § 12-62-406, presumably because the soldier did not raise it. 16. Current Department of Defense policy is that service members deployed to Afghanistan and certain other Central Asian countries in support of contingency operations in Afghanistan are eligible for non-chargeable rest and recuperation leave—15 days away from theater at government expense and not charged against the member’s ordinary allocation of 30 days of paid leave per calendar year. The dates for NCR&R leave are typically fluid, at best, and fitting them into a docket with any precision would be difficult. Further, I would guess that most judges would be reluctant to make a service member on leave from a combat theater spend one of her 15 days home in divorce court. Clearly in drafting the SCRA (50 U.S.C. Appx. § 501, et seq.), Congress lacked a fundamental appreciation for the concept that leave is a commander’s program, very much
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did not intend for the SCRA to act as de facto immunity for service members against
all civil suits, including those for divorce, custody and support. 17. Jowers v. Jowers, 92 Ark. App. 374 (2005). 18. Hass v. Hass, 80 Ark. App. 408 (2003). 19. AR 608-99, ¶ 2-10. 20. In this context “reservists and Guard members” means traditional members who are part-time military members. Each reserve and Guard service has full-time manning personnel who run armories and reserve centers, for example, but whose lives are much more geographically and temporally stable than members of the active component. Having said that, “one weekend a month and two weeks a year” has gone by the wayside since 9/11/01. 21. Ark. Code Ann. § 9-13-110 provides, inter alia, that a court cannot permanently change custody because one parent is a mobilized military member. 22. For a good survey of third-party intervention into fit parents’ rights, see Troeskyn v. Herrington, 2012 Ark. 245, and its discussion of the application of Troxel v. Granville, 530 U.S. 57 (2000). 23. Ark. S. Ct. Ad. Ord. No. 10. 24. These entitlements to pay and allowances are also useful in calculating spousal support.
12/14/12 9:24 AM
25. The difference between “pay” and an “allowance” can also be confusing. Basically, pay is taxable; an allowance is not. 26. This is not an exhaustive list. If I am representing a non-military spouse and child support or alimony might be at issue, I ask for three years’ worth of Leave and Earnings Statements from the military member in discovery. 27. And as a matter of practical application, for Guard members from Arkansas, most experience a substantial increase in income when they are put on active duty orders. 28. 54 F.R. 15,757 (“Modification [of child support] may be permitted only from the date notice of such petition has been given . . . to the obligee.”); 45 C.F.R. § 303.106; Burnett v. Burnett, 313 Ark. 599, 603 (1993); Ark. Code Ann. §§ 9-12-312, 9-14-234. 29. Russell v. Russell, 275 Ark. 193 (1982). 30. Ark. Code Ann. § 9-15-101. 31. 10 U.S.C. § 1401, et seq. 32. 10 U.S.C. § 1408; Pender v. Pender, 57 Ark. App. 305 (1997). 33. Vested rights almost always turn on 20 good years of service. 34. Day v. Day, 281 Ark. 261 (1984);
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Report from the 2013 National Conference of Commissioners on Uniform State Laws By Lynn Foster The Uniform Law Commission (“ULC”) held its 122d annual National Conference in Boston from July 6 through July 12, 2013. It was a bittersweet meeting for the commissioners, due to the death of Phil Carroll, a life member of the commission for many years, in March. Phil was the president of the ULC at its previous Boston conference in 1986, and was looking forward to the commission’s return to that city. The makeup of the Arkansas commissioners changed this year. John Stroud, Sr., declined reappointment. Elisa White and the author were reappointed by the Governor. Carolyn Witherspoon, of the Cross, Gunter, Witherspoon & Galchus law firm, was appointed to replace Judge Stroud. Vince Henderson continued as Arkansas’s associate commissioner. The Conference approved four new acts, summarized below. The Uniform Act on Prevention of and Remedies for Human Trafficking is directed against human trafficking, a form of modern-day slavery, that affects the United States far more pervasively than most people realize. The act, like its federal counterpart, recognizes two types of slavery: sex trafficking and labor trafficking. It provides comprehensive criminal provisions, contains provisions for victim services, and establishes a coordinating body to help government and non-government organizations coordinate their human trafficking activities. The act is very similar to, but somewhat more comprehensive than, Arkansas’s human trafficking statutes, which were enacted in 2013.1 The Uniform Powers of Appointment Act2 codifies the law of powers of appointment, the authority, acting in a nonfiduciary capacity, to designate recipients of ownership interests in, or powers of appointment over, the appointive property. Owners have this authority over their own property, and 34
The Arkansas Lawyer
by creating a power of appointment the owner confers this authority on someone else. The power of appointment is a staple of modern estate-planning practice, used extensively in wills and trusts. Arkansas has almost no power of appointment law, and is not alone in this regard, although a few states have well-developed law in this area. This act will, like the Uniform Trust Code, which Arkansas adopted in 2001, provide much-needed guidance to drafters, personal representatives, trustees and those who represent them. Amendments containing technical corrections to the Uniform Harmonized Business Organization Code, which harmonizes the language in the ULC’s business entity acts, were approved in 2013. Of the eight uniform business entity acts, Arkansas has enacted the Uniform Partnership Act,3 Uniform Limited Partnership Act,4 Uniform Unincorporated Nonprofit Association Act,5 and Model Registered Agents Act.6 Arkansas has not enacted the Model Entity Transactions Act, Uniform Limited Liability Company Act, Uniform Statutory Trust Entity Act, and Uniform Limited Cooperative Associations Act. Finally, amendments to the Uniform Child Custody Jurisdiction and Enforcement Act7 (“UCCJEA”) pertaining to international proceedings were also approved at the ULC’s annual meeting, as part of the effort to implement the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. Arkansas has enacted the UCCJEA.8 In the ULC pipeline and debated at the annual meeting were the following acts. The Uniform Home Foreclosure Procedures Act is intended for adoption by both states with nonjudicial foreclosures and states without. The act provides “wraparound” procedures that address the right to
cure, notice of default and sales, facilitation or mediation, who has the right to foreclose, transfers of instruments and rights, lost note affidavits, expedited sales of abandoned property, and prevention of servicer abuses. The Uniform Fiduciary Access to Digital Information Act is intended to vest fiduciaries, defined as personal representatives, guardians, agents under a power of attorney, and trustees, with the authority to access, manage, distribute, copy or delete digital assets and accounts. Few laws regulate this area, yet on average, an American consumer’s digital assets are valued at $55,000. The Revised Uniform Residential Landlord and Tenant Act updates the 40-year-old Uniform Residential Landlord and Tenant Act. The Uniform Interjurisdictional Recognition of Substitute DecisionMaking Documents Act is a joint endeavor of the Uniform Law Commission and the Uniform Law Conference of Canada, undertaken to promote the portability and usefulness of substitute decision-making documents such as financial and health powers of attorney. The Amendments to the Uniform Fraudulent Transfer Act,9 most notably, propose to change the title to the Uniform Voidable Transfer Act. As the Reporter’s Introductory Note10 states, “fraud is not a necessary element under the act. Yet the Act’s title suggests the opposite, and that has Lynn Foster is the Arkansas Bar Foundation Professor of Law at the University of Arkansas at Little Rock Bowen School of Law, and has served as one of Arkansas’s uniform law commissioners since 2009.
had baneful consequences.” If you have any questions about these or other uniform laws, the commissioners urge you to contact them. Endnotes: 1. Ark. Code Ann. §§ 3-9-241; 5-5-201, 202; 5-18-101 through 105; 12-19-101 through 103; 14-1-308; 16-90-123; 16-118109; 20-206-207; 23-12-614; 27-105-108. 2. Versions with and without comments are available at http://www.uniformlaws. org/Act.aspx?title=Powers%20of%20 Appointment. 3. Ark. Code Ann. §§ 4-46-101 through 1207. 4. Ark. Code Ann. §§ 4-47-101 through 1302. 5. Ark. Code Ann. §§ 4-28-601 through 636. 6. Ark. Code Ann. §§ 4-20-101 through 118. 7. At the time of this writing, the final version of the act has not been posted on the ULC’s website, but the Annual Meeting approved text, without comments, is available at http://www.uniformlaws.org/shared/ docs/Hague_Convention_on_Protection_ of_Children/2013AM_UCCJEA_As%20 approved.pdf. 8. Ark. Code Ann. §§ 9-19-101 through 401. 9. Arkansas enacted the original uniform law. Ark. Code Ann. §§ 4-59-201 through 213. 10. The Draft Amended Uniform Fraudulent Transfers Act, Reporter’s Notes, July 2013, available at http://www.uniformlaws.org/shared/docs/Fraudulent%20 Transfer/2013AM_AUFTA_Draft.pdf. ■
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www.arkansasfindalawyer.com Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Arkansas Supreme Court Historical Society
Daniel Ringo First Chief Justice of Arkansas by J.W. Looney The 1836 Constitution of Arkansas provided for a three-member Supreme Court elected by joint vote of both houses of the legislature. The terms of the Supreme Court Justices were to be eight years, but the first three members drew lots for four, six or eightyear initial terms. Daniel Ringo, Townsend Dickinson and Thomas J. Lacy were elected by the legislature. Lacy was a Democrat; Ringo and Townsend were regarded as Whigs. When the court convened for the first time for organizational purposes, Ringo drew the eightyear term, and was “styled” Chief Justice by agreement of the other two justices and with the consent of the legislature. Daniel Ringo was born October 27, 1803, in Cross Plains, Kentucky. He made his way to Arkansas in 1820, first to Batesville then soon thereafter to Clark County. In Clark County he served as deputy clerk of the district court and was then elected clerk in 1825 and served most of three terms. He decided to study law and was admitted to the bar in 1830. At that time he moved to Hempstead County where he formed a partnership with former Territorial Superior Court Judge Edward Cross, who would serve on the Supreme Court after Ringo’s term ended. After three years, Ringo moved to Little Rock and formed a partnership with one of Arkansas’s most successful attorneys and politicians—Chester Ashley. This association not only improved his lot financially but placed him in contact with the state’s leaders and with other prominent members of the bar. Ringo served only one term on the court. During his tenure much of the court’s workload centered on jurisdictional and procedural matters, as might be expected with a newly organized government and untested court structures. In addition to the appellate cases, the court was required to devote considerable time to “writ practice” such as writs of mandamus, habeas corpus, supersedeas, quo warranto and certiorari. The most visible and contentious cases before the court were those dealing with the two state banks formed by the first legislature. 36
The Arkansas Lawyer
For example, in State v. Ashley1 the attorney general asked the court to order the acting directors of the Real Estate Bank to show cause why an “information in the nature of a writ of quo warranto” should not be filed with regard to their election. Ringo’s former law partner argued that the Supreme Court was a court of appellate jurisdiction only and that the writ of quo warranto was one involving original jurisdiction. Ringo, in a detailed opinion setting out the powers of various courts, held that the court’s jurisdiction extended to writs “especially enumerated” in the Constitution and “other remedial writs” associated with appellate power. The writ of quo warranto (a civil proceeding) was authorized. The “information in the nature of a writ of quo warranto” (a criminal proceeding) was not. When the matter came before the court again the state obtained a writ of quo warranto against Ashley and the other acting directors. The court upheld the constitutionality of the Real Estate Bank, found the office of director to be a public franchise and determined that the acting directors failed to show that they had been lawfully elected.2 It was the court’s decisions in the banking cases that contributed to Ringo’s failure to be reelected to the court when his term ended in 1844. The legislature, controlled by the Democrats and ruled by the Conway “family dynasty,” elected Thomas Johnson who was married to a Conway relative. Chief Justice Ringo was known for his meticulous, careful and technical application of the law and, in particular, the rules of practice and pleading. His approach was described as “slow and plodding and as methodical as clock work” and always the result of patient and laborious research. He was tenacious in following the technicalities of the common law. After his service in the court Ringo established a law practice in Little Rock with his brother-in-law, Frederick W. Trapnall. After the presidential election of 1848 Whig Zachary Taylor appointed Ringo as judge of the U.S. District Court, District of
Justice Daniel Ringo Courtesy Arkansas Secretary of State Arkansas. Later when the district was divided, he was assigned to serve in both districts which, at that time, included the Indian Territory. He performed this heavy workload until the outbreak of the Civil War and resigned May 6, 1861. The Confederate government continued his appointment as district judge but his service was limited. Following the war, Judge Ringo did not get involved in the political strife of the Reconstruction period. Described as “enfeebled with age and shattered in fortune”” he lived quietly in Little Rock until his death September 7, 1873. Further Reading: 1. John Hallum, Biographical and Pictorial History of Arkansas (Albany: Weed, Parson’s and Company, 1887). Endnotes: 1. 1 Ark. 279 (1839). 2. State v. Ashley, 1 Ark. 513 (1839). 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, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@ arkansas.gov; Phone: 501-682-6879.
-Cle LIVE SEMINARS NOVEMBER 20 —Gun Trusts: What are They and How Do I Set One Up? Remington Gun Club, Lonoke
2014 Mid-Year Meeting
January 23-24, 2014 Peabody Hotel, Memphis, TN
NOVEMBER 21 —Criminal Law, Little Rock NOVEMBER 22 —14th Annual Government Practice Institute, Little Rock JANUARY 23-24 — Mid-Year Meeting, Memphis
ONE-HOUR WEBINARS NOVEMBER 18—Ethics, Virtual Law Offices and Multi-Jurisdictional Practice NOVEMBER 19—Estate Planning for the Elderly, Part 1; NOVEMBER 20— Part 2 NOVEMBER 21—Attorneys & Conflicts With Their Clients, Part 1; NOVEMBER 22—Part 2 NOVEMBER 25—Corporate Governance for Nonprofits NOVEMBER 26—Indemnification and Hold Harmless Provisions in Business Agreements DECEMBER 2 —Ethics and Email in the Law Office DECEMBER 3—2013 Fiduciary Litigation Update DECEMBER 4—Ethics Issues in Representing Elderly Clients DECEMBER 5—Mergers and Buyouts of Closely Held Businesses, Part 1; DECEMBER 6 —Part 2 DECEMBER 9 —Ethics and Tribunals: Attorney Duties When Communicating With the Courts and Governmental Agencies DECEMBER 10—Multi-Family Development and Management Agreements DECEMBER 11—Attorney Ethics in Real Estate Practice DECEMBER 13—Attorney Ethics in Multi-Party Representations DECEMBER 16—Ethics and the Use of Metadata in Litigation and Law Practice DECEMBER 17—Joint Ventures in Business, Part 1; DECEMBER 18—Part 2 DECEMBER 19—Directors of Private Companies: Duties, Conflicts, and Liability DECEMBER 19—Ethics & Alternative Fee Arrangements DECEMBER 20—Incentive Compensation in LLCs & Partnerships DECEMBER 23—Ethics and Dishonest Clients
Exciting NEW CLE BREAK-OUT sessions Return of RENDEZVOUS
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Arkansas Bar Association’s Board of Governors Report By Karen K. Hutchins Board of Governors Chair Marie-Bernarde Miller presided over the August meeting which was held at Chateau on the Lake. She introduced the new members to the board which included the current Arkansas Bar Foundation President, Laura Smith, and three newly elected members, Brant Perkins, Suzanne Clark, and Brian Vandiver. Members that were re-elected for a second term include Amy Grimes, Don Hollingsworth, and Danyelle Walker. This year’s parliamentarian is Leon Jones. Executive Director Karen Hutchins guided the board through a review of member benefits. She reiterated that we need to review our benefits to continue offering what our members need most. One of the top benefits, the weekly case summaries, now has a great companion piece. Robert Tschiemer, author of the case summaries, is now posting weekly mini case summaries that are delivered directly to members via e-mail. The full summaries are still available in the library of the ArkBar Case Summaries ACE Community; however, the mini summaries are delivered directly to members who have signed up in that community to receive the email. Contact the association’s office for assistance. YLS Chair Cliff McKinney addressed the board on behalf of the Young Lawyers Section. The YLS was honored at the recent American Bar Association meeting with an award for service to the bar and the first place award for its newsletter, In Brief. The report included a discussion of the YLS emergency response initiative and the plan for a legislative initiative. Mr. McKinney assured the board that any legislative initiative would work through the existing association legislation structure. President-Elect Brian Ratcliff discussed with the board methods that could be initiated to better streamline committee contributions to the association. Consideration was given to restructuring the number and function of the association’s committees. Plans are to reduce the number of committees, possibly by creating task forces as necessary to address specific issues on which the associa38
The Arkansas Lawyer
tion has been asked to act. Mr. Ratcliff also requested authorization from the board to poll association members regarding the association’s legislative advocacy program and the resources the association expends to support those activities. Each legislative session has the potential to produce legislation that directly impacts the legal community, and the association closely monitors those developments. The board approved polling the membership on this very important issue. Results from the poll will help the association manage its legislative advocacy program.
Sign up in ACE to receive mini-case summaries in your email for same-week updates on decisions.
President Jim Simpson provided an overview of the 2013 annual meeting. He thanked Chair Brian Clary and Immediate Past President Charlie Harwell stating that the association hosted a very successful annual meeting with over 1,300 attorneys attending. The Hot Springs Convention Center was an excellent venue that received many positive reviews from staff and attendees alike. President Simpson also shared with the board the election results for the House of Delegates. Strong leadership is vital to the success of the association and we are thankful to these members for their service. President Simpson announced that the dates for the remaining board meetings are December 6-7, 2013, at the Arkansas Bar Center in Little Rock and April 25-26, 2014, at Mather Lodge at Petit Jean State Park in Morrilton. Regan and Brandon Moffitt are the Co-Chairs of this year’s mid-year meeting. There are several changes to this year’s schedule designed to re-energize the meeting and engage more attendees. One significant change is the timing of the House
of Delegates meeting. The meeting is now on Friday afternoon instead of Saturday morning. The delegates will meet from 3:00 to 5:30 p.m. followed by dinner at the Rendezvous Restaurant and dessert reception honoring all current and tenured House of Delegates members. Back by popular demand, the Rendezvous will again play host to mid-year attendees. A dessert/drink reception in the Sky Room of the Peabody Hotel immediately follows. The dates are January 23-25, 2014. Members are encouraged to attend. Board Chair Miller again addressed the board and directed their attention to a short board survey designed to be a self-evaluation. Ms. Miller commended the members that took the extra step to complete the survey and encouraged everyone to renew their commitment to board service. President Jim Simpson requested board approval of appointments to the Arkansas Law Review, Inc. Board of Directors and the ArkBar Political Action Committee. Both committees were approved as appointed. The Board also approved changes to the Mock Trial program’s structure. The final report to the board was made by President Simpson. He gave an overview of the 2014 annual meeting submitted by Chair David Fuqua. The keynote speaker will be Mark O’Mara, attorney for George Zimmerman in the highly publicized stand your ground case. The theme is technology and the law, and several tracks will highlight the evolving jurisprudence of privacy in light of rapidly advancing technology. Save the date for June 11–14, 2014, and plan to attend. ■ Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
2013-2014 Leadership Academy Congratulations to the 17 attorneys who have been selected to participate in the 2013-2014 Arkansas Bar Association Leadership Academy. Participants will attend an opening retreat in December and two additional sessions that focus on different areas of leadership: legislature and the judiciary on February 21, 2014, and community and pro bono on April 4-5, 2014.
Brian Wade Albright Hot Springs City Attorney
Tony Anthony DiCarlo III Anderson, Murphy & Hopkins
Joseph Wayne Price II Quattlebaum, Grooms, Tull & Burrow PLLC
Sarah Baber Rainwater, Holt, & Sexton, PA
Matthew L. Fryar Cypert, Crouch, Clark & Harwell, PLLC
John Rainwater Rainwater, Holt, & Sexton, PA
Ryan P. Blue Matthews, Campbell, Rhoads, McClure, & Thompson, P.A.
Frank Stewart Headlee Hopkins Law Firm, P.A.
Sara Rogers Attorney at Law
Samuel S. High Wilson & Associates, PLLC
Ginger M. Stuart Stuart Law Firm, PA
Kathleen Marie McDonald Beacon Legal Group, PLLC
Jordan B. Tinsley Tinsley & Youngdahl, PLLC
Misty Wilson Borkowski Cross, Gunter, Witherspoon & Galchus, P.C. Joel B. Carter Quattlebaum, Grooms, Tull & Burrow PLLC Carl F. Cooper III Dover Dixon & Horne PLLC
Becky A. McHughes The McHughes Law Firm, LLC
Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Judicial Discipline & Disability Commission and Attorney Disciplinary Actions Judicial Discipline & Disability Commission Actions On September 20, 2013, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Informal Adjustment had been issued to the Twelfth Judicial District, Judge Annie Powell Hendricks of Sebastian County, in Commission case #13-171. On October 4, 2013, the Arkansas Judicial Discipline and Disability Commission announced that pursuant to Rule 4.4 of the Code of Judicial Conduct, campaign committees established for and on behalf of candidates for judicial elections in the State of Arkansas for the 2014 election season, may begin soliciting or accepting contributions for the current campaign on November 21, 2013. Copies of the press releases can be found online at http://www.state.ar.us/jddc/ press_releases.html.
Attorney Disciplinary Actions Final actions from July 1 - September 30, 2013, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SUSPENSION DONALD W. COLSON, Bar No. 2005166, of Bauxite, AR, had his law license suspended for 48 months in CPC No. 2013-008 by Committee Findings & Order filed July 9, 2013, on a complaint by Brenda C. Reed for
violations of AR Rules 1.3, 1.4(a)(4), 1.16(d), 8.4(c), and 8.4(d). Colson was ordered to pay $1,000 restitution to Ms. Reed. Colson failed to respond to the formal complaint and for that conduct was also issued a Reprimand and fined an additional $1,000.00. Reed employed Colson in February 2012 to represent her in a bankruptcy matter and paid him $1,000, which included a $306 filing fee. Colson filed a Chapter 7 Petition for Reed but failed to pay her filing fee. Colson advised Reed that he usually waited until after the meeting of creditors to complete the payment. Reed’s bankruptcy case was dismissed on September 10, 2012, for failure to pay the filing fee. Reed was thereafter unable to contact Colson. Reed informed the bankruptcy court of the situation and a hearing was set for November 15, 2012. Reed appeared and Colson did not. The bankruptcy case was reopened. Colson sent a letter to the court advising that he had been suspended from the practice of law on September 5, 2012, by the Committee on Professional Conduct in another matter. Colson had not informed Reed of his suspension from the practice of law.
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Attorney Disciplinary Actions BRIAN PATRICK HAYES, Bar No. 2000044, of Fort Smith, AR, had his law license suspended for 60 months in CPC No. 2012-069 by Committee Findings & Order filed August 8, 2013, on a self-report for violations of AR Rule 8.4(b). Hayes was charged in Sebastian County Circuit Court with felony possession of a controlled substance and of drug paraphernalia. He plead guilty on each charge. The court placed Hayes on a five-year suspended imposition of sentence. JOHN SKYLAR TAPP, Bar No. 76123, of Hot Springs, Arkansas, after a hearing on the same matter briefly in 2012 until he July 19, 2013, was suspended for a period was disqualified by trial court order. The of 90 days and fined $10,000.00 in CPC committee panel stayed the suspension and No. 2012-045 by Committee Hearing fine pending appeal by Tapp to the Supreme Findings & Order filed August 16, 2013, on Court of Arkansas. a complaint by Nita Bargen, for violations of AR Rules 1.7(a), 1.9(a), 8.4(a), 8.4(c), and REPRIMAND 8.4(d). The case generally involved a conflict of interest where Tapp briefly represented ROBERT BRENT CREWS, Bar No. Bargen in a child custody and support matter 91237, of Jonesboro, AR, was reprimanded fined6/14/13 $2,500.0012:23 in CPC 2011-067 1310793 ADRthen AR Lawyer Summer 2013 Ad:ADR PM No. Page 1 in 2006 and represented the father in andAd
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by Committee Findings & Order filed July 2, 2013, on a Complaint filed by Heath Gephart, for violations of AR Rules 1.7(a) and 7.3(a). In 2009 and thereafter, Crews was the city attorney for Walnut Ridge. He also had a private law practice with offices in Jonesboro and Walnut Ridge. On July 20, 2009, Heath Gephart of Pennsylvania was piloting a small plane which landed at the Walnut Ridge Airport. At the request of federal officials who were tracking the plane,
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Attorney Disciplinary Actions refund. Gephart’s state and federal charges remained pending as of October 2011. CAUTION
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Litigators - Need an experienced mediator or arbitrator? Over 800 top-rated attorneys & former judges in 45 states. View profiles and calendars online at www.NADN.org/directory Walnut Ridge city police arrested Gephart and his passenger Sweigart after discovery of a large quantity of marijuana in the plane. Gephart eventually was charged in both state and federal courts with felony drug possession with intent to deliver or similar charges. While Gephart was a prisoner in the Walnut Ridge jail, Crews went to the jail and directly solicited Gephart as a client, without being first contacted by Gephart. Gephart’s mother paid Crews $15,000 for legal representation on the drug charges. In September 2009, Gephart and Sweigart were charged in federal court in Little Rock. Crews appeared with Gephart at his arraignment on September 22, 2009. Gephart states Crews then became hard to contact. Gephart’s federal jury trial was set and then reset for September 21, 2010. In mid-2010, while on the internet, Gephart discovered that Crews was involved with the
law enforcement officers who had arrested Gephart, through Crews’ position as Walnut Ridge City Attorney, which would make Crews the primary legal advisor to the Walnut Ridge Police Department. Gephart communicated this information to the federal judge, who set a conference, which took place on August 2, 2010, and which Crews attended. Gephart obtained and substituted in as his new counsel, Christopher Nolen. A hearing was set in Little Rock for September 28, 2010, on the issue of the attorney’s fee paid by Gephart to Crews. Crews failed to attend the hearing. On October 25, 2010, Judge Wilson reset the hearing for November 18, 2010, and issued a “show cause” order to Crews to appear, which he did. Gephart participated by conference call from his home in Pennsylvania. Judge Wilson ordered Crews to refund Gephart $12,500 of the $15,000 fee. Crews paid the
PAUL N. FORD, Bar No. 87060, of Jonesboro, Arkansas, was cautioned in CPC No. 2013-046 by Committee Findings & Order filed September 25, 2013, on a complaint filed by Dorotha Rose Finnie, for violations of AR Rules 1.1, 1.3, and 1.4(a)(3). In January 2011, Finnie met with Ford about pursuing a possible medical malpractice claim against an emergency room doctor. Finnie claimed that she had lost all of the hearing in an ear after the doctor treated her in March 2010. Finnie and Ford entered into an “Agreement Upon Investigation,” by which Ford agreed to “investigate a potential medical malpractice action against Five Rivers Medical, based upon the potential medical malpractice action stemming from medical treatments rendered on or about 3/27/2010.” On January 10, 2011, Ford’s legal assistant sent letters to two physicians and Five Rivers Medical Center requesting complete copies of Finnie’s entire chart and billing information. After her initial consultation, Finnie called and visited Ford’s office frequently but was told by a secretary that Ford was not available to speak with her. Ford also failed to return Finnie’s phone calls. Finnie filed a grievance with the Office of Professional Conduct (OPC) on January 7, 2013. In response to an OPC inquiry, Ford stated he made efforts to obtain Finnie’s medical
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LEGAL BRIEFING Handling all your briefing needs Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries, available at www.arkbar.com. For a complete list of decisions see www.tschiemerlegalbriefing.com
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Vol. 48 No. 4/Fall 2013 The Arkansas Lawyer
Attorney Disciplinary Actions records and discussed her matter with a doctor. He determined that he did not want to proceed with Finnie’s case. In his March 2013 letter to OPC, Ford stated it was his recollection that he discussed this decision with Finnie by phone; however, he cannot confirm this, and there was no letter in his file to confirm the recollection of the phone call. He discovered the statute of limitations had run on her claim. After being informed that OPC did not object to him contacting Finnie, Ford provided Finnie with the contact information for his malpractice insurance carrier by a letter on March 5, 2013. As of the date of her affidavit, Finnie has not filed a malpractice action against Ford. KENNETH ALAN HARPER, Bar No. 89022, of Monticello, AR, was cautioned in CPC No. 2013-010 by Committee Findings & Order filed August 13, 2013, on a complaint filed by Abernathy Motorcycle Sales and its attorney, Steve Conley of Tennessee, for violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), and 8.1(b). Harper was ordered to pay a $500 fine and $500 restitution. Abernathy filed suit in Tennessee against F&F Motorcycle Sales, an Arkansas corporation, and was granted judgment. Conley contacted Harper in January, 2012, to see if Harper would represent Abernathy in registering the Tennessee judgment and pursuing collection. Harper agreed and Conley sent a packet of information along with a check for the representation. Conley thereafter requested status updates in March,
May, and June 2012, without getting a response from Harper. The Office of Professional Conduct sent a letter and email to Harper requesting that he contact Conley. Harper failed to contact Conley. JOSHUA QUINCY HURST, Bar No. 2004016, of Hot Springs, AR, was cautioned in CPC No. 2013-038 by Committee Findings & Order filed September 19, 2013, on a complaint filed by Cynthia Stone for violation of Rules 1.3 and 1.16(d), and fined $1,000 and ordered to pay $1,500 restitution. Stone employed Hurst to represent her daughters, Chauntyl Stone and Candace Spencer, in domestic relations actions. Chauntyl wanted to re-open a paternity case and address visitation. Cynthia paid Hurst $1,000. A hearing was held and the parties were ordered to undergo family counseling. Thereafter, Chauntyl received a statement showing a balance of $1,051.93, which included a $200 fee for a Petition to Seal Record. No such Petition was filed in the Chauntyl’s case. Spencer employed Hurst to represent her in a divorce action in June, 2010. Cynthia paid Hurst $1,500 for the representation. On July 23, 2010, Spencer was served with a Complaint for Divorce by her husband. Spencer checked with the clerk to see if a divorce action had been filed for her by Hurst, but no case had been filed. On July 27, 2010, Hurst was requested to provide proof that a complaint for divorce had been filed by him for Spencer. Hurst did not provide the proof requested and was informed that his representation was
terminated. Hurst agreed to return the fees paid but it would take a couple of days. On July 28, 2010, an Answer and Counterclaim was filed by Hurst on Spencer’s behalf. Hurst sent Spencer a bill dated July 28 for preparation of a Complaint for Divorce on June 23; a Motion for Temporary Custody, Support and Suit Money; an Answer and Counterclaim; and July 27 and 28, 2010, letters to the clerk. On August 2, 2010, Hurst filed a second Answer and Counterclaim. On August 19, 2010, Hurst filed a Motion to Withdraw and an order was entered granting the request. ■
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In Memoriam Daniel Fenton Adams Daniel Fenton Adams of Mobile, Ala., died December 13, 2012, at the age of 90. He served in the U.S. Army in World War II in 1943-1944. Following military service, he attended Dickinson College in Carlisle, Pa., and graduated summa cum laude and Phi Beta Kappa in 1947. He earned his Juris Doctor Degree from Dickinson School of Law in 1949. Upon graduation, he joined the faculty as a professor of law from 19491965. He served variously as an assistant, acting and interim dean and dean of the University of Arkansas at Little Rock Law School from 1965-1970 and 1977-93. He also served as a professor of law at the University of Mississippi at Oxford, Stetson University and the University of Tennessee College of Law. He was a member of the Arkansas Bar Association, the Pennsylvania Bar Association and the Inns of Court in London, England. Stanley W. Fast Stanley W. Fast of Hot Springs Village died September 14, 2013, at the age of 90. He enlisted in the U.S. Army Air Corps in 1943 and served in the China-Burma-India Theater until the end of World War II. He earned his Juris Doctor Degree from the University of Arkansas Law School in 1950. He worked as a claims attorney in the insurance business and retired from Silvey Insurance in 1985. He was a member of the Arkansas Bar Association. John Neil Killough John Neil Killough of Wynne died August 6, 2013, at the age of 89. He attended Vanderbilt University one year, entered the Army in July 1943 and received his basic training at Fort Knox, Ky. During World War II he was sent to England as a member of an armored replacement pool, then moved to the European Theater and joined the Second Armored Division in Holland and saw action during The Battle of the Bulge. Following his discharge he attended the University of Arkansas where he received his B.A. and L.L.B. degrees. He entered into the practice of law with his Uncle Walter Killough in Wynne. He was appointed Deputy Prosecuting Attorney of Cross County in 1955. After the death of his uncle, he and Bob Ford formed the Killough and Ford Law Firm. After 50 years 46
The Arkansas Lawyer
of practice, he semi-retired to a practice of his own. He was a member of the Arkansas Bar Association. He was a Fellow of the Arkansas Bar Foundation. Dr. Calvin R. Ledbetter, Jr. Dr. Calvin R. Ledbetter, Jr. (Cal Ledbetter) of Little Rock died on August 10, 2013, at the age of 84. He attended Princeton University and graduated from the Woodrow Wilson School of Public and International Affairs. He earned his Juris Doctor Degree from the University of Arkansas Law School. After briefly practicing law in Little Rock, he joined the army as a member of the Judge Advocate General Corps and served in Germany for three years. After completing his military service he obtained a Ph.D. in Political Science from Northwestern University where he taught as a graduate student. In 1960 he joined the faculty at the University of Little Rock. He served as Dean of the College of Liberal Arts at UALR in 1978. From 1967-1976 he served in the Arkansas Legislature. He was a delegate to Democratic conventions in 1968 and 1984, and served as an election night analyst for ABC from 1964-1984. A strong believer in the need for a new state constitution for Arkansas, he served as vice-president of the Arkansas Constitutional Convention of 1978-1979. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. He was honored with the Arkansas Bar Foundation Writing Excellence Award.
Ike Allen Laws, Jr. Ike Allen Laws, Jr., of Dardanelle, died Saturday, October 5, 2013, at the age of 77. He was a Captain in the U.S. Army, a Mason, and served as the Deputy Prosecuting Attorney and as Special Associate Justice to the Arkansas Supreme Court. He was a practicing attorney for over 50 years. He was a member of the Arkansas Bar Association where he served on the Legal Aid Committee, Membership Committee, House of Delegates, and Executive Council. He was a Fellow of the Arkansas Bar Foundation. He was a member of the Pope County Bar Association and the Arkansas Trial Lawyers Association. He was one of the first in Arkansas to be certified as a Criminal Trial Advocate by the National Board of Trial Advocates, served as the Atkins City Attorney, and was a board member of Western Arkansas Legal Services for the Indigent. Donald E. Wilson Donald E. Wilson of Fayetteville died August 8, 2013, at the age of 65. He was a U.S. Air Force veteran of the Vietnam Conflict. He graduated from Arkansas Tech University with highest honors with an electrical engineering degree. He also received a juris doctorate from the University of Arkansas. He was a member of the Arkansas Bar Association. The information provided in “In Memoriam” is provided by the members’ obituaries.
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 July 1, 2013, through September 30, 2013: In Memory of Carol Crafton Anthony Justice Annabelle Imber Tuck
In Memory of Phillip Carroll Justice Annabelle Imber Tuck
In Memory of Phil Carroll Rose Law Firm
In Memory of Garland “Gary” Garrett Patti and Charles Coleman Judge James G. Mixon* Hayden and Gordon Rather In Memory of Judge Tom Glaze Justice Annabelle Imber Tuck In Memory of Annette Jackwig Judge James G. Mixon* In Memory of Sam Laser Justice Annabelle Imber Tuck In Memory of Justice Andree Layton Roaf Justice Annabelle Imber Tuck Honorariums and Scholarship Contributions
In Memory of Kent J. Rubens Justice Annabelle Imber Tuck In Memory of Julian Streett Cathi Compton and Judge Bill Wilson
In Honor of David Solomon Designated to the David Solomon Scholarship Fund Solomon Farms, LLC
In Memory of Randell Templeton Sally and Jim McLarty
Wright, Lindsey & Jennings LLP Scholarship Fund Wright, Lindsey & Jennings LLP
*Designated to the Ernest G. Lawrence, Jr. Scholarship Fund
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. 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
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Published on Nov 7, 2013