The Arkansas Lawyer Winter 2017

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Vol. 52, No. 1, Winter 2017 online at www.arkbar.com

Inside: Chief Justice Dan Kemp Lawyer Legislators Medical Marijuana Peer Review Fairness Act Social Media Ethics

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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 Anton Leo Janik, Jr., Chair Haley Heath Burks Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Denise Reid Hoggard Board of Governors Chair Brian M. Rosenthal President-Elect Anthony A. (Tony) Hilliard Immediate Past President Eddie H. Walker, Jr. President-Elect Designee Suzanne Clark Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Aaron Squyres Young Lawyers Section Chair Gregory Northen BOARD OF GOVERNORS James Paul Beachboard Arkie Byrd Thomas M. Carpenter Sterling Taylor Chaney Suzanne G. Clark Grant M. Cox Don R. Elliott Bob Estes Frances S. Fendler Buck C. Gibson Paul W. Keith Leslie J. Ligon Jerald Cliff McKinney Brandon K. Moffitt Wade T. Naramore Laura E. Partlow Kristin L. Pawlik Brant Perkins Colby T. Roe Robert M. Sexton Andrea Grimes Woods

LIAISON MEMBERS Brian M. Clary Judge Casey Jones Judge Wiley Branton Jeffrey Ellis McKinley Stephen A. Hester Gregory Northen Patti Julian Richard L. Ramsay Karen K. Hutchins

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202.

Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2016, Arkansas Bar Association.

All rights reserved.

The Arkansas

Lawyer Vol. 52 No. 1

features

10 Arkansas Supreme Court Chief Justice Dan Kemp

By Anna Hubbard 16 Legislation Committee Opposes Senate Joint Resolution 8

By Denise Reid Hoggard 18 Arkansas Issue 6: Navigating the Weeds of State-Legal Medical Marijuana

By Andrew King 24 ArkBar Lawyer Legislators Serving in the 91st General Assembly Regular Session 2017 26 The Arkansas Peer Review Fairness Act: The Intersection of Law and Medicine

By Janet L. Pulliam and David Ivers 34 Mendoza v. WIS International, Inc.: The Supreme Court’s Decision Make Seat Belt Non-Use Relevant Evidence

By Justice J. Brooks, I 36 New Court Rule Clears the Way for Resolving Unclaimed, Unidentifiable Client Trust Account Funds

By Amy Johnson 38 Don’t Be “Socially” Unacceptable: Avoiding Ethical Issues with Lawyers’ Use of Social Media

By John G. Browning 42 Hulbert F. Fairchild—Chancellor and Justice

By J. W. Looney Contents Continued on Page 2

Lawyer The Arkansas Vol. 52, No. 1

in this issue A Call to Leadership

3

ArkBar News

4

Board of Governors Report

14

2016-2017 Board of Governors

15

2016 CLE Speakers and Planners

32

CLE Calendar

33

Disciplinary Actions

45

In Memoriam

51

Classified Advertising

52

columns President’s Report

7

Denise Reid Hoggard

Young Lawyers Section Report

9

Gregory J. Northen

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Vol. 51, No. 1, Winter 2016 online at www.arkbar.com

Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors

Advertise in the next issue of The Arkansas Lawyer.

Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Mary Elizabeth Buckley, Jon B. Comstock, Andrew T. Curry, Susan K. Kendall, George M. Rozzell, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: Earl Buddy Chadick, Leslie Copeland, M. Scott Hall, Jason M. Hatfield, Brian C. Hogue, Alan Lee Lane, Richard Kyle Lippard, Joshua D. McFadden, W. Marshall Prettyman, Jr., Sarah A. Sparkman, Rick Woods Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Michael Alan LaFreniere, Candice A. Settle, Samuel M. Terry Delegate District A-4: Sam D. Snead Delegate District A-5: Wade A. Williams Delegate District A-6: John D. Van Kleef Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Carrie E. Bumgardner, Bart W. Calhoun, Tim Cullen, Tony Anthony DiCarlo III, Jason W. Earley, Edie Ervin, Adam Fogleman, Caleb Peter Garcia, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Glen Hoggard, Amy Dunn Johnson, Jamie Huffman Jones, Joseph F. Kolb, William C. Mann, Patrick W. McAlpine, Kathleen Marie McDonald, Jeremy M. McNabb, Chad W. Pekron, John Rainwater, W. Carson Tucker, Jonathan Q. Warren, Thomas G. Williams, David H. Williams, George R. Wise, Jr., Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Robert J. Gibson, Hunter J. Hanshaw, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Danny M. Rasmussen Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Kandice A. Bell, Brent J. Eubanks, John P. Talbot Delegate District C-9: Katelyn Burch Busby, Chase Adam Carmichael, Lee Douglas Curry Delegate District C-10: Joshua Reed Thane Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Brenda Sue Simpson Delegate District C-13: Brian M. Clary, John Andrew Ellis Law Student Representatives: Kristen A. Callahan, University of Arkansas School of Law; David Garrett Morgan, UALR William H. Bowen School of Law

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The Arkansas Lawyer

www.arkbar.com

A Call to Leadership in the Arkansas Bar Association The petitions, current members of both bodies and district maps are listed on the Association’s website at www.arkbar.com. The Board of Governors and House of Delegates links are located from the “For Attorneys/Governance” tab from the home page. The Young Lawyers link is located on the home page. Questions? Contact the Association at 501-375-4606.

Board of Governors Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June. One Governor position is available in the districts listed. All are threeyear terms unless otherwise indicated.

House of Delegates

Secretary & Treasurer 03-BG

Arkansas, Ashley, Chicot, Cleveland, Crittenden, Cross, Desha, Lee, Lincoln, Monroe, Phillips, Poinsett, Prairie, St. Francis, Union

05-BG

Dallas, Garland, Grant, Hot Spring, Saline

06-BG

Benton

07-BG

Washington

08-BG

Washington—2-year term

15-BG

Pulaski

16-BG

Pulaski

American Bar Association Delegate

Qualifications for House of Delegates

The attorney must be an Association member residing within the delegate district as defined by

Article XVI Section 2 of the Association’s Constitution. All are three-year terms.

A-02

Washington 3 Delegates

A-03

Crawford, Franklin, Johnson, Sebastian 2 Delegates

A-04

Conway, Logan, Perry, Polk, Scott, Yell 1 Delegate

A-05

Boone, Carroll, Madison, Newton 1 Delegate

B

Pulaski 10 Delegates

C-03

Craighead 1 Delegate

C-05

Cleburne, Crittenden, Cross, St. Francis, White, Woodruff 1 Delegate

C-07

C-08

Arkansas, Grant, Jefferson, Lee, Lincoln, Phillips 1 Delegate

C-09

Ashley, Bradley, Calhoun, Chicot, Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union 1 Delegate

C-10

Miller 1 Delegate

C-11

Clark, Hempstead, Howard, Lafayette, Little River, Montgomery, Nevada, Pike, Sevier 1 Delegate

C-12

Garland 1 Delegate

C-13

Hot Springs, Saline 1 Delegate

Article III, Section 7 of the Association’s Constitution provides for an annual election of the positions of a Secretary and a Treasurer. Any member interested in serving in either of these capacities should contact Karen K. Hutchins at 501-375-4606.

One of the two ABA Delegate positions is open for election for a two-year term. The Delegate from this Association to the House of Delegates of the American Bar Association shall be nominated by petition signed by at least 75 Association members with at least 25 voting members from each of the three state bar districts. The nominating petitions must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2017.

Young Lawyers Section Nominating Petitions are due March 31, 2017 for: Chair-Elect elected from

Lonoke, Monroe, Prairie 1 Delegate

District A (one-year term) Secretary/Treasurer elected from any District (one-year term) Representative District A (three-year term)

Election Process for Governors and Delegates For both governors & delegates, a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2017.

Representative District B (three-year term) Representative District C (three-year term)

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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ArkBar News Meet the New Arkansas Supreme Court and Arkansas Court of Appeals Judges Chief Justice Dan Kemp of Mountain View and Associate Justice Shawn A. Womack began their terms on the Arkansas Supreme Court on January 1, 2017.

Judge Rita W. Gruber began her term as Chief Judge of the Arkansas Court of Appeals this year. Judges Mark Klappenbach and Mike Murphy also began their terms on the Court of Appeals this year.

Arkansas Court of Appeals Chief Judge Rita W. Gruber District 1, Position 1

Suzanne Clark Elected ArkBar President-Elect Designee

Arkansas Supreme Court Chief Justice Dan Kemp Position 1

Arkansas Supreme Court Associate Justice Shawn A. Womack Position 5

Arkansas Court of Appeals Judge Mark Klappenbach District 5

Arkansas Court of Appeals Judge Mike Murphy District 2, Position 2

WEEKLY CASE SUMMARIES of significant Arkansas Supreme Court and Arkansas Court of Appeals cases are provided exclusively for members of the Arkansas Bar Association. Receive your quick preview early—Join the ArkBar Case Summaries community on ACE to see the mini-Case Summaries provided the same week of decision. Visit the ArkBar Case Summaries Community and click “Join Community.”Check out the Case Summary mini reviews on Twitter (@ArkBar) #arcaselawupdates.

New forms updated regularly. 24 new probate forms!

Suzanne Clark Suzanne Clark is the new Arkansas Bar Association President-Elect Designee following a ballot count in December. Ms. Clark is the founder of Clark Law Firm PLLC in Fayetteville.

Ms. Clark is currently serving a second term on the Board of Governors and has served two terms in the House of Delegates. She is the Chair of the Governance Committee and a member of the Professional Ethics and the Jurisprudence and Law Reform Committees.

Ms. Clark joins the Association’s leadership track composed of President Denise Reid Hoggard, President-Elect Tony Hilliard and Immediate Past President Eddie H. Walker, Jr. Ms. Clark will assume the office of President-Elect at the June 2017 Annual Meeting and President at the June 2018 Annual Meeting.

www.arkbar.com/arkbardocs/home

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ArkBar News

Oyez! Oyez!

ACCOLADES

Deadline for submission of Annual Award Nominations due Friday, March 10, 2017

The National Center for State Courts posthumously inducted former State Judicial Institute Board Chair Chief Justice Jim Hannah of Arkansas into the Warren E. Burger Society.

APPOINTMENTS AND ELECTIONS Karen K. Hutchins, Executive Director of the Arkansas Bar Association, is currently serving as 2016-2017 president of the Arkansas Society of Association Executives. The U.S. Commission on Civil Rights appointed Cynthia Nance to serve on its Arkansas Advisory Committee.

WORD ABOUT TOWN The law firm Blair & Stroud in Batesville announced that Michelle Cushman Huff and Barrett S. Moore recently became partners. Kandi Hughes has been hired as an attorney at Southwest Power Pool of Little Rock in the company’s corporate legal department.

Keith, Miller, Butler, Schneider & Pawlik, with locations in Rogers and Fayetteville, recently welcomed a new associate attorney, Seth A. White. The law firm Friday Eldredge & Clark LLP announced that Marshall S. Ney, E. Conner McNair and W. Taylor Marshall have all been named partners. Rainwater Holt & Sexton announced that Kirby McDonald and Seth Hyder have joined the firm as associate attorneys. The Danielson Law Firm, PLLC in Fayetteville announced that David Stewart joined the firm. Davenport Law, PLLC in Little Rock announced that Cara Boyd Connors joined the firm. The partners of Wright Lindsey Jennings announced that four attorneys have been elected into partnership: Erika Ross Gee, Rodney P. Moore, Antwan D. Phillips and Hayden W. Shurgar. The firm also announced that Kirby D. Miraglia, Brandon Middleton and John Jacob Lively have joined the firm as associate attorneys. Kutak Rock LLP announced that G. Nick Arnold, Dale Brown, Ashley Welch Hudson and Samantha Leflar have been promoted to the firm’s partnership.

We encourage you to submit information for publication in Oyez! Oyez!

Please send to ahubbard@arkbar.com.

Build your library with handbooks on substantive areas of state and federal law written by expert attorneys and judges. The handbooks can serve as a practical guide and include reference materials, forms, checklists and other resources. Order online today!

It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Awards.

The awards open for nomination are: • Outstanding Lawyer Award • Outstanding Lawyer-Citizen Award • C.E. Ransick Award of Excellence • James H. McKenzie Professionalism Award • Equal Justice Distinguished Service Award • Outstanding Jurist Award • Outstanding Local Bar Association These awards will be presented at the Annual Meeting in Hot Springs in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition.

Nomination forms may be submitted by any Association member or Foundation Fellow. Forms are available at www. arkbar.com/awards or you may submit a written letter of nomination to Ann Pyle, at the Arkansas Bar Foundation at 2224 Cottondale Lane, Little Rock, Arkansas.

Please call Ann Pyle at 501-375-4606 with any questions.

Nominate a Colleague for the Lawyer Community Legacy Award Nominations Due February 28, 2017 Do you know an unsung hero or heroine?

Submit nominations online at www.arkbar.com/for-attorneys/ award-nominations

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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• As a not-for-profit corporation led by volunteer lawyers, we ensure decisions are made in the best interest of law professionals who are saving for retirement.

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Contact an ABA Retirement Funds Program Regional Representative today.

866.812.1510 www.abaretirement.com joinus@abaretirement.com

Find out what many law firms like yours already know.

Different can be good.

The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit.

Please read the Program Annual Disclosure Document (April 2016) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com.

Securities offered through Voya Financial Partners, LLC (Member SIPC).

Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya and the ABA Retirement Funds are separate, unaffiliated entities, and not responsible for one another’s products and services.

CN1029-19104-1117 - 2015

PRESIDENT’S REPORT

Making a Difference Denise Reid Hoggard

I admit I am directionally challenged. I admit that because if I were to claim differently, my husband Glen (aka “First Dude”) would rat me out. But I can always find the courthouse in towns all across Arkansas. There is a sense of community that starts around a town square, centered by the courthouse, and ringed by small businesses, some of which are law offices. These scenes at the heart of town speak to the character of the town and the importance of the justice system in building the quality of life.

In one such town, Helena, David Solomon was still practicing law when he reached his 100th birthday. Recently, his partner was giving a talk about Mr. Solomon in salute to him as one of our state’s legal legends. There were plenty of things to share about the work Mr. Solomon did in view of the public. His partner said what Mr. Solomon didn’t talk about or keep account of was all the people to whom he freely gave his legal services because they needed help but couldn’t afford to pay for it.

We will never know the vastness of his contributions. We do know he made a difference in people’s lives, and for that he will forever be remembered, loved and revered.

David Solomon is not alone in being a difference maker in his community. Lawyers throughout our state work together in our communities making impacts.

Without thought for themselves or for public recognition, they

give back. My good friend Ruthanne Murphy, a registered nurse and attorney, works tirelessly to address the needs of the homeless. Jay Martin spearheads a Thanksgiving event to bring legal services, food, clothing, toiletries, and medical and dental services to more than 500 folks in need.

Jay and Ruthanne are examples of the countless attorneys who work helping others every day.

At the Arkansas Bar Association, we formed a working group of local and affinity bar presidents hoping to streamline work by lawyers throughout the state, sharing technology, expertise and resources. Our local bar presidents, like Robert Gibson in Jonesboro, Chanley Painter in Cleburne County, and William Prettyman, III, in Washington County, take their leisure time and devote it to serving the public and profession’s interest. Affinity bar presidents like Michael Harrison of the Arkansas Association of Defense Counsel and Robin Smith of the Arkansas Trial Lawyers Association lead the volunteer efforts of their membership. We have countless volunteers who coach or help with high school students in mock trial competitions teaching them about our system of justice and its importance in our threebranched government.

It is treacherous ground to mention folks by name. It is not an exhaustive list. I leave folks out simply because I can’t list all those who unselfishly give in the space I have available here.

According to our oath, attorneys are to serve the public without regard to ability to pay.

I don’t know many other professions that take oaths to provide their work at no charge to those who can’t afford to pay. In Arkansas we have the fewest per capita attorneys in the country with a ratio of one attorney to 500 residents. Yet, one in five residents qualify for legal aid because they live at or below 125% of the federal poverty level. According to the 2015 American Bar Association statistics we had 5,970 actively licensed attorneys in Arkansas. We had 3,916 attorneys complete a report showing that 84 percent of those performed pro bono service of some type. In total, Arkansas attorneys reported donating 110,026 hours to pro bono service.

Someone recently asked me how I maintain a positive attitude in the face of challenges. My response is that I wake up every day reporting for duty to do all I can that day to positively impact my clients, my workplace, my profession and my beloved Arkansas.

I choose to walk on the sunny side of heaven, as my pastor once taught me. But more importantly, I get to be a part of a profession that has been at the forefront of shaping our communities, our laws, our ways of relating to each other in the face of conflicts, and building bridges between people of differing backgrounds, ideologies, demographics, and passions.

As we have watched the Broad-

Denise Reid Hoggard is the President of the Arkansas Bar Association. She is an attorney with Rainwater, Holt & Sexton in Little Rock.

way Bridge in downtown Little Rock torn down and rebuilt, we have learned some lessons about bridges. First, the Broadway Bridge was quite the lady. She did not plan on failing despite being repeatedly blasted with dynamite.

It took from 1921 to 1923 for construction to be completed.

The bridge was closed in September 2016 and will be completed this summer. Segments of the bridge were constructed at the shoreline, cutting down on the amount of time the bridge would be closed to traffic. Technology has made the process faster. Even so, commuters who have been using alternative routes are anxious to return to it, sooner than later.

The bridge is an important artery serving the capital city.

As lawyers, we are building bridges. We are harnessing technology to bridge the justice gap to serve all Arkansans. We are making pathways between differing sides and opinions. We are standing sturdy and resilient in support of the rule of law and our constitution. We bridge communications barriers so everyone has a voice. Like the Broadway Bridge, we are a longstanding bulwark that will not easily give way and we are constantly working on ways to better serve the public needs. 

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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119th ArkBar Annual Meeting Hot Springs • June 14-16, 2017

CHANGE OF COURSE 119th Annual Meeting to address leading legal topics of 2017

At its largest legal event of the year, the Arkansas Bar Association has prepared an educational program to address many critical legal issues facing our nation in 2017.

KEy ISSUES ON tHE AGENdA tHIS yEAR INClUdE: • • • • • •

Arkansas Death Penalty Campus Hearings on Sexual Violence Combatting Islamophobia Conceal v. Open Carry Legal Issues Confronting Transgender Individuals Medical Marijuana

• Nickel and Dimed Into Incarceration • Refugee Resettlement Issues • Standing Rock, Tribal Sovereignty & the Protection of Sacred Lands • Tort Reform • Voting Rights Issues

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for the biggest savings at www.arkbar.com/AnnualMeeting

YLS REPORT

Lebron James Is the Best Basketball Player in the World Gregory J. Northen is the Chair of the Young Lawyers Section. He is an attorney with Cross, Gunter, Witherspoon & Galchus, P.C. in Little Rock.

By Gregory J. Northen

I recently watched the Cleveland Cavaliers play the ridiculously talented Golden State Warriors (from the comfort of my own couch). In a clash of NBA titans, the two teams put on an incredible display of shooting talent and overall athletic prowess. Yet during the game, it was no surprise to hear one name consistently referenced overand-over-and-over again: Lebron James. He has been dubbed the “King” of basketball, at least for my generation. The guy was an absolute beast in high school, and his professional basketball career has been legendary. No doubt he will be in the Hall of Fame, if not the greatest of all time.

Although I do not really follow the NBA or basketball in general, I find it interesting how polarizing of a person/player that Lebron James is to so many fans. When he announced his infamous “decision” to take his talents to South Beach, millions of people genuinely despised him. His jersey was burned in the street and the media criticized him for years. Yet, he is without a doubt the most coveted player in the game, and every organization wants him on their team. Still today, his fans love him; his haters detest him; but everyone seems to have an opinion about him.

If you haven’t noticed, there are a few other polarizing topics of perhaps more significance

than the identity of the best basketball player in history. Usually, these polarizing topics are truly important issues for our society: immigration, abortion, religion, politics, etc. I realize these are “lightning rod” topics, and I am not here to debate the merits of any of these issues. Anyone who visits Facebook, Twitter, or the comment section to most online news articles are immediately exposed to a variety of finger pointing, choice language, and oftentimes some level of vitriol. I also realize some of these topics have been hotly debated for decades before my time and will likely carry on long after I am gone.

However, following a year or two of what seemed to me to be the most polarizing election in modern history, it feels like our society as a whole is more polarized than ever before (at least as long as I can recall).

Even though divergent political views are nothing new, the advent of instant access to millions of opinions (whether from past friends, celebrities, politicians, and even our President) sure seems to have exponentially increased the polarity between differing viewpoints. I am not even going to try to address the idea of “fake news” that is now thrown into the mix.

To be sure, debate can be healthy, and I am not using this column to rebuke those of us who engage in emotional

social media! As young lawyers, we practice in a profession that is structured to be contentious; not always, but in general. Sometimes I forget that my “normal” day at work can be more argumentative than most of my friends and relatives are accustomed to from their daily work. In fact, my wife, Janice, frequently stops me mid-sentence and says, “I don’t want to fight about this!” My confused response is typically, “We’re not fighting. We’re having a discussion!”

While I have been known to get just a bit sarcastic on political topics in the past—the “Brace Yourselves” meme is a personal favorite—I generally try to have civil discourse with those whose viewpoints differ from my own.

There is nothing wrong with addressing hugely important topics to a broad group of people. I do hope that we, as trained advocates, can be examples of how to listen, consider, research, and state our opinions on such issues without resorting to belittling, name-calling, or committing the tort of outrage. It shouldn’t matter whether such conversations are being exchanged face-to-face, through written correspondence, or online communications/social media. It is my hope that lawyers can lead by example in displaying consciously civil debates.

The Arkansas Bar Association encourages diversity and inclu-

sion in the practice of law as well as in community outreach and involvement. This challenge seeks to attain diversity of skin color, religions, personal beliefs and political ideals, among others. In sum, I simply pass this goal along to Arkansas young lawyers, both professionally and personally. Let’s show others that we can disagree, even over important issues, and still remain cordial to one another.

Maybe you don’t agree that Lebron James is the best basketball player in the world…and that’s okay with me. 

A special thanks to our recent YLS Delegates to the American Bar Association’s Young Lawyers Division Mid-Year Assembly. The meeting was held in Miami on February 6, 2017, and YLS was well represented by Executive Council Members Stefan McBride and Sarah Jewell and YLS ChairElect Eric Marks (pictured above from l to r).

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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Arkansas Supreme Court Chief Justice Dan Kemp

By Anna K. Hubbard Photos by Mike Pirnique

C

hief Justice Dan Kemp was officially sworn in as Chief Justice of the Arkansas Supreme Court on January 1, 2017, at a midnight ceremony in his hometown of Mountain View. Associate Justice Josephine Hart, a fellow hometown native, swore in Kemp at the Stone County Courthouse where he has taken his judicial oath of office for the past 30 years. Kemp took the oath again in front of members of the judiciary and General Assembly during a ceremony on January 10, 2017, at the Justice Building with retired Chief Justice Jack Holt Jr. administering the oath.

Weight of the Robe “I believe we all share these truths: our children deserve a better future; our parents and friends deserve help and companionship; many of us have parents or spouses who need our care; and I believe our community needs to see good people working well together on something that matters to their lives,” Kemp said during the January 10 ceremony.

“I have had the benefit of practicing law in a small town. I know first hand that gentility and true compassion are cornerstones to a good legal career. They are also cornerstones to a good life. This robe reminds me of my responsibility to you.”

Relationships Kemp and his wife of 43 years, Susan, are embracing their move to Little Rock but plan to go home at least half of the weekends per month. A fifth-generation Mountain View native and circuit judge serving for three decades, Kemp’s relation-

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Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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Susan and Chief Justice Dan Kemp

ships there are deep-seated and cherished.

He and Susan, also a Mountain View native, are both still actively involved with their hometown community. Their home is located on his family’s farm, and Susan’s parents live next door.

Kemp and Susan recently bought a historic home in the Quapaw District of Little Rock. They have spent the last several months renovating the early nineteenth century home and have had fun restoring some of the home’s original pieces they discovered during the process. The original wooden mantle for the master bedroom fireplace was found buried in the attic along with pieces of original bathroom fixtures and other treasures. The newcomers on the block agreed to be on the Quapaw Tour of Homes in May of this year, so they have a bit of urgency in completing the renovations. Susan is using her skills as a home economics teacher by sewing some of the drapes and reupholstering furniture. They are excited to have a home close to their daughter, Erin, and her family who live in North Little Rock. Erin, an attorney with Wright Lindsey Jennings, and her husband Jay have three young sons: Hoover, Hutson and Hawkins. The Kemps’ other daughter, Lauren, is a fashion designer in Portland, Oregon.

Kemp started his law practice in Mountain View following his graduation from the University of Arkansas School of Law in 12

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1976. His service to the judiciary began when he was appointed as municipal judge in 1977. He held this position until he was elected circuit judge for the Sixteenth Judicial Circuit in 1986, a position he held until the end of last year. In addition to serving as circuit judge, he served as a drug court judge for 12 years.

“The biggest thing that I will miss about being a circuit judge is working with all of the people in the courthouses over the years,” Kemp said. “I covered five counties in the Sixteenth District, so I dealt with circuit clerks, deputy clerks, sheriffs, deputies, and other court personnel. There are a lot of good people working to make their communities better.”

Unique Perspective Kemp has a unique perspective coming into this position. He is aware of the challenges that judges face on a daily basis. His experience on the bench has helped prepare him to hold the position of the highest judicial officer in the state and the chief administrative officer of the state courts.

“As a circuit judge you do a lot of listening,” Kemp said. “You listen to the witnesses’ testimony and the lawyers’ arguments, and you do research if necessary. It is important to listen not only to the oral arguments in the Supreme Court courtroom, but also to the different arguments and views that my colleagues on the court will have on different cases that come up.

We will have a thorough discussion that way and arrive at a decision in cases.”

“As a circuit judge, I kind of look at myself as a problem solver. You have people coming to court with civil, domestic relations and criminal cases where they have a problem and the court is being asked to solve it. Most of the time you can solve it by issuing some kind of decision in the case.

But you have to realize that not all problems can be solved, so we have to try address those issues on a kind of continuing basis. I think that experience will be helpful for me serving as chief justice.”

Kemp takes his leadership role as the chief administrative officer of the state courts seriously. He said he looks forward to carrying out the duties and administrative responsibilities of the position. Kemp will serve as supervisor and liaison to the following offices and staff: the Administrative Office of the Courts, the Supreme Court Clerk’s office, the Criminal Justice Coordinator’s office, the Appellate Review Attorney, the Supreme Court Reporter of Decision’s office, the Supreme Court police, and the Arkansas Judiciary website personnel. He will also serve as the court’s liaison to the following committees: the Committee on Model Criminal Jury Instructions, the Committee on Criminal Practice, the Committee on Professional Conduct and the Committee on Automation.

Susan and Chief Justice Dan Kemp

Strategic Plan As the highest judicial officer in the state, Kemp has plans to lead the Court to be more efficient and relevant with the help of a goal-driven strategic plan. “We need to look at where we are now, where we want to go and how we get there,” Kemp said.

The development of an eight-year strategic plan for the judiciary is one of Kemp’s primary goals. According to the National Center for State Courts, Arkansas is one of only 12 states that does not have a strategic plan.

“In this era of advances in technology and new approaches to access to justice, I propose establishing a Strategic Planning Program for our judiciary,” Kemp said during his swearing-in ceremony. “This program will identify the needs of our courts, improve performance, and further the interests of the Arkansas judicial system. In doing so, I anticipate a collaborative effort on the part of all courts, judges, the bar, and court personnel across the state. I look forward to spearheading this innovative program that ultimately will move our independent judiciary forward and make it more accessible to all citizens.”

The first goal in Kemp’s proposed strategic plan is to strengthen the administration of justice through the use of technology and the development of a professional workforce.

“We need to use technology to effectively administer the Court,” Kemp said. “We need to do things to simplify and enhance

the systems so they are user friendly for both court personnel and the public. I would like to see public access improved and provide more transparency with the court system. I think that would lead to more accountability for the courts with the public.”

An important piece of the plan is working on improved communication with the public as well as the other branches of government.

“The court system is kind of isolated because as judges you cannot be influenced by public opinion,” Kemp said. “You just go by the facts and the law in the cases. But the public needs to know and have confidence in the operation of our judicial system and its integrity. So we need to have improved communications. This may include more of a social media presence.”

“Just because we are the judicial branch doesn’t mean we need to be silent on everything. We need to let the executive branch know some of our needs. We need to let the legislative branch know some of our needs to implement some of these improvements. They provide the funding sources for these different programs that we want to establish. So we need to communicate effectively to provide those needs. I’m not talking about any kind of invasion on any separation of powers, but it is just to enhance each branch of government effectively performing their duties and responsibilities under the constitution.”

Kemp said he looks forward to working with the different problem-solving courts in the state—the drug courts, veterans courts and the juvenile courts—to bring about positive results in a creative way to protect our children, families and communities.

Kemp believes that civility in the legal profession is an area that needs improvement.

“We need to increase civility in the courtroom. My experience is when you are in the courtroom, you are arguing zealously for your client and you may be going toe to toe on the legal issues with the opposing counsel. But once that case is over and the judge or jury decides it, then you need to leave that in the courtroom and be civil with one another when you walk out of that courtroom. And there is no reason not to. I believe that is the way it should be.”

Kemp hopes to collaborate on Arkansas’ strategic plan with not only the Supreme Court but also members of the Court of Appeals, circuit courts, district courts, circuit clerks, district clerks and other court personnel involved in the system, including probationary officers and members of the Department of Community Correction.

“The way that I look at it, we need to get all of the information that we can and listen to everybody and then come up with an appropriate plan that is going to be effective to make our judicial system work the way that it needs to work in the year 2025 and beyond.”

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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ArkBar News

Report from the December 2017 Board of Governors Meeting and Special December House of Delegates Meeting

By Karen K. Hutchins

The December Board of Governors met at the Arkansas Bar Center with Chair Brian Rosenthal presiding. Colonel William A. Martin, former Association Executive Director and Secretary/Treasurer, was honored by the Association for his many years of exemplary service. President Denise Hoggard read a proclamation by Little Rock Mayor Mark Stodola declaring December 2, 2016, Colonel William A. Martin Day. President Hoggard reported on the Association’s effort to support the administration of justice; it successfully supported the opposition of Issue 4 which resulted in it being struck from the ballot entirely. President Hoggard reported that the Arkansas Supreme Court had notified the Association of its newly revised format for the Arkansas Professional Practicum.

President Hoggard also reported she requested the Professional Ethics Committee to decide if a rule change should be made in light of the medical marijuana amendment.

This subject was added to the agenda of the special House of Delegates meeting on December 16th.

Task Force on Dues Chair Cliff McKinney provided a comprehensive report which recommended a slight increase in dues for the upcoming bar year and outlined a fiscally responsible plan for future review of dues levels. The Board approved the report and recommended it be presented at the February 17, 2017, meeting of the House of Delegates for adoption.

Executive Director Karen Hutchins reported on a collaboration with Goodwill Industries for business clothing donations.

Arkansas Bar Foundation President Jeffrey McKinley gave the Foundation Report, including discussing the Foundation’s efforts to educate high school seniors about their legal responsibilities.

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The Board heard reports from American Bar Association Delegate Stephen Hester, Governance Committee Chair Suzanne Clark, and Judge Audrey Evans, Chair of the 20/20 Commission. Lobbyist Patti Julian and Legislation Committee Chair Kristen Pawlik also reported to the Board on anticipated legislative issues.

Access to Justice Commission Executive Director Amy Johnson reported on the efforts to promote more pro bono activities through a new program called Free Legal Answers. Qualified Legal Aid clients can submit questions through a web portal and licensed attorney volunteers can provide limited scope assistance by answering the questions. The Board encouraged all attorneys to register to volunteer for Arkansas Free Legal Answers at https://ar.freelegalanswers.org/.

Association members Stephen Coger and Mike Lauro presented a request to form a new section on Gender, Sexuality & the Law. The Board requested that they return to the April Board meeting to present additional information on the proposed section.

Association member Joe Kolb, Chair of the Audit Committee, presented the Association’s audit. Board members approved the report and best practice recommendations of the Audit Committee.

A Special House of Delegates meeting was called by President Hoggard on December 16, 2016. The drafting subcommittee of the Task Force on Maintaining a Fair and Impartial Judiciary proposed an amendment to the Arkansas Constitution supporting the nomination of Justices to the Arkansas Supreme Court by a nine-member nominating commission, the majority of which would be attorneys. The Governor would choose the final selection from the commission’s three nominees. President Hoggard reported that public forums had been held

around the state before the special House of Delegates meeting to seek out public opinion on this important matter. A recommendation came from the House floor that the House of Delegates approve the proposed constitutional amendment and include it as part of the Association’s 2017 legislative package. The House heard a resolution from the Justices who will be on the Arkansas Supreme Court in 2017 opposing the proposed constitutional amendment. Following a parliamentary call for a division, the vote was 34 in favor and 20 opposed. The motion failed to obtain the three-fourths majority required by Article XIV of the Association Constitution.

Professional Ethics Committee Chair Brad Hendricks presented a proposed ethics rule amendment regarding the responsibility of attorneys counseling clients concerning the medical marijuana initiated act approved by voters of Arkansas in the November general election. Delegates approved the proposal from the Professional Ethics Committee and the House of Delegates directed President Hoggard to submit a petition to the Arkansas Supreme Court on behalf of the Association asking for adoption of the proposed rule.

President Hoggard thanked the delegates for the extensive debate on the proposed Constitutional amendment and adjourned the meeting. 

Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.

Arkansas Bar Association 2016-2017 Board of Governors

2016-2017 Officers President: Denise Reid Hoggard Board of Governors Chair: Brian M. Rosenthal President-Elect: Anthony A. (Tony) Hilliard Immediate Past President: Eddie H. Walker, Jr. Secretary: F. Thomas Curry Treasurer: Shaneen K. Sloan Parliamentarian: Aaron Squyers Young Lawyers Section Chair: Gregory Northen President-Elect Designee: Suzanne Clark Board of Governors: James Paul Beachboard, Arkie Byrd, Thomas M. Carpenter, Sterling Taylor Chaney, Suzanne G. Clark, Grant M. Cox, Don R. Elliott, Bob Estes, Frances S. Fendler, Buck C. Gibson, Paul W. Keith, Leslie J. Ligon, Jerald Cliff McKinney, Brandon K. Moffitt, Wade T. Naramore, Laura E. Partlow, Kristin L. Pawlik, Brant Perkins, Colby T. Roe, Robert M. Sexton, Andrea Grimes Woods Liason Members: Brian M. Clary, Judge Wiley Branton, Stephen A. Hester, Patti Julian, Karen K. Hutchins, Judge Casey Jones, Jeffrey Ellis McKinley, Gregory Northen, Richard L. Ramsay

This photo was taken at the Arkansas Bar Center in Litttle Rock by Mike Pirnique Photography during the December 2016 Board of Governors meeting.

Front Row (From left, beginning with red jacket): Laura E. Partlow, Denise Reid Hoggard, Suzanne G. Clark, Kristin L. Pawlik, Don R. Elliott, Brant Perkins, Karen K. Hutchins, Gregory Northen Back Row (From left): Sterling Taylor Chaney, Jerald Cliff McKinney, Paul W. Keith, Brant Perkins, Judge Wiley Branton, Brian M. Rosenthal, Brandon K. Moffitt, Eddie H. Walker, Jr., Bob Estes, Anthony A. (Tony) Hilliard, Robert M. Sexton, James Paul Beachboard, Thomas M. Carpenter, Aaron Squyers

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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Legislation Committee Opposes Senate Joint Resolution 8

By Denise Reid Hoggard As I reflected upon the swearing in of Chief Justice John Dan Kemp, and Justice Shawn Womack in January this year, I wrote that “[o]ur democratic system depends upon all three branches functioning within the proper spheres and subject to the checks and balances put into place by our founding fathers. The legislative branch makes the law, the executive branch enforces the law, and the judiciary applies the law by following the rule of law. . . .[T]he rule of law requires that everyone must be governed by the same laws which are applied fairly, consistently, and equally to all regardless of race, gender or wealth.” A fair and impartial judiciary is a hallmark of our democracy and a fundamental core value.

The Arkansas Bar Association is purposed to “advance the administration of justice according to law, to aid the courts in carrying on the administration of justice, . . . to improve the judicial and legal process, and the science of jurisprudence, and to advance law and order. . . .” Since 1898, the Association has placed an importance on protecting the impartiality and integrity of our courts. This has been the Association’s constant mission, and a fundamental principle our membership has stood behind.

When fundamental principles of justice are jeopardized, we are united under our mission.

The Association’s Legislation Committee voted to oppose Senate Joint Resolution 8, “A Constitutional Amendment Limiting Contingency Fees and Awards of Punitive Damage; and Changing the Powers of the General Assembly and the Supreme Court Regarding Rules of Pleading, Practice, and Procedure” which, at time of submission of this article, was pending before the Arkansas Senate for consideration as one of the General Assembly’s three constitutional amendments to be referred to the public.

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The Legislation Committee opposed SJR8 in part because it takes rule-making authority from the courts and places ultimate authority with the Legislature. The magnitude of changing the powers of the Arkansas Supreme Court disturbs the balance of power and merits opposition.

The Association was at the forefront of the passage of Amendment 80 in 2000, which conferred superintending control of all courts of the state to the Arkansas Supreme Court, and made clear the Court has authority over rules of pleading, practice, and procedure. If SJR8 is referred by the Legislature and adopted by the public, it will leave the Arkansas Supreme Court with responsibility for controlling our courts, but not the authority to make rules necessary to meet that responsibility. Courtroom proceedings are best left to the province of the court, as free from political pressure as humanly possible. The public has already voted in the passage of Amendment 80 to vest the Court with this responsibility and authority.

Leaving the judicial branch in control of the rules of the courts also provides Arkansans with stability and predictability which business and the public need in making decisions on how to govern their conduct.

In the fall of 2016, the Association opposed a previously-initiated proposed constitutional amendment that put caps on damages and attorney fees in medical injury cases. The Arkansas Bar Association petitioned the Court that the initiated act be removed from the November 2016 general election ballot. The petition was granted by the Arkansas Supreme Court. SJR8 puts even more restrictions on recovery and extends the limitations to all cases. It contains language stating that it preserves the right to a jury trial, another fundamental

right guaranteed to Arkansans in our constitution. Despite that language, the effect will be to remove a lot of real decision-making from the jury. It pre-sets an arbitrary value for human suffering and life. Jurors in Arkansas generally use common sense and try to do the right thing. While we may not always agree with jurors, juries in Arkansas can be trusted.

SJR8 will also result in the courtroom door being closed to many Arkansans. The American Bar Association studied the effect of caps for attorney fees and damages. It found that attorney fee and damage award caps were not about making sure there were just results, but was about tilting the playing field. One in four Arkansans live at or below 125% of the federal poverty level. Even those who live above that level in Arkansas would be unable to pay for legal services on an hourly rate basis. SJR8 does not affect those people in Arkansas who can afford to pay for legal services on an hourly basis. But it affects those who cannot. Justice for all necessarily means we must provide a system that is open to poor, working poor, and the middle class in our state.

Since its inception in 1898, the Arkansas Bar Association has served as a trusted source for serving and protecting the public’s interest. It also serves as the voice of lawyers in the state. The Association is made up of lawyers statewide who represent individuals, companies, municipalities, and regulatory entities both on the plaintiff and the defense side of litigation. Its membership includes judges, educators, in-house counsel, elected officials, executives, solo practitioners and law firm members. The Arkansas Bar Association is working to carefully guard the rule of law, the fair and impartial administration of justice, and the rights of Arkansans to have meaningful access and participation in our courts. 

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Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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Arkansas Issue 6: Navigating the Weeds of State-Legal Medical Marijuana

By Andrew King

This article provides an overview of the Arkansas Medical Marijuana Amendment of 2016, discusses federal policy regarding enforcement of marijuana laws, and outlines risks that attorneys may face in advising marijuana businesses.

I

n the 2016 general election, Arkansas voters approved the Arkansas Medical Marijuana Amendment of 2016, otherwise known as “Issue 6.�1 Now that Arkansas joined 29 other states and the District of Columbia in making medical marijuana legal at the local level, lawyers, state agencies, and the General Assembly must grapple with a multitude of issues that arise for a new industry that is still defined as a crime under federal law.2 This article outlines some of the issues that Arkansas attorneys should consider when advising clients regarding Arkansas’ legalization of medical marijuana.

Andrew King is a partner at Kutak Rock LLP in Little Rock. His practice includes business litigation and representation of financial institutions.

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Overview of Issue 6 Issue 6 is an amendment to the Arkansas Constitution that permits patients with qualifying medical conditions3 to obtain, possess, and use up to 2.5 ounces of usable marijuana every two weeks.4 Qualifying patients and their designated caregivers must

obtain registry identification cards from the Arkansas Department of Health after submitting an application with a physician’s written certification that the patient has a qualifying medical condition.5 The amendment protects patients and their physicians from criminal liability and risks to employment, eviction, and professional licensure if they comply with the amendment, at least at the state level.6 With a registry card, a qualifying patient may obtain marijuana from a licensed dispensary.7 A five-member Medical Marijuana Commission is created to determine the qualifications for dispensary and cultivation facility licenses and award licenses.8 Dispensaries may grow or possess up to 50 mature marijuana plants at one time, and otherwise must purchase marijuana for resale from a licensed cultivation facility.9 A cultivation facility can grow as much marijuana as “reasonably necessary to meet the demands and needs of qualifying patients” as determined by the commission.10 News reports suggest that interest in obtaining licenses is strong.11 The commission must begin accepting applications by July 1, 2017.12 At the time of application, applicants and 60% of their investors must have resided in Arkansas for the previous seven years.13 The application must give a proposed address for the dispensary or cultivation facility, and certify that the location complies with zoning regulations for pharmacies and is a specified distance from schools, churches, and day cares.14 The commission may issue between 20 and 40 dispensary licenses, with a maximum of four per county.15 It may issue four to eight cultivation facility licenses.16

By May 8, 2017, the Commission, Department of Health, and Alcoholic Beverage Control Division must adopt regulations carry out the Amendment. The General Assembly may amend any portion of the Amendment by a two-thirds vote of both chambers, except for the criminal liability protections for qualifying patients and limits on numbers of licenses.17 Legislators have already modified amendment to extend the time for the Commission to adopt regulations and accept applications.18 Federal Uncertainty Casts Haze While the Arkansas General Assembly and state agencies scramble to create a regulatory framework for medical marijuana, at the federal level, a marijuana-tolerant executive branch has been replaced by a new

“The year 2017 will see major developments in medical marijuana law and policy, both in Arkansas and nationwide. Significant challenges lie ahead for the General Assembly, state agencies, and attorneys who may advise the emerging medical marijuana industry.” administration that could drastically modify federal marijuana enforcement policy. To understand the interplay of federal and state marijuana laws, it is important to recognize the two federal policies that have permitted state-legal marijuana to exist without interference from federal agencies: •The Justice Department’s Ogden Memorandum19 and Cole Memoranda,20 which set a policy of declining to prosecute individuals who are in clear and unambiguous compliance with state laws permitting the use of marijuana; and •The Rohrabacher Amendment,21 which prohibits the use of federal funds to supersede state law in states that have legalized medical marijuana.

The Ogden and Cole Memoranda reflect an executive policy that “it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers.”22 The Rohrabacher Amendment is a legislative expression of the same policy judgment, but is set to expire on April 28, 2017, unless reauthorized by Congress.23 In a 2016 case, United States v. McIntosh, the Ninth Circuit relied on the Rohrabacher Amendment to require the dismissal of federal criminal indictments against marijuana growers and sellers who had complied with California law.24 A blunt assessment of these federal policies must recognize that the new Attorney General could eliminate the Ogden and Cole Memoranda with the stroke of a pen to revise the Justice Department’s discretionary enforcement priorities in opposition to state-legal marijuana. And the Rohrabacher Amendment— which passed the House of Representatives by a vote of 242 to 186 in June 201525—does not include Arkansas among the 39 states to which it applies.26 Consequently, the United States attorneys in Arkansas would not be

barred from the sort of prosecution that was dismissed in McIntosh.

Banking and Security Challenges for Cultivators and Dispensaries Even after the smoke clears on the Trump administration’s medical marijuana policies, licensed marijuana growers, dispensaries, and their business partners are sure to face significant operational challenges beyond complying with Arkansas laws and regulations.

The most prominent challenge is banking.

Credit card companies and most debit card networks will not handle marijuana transactions, which means that dispensaries often deal with large amounts of cash. There are few banks or credit unions that will deposit funds from marijuana growers or dispensaries out of concern for violating federal anti-money-laundering laws. The result is a precarious situation in which many marijuana businesses must possess and secure large amounts of cash, surely an attractive target for crimes of opportunity. Nor can they use firearms to protect themselves, because it is still illegal to possess a firearm at the same time as marijuana.27 The Justice Department and Treasury Department’s Financial Crimes Enforcement Network (FinCEN) has made efforts to alleviate these public safety concerns by issuing guidance for how financial institutions can provide services to marijuana businesses. FinCEN advises banks to look out for red flags associated with the illicit drug trade, perform due diligence when deciding whether to take on a customer in the statelegal marijuana business, and file marijuanaspecific Suspicious Activity Reports (SARs) in a format corresponding to the Justice Department’s enforcement priorities.28 Again, this guidance does not change the law and could be erased by the new administration.

In Colorado and Washington, there are enough banks and credit unions that have followed this guidance that some marijuana

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dispensaries can accept debit cards using an independent debit card network.29 Ethical Concerns Given the numerous legal developments that are bound to happen at both the state and federal levels, medical marijuana is a new industry in which there are significant risks and opportunities for investors. At the state level, the industry will be highly regulated. It is unlawful under federal law but may be tolerated to some degree. Few situations call out more clearly for the wise counsel of trained lawyers. But can a lawyer ethically advise a client who sets out to violate federal criminal laws?

Arkansas Rule of Professional Conduct 1.2(d) provides a clear, but discouraging answer: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

A straightforward reading is that a lawyer would violate this rule by advising a client who wants to open a dispensary or cultivation facility in compliance with Issue 6.30 If so, new entrants into this new industry will be deprived of counsel to help them navigate a murky and fluid legal terrain.

When Colorado passed marijuana legalization through a state constitutional amendment in 2012, the Colorado Supreme Court issued a revised comment to its version of Rule 1.2(d) permitting lawyers to advise their clients regarding the validity, scope, and meaning of the constitutional amendment.31 At a recent House of Delegates meeting, the Arkansas Bar Association has encouraged the Arkansas Supreme Court to follow suit. The proposal is sensible and necessary to ensure that medical marijuana businesses can operate in an above-board manner that fully complies with Issue 6 and coming state regulations.

Unfortunately, adjustments to Rule 1.2(d) do not eliminate the risks that an attorney must consider when advising marijuana-possessing individuals and entities. Any involve20

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ment in conduct that is a federal crime carries with it a broad array of liability concerns.32 For example, in Colorado, anti-marijuana groups targeted marijuana dispensaries, their landlords, banks, and accountants with federal civil RICO lawsuits.33 An attorney who seeks to advise medical marijuana businesses should enter the engagement with clear eyes about all the risks involved.

Conclusion Arkansas voters have enacted an ambitious regime for medical marijuana at a time when federal marijuana policy is at a crossroads.

The year 2017 will see major developments in medical marijuana law and policy, both in Arkansas and nationwide. Significant challenges lie ahead for the General Assembly, state agencies, and attorneys who may advise the emerging medical marijuana industry.

Endnotes: 1. The Arkansas Medical Marijuana Amendment of 2016, Ark. Const. amend. ____ (adopted Nov. 8, 2016), available at http://www.healthy.arkansas.gov/Documents/The%20Arkansas%20Medical%20 Marijuana%20Amendment%20of%20 2016.pdf (hereinafter “Ark. Med. Marijuana Amend.”).

2. 21 U.S.C. §§ 802, 812, 844.

3. Ark. Med. Marijuana Amend. § 2(13).

The list of qualifying conditions includes cancer, glaucoma, HIV, AIDS, hepatitis C, amyotrophic lateral sclerosis (ALS), Tourette’s syndrome, Crohn’s disease, ulcerative colitis, post-traumatic stress disorder, severe arthritis, fibromyalgia, and Alzheimer’s disease. The Arkansas Department of Health may expand the list of qualifying medical conditions through a petition process. Ark. Med. Marijuana Amend. §§ 2(13)(C), 4(c).

4. Ark. Med. Marijuana Amend. §§ 3(a), 10(b)(8).

5. Ark. Med. Marijuana Amend. §§ 2(19), 5(a); Act 5 of 2017 (eliminating requirement that physician certify that benefits of marijuana outweigh risks).

6. Ark. Med. Marijuana Amend. § 3.

7. Ark. Med. Marijuana Amend. § 8(m)(1).

8. Ark. Med. Marijuana Amend. § 19. As of the date of this writing, the five-member commission is appointed and has held several meetings.

9. Ark. Med. Marijuana Amend. § 8(m) (3)-(4).

10. Ark. Med. Marijuana Amend. § 8(m) (4)(i).

11. See, e.g., John Moritz, Rx-marijuana growers in Arkansas to be merit-selected, Arkansas Democrat-Gazette, Dec. 23, 2016 at 1B; Bart Schaneman, New Market: Smooth rollout expected for Arkansas MMJ industry, Marijuana Business Daily, Dec. 7, 2016, https://mjbizdaily.com/new-marketarkansas-mmj-attract-state-patients/.

12. Ark. Med. Marijuana Amend. § 8(g)(1) (revised by Act 4 of 2017).

13. Ark. Med. Marijuana Amend. § 8(c).

14. Ark. Med. Marijuana Amend. §§ 8(g) (2), 14(a).

15. Ark. Med. Marijuana Amend. § 8(h), (i).

16. Ark. Med. Marijuana Amend. § 8(j).

The Commission initially voted to issue five cultivation facility licenses. John Moritz, Rxmarijuana growers in Arkansas to be meritselected, Arkansas Democrat-Gazette, Dec. 23, 2016 at 1B. 17. Ark. Med. Marijuana Amend. § 23; Ark. Const. art. 5, § 1.

18. Act 4 of 2017 (revising deadlines for regulations and applications); see also Andrew DeMillo, Arkansas Lawmakers Weigh Launch Delay, Taxes for Medical Marijuana, Associated Press, Nov. 18, 2016, available at http://www.stuttgartdailyleader.com/ news/20161118/arkansas-lawmakers-weighlaunch-delay-taxes-for-medical-pot.

19. David W. Ogden, Memorandum, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, U.S. Department of Justice Office of the Deputy Attorney General (Oct. 19, 2009), available at https://www.justice.gov/ sites/default/files/opa/legacy/2009/10/19/ medical-marijuana.pdf.

20. James M. Cole, Memorandum, Guidance Regarding Marijuana Related Financial Crimes, U.S. Department of Justice Office of the Deputy Attorney General (Feb. 14, 2014), available at https://www. justice.gov/sites/default/files/usao-wdwa/ legacy/2014/02/14/DAG%20Memo%20 -%20Guidance%20Regarding%20 Marijuana%20Related%20Financial%20 Crimes%202%2014%2014%20(2).pdf; James M. Cole, Memorandum, Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use, U.S. Department of Justice Office of the Deputy Attorney General (Jun. 29, 2011), available at https://

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www.justice.gov/sites/default/files/oip/ legacy/2014/07/23/dag-guidance-2011-formedical-marijuana-use.pdf.

21. United States Congress, Text of House Amendment 748 (113th Cong.), available at https://www.congress.gov/ amendment/113th-congress/house-amendment/748/text.

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22. James M. Cole, Memorandum, Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use, U.S. Department of Justice Office of the Deputy Attorney General (Jun. 29, 2011).

23. Key federal marijuana protection extended through April, Marijuana Business Daily, Dec. 12, 2016, https://mjbizdaily.com/

key-federal-marijuana-protection-extendedthrough-april/.

24. United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016).

25. United States House of Representatives, Final Vote Results for Roll Call 283 (Jun. 3, 2015) available at http://clerk.house.gov/ evs/2015/roll283.xml. All four of Arkansas’ representatives voted against the amendment.

26. United States Congress, Text of House Amendment 748 (113th Cong.), available at https://www.congress.gov/ amendment/113th-congress/house-amendment/748/text.

27. See Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016) (affirming denial of firearm purchase by medical marijuana user under federal Gun Control Act).

28. United States Department of the Treasury Financial Crimes Enforcement Network (FinCEN), Guidance, BSA Expectations Regarding Marijuana-Related Businesses (Feb. 14, 2014), available at https://www. fincen.gov/sites/default/files/shared/FIN2014-G001.pdf.

29. CanPayDebit.com, About Us, https:// www.canpaydebit.com/about-us/.

30. See David L. Hudson Jr., Not So Fast: Lawyers advising clients on marijuana laws may run afoul of ethics rules even in states where the drug is legal, ABA Journal, Jan. 1, 2017 at 24, available at http:// www.abajournal.com/magazine/article/ marijuana_legal_ethics_rules/; Eli Wald et al., Representing Clients in the Marijuana Industry: Navigating State and Federal Rules, 44 Colo. Law. 61 (Aug. 2015).

31. Lorelei Laird, Do ethics rules allow lawyers to advise clients on new laws legalizing marijuana?, ABA Journal, June 2014 available at http://www.abajournal.com/ magazine/article/do_ethics_rules_allow_ lawyers_to_advise_ clients_on_new_marijuana_laws.

32. See Sam Kamin & Eli Wald, Marijuana Lawyers: Outlaws or Crusaders?, 91 Or. L. Rev. 869 (2013).

33. Ricardo Baca, Anti-pot racketeering suit settles, opens door for future RICO claims, Denver Post, Dec. 30, 2015, available at http://www.denverpost.com/2015/12/30/ anti-pot-racketeering-suit-settles-opensdoor-for-future-rico-claims/. ď Ž

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ArkBar Lawyer Legislators Serving in the 91st General Assembly Regular Session 2017

The voice of the Arkansas lawyer

A priority of the Arkansas Bar Association is to assist in the enactment of laws which comply with the Arkansas and U.S. Constitutions and improve the legal system in Arkansas. The Association works full-time to monitor legislation issues affecting justice and the legal profession.

The Association is your advocate at the state Capitol. The Legislation Committee meets every Friday to review all bills that have been filed and keep you updated throughout the session. ArkBar’s Legislative Resources website is your source for current legislation issues affecting justice and the legal profession. You must first login to www.arkbar.com and then go to Legislative Resources under the For Attorneys tab on the home page. The recently updated website is the place to find the status of bills of interest to the legal profession as well as more resources to keep you updated.

The Arkansas Bar Association has four members serving in the Senate and 10 members serving in the House of Representatives. Governor Asa Hutchinson and Attorney General Leslie Rutledge are also Association members.

Back the Pac! Become a supporting member of your non-partisan political action committee. Only $30 per year. Join today via your Member Portal on www.arkbar.com.

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Governor Asa Hutchinson

Attorney General Leslie Rutledge

Representative Bob Ballinger District 97

Senator Will Bond District 32

Representative LeeAnne Burch District 9

Representative Carol Dalby District 1

Senator Trent Garner District 27

Representative Jimmy Gazaway District 57

Representative John Maddox District 20

Senator Bruce Maloch District 12

Representative Douglas House District 40

Senator Jeremy Hutchinson District 33

Representative Matthew J. Shepherd District 6

Representative Clarke Tucker District 35

Representative John W. Walker District 34

Representative David Whitaker District 85

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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The Arkansas Peer Review Fairness Act: The Intersection of Law and Medicine

By Janet L. Pulliam and David Ivers

I

Janet L. Pulliam is of counsel to Mitchell Blackstock Ivers & Sneddon, PLLC and is the sole owner of ADR Strategies, P.A. She is certified by the American Healthcare Lawyers Association as a healthcare mediator and arbitrator.

David Ivers is a partner with Mitchell Blackstock Ivers & Sneddon, PLLC in Little Rock.

He represents a variety of healthcare providers with regard to legal, regulatory and legislative matters.

26

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t is a brisk, sunny, Spring Saturday on the links in Arkansas. Just easing the four iron back in the bag after a perfect shot to the green, your golfing partner for 15 years, Dr. Talent, says, “I’ve got this little peer review problem at the hospital. I really don’t think I need a lawyer, but my spouse thinks I should ask what you think.”

As you continue to the green, Dr. Talent continues, “I have already had my interview, but the decision was to go to the second stage. I am not really worried about it, though, because my admissions are second to none.” As you hit the green, you try not to look worried. “Let’s talk about it over the 19th hole.”

You’re worried about Dr. Talent because there are at least two major truths in peer review: Axiom #1: Every doctor thinks he or she is a great doctor, and therefore, nothing bad will happen.

Axiom #2: Bad things happen to great doctors.

As lawyers, regulations imposed upon us are nothing compared to regulations imposed on physicians. Equally complex are the regulations imposed on hospitals. To complicate the matter are regulations governing the unique and independent relationship between the medical staff and the hospital. By accepting this engagement, whether a long-time healthcare lawyer or new to the process, you have just arrived at the intersection of law and medicine.1 Peer review usually means “review of the performance of a physician, done by other physicians…Peer review sometimes leads to a reduction or denial of privileges of a physician whose performance is reviewed. It is therefore especially important that the process be done fairly and in good faith to avoid legal liability.”2 The consequences of a suspension or restriction of hospital privileges through peer review action can be devastating to a physician’s career. Federal law requires that hospitals report most such actions to the National Practitioner Data Bank and the state Medical Board, which may in turn suspend or revoke the physician’s license to practice medicine. Even without Medical Board action, such a report can result in the physician being kicked out of insurance payor networks.

It is no understatement to say that often everything is on the line.

I. Federal and State Laws Impacting Peer Review A. Health Care Quality Improvement Act In response to concerns about medical malpractice and the quality of medical care, Congress in 1986 passed the Health Care Quality Improvement Act (HCQIA).3 This act grants limited immunity to a peer review body (called a “professional review body”4) for “professional review actions”5 if they meet four requirements for notice and due process in 42 U.S.C. § 1112(a).6 The notice and hearing requirements under § 1112(a) (3) are “deemed” adequate if the peer review body meets certain “safe harbor” guidelines in § 1112(b).7 In addition, under HCQIA the hearing may be conducted by either: (1) a mutually acceptable arbitrator; (2) a hearing officer appointed by the peer review entity and not in direct economic competition with the physician; or (3) a panel of individuals who are appointed by the entity and not in direct economic competition with the physician under review. In Arkansas, the usual practice is to use a hearing officer in conjunction with a panel of physicians from the medical executive committee.

The physician has the right to representation at the hearing by an attorney or other person of the physician’s choice; to have a record made of the proceedings; to call, examine and cross-examine witnesses; to present evidence; to submit a written statement at the close; and to receive a written statement of the recommendation of the arbitrator, officer or

panel, and the basis for the recommendation.

Limited Immunity. Civil immunity under HCQIA is limited in several respects. First, it does not apply to state or federal civil rights actions or cases brought by federal or state attorneys general for antitrust or other actions.

Second, it is immunity from damages but not injunctive or other equitable relief. And, finally, the “reasonable belief” standard in HCQIA means the peer review participants must act in good faith or they lose the immunity.8 This standard does not require insight into the peer review participants’ states of mind but is instead an “objective inquiry.”9 B. The Arkansas Peer Review Fairness Act In 2013, the Arkansas General Assembly passed the Peer Review Fairness Act, codified at Ark. Code Ann. §§ 20-9-1301 to 1308.10 For the first time, the legislature explicitly recognized the dangers of unfair peer review and provided a new remedy for physicians under review.

The act reflects a growing concern that under federal and state statutes promoting peer review and granting qualified immunity, the pendulum has swung too far and enabled peer review committees to abuse the process and treat some physicians unfairly.11 The act acknowledges and tracks HCQIA but contains additional provisions: (1) A physician shall be promptly notified when he or she is referred for an investigation.

(2) If at any stage of a peer review activity (not just a hearing), an attorney is participating on behalf of the peer review body, then the

physician under review is entitled to have legal counsel participating.

(3) The hospital must provide “all relevant information” to the peer review body and the physician, “whether inculpatory or exculpatory.”

(4) During an investigation, a physician under review is entitled to discuss the case with those conducting the investigation prior to any recommendation or decision being made.

(5) The physician shall have a reasonable opportunity to challenge the impartiality of an arbitrator, hearing officer or panel hearing the matter.

The act also recognizes that the hospital and the peer reviewers may have differing obligations and loyalties. While it does not attempt to mandate independent counsel, it puts the participants on notice that if the peer review body uses an attorney employed or regularly used by the hospital, the court can consider that fact in determining whether the physician was unfairly prejudiced in the proceeding.12 Also, the hearing officer or arbitrator cannot be employed by the hospital or from a firm regularly used by the hospital or the physician, something that was commonly done before the act was passed.13 Similar to HCQIA, the Arkansas act contains language immunizing peer review participants from damages if they act “in good faith and without malice.”14 However, under the Arkansas act, the physician has a private right of action to seek “an injunction or other equitable relief to correct an erroneous decision or procedure.”15 The court’s review is lim-

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ited to a review of the record.16 If a physician prevails in court, then he or she is entitled to attorney fees and costs. If the hospital and peer review committee prevail, they are entitled to attorney fees and costs under the same standard used by HCQIA, which provides for fees if the physician’s claim was frivolous, unreasonable, without foundation, or in bad faith.17 C. Other State and Federal Actions Other causes of action which physicians have brought against peer review bodies include civil rights violations, breach of contract (violation of medical staff bylaws), defamation, tortious interference with contractual relations, and antitrust.

II. Landmines for Physician and Counsel Landmines abound in peer review. No matter how skilled the physician, advice of counsel either formally or informally can be invaluable in the initial proceedings. Certainly if the matter goes to a hearing, then the physician needs your direct involvement in preparing for and defending himself or herself.18 A. Prescriptions for the Initial Procedure:19 1. Upon receipt of the notice, carefully read it. If the facts underpinning the inquiry are not stated clearly, request clarification in writing immediately.

2. Get a copy of the most recent medical staff bylaws. Pay particular attention to deadlines, due process rights and when counsel may be present.

3. If the allegations are not related to patient safety, but rather allege disruptive or unethical behavior, ask whether the medical staff has adopted an alternative dispute resolution process that could take the matter away from peer review.

4. If patient care or safety forms the basis of the inquiry, request in writing all medical records reviewed by the hospital staff or outside third party, and any reports that have been provided to hospital staff and/or the committee.

5. Draft a written response to the allegations with detailed medical facts and explanation supporting your client’s position, and supplement with peer-reviewed articles.

6. If the hospital medical staff has used expert review, consider selection of an expert for rebuttal and provide an affidavit from the expert.

7. Never let your client show anger.

8. Your client needs to be attentive and re28

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sponsive to questions of the committee and sensitive that most members will not be familiar with many facts and protocols relating to his or her sub-specialty. This is the opportunity to educate them in a professional manner.

9. Prior to a meeting, request in writing that the meeting be transcribed by a court reporter.

If that request is denied, offer to pay for one.

10. If your physician has a competitor on the committee, or a member with whom there has been conflict for any reason, put the chair on notice and respectfully request that a substitute be appointed.

11. Demand that your client take the time away from practice to prepare for the hearing.

This is not doctor conversation in the breakroom or cafeteria.

12. If the administration offers a consent decree as a resolution, be certain of its effect on the state licensure, National Practitioner Data Bank and third-party payors.

B. Prescriptions at the Hearing Stage 1. As soon as the hearing is scheduled, you or your client should request the name of the hearing officer and decide whether objections should be made.

2. In writing, request that the transcript be taken by stenographic means and if the request is not granted offer to pay.

3. Work diligently and spend the time and money to make certain that the presentation of your case compares with that of the hospital.

4. If you believe you have a reasonable solution, even if it is “out of the box,” offer it at the hearing stage.

5. Make certain that you know what your litigation options are although they are usually limited. Be prepared to use them when advantageous.

III. Landmines for Hospital, Peer Review Body and Counsel Generally speaking, courts are reluctant to second-guess the judgment of hospital peerreview bodies. However, courts may become involved if it appears that the process was unfair or manipulated. Thus, it is extremely important that hospitals and members of the peer review committee avoid some common pitfalls.

1. Notify the physician as soon as an investigation begins. Traditionally hospitals have conducted investigations internally and then notified the physician only after the fact, and then usually only if it resulted in a referral to the peer review body. This led to allegations

that the result was predetermined before it ever reached the committee. This is no longer permitted under the Arkansas Peer Review Fairness Act. 2. Avoid ambush tactics. While on rare occasions it may be necessary to summarily suspend a physician, in most cases the physician should receive notice of the concern and an opportunity to respond before any action or recommendation is made. Opportunity to respond should include time for the physician to review his charts or otherwise prepare rather than being confronted without warning. Failure to do so can result in a finding of bad faith.20 3. Don’t exclude the physician from the peer review meetings. Too often a peer review committee will meet without allowing the physician to be present or will allow the physician to be present only for an “interview” while being excluded from the rest of the meeting. Though often the bylaws permit this approach, the courts look with disfavor on “secret” meetings.21 4. Give specific reasons for the recommendation or action, not just conclusions. To respond, a physician needs to know the specific criteria the peer review body is using and how the physician failed to meet them.22 If the committee is alleging the physician did not meet the standard of care, then the committee should be able to articulate what the standard is.

5. Be careful in selecting patient cases for review. Too often hospital administrators or members of the medical staff involved in the peer review will select the most damning cases they can find in an attempt to build a case against a physician. Hospitals have been subjected to punitive damages for such tactics.23 The selection needs to be fair and representative.

6. Involve the physician in the use of external reviewers. Courts intervene when hospitals or members of the medical staff pick biased external reviewers, engage in ex parte communications with the reviewers, exclude the physician from presenting information to the reviewers, or present inadequate and misleading information to the reviewers.24 Ideally, the peer review committee and physician should jointly agree on the external reviewers, the information to supply the reviewers, and the process for communicating with them.

7. Give careful thought to the composition of the hearing panel. Typically the bylaws are drafted by the hospital’s attorneys and give the

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hospital CEO alone or in conjunction with medical staff leadership the right to appoint the hearing panel. To preserve immunity, HCQIA requires that none of the members be in “direct economic competition” with the physician under review. But following the letter of the law may not be enough. Hospitals should avoid the temptation to appoint physicians who have past conflicts with or biases against the physician. Doing otherwise may cause a court to find the physician was deprived of a fair and unbiased panel.

8. Follow the medical staff bylaws. While this may seem obvious, it is surprising how often hospitals or peer review bodies fail to do this. While failure to follow the bylaws in exact detail is not alone evidence of bad faith, lack of substantial compliance can be a sign of bad faith and possibly support a breach of contract action.

IV. Focus on the system, not just “bad apples” It is important for both sides to realize that most medical errors are the result of systemic flaws and not a lone physician. One of the chief conclusions in a report by the Institute of Medicine is that medical errors are not a “bad apple” problem: More commonly, errors are the result of faulty systems, processes and conditions that lead people to make mistakes or fail to prevent them. … People still must be vigilant and held responsible for their actions. But when an error occurs, blaming an individual does little to make the system safer and prevent someone else from committing the same error.25 One of the most comprehensive studies examining public policy and peer review to date26 advocates for a new system that relies on continuous quality improvement research to integrate evidence-based treatment choices.

While full exploration of this topic is for another article, it is helpful for all involved in peer review to take a look at the broader picture and to work together toward joint solutions.

Conclusion No physician should go into peer review without the advice of counsel. Skilled counsel is also needed on the hospital side to keep the process focused on quality of care rather than the egos of various medical staff members or the personal agendas of hospital administrators. The goal of attorneys for the physician 30

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and hospital alike should be to get the physicians themselves to use their medical knowledge to reach a collegial result that looks not only at the physician under review but the need for continuous quality improvement on a system-wide level.

Dr. Talent: “Well, here we are at the 19th hole. Do you think I need a lawyer for my little peer review problem?” Lawyer: “There are no little peer review problems, and your spouse is always right.”

Endnotes: 1. Federal and state laws use varying terms to refer to peer review. A generic term often used is “professional review.” Medical staff bylaws have varying names and procedures for the committees they use to conduct peer review. Very often the initial recommendation is made by a credentials committee. The physician can then request a hearing before the medical executive committee or a subgroup appointed from that body. An adverse decision may be subject to appeal to a different panel of physicians appointed for that purpose, and in all cases ultimately to the hospital Board of Directors.

2. Vergil Slee et al., Slee’s Healthcare Terms 474 (4th ed. 2001).

3. 42 U.S.C. §§ 11101 to 11115.

4. “Professional review body” means a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, and includes any committee of the medical staff of such an entity when assisting the governing body in a professional review activity. 42 U.S.C. § 11151.

5. “Professional review action” means an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician. 42 U.S.C. § 11151.

6. The peer review entity’s actions must be taken: (1) in the reasonable belief that the action was in the furtherance of quality health care; (2) after a reasonable effort to obtain the facts of the matter; (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures are taken as are fair to the physician under the circumstances; and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirements of paragraph (3).

7. Under the safe harbors, the initial notice must state: (1) a professional review action has been proposed against the physician and

the reasons for the proposed action; (2) the physician has the right to request a hearing; (3) any time limit (of not less than 30 days) to request a hearing; and (4) a summary of the physician’s rights.

8. “Simply put, the courts have recognized that, in this context, good faith—reasonable belief—is simply the flip-side of malice.”

Smith v. Our Lady of the Lake Hosp., 639 So. 2d 730, 748 (La. 1994).

9. Sugarbaker v. SSM Healthcare, 190 F.3d 905, 912 (8th Cir. 1999).

10. Arkansas Act 766 of 2013, sponsored by Senator Cecile Bledsoe of Rogers.

11. See, e.g, Paul K. Ho, HCQIA Does Not Provide Adequate Due Process Protection, Improve Healthcare Quality and Is Outdated Under “Obamacare,” 11 Ind. L. Rev. 303 (2014); Eleanor D. Kinney, Hospital Peer Review of Physicians: Does Statutory Immunity Increase Risk of Unwarranted Professional Injury?, 13 Mich. St. U. J. Med. & L. 57 (2009); Yann H.H. van Geertruyden, Comment: The Fox Guarding the Henhouse: How the Health Care Quality Improvement Act of 1986 and State Peer Review Protection Statutes Have Helped Protect Bad Faith Peer Review in the Medical Community, 8 J. Contemp. Health L. & Pol’y 239 (2001).

12. Ark. Code Ann. § 20-9-1304(c)(2).

13. Ark. Code Ann. § 20-9-1304(g)(2) 14. Ark. Code Ann. § 20-9-1307(c)(2). See also, Ark. Code Ann. § 20-9-502 (members of a peer review committee shall not be liable for civil damages if they have acted “without malice or fraud”).

15. Ark. Code Ann. § 20-9-1307(a).

16. Ark. Code Ann. § 20-9-1307(a).

17. Ark. Code Ann. § 20-9-1307 and 42 U.S.C. § 11113.

18. Often the bylaws will prohibit the physician’s attorney from appearing at any stage before the hearing, but if the hospital or peer review body is using an attorney at earlier interviews or preliminary proceedings, then the physician’s attorney is allowed to participate as well. Ark. Code Ann. § 20-9-1304(c).

19. These Prescriptions are taken from Physician Law: Evolving Trends & Hot Topics, American Bar Association – Second Edition Health Law Section 2016 Chapter 7: Doctors’ Defense in Medical Staff Hearings and Appeals: An overview for Attorneys and their Physician clients. By Janet L. Pulliam, Esq. and Elizabeth A. Snelson, Esq. 20. See, e.g., Harris v. Bradley Memorial Hosp. and Health Center, 994 A.2d 153 (Ct. 2010); Smigaj v. Yakima Valley Memorial Hosp. Ass’n, 269 P.3d 323 (Wash. Ct. App. 2012); Islami v.

Covenant Med. Center, Inc. 822 F. Supp. 1361

(E.D. Iowa 1992).

21. See, e.g., Harris v. Bradley Memorial Hosp. and Health Center, 994 A.2d 153 (Ct. 2010); Smigaj v. Yakima Valley Memorial Hosp. Ass’n, 269 P.3d 323 (Wash. Ct. App. 2012).

22. Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219 (Alaska 1992).

23. Harris v. Bradley Memorial Hosp. and Health Center, 994 A.2d 153 (Ct. 2010); Brown v. Presbyterian Healthcare Services, 101 F.3d 1324 (10th Cir. 1996).

24. Brader v. Allegheny Gen. Hosp, 64 F.3d 869 (3rd Cir. 1995); Smigaj v. Yakima Valley Memorial Hosp. Ass’n, 269 P.3d 323 (Wash. Ct. App. 2012); Islami v. Covenant Med. Center, Inc. 822 F. Supp. 1361 (E.D. Iowa 1992).

25. Institute of Medicine, To Err is Human 1999 Report Brief, available at http://www. nationalacademies.org/hmd/~/media/Files/ Report%20Files/1999/To-Err-is-Human/ To%20Err%20is%20Human%201999%20 %20report%20brief.pdf.

26. Katherine Van Tassell, Using Clinical Practice Guidelines and Knowledge Translation Theory to Cure the Negative Impact of the National Hospital Peer Review Hearing System on Healthcare Quality, Cost, and Access, 40 Pepp.

L. Rev. 4 (2013) http://digitalcommons.pepperdie.edu/plr/vol40/iss4/2. 

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ArkBar 2017 SPRING CLE CALENDAR

Look for schedule, view agendas and register for events at http://mx.arkbar.com/EVENTS/EventsList Mixing It Up: WC & SSD —A Day of Disability March 9, 2017

Exploring Other Recovery Options: How Did Your Client’s Safety Systems Perform?

April 28, 2017

40th Annual Labor & Employment Law Conference March 10, 2017

21st Annual Environmental Law Conference May 3-5, 2017

21st Annual Debtor/Creditor Law Institute March 30-31, 2017

LLC Formations in Arkansas: A Comprehensive Approach May 11, 2017

Agricultural Law Conference April 6, 2017 Blueprint For Success: Building Your Career April 13, 2017 Corporate & In-House CLE April 20, 2017

ArkBar Annual Meeting June 14-16, 2017 Best of CLE LR June 26-30, 2017 Best of CLE Fayetteville June 29-30, 2017

Financial Institutions CLE April 21, 2017 Military Issues Impacting the Local Legal Community April 27, 2017

Best of CLE Jonesboro June 30, 2017

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Mendoza v. WIS International, Inc.: The Supreme Court’s Decision Makes Seat Belt Non-Use Relevant Evidence

By Justice J. Brooks, I

F

or decades, Arkansas Code Annotated § 27-37-703 barred Arkansas defense attorneys from introducing evidence related to a plaintiff’s non-use or improper use of a seatbelt in lawsuits resulting from motor vehicle accidents (the “Failure to Comply Statute”). This allowed a plaintiff to keep evidence of his or her potentially negligent actions from juries even though the plaintiff was seeking damages for injuries that would likely have been mitigated or prevented had he or she been wearing a seat belt at the time of the accident. However, a recent Supreme Court of Arkansas decision, Mendoza v. WIS International, Inc., which addresses the Failure to Comply Statute, may open the door for the introduction of this evidence at trial and offer insight into how the court may treat analogous cases in the future.

Justice J. Brooks, I, is an attorney with Quattlebaum, Grooms & Tull PLLC, where he primarily practices in the areas of commercial ligation, employment litigation, tort litigation, and both state and federal regulatory issues.

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Mendoza v. WIS International, Inc. The United States District Court for the Eastern District of Arkansas certified the following question of law to the court in Mendoza: does Arkansas Code Annotated § 27-37-703, which restricts the admissibility of seat-belt-nonuse evidence in civil actions, violate the separation-of-powers doctrine found in article IV, section 2, of the Arkansas Constitution? The court ultimately found the statute unconstitutional.1 Specifically, the court held that “Arkansas Code Annotated § 27-37-703 violates separation of powers under article 4, § 2 and amendment 80, § 3 of the Arkansas Constitution and is therefore unconstitutional.”2 The court noted that, while the legislature may establish substantive law through statute, the rules of evidence “fall within th[e] court’s domain.”3 “When conflicts arise between legislation and rules of evidence and procedure, [the court’s] rules remain supreme.”4 Thus, “if the statute is a rule of evidence, then it violates separation of powers and is unconstitutional.”5 Accordingly, the court reasoned that the Failure to Comply Statute constituted a rule of evidence because it completely restricted the admittance of evidence related to the non-use or improper use of a seat belt, thus, rendering the Failure to Comply Statute unconstitutional.6 The court’s decision was not unanimous. Three justices7 wrote dissenting opinions criticizing the majority decision. Two of the dissents argued that the Failure to Comply Statute did not apply to the facts

in Mendoza.8 Therefore, the majority should have answered in the negative or refused to answer the question because the federal district court limited the scope of the question to the Mendoza facts.9 The dissents of Justice Hart and Justice Woods also contend that Rule 402 of the Arkansas Rules of Evidence gives the legislature authority to determine the relevancy of evidence in court proceedings.10 Rule 402 states that “[a]ll evidence is admissible, except as otherwise provided by statute.”11 It follows that the legislature, through statute, already determined that evidence of a failure to wear or improper use of a seatbelt is inadmissible; therefore, Arkansas Code Annotated § 27-37-703 is constitutional.12 Ultimately, the majority rejected this argument but, nonetheless, requested that the Civil Practice Committee review Rule 402 in light of its Mendoza ruling.13 The committee must determine whether Rule 402 opens the door for the legislature to statutorily create rules of evidence related to relevancy. If so, it could lead to significant changes to Rule 402 so that the rule defines its scope more clearly.

Practical Application The Mendoza decision, in baseball terms, is likely a ground rule double14 for attorneys who defend negligence claims arising from motor vehicle accidents. Typically, defense attorneys assert at least three affirmative defenses in negligence actions: contributory negligence, comparative fault, and assumption of the risk. In negligence cases where plaintiffs fail to wear seat belts, the severity of their injuries is often greater. Prior to Mendoza, defense attorneys could not present evidence of a plaintiff ’s failure to wear a seat belt at trial, but now defense attorneys can present such evidence to show the non-use or improper use of a seat belt caused, contributed, or exacerbated a plaintiff ’s injuries in support of the affirmative defenses. The presentation of this evidence at trial could lead to an increase in defense verdicts and a reduction of damages awarded to plaintiffs because juries will likely apportion a greater amount of fault to plaintiffs who fail to wear or improperly use their seat belts.

Still, Rule 403 of the Arkansas Rules of Evidence may serve as a significant impediment to the introduction of this evidence at trial. Rule 403 provides that “relevant evidence may be excluded if its probative value is substantially outweighed by the dan-

ger of unfair prejudice.”15 In applying Rule 403 to the introduction of seat-belt-nonuse evidence, the Supreme Court of Arkansas previously found that such evidence may be unfairly prejudicial in a negligence case, and even in the presence of a limiting instruction to a jury, the prejudicial effect may not be cured.16 The court’s position should soften the blow of the Mendoza decision on plaintiff attorneys and will likely allow them to effectively argue that evidence of improper or non-use of a seatbelt should be excluded in negligence cases involving motor vehicle accidents under Rule 403.

Potential Legislative Action The Mendoza decision provides the legislature with a roadmap to ensure the constitutionality of any future legislation concerning the admissibility of evidence related to seatbelt use.17 The court indicated that, had the Failure to Comply Statute limited its restriction on admissibility to evidence of comparative or contributory negligence, it would have likely established a rule of substantive law and been found constitutional.18 Thus, if the legislature adopts a similar statute, it should limit the statute’s scope to preclude the introduction of evidence related to specific affirmative defenses. But unless and until the legislature acts, evidence of a plaintiff ’s improper use or nonuse of a seat belt will be relevant and, subject to Rule 403, admissible in cases that involve motor vehicle accidents.

Broader Ramifications In 2009, the Supreme Court of Arkansas struck down part of the Arkansas Civil Justice Reform Act of 2003 (CJRA) in Johnson v. Rockwell Automation, Inc.19 The court found that provisions of the CJRA violated the separation of powers under the Arkansas Constitution because the legislative provisions dictated court procedure or the admissibility of evidence, which only the court has the authority to do.20 Approximately seven years later, with an entirely different court composition except for Justice Danielson, the court in Mendoza has again asserted its sovereign authority concerning any rule related to the pleading, practice, and procedure of Arkansas courts.21 With its decisions in Mendoza and Johnson, the court appears to be sending the Arkansas legislature a clear message—stay in your lane or else.

The court’s apparent stance offers attorneys a unique opportunity to examine and

scrutinize other statutory provisions to determine if they may impede on the court’s rule-making province. In cases in which such a claim is plausible, attorneys may find the court eager to enforce the separation of powers under the Arkansas Constitution to the benefit or detriment of their clients.

Endnotes: 1. See 2016 Ark. 157, at 1, 490 S.W.3d 298, 299.

2. Id. at 9-10, 490 S.W.3d at 303-04.

3. See id. at 5, 490 S.W.3d at 301.

4. Id. at 9, 490 S.W.3d at 303.

5. Id. at 5, 490 S.W.3d at 301.

6. Id. at 8-10, 490 S.W.3d at 303-04.

7. Justice Karen R. Baker, Justice Josephine Linker Hart & Justice Rhonda K. Wood.

8. See Mendoza, 2016 Ark. at 11-12, 490 S.W.3d at 304-05 (Baker, J. & Hart, J. dissenting).

9. See id., 490 S.W.3d at 304-05 (Baker, J. & Hart, J. dissenting).

10. See id. at 17 & 19, 490 S.W.3d at 30809 (Hart, J. & Wood, J. dissenting) (Justices cite the following language of Rule 402 in support of their arguments: “All relevant evidence is admissible, except as otherwise provided by statute”).

11. Ark. R. Evid. 402 (emphasis added).

12. See Mendoza, 2016 Ark. at 18-19, 490 S.W.3d at 308-09 (Hart, J. & Wood, J. dissenting).

13. See id. at 9 n.1, 490 S.W.3d at 303.

The court also asked the committee to review “other rules of evidence” that conflict with its holding in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (the case in which the Supreme Court of Arkansas set forth the reasoning used in Mendoza).

14. For those unfamiliar with the rules of baseball, a ground rule double is an award of two bases to all baserunners including the batter for a ball that leaves the field of play after being hit fairly.

15. Ark. R. Evid. 403.

16. See Grummer v. Cummings, 336 Ark. 447, 450, 986 S.W.2d 91, 93 (1999).

17. See Mendoza, 2016 Ark. at 6-7, 490 S.W.3d at 302.

18. See id. at 7, 490 S.W.3d at 302.

19. 2009 Ark. 241, 308 S.W.3d 135.

20. Id. at 8-10, 308 S.W.3d at 141-42.

21. See Mendoza, 2016 Ark. 157, 490 S.W.3d 298. 

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New Court Rule Clears the Way for Resolving Unclaimed, Unidentifiable Client Trust Account Funds

By Amy Johnson

For years, a common source of frustration for lawyers has been what to do about funds in an IOLTA account that (1) cannot be traced to any particular client or (2) belong to a known client whom the attorney cannot find. In the first instance, such “unidentifiable” trust account funds often come to light when a lawyer tries to reconcile an IOLTA account after the passage of several years or following a merger of law firms. In the second instance, “unclaimed” trust account funds typically become an issue after a lawyer makes several attempts over a period of time to locate a former client who either never cashed a settlement check or whose mail is returned as undeliverable.1 In November 2015, the Arkansas Supreme Court adopted changes to Arkansas Rule of Professional Conduct 1.15 to provide a mechanism for attorneys to dispose of unclaimed and unidentifiable client trust account funds.2 First, the lawyer, firm, or estate must use reasonable efforts for a period of at least two years to locate or identify the rightful owner of such funds. If no rightful owner can be located or identified, the funds must be submitted to the Arkansas Access to Justice Foundation, along with a report to the Foundation and the Office of the Committee on Professional Conduct that includes the name and last known address of each person appearing from the lawyer or law firm’s records to be entitled to the funds, if known; a description of the efforts undertaken to identify or locate the owner; and the amount of any unclaimed or unidentifiable funds.3 Efforts to identify or locate the rightful owner of funds should be reasonable under 36

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the circumstances. Whether such efforts can be considered “reasonable” may depend on a number of factors, including the amount of money involved, whether contact information for the rightful owner is publicly available, the amount of time that has passed, the number of times that contact with the rightful owner has been attempted, and the expense associated with efforts to identify or locate the rightful owner.4 If the rightful owner of the funds is identified or located, the lawyer has a two-year window of time following submission of the funds to the Foundation within which to notify the Foundation and receive a refund for the purpose of distributing them to the rightful owner. The lawyer must then submit an affidavit to the Foundation attesting that the funds have been returned.5 The Arkansas rule change addresses these scenarios by providing a simple process for attorneys to dispose of unclaimed and unidentifiable funds consistent with applicable ethical obligations, while generating additional revenue to support grants to provide free civil legal aid to the poor.

Endnotes: 1. Prior to the new rule’s adoption, some attorneys relied on a “catch-all” provision in the Arkansas Uniform Disposition of Unclaimed Property Act, which required submission of a verified report after such property went unclaimed for a period of five years. The current statute gives rise to an obligation to file a verified report with the Auditor of the State “three (3) years after the owner’s right to demand the property or after the obligation to pay or

distribute the property arises, whichever occurs first.” Ark. Code Ann. § 18-28202(a)(14) (2016). The process for disposing of client funds under this Act was often cumbersome—particularly for attorneys dealing with relatively small amounts of money—and required retention of records related to the funds for 10 years instead of the five-year period normally applicable to client trust account funds. See Ark. Code Ann. § 18-28-221(a) & Procedures of the Supreme Court Regulating Prof’l Conduct of Attys at Law § 28(G).

Adoption of Rule 1.15(c) addresses these concerns.

2. In re Amendment of Ark. R. Prof’l Conduct 1.15 & Admin. Order 22, 2015 Ark. 420. The new provisions apply to both IOLTA accounts and individual client trust accounts created for a client or third party.

3. A form developed for this purpose can be found at www.arkansasjustice.org/ioltaforms.

4. Arkansas IOLTA Program Guidebook for Attorneys and Financial Institutions (2016), http://www.arkansasjustice.org/ ioltarules.

5. A sample affidavit is available at www. arkansasjustice.org/ioltaforms. Amy Johnson is the Executive Director of the Arkansas Access to Justice Commission & Foundation.

TAYLOR & TAYLOR weLcOmeS JennifeR AnD SiDneY TO The TeAm! Jennifer williams flinn

Attorney Appellate Litigation, Education Law, Social Security Disability, Workers’ Compensation Jennifer@TaylorLawFirm.com

Sidney A. Stewart

Attorney Family Law Sidney@TaylorLawFirm.com

Pictured above from L to R: Sidney Stewart, Attorney | Jennifer Flinn, Attorney | Andy Taylor, Partner | Tasha Taylor, Partner | Janelle Chickesh, Paralegal | Hillary Quinn, Legal Assistant.

124 West Capitol Avenue, Suite 1500, Little Rock, AR 72201 n 501.246.8004

n

800.844.TAYLOR

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Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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Don’t Be “Socially” Unacceptable: Avoiding Ethical Issues with Lawyers’ Use of Social Media

By John G. Browning

B

John G. Browning is a partner in the Dallas, Texas law firm Passman & Jones, and he is the author of four books and numerous articles on social media and the law.

38

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y now, most lawyers know that practicing in the Digital Age is rife with ethical minefields. With over 1.5 billion people worldwide on Facebook, a billion tweets processed on Twitter every 48 hours, and over 400 million users Instagramming and Snapchatting away, social media is impossible to ignore. Changes to Model Rule of Professional Conduct 1.1 have ushered in new expectations of digital competence as attorneys are now held to a higher standard of being conversant in the benefits and rights of technology. Ethics opinions across the country are addressing issues like the limits of advising clients about what to “take down” from their Facebook pages, contact with witnesses via social media, and even researching the online profiles of prospective jurors. By forgetting that posts on Facebook or Twitter are just as subject to ethical prohibitions as more traditional forms of communication, lawyers nationwide have found themselves facing disciplinary actions.

Take, for example, the recent case of Florida plaintiff’s personal injury lawyer David Singer, who began a jury trial in a case over whether a passenger had been permanently injured by walking on the hot deck of a Carnival cruise ship, only to have the federal judge presiding over the case refer him to a disciplinary committee over his Facebook posts. Carnival’s counsel argued that Singer should be disqualified for “inexcusable” conduct in posting photos and “willfully improper” statements on Facebook to warn passengers of “outrageously high temperatures” on the cruise ship deck. Among other statements on Singer’s Facebook page right before trial were allegations that Carnival “knew that their fake Teakwood deck heated up” so as “to burn the feet of a passenger who ended up having all 10 toes and parts of both feet amputated,” as well as admonishments to a defense medical expert that “Doc, your buddies at Carnival knew of the problem because there were nine previous cases of burns on their deck—many of them kids.” Carnival’s lawyers also claimed that Singer had violated court orders by allegedly publishing private information about a mediation in the case. Although Singer apologized to the court, federal judge Joan Leonard referred the Facebook conduct to a disciplinary committee.1 Lawyers have to understand that civility and professionalism are expected not just in the courtroom, or in traditional avenues of communication, but on social media platforms as well. On many occasions, a lack of civility can put a lawyer at risk of disciplinary action or even criminal charges. In In re Gamble2 in 2014, the Kansas

Supreme Court imposed a six-month suspension on a lawyer for his “egregious” and “over the top” messages on Facebook to an unrepresented unwed mother while representing the baby’s biological father during an adoption proceeding. The court felt that the lawyer’s communications, trying to make the mother feel guilty about consenting to give the child up, violated both Rule 8.4(d) (conduct prejudicial to the justice system) and Rule 8.4(g) (conduct reflecting adversely on the lawyer’s fitness to practice).3 Beyond civility concerns, lawyers need to be aware of how their use of social media in handling a case can raise ethical issues. This includes such tasks as case investigation, evidence preservation, and even jury selection.

A number of jurisdictions around the country have already begun holding attorneys to a higher standard when it comes to making use of online resources, including demonstrating due diligence, researching prospective jurors and even locating and using exculpatory evidence in criminal cases.4 As “digital digging” becomes the norm, it becomes harder for an attorney to say he or she has met the standard of competence when the attorney has ignored social media avenues.

Arkansas practitioners are no strangers to the dangers and professional consequences of social media missteps. In 2011, the Supreme Court of Arkansas overturned the murder conviction of Erickson DimasMartinez after it was revealed that one of the jurors had been tweeting from the jury box. The tweets, which included references to “choices to be made” and “hearts to be broken” during deliberations, constituted online juror misconduct that violated the defendant’s Sixth Amendment right to a fair trial, the Court concluded.5 And in 2014, former Circuit Court Judge Mike Maggio’s fondness for social media proved to be his downfall—right in the midst of his campaign for an appellate bench. It came to light that, under the screen name “geauxjudge,” Maggio had been posting about cases and parties in his court and others, including a number of misogynistic and sexist comments. One referred to actress Charlize Theron’s adoption of a baby in an Arkansas proceeding, and Maggio’s crude offer to serve as her “baby daddy.” For his inappropriate online comments that, according to the Arkansas Judicial Discipline and Disability Commission, violated a number of canons of the Code of Judicial Conduct (including avoiding impropriety and the appearance of impropriety), Maggio was first suspended and then removed from

office.6 As part of the agreed result, Maggio would never be a judge again. (However, that proved to be the least of his problems when he subsequently pled guilty to bribery during his Arkansas Court of Appeals campaign.)7 Many of the ethical quandaries that social networking presents for lawyers arise out of the manner in which attorneys use (or misuse) these sites. Consider the practice of using social media sites to gather information about a party or witness, for example.

While there generally is no ethical prohibition against viewing the publicly available portion of an individual’s social networking profile, may an attorney (or someone working for that attorney) try to “friend” someone in order to gain access to the privacy-restricted portions of that profile?

Ethics opinions from the Philadelphia Bar Association (March 2009), the New York City Bar (September 2010), the New York State Bar (September 2010), the Oregon Bar (February 2013), the New Hampshire Bar (June 2013), and others have made it clear that the rules of professional conduct against engaging in deceptive conduct or misrepresentations to third parties extend to cyberspace as well.8 As the New York City Bar ethics opinion emphasizes, with deception being even easier in the virtual world than in person, this is an issue of heightened concern.9 Not surprisingly, lawyers have found themselves in ethical hot water for engaging in such “false friending.” In June 2013, Cuyahoga County, Ohio, assistant prosecutor Aaron Brockler was fired after he posed as a murder defendant’s fictional “baby mama” on Facebook in order to communicate with two female alibi witnesses for the defense and try to persuade them not to testify. County Prosecutor Timothy McGinty had to withdraw his office from the case and hand it over to the Ohio Attorney General, but not before acknowledging that Brockler had “disgraced this office and everyone who works here” by “creating false evidence” and “lying to witnesses.”10 Similarly, even though Rule 4.2 of the Model Rules of Professional Conduct prohibits communicating with a represented party, lawyers have had to be reminded that this applies to all forms of communication, including via social networking. Two defense attorneys in New Jersey currently face disciplinary action for allegedly directing their female paralegal to “friend’ the young male plaintiff during the course of a personal injury lawsuit in order to gain access to information from his

privacy-restricted Facebook profile.11 In addition to using social networking sites for gathering information, the ethical duty to preserve information is another concern in the age of Facebook and Twitter.

While no lawyer wants to discover embarrassing photos or comments on a client’s Facebook page that might undermine the case, Rule 3.4 prohibits an attorney from unlawfully altering or destroying evidence or assisting others in doing so. Clearly, a lawyer’s ethical duty to preserve electronically stored information encompasses content from social networking sites. Yet this, too, is a lesson that some lawyers learned the hard way. For example, in the Virginia wrongful death case of Allied Concrete v.

Lester12 in 2013, the plaintiff’s attorney directed his paralegal to instruct the client to delete content from his Facebook page that depicted him as something less than a grieving widower (the Facebook photos in question depicted the young man in the company of young women, wearing a shirt that read “I ❤ Hot Moms”). The attorney also had his client sign sworn interrogatories stating he didn’t have a Facebook account.

After a $10.6 million verdict for the plaintiff, the defense brought a motion for new trial based on spoliation of evidence. The trial judge cut the damages award in half (the Virginia Supreme Court later reinstated the full verdict) and imposed sanctions of $722,000 (most of which were against the plaintiff’s counsel) for an “extensive pattern of deceptive and obstructionist conduct.”13 The attorney, a partner in the largest plaintiff’s personal injury firm in the state and a past president of the Virginia Trial Lawyers Association, had his license to practice law suspended for five years by the Virginia Bar in June 2013.14 Another area in which lawyers’ use of social media can raise ethical questions is jury selection. Should lawyers probe the online selves of prospective jurors? The Missouri Supreme Court actually has imposed an affirmative duty on lawyers to conduct certain Internet background searches of potential jurors (specifically that juror’s litigation history), if the lawyer plans to argue juror bias related to his/her litigation history.15 Multiple ethics opinions, including an ABA Formal Opinion, have addressed the issue of “Facebooking the jury.” In the first of these, the New York County Lawyer’s Association Committee on Professional Ethics held in 2011 that “passive monitoring of jurors, such as viewing a publicly available blog or Facebook page”

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is permissible so long as lawyers have no direct or indirect contact with jurors during trial.16 Subsequent opinions from the New York City Bar Association (2012)17 and the Oregon Bar (2013)18 agreed with this, while sounding a cautionary note to lawyers that even accessing a prospective juror’s Twitter profile or LinkedIn profile could cause the juror to learn of the lawyer’s viewing or attempted viewing. Such contact, according to both ethics committees, “might constitute a prohibited communication even if inadvertent or unintended.” In other words, as with other aspects in which lawyers might use social media, ignorance or lack of familiarity will not be an excuse in committing an ethical violation.19 In April 2014, the ABA weighed in on this issue with Formal Opinion 466. Like the earlier state ethics opinions, it too concluded that a lawyer is ethically permitted to review a juror’s social networking presence, provided that no contact is made with the juror. However, the ABA opinion diverges from its state counterparts in its consideration of whether auto alerts by sites such as LinkedIn or Twitter to the juror/user that her profile is being viewed would constitute impermissible contacts. Formal Opinion 40

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466 doesn’t see this as a problem, stating: “The fact that a juror or potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”20 So how can lawyers maintain their civility and avoid ethical issues when engaging on social media? Here are a few handy pointers: 1. Treat social networking platforms no differently than other communications.

Lawyers run the risk of committing malpractice, violating disciplinary rules, and breaching ethical guidelines just as much when they post or tweet as when they write a letter. And in many ways, the permanence of something posted online and the seemingly unlimited audience it can reach make it vital for attorneys to be even more cautious about their Facebook posts or their tweets than they are with more traditional modes of communication. Make sure you understand the functionality of any social media site you use, including its privacy protocols.

Bottom line—if you wouldn’t express it in a phone call, a letter, or a pleading filed with the court, don’t share it with the world on social media.

2. Remember the “eye of the beholder” before posting.

Before posting something on social media, resist the immediacy, take a step back, and consider how it might be perceived—by opposing counsel, clients, the judge, and even the public. In July 2015, Pittsburgharea assistant prosecutor Julie Jones posted a photo on her Facebook page of herself holding a 12-gauge shotgun bearing an evidence tag, alongside a uniformed police officer brandishing an assault rifle (also evidence in the case). The photo bore the caption “You should take the plea.” While intended as humorous, the Facebook post didn’t amuse Ms. Jones’ superiors, who issued a statement calling her conduct “contrary to office protocol with respect to the handling of evidence.”21 3. Don’t gloat.

Countless football coaches, including Vince Lombardi, reminded their players that if they made it into the endzone, “act like you’ve been there before.”22 Wisconsin criminal defense attorney Anthony Cotton could have used this advice. Following the September 18, 2015, acquittal of his client Brandon Burnside on homicide charges, Cotton took a “victory selfie” in the courtroom with Burnside and posted it on Facebook. The judge didn’t click “like,” and

Cotton found himself back in court, apologizing and taking down the Facebook post.23 With the explosive spread and ubiquitous nature of social networking sites, lawyers have had to adapt to technology’s impact on how they handle cases. However, it’s equally important to be mindful of how we conduct ourselves on social media.

Endnotes: 1. Facebook Post Earns Attorney a DQ Bid in Cruise Injury Suit,” Law 360 (May 31, 2016).

2. In re Gamble, 301 Kan. 13, 338 P.3d 576 (2014).

3. Id. at 20-21, 338 P.3d at 581-82.

4. See, e.g., Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013) (holding that a lawyer’s failure to locate a sexual abuse victim’s recantation on her social media profile could constitute ineffective assistance of counsel); New Hampshire Bar Association Ethics Committee Advisory Opinion No. 2012-13/05 (June 2013), available at http://www.nhbar.org/legal-links/EthicsOpinion-2012-13_05.asp.

5. Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238.

6. JDDC v. Maggio (2014), http://www. arkansas.gov/jddc/pdf/maggio-8-6-14.pdf.

7. Max Brantley and Benjamin Hardy, “Mike Maggio gets maximum 10-year sentence for taking bribe as judge,” Arkansas Blog (Mar. 24, 2016), http:// www.arktimes.com/ArkansasBlog/ archives/2016/03/24/maggio-sentencing-infederal (last visited 2/6/17).

8. Philadelphia Bar Ass’n Prof’l Guidance Comm. 2009-02; Ass’n of the Bar of the City of N.Y. Comm. On Prof’l and Judicial Ethics, Formal Op. 2010-2; N. Y. State Bar Ass’n Comm. On Prof’l Ethics, Op. 843; Or. State Bar, Formal Op. 2013-189; New Hampshire Bar Association Ethics Committee Advisory Opinion No. 201213/05 (June 2013).

9. Ass’n of the Bar of the City of N.Y. Comm. on Prof’l & Judicial Ethics, Formal Op. 2010-2 (2010).

10. James F. McCarty, Cuyahoga County Prosecutor Fired After Posing as an Accused Killer’s Girlfriend on Facebook to Try to Get Alibi Witnesses to Change Their Testimony, Cleveland Plain Dealer, June 6, 2013, available at http://www.cleveland.com/ metro/index.ssf/2013/06/cuyahoga_county_prosecutor_fir.html.

11. For a more detailed discussion, see John G. Browning, Keep Your “Friends” Close and Your Enemies Closer: Walking the

Ethical Tightrope in the Use of Social Media, 3 St. Mary’s L.J. on Legal Malpractice & Ethics 204 (2013).

12. Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013).

13. Lester v. Allied Concrete Co., 2011 WL 9688369 (Va. Cir. Ct. Oct. 21, 2011).

14. Disciplinary System Actions, Virginia State Bar, http://www.vsb.org/disciplinary. html (last visited Feb. 10, 2017).

15. See Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (en banc); Missouri Supreme Court Rule 69.025.

16. N.Y. County Lawyers’ Ass’n Committee on Professional Ethics Formal Op. 743 (May 18, 2011).

17. Ass’n of the Bar of the City of N.Y. Comm. on Prof’l & Judicial Ethics, Formal Op. 2012-2 (2012).

18. Oregon State Bar Formal Ethics Op. No. 2013-189, “Accessing Information About Third Parties Through a Social Networking Website.”

19. For a more detailed discussion, see John G. Browning, As Voir Dire Becomes Voir Google, Where Are the Ethical Lines Drawn?, Jury Expert, Vol. 25, No. 3 (May/June 2013). In fact, this very topic recently was raised in the high profile “Hustle” mortgage fraud case brought against Bank of America over its Countrywide unit. A juror claimed improper contact in violation of the federal judge’s pretrial order after a first year associate with one of the defense firms looked at his LinkedIn profile, and the juror received a notification from LinkedIn of the viewing.

20. American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 466 (Apr. 2014), available at http://www.americanbar.org/content/dam/aba/administrative/ professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam. pdf.

21. Lexi Belculfine, “Officer, Assistant DA Posed on Facebook With Gun Evidence,” Pittsburgh Post-Gazette (July 31, 2015).

22. Vince Lombardi, Jr., What It Takes To Be Number One (Thomas Nelson Publishers 2012).

23. Bruce Vielmetti, “Attorney Flagged for Facebook Selfie with Client After Winning Murder Acquittal,” Milwaukee Journal Sentinel (Sept. 28, 2015). 

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arkansas supreme court historical society

Hulbert F. Fairchild— Chancellor and Justice Photo courtesy of UALR Center for Arkansas History and Culture

By Judge J. W. Looney Hulbert F. Fairchild was born in New Lisbon, Otsego County, New York, October 25, 1817, to Reuben Fairchild and Mellona Fellows Fairchild. After attending Williams College in Massachusetts he moved to Louisville, Kentucky, to study law. He was admitted to the bar in 1841, and in December of that year moved to Arkansas, first settling in Pocahontas then moving to Batesville four years later. He practiced law and had various business interests until tapped by Governor Elias Conway to serve as the state’s first Chancellor in 1855.

The 1836 Constitution had authorized the legislature to establish Courts of Chancery, but Circuit Courts had exercised both law and equity jurisdiction prior to 1855.

The continuing controversy surrounding the affairs of the Real Estate Bank caused Governor Conway to propose creation of the first Chancery Court. A suit had been filed on the Chancery side of the Pulaski County Circuit Court in late 1854 to put the bank into receivership. The attorney for the state, James Curran, died shortly thereafter and the proceeding was delayed. Governor Conway grew impatient and pushed for creation of a separate Chancery Court. This was done by the legislature in January 1855. The Governor was given the authority to name the first Chancellor and he chose Hulbert F. Fairchild specifically because he had no party ties or other conflicts—“a Whig with conservative tendencies.”1 Fairchild set about to resolve the pending suit regarding the Real Estate Bank and concluded that receivership for the bank was merited and proper. Winding up of the bank’s affairs proceeded. The constitutionality and jurisdiction of the new Chancery Court was challenged in the Arkansas Supreme Court, but the legitimacy of the court was upheld.2 When Justice Henry Rector left the 42

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Supreme Court in 1860 to run for governor, Fairchild was appointed in his place and served through 1863. The court had moved from Little Rock to Washington after the June 1863 term, but no cases were reported in the fall term or early in 1864.

Fairchild was a dedicated public servant but was uncomfortable with secession. He served honorably and was well respected for his tireless work, his absolute honesty and fine character.3 He resigned, in part, based on his concern for his family in Batesville, then behind Union lines. He expressed his frustration in letters to Governor Harris Flanagin and submitted a handwritten resignation note in November 1863 in order to be permitted to travel to check on his family as a private citizen and not as a civil officer of the state.4 The Governor did not name Albert Pike as his replacement until June 8, 1864.

During Fairchild’s first two years on the court, business continued as usual. The number of cases relating to slaves and slavery had increased, and he drew a fair share of these cases including some of the most controversial. For example, in Phebe v. Quillin5 the effect of an 1859 statute prohibiting emancipation was before the court. Fairchild’s opinion upheld the statute’s constitutionality but declared that it was to be given prospective application only. Instruments of emancipation dated before the statute was enacted were still valid even if emancipation was to occur later.

In 1863 Fairchild was called upon to write the opinion in the third case in the sad story of Abby Guy who had sued for freedom alleging that she was white and should not be held in slavery. She prevailed in a jury trial, but the decision was reversed by the Supreme Court in 1857.6 She then prevailed at a second jury trial and this time the decision was upheld.7 Her third time before the court related to her effort to recover her property

from the man who had held her in slavery.

Fairchild’s opinion, sadly, found that the statute of limitations had run. Since she was white she could have sued earlier.8 One of Fairchild’s most influential opinions dealt with a legislative effort to continue court proceedings until after the war. Among other problems, Fairchild pointed out that this was an improper exercise of legislative authority.9 When Fairchild left the court he moved to St. Louis but was unable to practice law due to his former position with a Confederate state government. He traveled in Europe then settled in Memphis. On February 3, 1866, while on a journey back to Batesville, he died in Jacksonport.

Endnotes: 1. See, Morton Gitelman, “The First Chancery Court in Arkansas,” Arkansas Historical Quarterly, Vol. LV, No. 4, Winter 1996.

2. State v. Fairchild, 15 Ark. 619 (1855).

3. See, John Hallum, Biographical and Pictorial History of Arkansas (1887).

4. Fairchild Letters held by Arkansas History Commission dated in late 1863.

5. 22 Ark. 490 (1860).

6. Daniel v. Guy, 19 Ark. 121 (1857).

7. Daniel v. Guy, 23 Ark. 50 (1861).

8. Daniel v. Roper, 24 Ark. 131 (1862).

9. Burt v. Williams, 24 Ark. 91 (1862).

J. W. Looney is Polk County District Judge; Circuit Judge (Retired) for the 18W Judicial Circuit; 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, rod.miller@ arkansas.gov; Phone: 501 682 6879. 

Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer

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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions

Attorney Disciplinary Actions

On January 3, 2017, the Arkansas Judicial Discipline and Disability Commission announced the resignation and removal of Carroll County District Court (Western Division) Judge Timothy Paker in JDDC Case No. 16-329.

Final actions from October 3, 2016 December 31, 2016, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http:// courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005.

The “Arkansas” Rules are in effect from May 1, 2005.]

On November 18, 2016, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Informal Adjustment was issued to Sixth Judicial District Circuit Judge Mary McGowan, of Pulaski County, in Commission case #15-258.

The full press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.

REPRIMAND: HICKS, RICKEY H., Bar No. 89235, of Little Rock, in Committee Case No. CPC 2015-096, at a hearing before Panel C,

by Findings & Order filed November 16, 2016, was reprimanded and fined $7,500 for violations of Rules 1.1, 1.3, and 3.4(c) and assessed $550 costs. In assessing these sanctions, the panel found Hicks’ prior disciplinary record was a factor. The complaint was based on Case No. CR14-529, Evans v. State, a criminal appeal.

In November 2012, Evans, represented by private counsel Hicks, was convicted of capital murder and sentenced to life in prison without parole. Hicks accepted the representation of what was initially a death penalty case for a $30,000 fee, of which he testified only $10,000 was ever paid to him for the trial and appeal work. On November 14, 2012, Hicks filed Evans’ Notice of Appeal, indicating his client was then indigent. Hicks needed to file a motion for Evans to proceed in forma pauperis (IFP) in the appeal. Hicks wrote Evans in the Union County jail and requested Evans sign the Affidavit and Petition to proceed IFP. In February 2013, Hicks twice mailed Evans an affidavit of

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indigency to sign and return. In May 2013, Hicks again wrote Evans in jail about the unsigned and unreturned IFP affidavit. In July 2013, the Evans IFP Affidavit was filed.

In September 2013, the Order granting the Evans IFP petition was approved and filed.

On November 21, 2013, the court reporter wrote Hicks about the status of the Evans trial transcript for the appeal and informed him he needed to file for a belated appeal, as Hicks had failed to notify the reporter of the filing of the IFP order.

In January 2014, Hicks filed a motion for belated appeal and extension of time to file the Evans appeal record with the Union County circuit clerk, and not with the Supreme Court Clerk. The order granting Evans’ IFP petition was filed.

On May 22, 2014, Hicks tendered the record to the Supreme Court Clerk, who noted the tender was late and a motion for rule on clerk would be required. The rule for lodging the record on appeal requires tender of the record to the appellate clerk within ninety (90) days after the notice of appeal is filed. Here Hicks did not tender the record until over eighteen (18) months after the judgment was entered. In June 2014, Hicks filed a motion for rule on the clerk. By Order issued July 31, 2014, the Court granted the motion for rule on clerk and a briefing schedule was set, with Hicks’ brief due September 9, 2014. Hicks obtained several briefing extensions, failed to file the Evans brief on time, and OPC contacted him. The docket indicates Hicks checked out the record from the Supreme Court Clerk on November 17, 2014. On December 22, 2014, Hicks filed a motion to file a belated brief after supplementation of the record, which was granted on January 15, 2015, by letter order. The Supreme Court Clerk issued a writ of certiorari to the circuit clerk to file the complete trial record by February 14, 2015, and two weeks later Hicks filed appellant’s brief.

On May 28, 2015, the Supreme Court affirmed the Evans conviction. An on-line docket search on August 12, 2015, showed Hicks had been appellant’s counsel in over ten (10) cases, indicating he had experience in criminal cases and appeals.

At the hearing, Hicks characterized the Evans case as a “train wreck,” stating that Evans had caused the delays in his 46

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appeal by repeatedly failing to execute the required affidavit of indigency to go with the IFP petition Hicks had to file to get the State to pay for the appeal record. The attorney who did all Hicks’ appeals was having serious heath issues during this period, causing further delays in the Evans appeal. Hicks had handled twelve capital murder cases in his career, and has many criminal cases in Columbia, Ouachita, and Union (where he was raised) Counties.

Prosecuting Attorney David Butler testified he had dealt with Hicks for many years in a number of criminal cases in South Arkansas and found him to be a good, cooperative defense lawyer. Attorney Tim Dudley testified he has known Hicks for at least thirty years, they had tried a capital murder case together, and Hicks was a fine lawyer with a busy case load. The hearing panel dismissed five other rule violations charged.

TOLLESON, CHRISTOPHER A., Bar No. 2011032, of Conway, in Committee Case No. CPC 2016-069, by Consent Findings & Order filed November 18, 2016, was reprimanded for violations of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(a) (2), and 1.16(d). The complaint was based on information provided to the Committee by Ms. Dondia Miller in Tolleson’s representation in a divorce. In May 2013, Miller and Tolleson agreed on a fee estimated at about $2,500.00, in addition to her paying any other costs.

There was no written agreement. Miller paid $1,250.00. Miller dropped off a gun for safekeeping with attorney Kienlen, with whom Tolleson shared office space. Upon Tolleson’s advice, Miller took her children and moved to Nevada awaiting the divorce.

After speaking with Tolleson on June 5, 2013, Miller’s attempts to contact Tolleson were unsuccessful. Miller contacted the Faulkner County Circuit Clerk’s office and was advised that no divorce had been filed.

After calling Tolleson and leaving a voice mail message for him, on June 10, 2013, Kienlen called Miller and informed her that Tolleson had a family emergency and was not available. Miller continued to call Tolleson and again spoke with Kienlen a week later and was informed Tolleson would not be in the office due to a family illness.

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The divorce action remained unfiled. On June 21, 2013, Miller emailed Tolleson a request that he return the $1,250, and Miller’s sister picked up the gun left with Kienlen. Miller terminated Tolleson by fax to his office, voice mail, and certified mail which was signed for. Miller hired another attorney who filed the divorce on June 18, 2013, and completed her divorce on November 21, 2013. After Tolleson was served with the Committee Complaint, he refunded the $1,250 to Miller.

TOLLESON, CHRISTOPHER A., Bar No. 2011032, of Conway, in Committee Case No. CPC 2016-099, by Consent Findings & Order filed November 18, 2016, was reprimanded for violations of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(a)(2), and 1.16(d). The complaint was based on information provided to the Committee by Patricia Mize (now Kammers) on Tolleson’s representation in her divorce. In July 2012, Mize hired Tolleson and paid him $600 for the representation. Between July and December 7, 2012, Mize made repeated calls to Tolleson, leaving messages. She

did speak with Tolleson occasionally.

He repeatedly told her that he would file the pleadings for her divorce, but never filed. On December 7, 2012, Mize went to Tolleson’s office in Conway, Arkansas, to speak with him, but he was not there.

Mize spoke to another attorney, Kienlen, who shared office space with Tolleson.

Kienlen informed Mize that Tolleson had been out with some health issues. Kienlen then advised Mize that she would be taking over the Mize divorce case, and Mize paid Kienlen the $165.00 filing fee. After failure on both attorneys’ part to file her divorce action, Mize hired another attorney, paying her $900; the divorce was filed, and became final on March 19, 2013. Tolleson states that Keinlen agreed to take over the Mize matter, which Kienlen denied. After being served with the Mize Complaint, Tolleson refunded her $600.

TOLLESON, CHRISTOPHER A., Bar No. 2011032, of Conway, in Committee Case No. CPC 2016-103, by Consent Findings & Order filed November 18, 2016, was reprimanded for violations of Rules

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1.3, 1.4(a)(4), and 1.16(d). The complaint was based on information provided to the Committee by Ms. Mercedes Birkner in Tolleson’s representation in her uncontested divorce. In February 2013, Birkner hired Tolleson and paid him $681.00. Within two weeks, Tolleson sent Birkner two emails containing documents that needed to be signed for the divorce. Birkner executed the documents and returned them to Tolleson.

Thereafter, Birkner called and emailed Tolleson several times, with no response.

When Tolleson failed to file her divorce action, Birkner hired another attorney and paid him $750.00. The new attorney filed her divorce in October 2014, and it was final in August 2015. After being served with the Birkner Complaint, Tolleson refunded her $600. 

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IN MEMORIAM Donald Louis Corbin, retired Associate Justice of the Arkansas Supreme Court, died December 12, 2016, at the age of 78. After completing his service with the Marines, he attended law school at the University of Arkansas and recently celebrated his 50-year law school graduation. He practiced law in De Queen, then in Lewisville, and Stamps. In 1971, he was elected to the Arkansas House of Representatives. In 1980, he was elected to the Arkansas Court of Appeals and served four years as Chief Judge. He was elected to the Arkansas Supreme Court in 1990 and served until he retired in December 2014. His professional accomplishments were numerous, penning over 1,150 opinions while a jurist.

The Arkansas News Bureau published the following remarks about Justice Corbin: Supreme Court Chief Justice Howard Brill said in a statement, “The Supreme Court of Arkansas joins the citizens of this state in honoring Justice Corbin for a life committed to public service and the pursuit of justice. His booming pres­ence will be missed in the halls of justice.” Justice Paul Danielson said in a statement, “I will miss Donny’s kindness and compassion, his sense of humor, and the wise counsel he gave me over the years. His legacy as a public servant and a friend will not soon be forgotten.”

Harley Cox, Jr., of Pine Bluff, died on November 5, 2016, at the age of 86. Harley practiced law with the firm of Coleman, Gantt, Ramsay and Cox in Pine Bluff. He served as President of the Arkansas Bar Association from 1979-1980.

Donna S. Galchus of Little Rock died December 4, 2016, at the age of 70. Donna was a founding member of Cross, Gunter, Witherspoon and Galchus, where she practiced labor and employment law and immigration law. She was a loving mother, wife, and friend whose integrity earned her respect with clients and

high regard within the legal community. Her strong work ethic and involvement within the legal profession and community were hallmarks of her personality.

Paul B. Gean of Fort Smith died October 28, 2016, at the age of 84. Paul was a graduate of the University of Arkansas Law School.

He was a veteran of the U.S. Air Force. He was a senior partner of Gean, Gean, and Gean Law Firm.

Ken Jones of Ferndale Community died October 24, 2016, at the age 89. Ken served in the Army as a Staff Sergeant.

He used his law degree specializing in real estate law and wills and probate law. He practiced law along with operating The Title Company until he transferred ownership of the company over to his daughter in 1990.

Gregory Pascal McKenzie of Ozark died December 15, 2016, at the age of 67.

He graduated from Ozark High School, and the University of Arkansas. He earned his Juris Doctorate from the University of Arkansas School of Law. He was a retired lawyer, prosecuting attorney, municipal judge, and juvenile judge.

The Honorable P. Luevonda Ross of Monticello died on December 2, 2016, at the age of 52. She graduated from Hendrix College and earned her Juris Doctorate from the James E. Beasley School of Law at Temple University. Judge Ross began her public service as a staff attorney at Central Arkansas Legal Services. She served as a deputy prosecutor for both the 10th and 11th Judicial Districts. She worked in the Arkansas Attorney General’s Office and as a staff attorney with the Office of Child Support Enforcement. After being appointed in 2012, in December 2014 she completed

her term as Drew County District Court Judge, before announcing her ultimately successful bid to seek the position of 10th Judicial Circuit Judge, a position she would have assumed January 2017.

William Leake Terry of Little Rock died on December 25, 2016, at the age of 94. Bill withdrew from Princeton University to join the U.S. Army Air Forces during World War II. He completed his studies at the University of Arkansas, earning a B.S. in Business Administration in 1948 and a Bachelor of Law in 1950. Bill clerked for Arkansas Supreme Court Justice George Rose Smith and worked for the Arkansas State Highway Department. In 1954, he became the ninth attorney to join the firm of Mehaffy, Smith & Williams—now Friday, Eldredge & Clark—and began a long and distinguished practice with a focus on commercial-property transactions and real estate.

He retired from full-time practice in 1988 but continued to be of counsel to the firm until 2014. In the funeral homily for Bill, Chistoph Keller III said: William L. Terry was born with dignity. He bore it naturally, humbly, and heroically. It was for someone like Bill that the phrase was coined: “He bore an honored name and added honor to the name he bore.” As a quiet congressman’s son from Arkansas, he rose to the top of the ranks at St. Alban’s School as Senior Prefect. He rowed crew at Princeton. Pearl Harbor came December of his freshman year.

Before graduating, he enlisted. He wanted to fly but was told he was too tall. The army let him be a gunner, on B-17 Bombers, only because this time he fibbed about his height. He completed 34 missions over Europe. As he knew from the start, the odds of his surviving that were small. ... Through the bravery and sacrifice of men like William L. Terry, the efficient powers of democracy, and decency, prevailed.

The information contained herein is provided by the members’ obituaries.

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