The Arkansas Lawyer Fall 2016

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Inside: Cybersecurity Ransomware Arkansas Mediators Drone Law ArkBar’s 2017 Legislative Package

Vol. 51, No. 4, Fall 2016 online at www.arkbar.com

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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. 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 Karen K. Hutchins Matthew L. Fryar Judge Casey Jones Judge Wiley Branton Jeffrey Ellis McKinley Stephen A. Hester Richard L. Ramsay Patti Julian

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. 51, No. 4

features

10 Fairness for Arkansans

By Denise Reid Hoggard 12 Cybersecurity Best Practices

By Mandy Stanton, George Ernst and Anton L. Janik, Jr. 20 Ransomware and Healthcare Providers By Zachary T. Steadman 24 Standards for Examination of Real Estate Titles in Arkansas

By Robert M. Honea 26 The Emerging Field of Drone Law By Michael A. Thompson 30 Report from the 2015 National Conference of Commissioners on Uniform State Laws By Lynn Foster 32 2017 ArkBar Legislative Package 34 Arkansas Mediators: A Search for Mediation Success

By Stanley A. Leasure 44 Prior-Acts vs. Tail Coverage on Claims-Made Insurance Polices Capson v. MMIC Illustrates the Difference

By Patrick McAlpine 48 The Latest Data on Lawyers, Drinking and Mental Health

By Sarah Cearley

Contents Continued on Page 2

Lawyer The Arkansas Vol. 51, No. 4

in this issue ArkBar News

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Board of Governors Report

18

Disciplinary Actions

51

In Memoriam

55

Classified Advertising

56

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

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

Arkansas Bar Association

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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, Tony Anthony DiCarlo III, Jason W. Earley, Edie Ervin, 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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ArkBar News ArkBar Announces New Resource of Legal Experts Association President Denise Reid Hoggard announced the creation of a new resource for the Arkansas Legislature and Arkansas attorneys. Hoggard has appointed 39 experts from the University of Arkansas School of Law and the William H. Bowen School of Law who will work with the association’s legislation committee, lobbyist and substantive law sections to help provide assistance to the legislature to improve the quality of law in Arkansas.

“As we have fewer lawyers in our legislature, it’s even more important to become resources for our legislature and our executive,” Hoggard said. “We have scholars at both law schools who have volunteered their time and talent to this important aspect of our work. Our goal is to make the quality of law better for all of the people of this state.”

Thank you to the following experts for volunteering to be resources: Lisa Avalos Carlton Bailey Lonnie R. Beard Theresa Beiner Howard W. Brill Terrence Cain Carl J. Circo Steve Clowney John M.A. DiPippa Angela M. Doss Uche Ewelukwa Michael T. Flannery Lynn Foster Sharon E. Foster William Edward Foster Brian Gallini Carol Goforth Sara Gosman Donald Judges

Christopher Kelley Ann Killenbeck Mark R. Killenbeck Robert B Leflar Jonathan Marshfield Mary Beth Matthews Tiffany R. Murphy Cynthia E. Nance Phillip Norvell Philip D. Oliver Laurent Sacharoff Kathryn Sampson Susan A. Schneider Joshua M. Silverstein Annie Smith Tim Tarvin Randall J. Thompson Danielle Weatherby Jordan Woods

Patti Julian is the Association’s New Lobbyist

Arkansas YLS at ABA House of Delegates Meeting

The American Bar Association House of Delegates met in San Francisco August 8-9, 2016. Arkansas Bar Association Young Lawyers Section Delegates pictured from left: Greg Northen (Chair), Eric Marks (Chair-Elect), and Matt Fryar (Immediate Past Chair).

2017 Mock Trial Competition Call for Volunteers It’s that time of year again!

The Arkansas Bar ALEX MCMASTERS Association Mock Trial Committee has just released the case materials for the 2017 High School Mock Trial Tournament, and high school students across the state are beginning to prepare for trial this spring.

In preparation for what we anticipate to be record-breaking participation, we need more volunteers than ever. The tournament is scheduled for Friday, March 3 and Saturday, March 4 in Little Rock. There is no prior Mock Trial experience necessary to judge one of our rounds! The Mock Trial Committee provides a volunteer orientation prior to each round of competition. To volunteer, please visit http:// tinyurl.com/MockTrial2017.

JESS PAXTON V.

For more information,

visit www.arkbar.com/ARMockTrial

The Arkansas Bar Association has hired Patti Julian as its new lobbyist. Patti succeeds Jack A. McNulty, the Association’s longtime lobbyist.

Association President Denise Hoggard said that we are in good hands with Patti working for us at the state Capitol.

“Patti is incredibly well qualified in this position having served as a legislator.”

Patti served in the Arkansas House of Representatives in 2013-2014. She earned a bachelor’s degree in accounting from the University of Arkansas in 1977 and a Juris Doctorate from the University of Arkansas School of Law in 1980. Patti has worked as a campaign political consultant, Patti Julian an interest she came by honestly. Her father Dave Roberts served as a state representative for over 20 years.

Patti and her husband Jim, who is a past president of the Association, live in North Little Rock. They have a daughter, Katy Julian.

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ArkBar News Two Members Announce Their Candidacy for Association President Earl Buddy Chadick and Suzanne Clark have announced their candidacies for President-Elect of the Arkansas Bar Association. The deadline for filing was October 31, 2016. Association members will receive ballots either electronically or by mail no later than November 18, 2016. The candidate receiving the highest number of votes cast in the election becomes the President-Elect Designee, and succeeds to the office of President-Elect at the conclusion of the 2017 Annual Meeting. An amendment to Article III, Section 2 of the Association’s constitution will also be on the ballot. The amendment decreases the number of tellers to count ballots from 5 to 1 per candidate. Utilization of electronic voting has made the use of tellers nearly obsolete leading to the decrease in numbers. Members are encouraged to vote and return their ballots by December 15, 2016.

I am running for president of the Arkansas Bar Association because I want lawyers today and in the future to experience the support and feeling of comradery that have so positively contributed to my experience.

At its best, the Bar Association helps to promote the work of our profession, to educate the public about our societal contributions, and to advance the careers of our members.

Earl Buddy Chadick Those are missions I am committed to furthering.

I am grateful for your consideration of my candidacy for president of the Association, and for your support for our profession and the Arkansas Bar Association.

I am proud to be a candidate for President-Elect of the Arkansas Bar Association. I am committed to service to the Bar Association and our profession. I am currently on the Board of Governors and previously served two terms on the House of Delegates. I am Chair of the Governance Committee, and have served on several other Bar committees and task forces. Our Association plays a critical role in supSuzanne Clark port of Arkansas attorneys and the rule of law within our great state. I would welcome the opportunity to lead the Arkansas Bar Association and I respectfully ask for your vote.

Oyez! Oyez!

Accolades

Word About Town

Arkansas Business selected Caleb Garcia for inclusion in the 2016 “20 in their 20s” class. Rebecca Adelman of Hagwood Adelman Tipton in Memphis, TN was a recipient of the inaugural Ethel Mitty Heart Award, a national achievement within the assisted living industry. Casey R. Tucker of Barron & Tucker in Little Rock was recently inducted as an American Board of Trial Advocates Member. The Cystic Fibrosis Foundation honored Jane Duke of the Mitchell Williams law firm with the Foundation’s highest honor, the Breath of Life Award, in recognition of her pro bono work ensuring access to life-extending breakthrough drugs for CF patients.

Quattlebaum, Grooms & Tull PLLC announced that Sarah E. DeLoach joined the firm’s Little Rock office as an associate. John W. Ahlen IV joined the Arkansas State Bank Department as bank chief counsel. Cal Rose has joined the Rogers office of Wright Lindsey & Jennings as an associate attorney. The law firm of Hagwood Adelman Tipton, PC announced the relocation of its Memphis office to the Railway Express Agency building in Central Station. Olivia Sheppard recently joined Trammell Piazza Law Firm PLLC as an associate. The law firm of Ball Corley PLLC of Little Rock announced that Jennifer E. Glover and Kevin B. Brunson have joined the firm as associates. Cody Kees joined Bequette & Billingsley, P.A. in Little Rock as an associate. Lori Howard announced the opening of her firm the Howard Law Firm, PLLC, located at 111 South Main Street in Benton. The Slinkard Law Firm announced that Mike Bearden joined the firm as a partner.

Appointments and Elections JoAnn C. Maxey was appointed general counsel at the University of Arkansas System. David J. Sachar, Director of the Arkansas Judicial Discipline & Disability Commission, was elected president of the Association of Judicial Disciplinary Counsel. Carolyn Witherspoon of Cross, Gunter, Witherspoon & Galchus, P.C. has been appointed as a member of the American Bar Association Commission on Interest on Lawyer Trust Accounts.

We encourage you to submit Oyez! information to ahubbard@arkbar.com.

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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ArkBar News Congratulations to Members of the Arkansas Bar Association Celebrating Their 25th Year of Practice

The Arkansas Lawyer magazine 25 Years Ago

The cover story of the April 1991 issue of The Arkansas Lawyer was on “Health Law: A New Legal Battlefield” by Harold Simpson.

In 1991, Greg T. Jones was the Young Lawyers Section chair.

Greg is a partner at Wright, Lindsey & Jennings LLP.

Rebecca Adelman Daniel Raybert Alexander Cheryl Fisher Anderson Janet L. Bledsoe Charles Tad Bohannon Sandra C. Bradshaw Danny W. Broaddrick Angela A. Byrd H. Gregory Campbell Kimberly M. Canova Mark D. Carney Ann Cato Juliane Henderson Chavis Christina Comstock Gerald J. Crochet, Jr. Robert R. Danecki Jon Sharrock Dermott Stephen H. DeSalvo Colonel Steven D. Dubriske John C. Fendley J. Mark Ferguson Andrew A. Flake Michael T. Flannery Jim Pat Flowers Grant E. Fortson Lance Garner James F. Goodhart David M. Graf John Scott Greear Rayburn W. Green Kathryn Lawson Griffin Teena G. Gunter Charles E. Halbert Christopher Leif Hamman Heath E. Hardcastle James Scott Hardin Jennifer Wheeler Haskins

New forms updated regularly. 24 new probate forms!

Pam P. Hathaway Christopher Heil Amanda A. Hull David L. Ivers Lawrence W. Jackson Nelson E. Jackson William Stuart Jackson Peggy J. Johnson Pamela Belt Johnston David C. Jones William B. Justiss Rebecca B. Kane Patricia Keck A. J. Kelly Ron D. Kelsay Thomas N. Kieklak Ella Maxwell Long John Wiley Lott S. Scott Luton J. Gregory Magness David P. Martin Melanie H. Martin Karen H. McKinney M. Shawn McMurray Jack McQuary Janet Hanna Metcalf Heather Miles Phillip J. Milligan

Margaret Woodward Molleston John A. Moore Conrad T. Odom Fred A. O’Neill Charles “Tom” Owens Fred M. Perkins III Kathryn B. Perkins John Slocum Pickell R. Lane Pittard Jennifer E. Rogers Michael D. Ray Robert Jeffrey Reynerson Bill D. Reynolds John M. Rogers James Merek Rowe Marianne Satterfield L. Howard Schwander III Jeanne L. Seewald Carole Diane Sexton Michael N. Shannon J. Baxter Sharp III John G. Simon Lloyd H. Smith, Jr. William J. Stanley Robert E. Steinbuch Scott Michael Strauss Gary L. Sullivan Tom J. Swearingen Judge Chaney W. Taylor, Jr. Lance Thornton Theresa Wallent Allen L. Warmath Matt Warner Paul D. White Roy E. Williams Thomas A. Young

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PRESIDENT’S REPORT

Opportunities for Discussion Denise Reid Hoggard

Attending Red Mass at Cathedral of St. Andrews, Little Rock, in September this year, Judge James P. Hamilton, North Little Rock District Court, was honored as he retires from a 28-year stint on the bench. He said he put the letters W, P, U, P, A, and P onto the door frame of his chambers so he saw them every time he headed to his seat on the bench in the courtroom. The first three letters are for traits we should all strive for: wisdom, patience, and understanding. The last three letters are for traits we hope to guard against: pride, arrogance, and prejudice. This attitude of public service permeates our judiciary and we are blessed with good judges throughout our state.

Sometimes, the public doesn’t get told about the positive aspects of our justice system. Public confidence in our system is crucial. So part of our mission at the Arkansas Bar Association is to pursue its purposes in the public interest. Those purposes include advancing the fair administration of justice; aiding the courts in carrying on the administration of justice; providing a forum for the discussion of subjects pertaining to the practice of law and related subjects; carrying on a continuing program of legal research in technical fields of law, practice and procedure; making reports and recommendations thereon; improving the judicial and legal process; and advancing the science of jurisprudence.

Historically, we have worked

cooperatively with the Courts and we continue to do so. Steeped in tradition, we have been a part of the swearing-in of new lawyers before the Arkansas Supreme Court.

We have partnered with the Courts in holding the Practicum, a day-long program for all newly licensed lawyers which gives practical training on professionalism.

We have historically petitioned the Court for proposed changes to the rules. We are invited to the Arkansas Judicial Council meetings, and work cooperatively with the Council in planning our annual meeting in Hot Springs. We coordinate our annual meeting with the Judicial Council so that all lawyers can attend and interact with our judiciary. We schedule programming to provide maximum access to quality education for both the bench and the bar.

We also worked jointly with the Judicial Council on issues important to the fair administration of justice. We hold quarterly meetings with the Chief Justice of the Arkansas Supreme Court, Chief Judge of the Arkansas Court of Appeals, and the Executive Director of the Administrative Office of the Courts.

For the last two legislative sessions, Representative Matthew Shepherd has introduced a proposed constitutional amendment to change the method of selection for justices for the Arkansas Supreme Court and for the Arkansas Court of Appeals. In June 2015, Governor Asa Hutchinson urged the Association to study judicial

selection processes for appellate courts. In February 2016, the House of Delegates voted for the Association to do so.

Subsequently, the Task Force on Maintaining a Fair and Impartial Judiciary was formed and included two members from the Judicial Council, Judge Mary McGowan and Judge David Guthrie.

The Task Force issued a report recommending the selection process for Supreme Court justices be changed. The House of Delegates adopted the report recommendations. Following the House of Delegates’ direction, Task Force Chair, Jon Comstock, agreed to work with a drafting committee to take the Task Force recommendation and draft a proposed constitutional amendment. The committee studied nation-wide the methodologies used for selection of justices. Their goal was to prepare a plan which would insulate the court as much as possible from political influences.

The Judicial Council, at its business meeting October 13, voted unanimously to oppose appointment of justices.

Not everyone is going to agree with the proposed plan, and certainly a proposal which attempts to take politics out of the selection of justices has an uphill battle.

But before this proposal reaches the political arena, it will first go to the House of Delegates where it must have a 3/4th approval vote to go forward. We will provide the draft, once finalized, to our membership. No vote will

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

be scheduled before the House of Delegates until there has been at least 30 days for the membership to consider the final draft, and be able to discuss it with their House of Delegates members. We encourage everyone to reach out to your House of Delegates members to express your views and we will be working on ways to facilitate that. Information about your district and corresponding Delegates can be found on the Association’s website.

Further, as we progress towards the 2017 Legislative session, we are partnering for our Mid-Year meeting in Little Rock with the University of Arkansas at Little Rock Bowen School of Law, which is holding its Law Review Symposium on judicial selection processes. The Mid-Year meeting is February 15-17, 2017. Together we will bring national leaders and offer local constituencies the opportunity to share their perspectives on selection processes.

The Court, legislators and the Governor have been invited to participate. This should be an excellent opportunity for discussion in a meaningful way at a meaningful time. We hope that every Arkansas attorney will attend the meeting to be as informed as possible and express their opinions.

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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ArkBar News Congratulations to the New ArkBar Members Admitted to the Practice of Law October 2016

On October 7, 2016, the Arkansas Bar Association held a welcome event at the Arkansas State Capitol for all new attorneys following the Arkansas Supreme Court’s swearing-in ceremonies. Association President Denise Reid Hoggard, Arkansas Judicial Council President Judge Mary Spencer McGowan, U.S. Magistrate Judge Beth Deere and other representatives from the Arkansas Bar Association, Judicial Council, Federal Courts, and State Judiciary welcomed the new attorneys and their families.

The new attorneys had the opportunity to have their photograph made by a professional photographer, Michael Pirnique, in the historical Old Supreme Court chamber. The new members were provided a copy of the Statute of Limitations handbook and other valuable resources to help them with the beginning of their practice.

Judge Mary Spencer McGowan, Ashley Louks , Judge Beth Deere

Kirby Miraglia, Denise Hoggard, Patrice Griggs

Adam Franks, Alan Jones, Jake Logan, Christy Bjornson

Denise Hoggard speaking to the crowd in the Capitol Rotunda

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Travis Alton Adams Joseph Daniel Allen Nicholas Ryan Alvarez Anna Elizabeth Baker Mary Catherine Baker Devin R. Bates Calvin Daniel Beasley Christy Lynn Bjornson Kylie Elizabeth Bonds Kael Keith Bowling Spencer Sims Bowling William Alexander Bridewell Justin DuPree Brown Jessica Liesel Browne Kevin Burke Brunson Matthew Lyn Brunson Joseph Reid Byrd Erin Grace Callan Abbey Elizabeth Clark Christina Elise Cole Brianna Caitlin Cook Jordan Casey Cooper Michelle Marie Cossio James Spencer Depper Hays Cannon Doan Sarah Rinehart Dokken Paul Andrew Eddy Brittany Nicole Edwards Joshua Michael Eide Lindsey Hayden Emerson Mary Elizabeth Ernhart Adam David Franks Beau Stewart Fugitt Rafael Eduardo Gallaher Colt Daniel Galloway Kirsten Nicole Garner Michael Kenneth Goswami Steven Lane Grady Paul Edward Gregory Dr. Frankie Martin Griffin Justin Wayne Harper

Christian Warner Harrod Caroline V. Hays Michael Clark Hays Nicholas Clayton Henry Jacob Edward Hiegel Randal Hasting Hobbs Lucy Lee Holifield Courtnie Janssen Holt Jess Alexander Honeycutt Jessica Elizabeth Howell Dylan L. Jacobs Ledly Stock Jennings Loyd Ryne Johnson Alan Wayne Jones Daveante Jones Kaleb Mason Jones Kolton K. Jones Yiesha Lakya Jones Trenton James Julian Laura Porter Keller Jacob J. Kerksieck Yunsieg Paik Kim Rachel Nina Kluender Donovan Joel Kurtz Thomas William Langevin Kendall Starr Lewellen Jael Gray Lewis Kevin Liang Cameron Lincoln John Jacob Lively Jake Moreno Logan Jennifer Lauren Loiacano Nicholas Wade Lorigan Michael A. Louden Ashley Michelle Loy Kathryn Ann Loyd Wilson Wynne Tan Lucas Benjamin Drew Mackey Brooke Nicole Magness Sarah Fodge Marshall Nathan Scott McCarroll

Aaryn Lynne McCosh Kirby D. McDonald Karl Brandon Middleton Kirby Dawn Miraglia Emily Christel Mizell Nick Alan Mote William Ryan Mullen Andrew Michael Nadzam Abigail Marie Olberts William Rolf Olson Goodman C. Onyilagha Lilia Pacheco Brooklyn Rae Parker Ronald Neil Pender Joseph Dalton Person James Michael Petty Eric Matthew Pinter Rachel Elizabeth Pisors Brock A. Price Holden Lee Raines Carrie Lee Rampey Lauren Elizabeth Rowden Landon Todd Sanders Audra M. Sargent Mark Ethan Sartor James Edward Schulte Olivia Ann Sheppard Ross E. Simpson John A. Singleton Sidney A. Stewart Chad Alan Taylor Aarika Kilgore Thompson Andrew Paul Thornton Bobbie Lee Tipken Kaylyn Renee Turner Joshua D. Waters Mindy Michelle Wirges Joe Davis Woodward Amanda Rhea Yarbrough Paul Alan Young

YLS REPORT

Fall, Football and Pumpkin-Spiced Everything

By Gregory J. Northen It is here. Finally! Gone are the dog days of summer. The fall has arrived and brought with it cooler temperatures, crunchy leaves, and pumpkin-spiced menu items that I had no idea existed nor could ever imagine. Seriously, what is a skinny, pumpkin-spiced mochachina latte? Back to the point: my favorite time of year is here and, most of all, football is, too.

I was born in Arkansas and have lived here my entire life. Naturally, I was indoctrinated into the Arkansas Razorback fan club at a young age and have been a lifetime member. I do not follow any NFL teams very seriously (college football is superior in most ways, of course), and we do not have any professional teams bearing our name here, so there really is not much competition to my faithfulness to the Hogs. With that understanding, any other Hog fan can relate to my annual unsubstantiated expectations of a 10-2 season in August that quickly falls into a panicked pleading for winning enough games to make it to a bowl game sometime around mid-

to-late October. Of course, any year that we beat LSU is a great season in my book.

I really like football. Aside from the physical nature of the sport with college players’ speed, strength, and big hits, football is intriguing for other reasons. One such reason, to me, is that it serves as a kind of a chess match between coaching staffs. Among the 128 FBS teams, there are many different styles of football that coaches use on offense: some like to run the ball like Coach Bielema; others who like to pass like Coach Petrino; and then there are coaches like Les Miles (nicknamed the “Mad Hatter”) or Lane Kiffin who no one knows what to expect from one week to the other. Successful coaching staffs can put together a game plan week-to-week that puts their players, based on their various strengths and weaknesses, in the best position to win a 60-minute game against the opponent that week, who in turn has its own strengths to limit and weaknesses to exploit. If the game plan isn’t working out, then suc-

cessful coaches know how to make halftime adjustments and call an in-game audible when they realize that a different play is necessary.

(Enter seamless transition to application): the same success can be applied in a young lawyer’s practice with preparation, observation and flexibility. Like coaches, lawyers have general “game plans” with regard to their practice, and no one way to practice law is “right” or “better” than another, so long as it works for you. Some lawyers work to maintain open channels of communication with opposing counsel; others may prefer the “less is more” approach. Certainly, fighting every non-substantive motion in the course of litigation may work well in some cases yet create additional stress, expense, and hassle for the client in another. Refusing to attend a mediation may be in a client’s best interest in one case yet going to trial could result in the same (or worse) outcome with more cost.

While some of us may be entirely self-taught, many of us have most likely learned how to prac-

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.

tice law from a more experienced attorney or attorneys in a firm or association, and we have probably picked up on many skills and habits of those attorneys. As a young lawyer, I feel that more experienced attorneys who see my Bar number sometimes try to intimidate or bully me in a given situation (probably my own insecurities, but it is my feeling). I guess what I am trying to get across is that, sometimes, we young lawyers may be less open to adjustment of our practice styles, whether out of lack of experience, insecurities (guilty), or stubbornness. Perhaps a little bit of flexibility or calling an audible every now and then could help a client when our original game plan is not working.

Just a thought from a young lawyer to consider while you watch the Hogs on Saturday or sit at your desk enjoying a pumpkinspiced harvestberry crunch baked something-or-other.

YLS Welcomes New Attorneys YLS members welcomed the new attorneys at an ArkBar reception at the State Capitol.

From left: Madeline Moore, Gregory Northen, Jennifer Chang, Meredith Causey, Degen Clow, Stefan McBride, Sara Griffin, Caleb Garcia, Tony Hilliard

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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ArkBar News

Fairness for Arkansans

By Denise Reid Hoggard On October 13, 2016, the Arkansas Supreme Court granted the petition of Nancy Lee Wilson and Paula Jean Casey, filed individually and on behalf of Fairness for Arkansans, and ordered that Issue 4, Arkansas Cap on Medical Malpractice Attorney Fees Amendment and non-economic damages, votes from the November 8, 2016, election, not be counted nor certified. As requested at the Arkansas Bar Association House of Delegates meeting June 2016, the ballot question committee Fairness for Arkansans was formed. It was headed by two directors, Scott Trotter and Kristin Pawlik, and 15 Arkansas Bar Association Past Presidents: Robert Cearley, Jr., Thomas Daily, Ron Harrison, Richard Hatfield, Charles Harwell, Jim Julian, Harry Truman Moore, Donna Pettus, Ellis Pettus, Richard Ramsay, Brian Ratcliff, Judge John Stroud, Jr., Glenn Vasser, Eddie Walker, and Tom Womack. We are grateful to Mrs. Wilson and Former Dean Casey, as well as to the past presidents who took these leadership roles.

We thank Scott Trotter, long-time Association member, who volunteered his time, considerable intellect, skill and resources, to represent Mrs. Wilson and former Dean Casey, in their petition. The quality of his work in this matter reflects well on the Association.

In carrying out the House of Delegates directives, the Association held a news conference on the formation of Fairness for Arkansans and the filing of the petition against the issue appearing on the ballot or being counted. Additionally, the Association worked with its Legislation Committee and Executive Committee to inform Association membership, the press, and the public about its opposition to Issue 4. The Legislation Committee consists of the following members: Kristin Pawlik, Sterling Chaney, Greg Giles, Anthony Hilliard, Patricia Julian, Dustin McDaniel, Chad Pekron, George Rozzell, Aaron Squyres, and David H. Williams. Executive Committee members: Denise Hoggard, F. 10

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Top photo: Scott Trotter speaking to the media at the August 29, 2016, news conference at the Arkansas Bar Center. Bottom photo: Denise Hoggard at the news conference.

Thomas Curry, Anthony Hilliard, Gregory Northen, Brian Rosenthal, Shaneen Sloan, and Eddie Walker. Fairness for Arkansans established a website, posted the petition filed with the Court, posted press releases issued against Issue 4, and posted news coverage and related articles. The committee also filed required disclosures with the Ethics Commission.

Joining the Association in its opposition to Issue 4 were the Cleburne, Washington, Benton, Greene, Union, Dallas, Boone and Newton County Bars. It was also opposed by the Arkansas chapter of the American Board of Trial Advocates. ABOTA’s general

purpose is “to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be benefitted by more efficient administration of justice consistent with time-tested and traditional principles of litigation.” The Family Council Action Committee and Secure Arkansas also opposed Issue 4.

Going forward, the Association will continue to monitor whether the substance of Issue 4 is submitted for consideration by the Legislature as one of the three constitutional amendments it can refer to the public.

We were asked by the press, why the Association got involved in Issue 4. The House of Delegates made that decision.

Part of our mission at the Arkansas Bar Association is to educate and advocate in the public’s interests. When we first announced we would challenge the ballot title on Issue 4, we thought the title was misleading and that voters were not going to have a fair chance to know what they were being asked to decide.

We argued that the proposed amendment materially changed the separation of powers by giving the legislative branch control over what is the purview of the courts.

Revisions to the Arkansas constitution require special safeguards to make sure that the public is given the best possible information to make their decision in the five minutes they have in the voting booth.

Issue 4 also ignored that Arkansas has longstanding rules in place to ensure fairness in the legal system, including tort cases.

Specifically in medical malpractice actions, litigants are required to consult an expert to determine that medical care fell below the standard required in Arkansas. This consultation must occur prior to the filing of any lawsuit. Courts are empowered by our rules to dismiss any lawsuit deemed by the court to be frivolous and to punish attorneys for filing frivolous lawsuits. An attorney who engages in such a practice risks the loss of his or her law license. 

2017 ArkBar

Mid-Year Meeting

FebruArY15-17, 2017 • LittLe rock

The 2017 Mid-Year Meeting is scheduled to take place in Little Rock, Arkansas, from February 15-17 at the Marriott and Capital Hotels. Our planners have worked diligently to craft a great event for 2017. Continuing the tradition of exemplary programs, we are assembling a lineup that combines a diverse, accomplished list of speakers with meaningful seminars addressing a range of topics.

This is an excellent opportunity to network with well over 100 of your peers in the legal profession. This year’s event offers 13 CLE hours including 4 CLE Ethics hours through a variety of tracks. You can fulfill ALL of your state license renewal requirements in just three days. Brochure coming soon to your mailboxes. Visit www.arkbar.com/midyearmeeting for updates.

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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Cybersecurity Best Practices

By Mandy Stanton, George Ernst and Anton L. Janik, Jr.

Mandy Stanton Is a cyber security and privacy lawyer at the Mitchell Williams law firm where she co-leads the firm’s Cybersecurity, Privacy and Data Protection practice.

Stanton George Ernst is a partner at the Roberts Law Firm, where his practice includes Business Immigration Law, Employment Law and Cybersecurity Law.

Ernst Anton L. Janik, Jr., is a member of the Mitchell Williams law firm were he leads the Tax Controversy and Litigation practice and co-leads the firm’s Cybersecurity, Privacy and Data Protection practice.

Janik 12

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ver the last few years, it has become clear that threats to cybersecurity are only increasing, and therefore establishing sound cybersecurity risk-management polices and procedures will remain a critical consideration for businesses. From the recent headline-grabbing attacks on Target Stores, Home Depot, Subway, VISA, MasterCard, and JP Morgan Chase, as well as the Democratic National Convention email hack, the specter of cybersecurity threats and the potential for increased liability should be a concern for most businesses, especially in the retail, insurance, and banking industries. As a result of these threats, spending on cybersecurity initiatives totaled over $75 billion in 2015, and spending is expected to increase to $170 billion by 2020.1 Indeed, nearly every company that collects or stores sensitive and confidential information is potentially at risk from cybersecurity threats. As businesses continue to use e-commerce and integrate networked information systems, these businesses become greater targets for cyberattacks.2 This article provides a general overview of the core issues and best practices that clients should consider to protect themselves from cybersecurity threats and the potential resulting liabilities. Given the multitude of variables, including the type of business, the agencies or commissions that regulate its business activity, and the type and method of data collected, this discussion will not be a “one-stop shop” for your clients. Moreover, because the threat landscape is constantly evolving and changing, it is important that your clients remain current, either seeking out or receiving from you updated information and advice as new threats, liabilities, and solutions become known. Due to this constantly evolving environment, we recommend that a corporate cybersecurity risk-management program be included in most businesses’ administration plans, so that clients regularly reflect upon the potential hazards, their potential exposure, and the methods and means to combat them.

Determine Who Regulates the Clients’ Activity A particular difficulty when advising clients on cybersecurity risk-management issues is the lack of a clear and coherent omnibus or overarching set of cybersecurity laws and enforcement agencies. Indeed, the regulatory law establishing notification procedures and liability for a cybersecurity intrusion can stem from a variety of sectors and agencies, including, but not limited to, the Office for Civil Rights in the Department of Health and Human Services (HHS) for violations of the Health Insurance Portability and Accountability Act (HIPAA), the Consumer Financial Protection Bureau for financial consumer protection issues, the Department of Education for violations of the Family Educational Rights and Privacy Act, the Federal Communications Commission (FCC) for violations of the Telephone Consumer Protection Act, the Federal Trade Commission (FTC) for breaches of published consumer privacy policies, and even the Equal Employment Opportunity Commission (EEOC). Thus, when drafting and implementing a cybersecurity risk-management program, it is important to determine which agencies regulate the industry or the activity at issue, and thus which may be at your client’s door in the event of a data

“Implementation of an employee training arm in your data security plan is one of the best defenses against breaches. The Federal Trade Commission suggests creating a ‘culture of security’ ...” breach, so that you can draft cybersecurity solutions, including a response plan, that takes into account and complies with those legal requirements.

Perform a Vulnerability Assessment Businesses and organizations should identify possible avenues of cybersecurity risk.

Some of the more common examples of cybersecurity risks include permitting protected client or employee data to be accessed by or copied to insecure mobile devices in the bring-your-own-device (“BYOD”) workplace or to be stored in insecure cloud computing environments. They also include the lack of appropriate controls and requirements with regard to employee social media usage, and the rise of the “internet of things,” which refers to the increasing ability for everyday objects to gather data and con-

nect to the internet. (For example, a home thermostat can cycle down your HVAC system when it detects you have left, and report to a mobile app that the owner is not at home. Transmitting data about whether a homeowner is home or away could create a security risk.) Clients should analyze their data collection methods and the security of same, considering how that data could be collected, and to what use it could be put. By analyzing and addressing these possibilities in light of the requirements set forth by the regulatory bodies governing that industry or that data, a vulnerability assessment will help your client understand the risks posed by their operation. However, it is important to remember that because new threats are ever evolving, regular cybersecurity vulnerability assessments searching for new and additional potential weaknesses should be part of a cybersecurity risk-management program.

Many businesses now require that their vendors perform vulnerability assessments.

Many of our clients regularly insert cybersecurity warranties and cybersecurity audit requirements in their vendor contracts. Some clients accept vendor self-assessments while others require third-party audits, which may include penetration testing to provide reasonable assurances as to that vendor’s ability to keep data secure. However, identifying and

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remediating vulnerabilities does not necessarily mean reinventing the wheel. Several state and federal agencies have issued guidance documents for performing risk assessments, including the National Institute of Standards and Technology’s Framework for Improving Critical Infrastructure Cybersecurity.3 The Federal Trade Commission has set forth guidance for testing for common vulnerabilities and in utilizing industry-accepted methods and technical and practice standards for securing data.4 Regardless, in this environment of contractual cybersecurity requirements, timely vulnerability assessments can protect an organization, and also be an effective means to demonstrate to potential clients that cybersecurity risk-management is a corporate priority.

Keep Software Updated A common but sometimes overlooked means to protect against cybersecurity threats involves incorporating a proactive policy of ensuring that all software is updated regularly and where appropriate.5 Programmers regularly identify vulnerabilities in their software and issue patches for them in the form of software updates. Often, simply installing updates to software will eliminate or drastically reduce known vulnerabilities.

Companies that do not update their software on a regular basis may leave unsecured known avenues for cybersecurity infiltration and data breach. Additionally, the failure to have a policy that requires software updates could lead to liability in the event of a breach that could have been prevented by the installation of a software update. Of course, many factors play into when a software update is installed, including the threat level of the potential harm, your client’s vulnerability to that harm, and the other software your client uses that may not be compatible with that update. Therefore, it may be necessary to prioritize certain patches based on these or other considerations.

The Importance of Vendor Due Diligence and Contract Review Delegating away responsibility for the risk that third-party vendors may lose your client’s data is no longer an option, particularly in the healthcare and financial industries.

A key component in mitigating third-party risk is to know your vendors and how their services affect your data security. Prior to selecting a vendor, it is important to 14

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clearly identify how the governing regulations impact the services in question, what legal responsibilities apply and how vendors implement those particular services.6 Due diligence should be conducted for any outsourced function,7 although the depth of the investigations may vary depending on the scope of the services to be provided. Is an online search for publicly-available information about the vendor’s cybersecurity precautions or a basic questionnaire sent to the vendor sufficient to quantify the potential risk this vendor may pose to your business and its data? Or would a more extensive search or vendor questionnaire or perhaps even an interview or site visit be more appropriate?

Regardless, due diligence information should be verified and reviewed in context with your client’s business goals and in consideration of the potential reputational impact a vendor may present.

Contract review is important to ensure that the client-vendor agreement is consistent with the client’s business needs and complies with the client’s cybersecurity riskmanagement program. In the context of data protection, some points to take into account when negotiating key provisions of a contract include:8 •Limitation of liability: What is the vendor’s liability? Are the suggested limits, if any, reasonable given the scope of services and the information that may be impacted?

•Service levels: If a vendor fails to provide the service level standard (e.g., incident response times, data encryption usage) as provided for in a contract, does that potential failure impact data protection? If so, what is the impact?

•Data protection: Are contractual security requirements specific and measurable for acceptable performance? Is confidentiality as well as security covered? Are any relevant types of data excluded from certain protections? Are there industry standards that can be incorporated to provide acceptable protection?

•Termination for Convenience: Are expectations set up front regarding whether a breach of confidentiality, security or failure to comply with applicable law triggers a termination right?

Mitigating vendor risk doesn’t end when the ink dries on the contract. Periodic contract reviews, especially as contract renewals

arise, and ongoing monitoring based on the most current legal requirements or other applicable regulatory or industry standards should play an integral part in vendor management. In addition to evaluating performance, monitoring should also consider any mitigation agreed to in the contract, such as service levels and data security clauses.9 Also, being mindful of news headlines and performing regular online searches of your vendors may provide valuable information.10 Control Access to Data with an AccessManagement Plan Controlling access to data with an accessmanagement plan should be an integral piece of a cybersecurity risk-management policy.

An effective access-management plan should establish the “when and how” of employees’ access to information and networks,11 while keeping within the context of the business’s goals and the legal or ethical responsibilities of the organization. General consideration should be given to the following: •At what point should access be acquired?

•How long should access be retained?

•When should access be terminated?

•Should access to certain files or applications be restricted?

•Is there a system for limiting or restricting virtual access to an organization’s files on an as-needed basis?

•Which employees should have administrative access to an organization’s systems?

•Are there limits to third-party access to an organization’s network?

•Can you encrypt financial and personally identifiable information?

The Federal Trade Commission further recommends controls for information access such as restricting access to network information, separate user accounts where personal data is stored and locking file cabinets.12 You should also consider whether there are contractual obligations to consider when determining the parameters of information access. Most non-disclosure and confidentiality agreements contain standard language that the parties agree to share information within the organization on a need-to-know basis and/or only to the extent necessary to perform their obligations.

Regular Employee Training is Vital Multiple studies and research point to

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Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer THE JURY TRIAL15

employees as the leading cause of data breaches. Implementation of an employee training arm in your data security plan is one of the best defenses against breaches. The Federal Trade Commission suggests creating a “culture of security” through communication of policies, training on a regular basis, identifying clear reporting channels and implementing such policies and procedures in a consistent and active manner.13 As part of that culture, it is important to designate a privacy officer to implement a security strategy and counsel on processes and procedures involving privacy and security. When developing your employee cybersecurity training program, consider the following elements: •Communication: Are your cybersecurity policies communicated regularly through initial hire training, organization-wide training on a regular basis, and in employee policy manuals or handbooks?

•Training: Are you conducting training on a regular basis? Is this training updated as technology, threats, policies or other considerations evolve?

•Reporting Channels: Are reporting channels clear, simple and easily accessible?

•Active Implementation: Is employee compliance being monitored? Are disciplinary measures imposed for violating security policies? Are employees that identify vulnerabilities publicly acknowledged?

•Testing: Do you regularly test your employees’ ability to detect and report on cybersecurity threats like phishing emails?

Typically, it is not the lack of leadership, knowledgeable staff or funding that creates a barrier to a strong security culture. Rather, it is insufficient planning, and a lack of regular training and across-the-board preparedness.14 Taking the time to make employee cybersecurity education a priority is widely considered to be time well spent.

Create a Cybersecurity Breach Response Plan A well-defined breach response plan is vital to an orderly and successful response.

A breach response plan should identify the personnel, including a privacy officer having responsibility to investigate, analyze, respond, issue required notifications, and respond to public inquiries about the event, as well as set forth any necessary timelines or protocols for carrying out the plan. The plan should be regularly reviewed and if possible, 16

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test implemented, with the identified persons taking part.

Know Your Notification Requirements Although all clients want to prevent a cybersecurity breach from ever happening, the odds are that one will still occur. If a breach occurs, it is important to determine whether the client is required to provide notification to the persons whose data has been compromised. Currently, 45 states (including Arkansas), the District of Columbia, Puerto Rico and the U.S. Virgin Islands have enacted security breach notification statutes.15 A breach of a security system means the “unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of personal information maintained by a person or business.”16 Under Arkansas’ law,17 generally, “[a]ny person or business that acquires, owns or licenses computerized data that includes personal information shall disclose any breach of the security of the system following discovery or notification of the breach of the security of the system to any resident of Arkansas whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person.”18 Personal information includes an individual’s first name or first initial and last name in combination with another data element (social security number, driver’s license number, account or card number and pass code, or medical information). If that occurs, the notice must be made in the most expedient time and manner possible and without unreasonable delay.

To ensure full compliance, and to determine whether any exemptions are available from this general rule, it is important to encourage clients to discuss any instances of a data breach as soon as possible. Additionally, it is important to note that should a client maintain records for individuals who live in other states, it is important that the client’s data breach response plan also address the notification requirements of those other states.

This article has covered a broad scope of considerations, but not all may apply to your client’s business. However, the regular examination of the cybersecurity risk-management concerns that do apply to your client’s business is vital to its continued success, and should therefore be an ongoing component of your client’s business plan.

Endnotes: 1. http://www.forbes.com/

sites/stevemorgan/2015/12/20/ cybersecurity%E2%80%8B%E2%80%8Bmarket-reaches-75-billionin-2015%E2%80%8B%E2%80%8B%E2%80%8Bexpected-to-reach-170-billion-by-2020/#3c69faf22191.

2. Ronald N. Weikers, Data Sec. & Privacy Law § 1:3 (2016).

3. https://iapp.org/media/pdf/resource_center/Krasnow_model_WISP.pdf.

4. https://www.ftc.gov/system/files/documents/plain-language/pdf0205-startwithsecurity.pdf.

5. Id. 6. https://iapp.org/news/a/third-partyvendor-management-means-managing-yourown-risk/.

7. https://www.ftc.gov/system/files/documents/plain-language/bus69-protectingpersonal-information-guide-business_0.pdf.

8. https://iapp.org/news/a/third-partyvendor-management-means-managing-yourown-risk/.

9. Kirkpatrick, Brian, Legal Ethics: Cybersecurity in Your Daily Practice, http:// westlegaledcenter.com/program_guide/ course_detail.jsf?courseId=100104131.

10. https://iapp.org/news/a/third-partyvendor-management-means-managing-yourown-risk/.

11. https://iapp.org/news/a/designing-andimplementing-an-effective-privacy-andsecurity-plan/.

12. https://www.ftc.gov/system/files/documents/plain-language/pdf0205-startwithsecurity.pdf.

13. https://www.ftc.gov/system/files/documents/plain-language/bus69-protectingpersonal-information-guide-business_0.pdf.

14. Ponemon Institute, The Cyber Resilient Organization: Learning to Thrive against Threats, http://www.ponemon.org/library/ the-cyber-resilient-organization-learning-tothrive-against-threats (last visited March 3, 2016).

15. http://www.ncsl.org/research/telecommunications-and-information-technology/ security-breach-notification-laws.aspx.

16. Ark. Code Ann. § 4-110-102(1)(A).

17. Ark. Code Ann. § 4-110-101, et. seq.

18. Ark. Code Ann. § 4-110-105(a)(1). 

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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ArkBar News

Report from the August 2016 Board of Governors Meeting

By Karen K. Hutchins Chair Brian Rosenthal led the August 26-27, 2016, Board of Governor’s meeting at the Winthrop Rockefeller Institute in Morrilton, Arkansas.

Executive Director Karen Hutchins reported to the Board that membership continues to climb upward. Patron contributions have doubled and Benefactor support is up by 25%.

The Association is supporting two new public service programs that assist the public throughout the state and in your community. First, the Association asks that all members help provide pro bono through the new AR Free Legal Answers program.

It is available through the Arkansas Access to Justice website (http://www.arkansasjustice.org). Attorneys can sign up to answer online questions from low-income, elderly, and disabled Arkansans about non-criminal legal issues. As a volunteer attorney, you can select which questions you will answer.

You will remain anonymous to clients, who will only see "Volunteer Attorney." You will be covered by the program's malpractice insurance and have access to hundreds of advocate resources on the topics covered.

Second, the Association is collaborating with Goodwill Industries with the program “Arkansas Lawyers Spread Goodwill.” It is aimed at collecting office-appropriate clothing for people interviewing and entering the workforce. Bring your garments to the Arkansas Bar Center or any Goodwill collection center to help people get started in their new careers.

Hutchins updated the board on the new CLE Select membership option which provides a great package. Members can attend CLE in-person or via live stream when available and receive discounted registration rates to the Annual and Mid-Year Meetings.

There is no limit to the number of CLE hours you can attend during the 2016-2017 bar year. Contact the Bar Center to upgrade your membership anytime.

YLS Chair Greg Northen reported on the section’s plans for this bar year. PresidentElect Anthony A. “Tony” Hilliard also gave 18

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a brief report on incorporating more county bar connections to Board meetings in the upcoming year.

President Denise Hoggard announced that Ms. Patti Julian was retained as the Association’s new Lobbyist. She announced her appointments to the Arkansas Law Review, Inc., and moved that the Board confirm her selections. President Hoggard informed the Board of the House of Delegates’ vote to oppose Issue 4— the Initiated Act: The Lawsuit Reform Amendment of 2016: An Amendment to Limit Contingency Attorney Fees and NonEconomic Damages in Medical Lawsuits.

The House also supported the Legislation Committee’s recommendation for the appointment of a ballot question committee to start working on options to oppose the initiated act. The ballot question committee was formed and titled Fairness for Arkansans. That committee filed a petition with the Arkansas Supreme Court to declare the ballot title of a proposed constitutional amendment Issue 4 with the popular name "An Amendment to Limit Attorney Contingency Fees and NonEconomic Damages in Medical Lawsuits" insufficient and that the initiative petition containing the proposed amendment should be removed from the November 8, 2016, general election ballot.

Upon motion by President Hoggard the Board ratified creation of the 20/20 Commission, which she appointed to provide future-focused guidance for the Association to continue to remain a strong component in the legal community. The 20/20 Commission will evaluate trends in the profession as well as develop a vision for the future of the Association and create a plan to make that vision a reality. Under the leadership of Judge Audrey Evans the 20/20 Commission held its organizational meeting this fall.

Finance Committee Chair Shaneen Sloan presented the 2015-2016 Year End Financials and the Board approved a revision of the 2016-2017 Budget.

Secretary Curry reported that in June the House of Delegates approved recommending the membership vote to amend the Association’s constitution modifying the requirement for tellers during ballot counting of our annual elections. The utilization of electronic voting has decreased the number of ballots received by mail and thus the need for tellers to count them has significantly decreased. The proposed amendment will appear on the ballot in the next election which will be held this November. Mr. Buddy Earl Chadick and Ms. Suzanne Clark have filed petitions to run for the office of president-elect. Ballots will be distributed on or before November 18, 2016. To be counted ballots must be received at the Association’s office in Little Rock no later than December 15, 2016.

Next, Kristin Pawlik, Chair of the Legislation Committee, updated the Board on the 2017 Legislative Package passed by the House of Delegates in June. Five of the proposed seven bills were approved to be included. These bills can be found on ArkBar’s website on the Legislative Resources page.

The Mock Trial Committee provided an update on their research on the feasibility to host the National Mock Trial Competition.

Chair Barrett Moore and Jordan Tinsley are working on the proposal and will provide an update to the Board at the December meeting.

Many great CLE programs and social events are planned for the Mid-Year meeting in Little Rock on February 15-17, 2017.

Look for the Mid-Year brochure in your mail in early December. 

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

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Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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Ransomware and Healthcare Providers

By Zachary T. Steadman

O

Zachary T. Steadman is a member of the Mitchell Williams law firm where he regularly represents clients on matters pertaining to federal and state regulation of healthcare providers, health plans, and insurance carriers.

20

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n February 5, 2016, hackers hijacked Hollywood Presbyterian Medical Center’s computer systems using ransomware that infects via email and locks a victim’s computer, core server or even its backup repositories and prevents access to data.1 Typically, ransomware encrypts the files and creates a key stored on the malware control servers and sends a message offering to decrypt the data if a ransom payment, usually in bitcoin, is made by a stated deadline.2 This offer often coincides with a threat to delete the key if the deadline passes without payment. If a deadline is not met, the malware’s operators may offer to decrypt the data via an online service for a significantly higher price in bitcoin. The Hollywood Presbyterian hacker demanded the equivalent of $17,000 in bitcoin currency to unlock the systems, leading to a two-week standoff that ended when the hospital paid the ransom prior to engaging law enforcement.3 Since the Hollywood Presbyterian incident, hackers have compromised the computer systems of three other hospitals in southern California: Chino Valley Medical Center, a 126-bed community hospital in Chino; Desert Valley Hospital, a 148-bed acute care facility in Victorville; and Alvarado Hospital Medical Center, a 306-bed hospital in San Diego. However, California is not the only state in which hospitals are being targeted. King’s Daughters’ Health in southeast Indiana discovered a single employee’s file had been infected with a ransomware virus.4 Methodist Hospital in Henderson, Kentucky, fell victim to a ransomware attack via spam email regarding invoices and opening an attached file.5 Possible ransomware attacks infected the systems at Ruby Memorial Hospital in West Virginia, causing the security cameras to go offline and the hospital to go on lockdown for approximately four hours,6 and MedStar Health, an operator of 10 hospitals and 250 out-patient clinics in the Maryland and Washington, D.C. area, locking its users out of its system and resulting in shutting down large portions of its network.7 Hackers took a step further in an attack against Kansas Heart Hospital by demanding a second ransom to decrypt hostage data after the hospital paid the first ransom.8 Thus far, these recent ransomware attacks have not resulted in a compromise to patient information, as hackers are merely looking to make easy money with low risk.9 Regardless, ransomware

attacks pose a real and tangible threat to the healthcare industry. According to FBI estimates, the CryptoLocker strain of ransomware resulted in a $27 million pay out in six months during 2014.10 More recently, the ransomware known as Locky has been used in several of the attacks referenced here.

According to Wired.com, Locky delivers a mass email with the hope that recipients will click and become infected with the ransomware, which ultimately accesses core systems and shared file servers and erases backup files.11 Although hospitals are not the only targets for these attacks,12 they are probable targets because of their increased use of new medical devices, staff and use of multiple operating systems.13 Most of the attacks referenced here have not yet resulted in ransom payments, but some suggest the targeting of hospitals is a result of the publicity of the Hollywood Presbyterian ransom payment.14 The rise in ransomware attacks has created an interesting question as to whether or not the attack qualifies as a security incident or a reportable breach as defined by the Health Insurance Portability and Accountability Act (“HIPAA”). If a ransomware attack qualifies as a HIPAA breach, the healthcare provider would have to fulfill a number of mitigation and reporting obligations. This analysis applies to business associates who also suffer a breach. In other words, if a law firm, accounting firm or other vendor acting as a business associate falls victim to a ransomware attack, that business or individual may need to fulfill the same mitigation and reporting obligations. The remainder of this article discusses HIPAA security incident

and breach requirements when dealing with ransomware attacks. The article discusses affected entities in terms of healthcare providers. However, the relevant analysis may apply in situations where a law firm or other business vendor is acting as a business associate. The U.S. Department of Health and Human Services (“HHS”) has recognized the impact of ransomware attacks on the healthcare community and has provided new guidance on ransomware that is also discussed below.

Security Incident The first issue is whether or not the ransomware attack qualifies as a security incident. HIPAA requires a healthcare provider to implement policies and procedures to address security incidents. Specifically, a healthcare provider must identify and respond to “suspected or known security incidents; mitigate, to the extent practicable, harmful effects of security incidents that are known to the healthcare provider; and document security incidents and their outcomes.”15 A security incident is broadly defined as an attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.16 HIPAA does not specifically require a healthcare provider to report successful security incidents.

However, if the security incident results in a privacy breach, the healthcare provider will need to mitigate the harm and comply with HIPAA’s breach notification requirements.

The HHS Office for Civil Rights (“OCR”) has recently published guidance

on how healthcare providers can respond to ransomware attacks. The guidance reiterates a healthcare provider’s responsibility to implement security incident procedures and indicates that the procedures should “prepare [the healthcare provider] to respond to various types of security incidents, including ransomware attacks.”17 The guidance includes certain processes that the healthcare provider should include in its procedures to detect and combat ransomware attacks.

The guidance indicates that the healthcare provider should have processes to: •detect and conduct an initial analysis of the ransomware; •contain the impact and propagation of the ransomware; •eradicate the instances of ransomware and mitigate or remediate vulnerabilities that permitted the ransomware attack and propagation; •recover from the ransomware attack by restoring data lost during the attack and returning to “business as usual” operations; and •conduct post-incident activities, which could include a deeper analysis of the evidence to determine if the entity has any regulatory, contractual or other obligations as a result of the incident (such as providing notification of a breach of protected health information), and incorporating any lessons learned into the overall security management process of the entity to improve incident response effectiveness for future security incidents.18 It is clear that OCR includes a ransomware attack as a security incident. While the

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healthcare provider may not have a reporting obligation from a security incident that does not trigger a HIPAA breach, its failure to implement policies and procedures to detect and combat security incidents, including ransomware, would indicate that the healthcare provider may not be HIPAA compliant with regard to its policies and procedures.

HIPAA Breach The second and more onerous issue is whether or not a ransomware attack qualifies as a HIPAA breach. HIPAA requires a healthcare provider like a hospital or medical clinic to provide certain notifications following a breach of unsecured protected health information, unless there is a low probability of compromise of the protected health information. A breach is defined as the “unauthorized acquisition, use, or disclosure of protected health information which compromises the security or privacy of the protected health information.”19 The OCR guidance on ransomware does not give a clear answer as to whether or not a ransomware attack qualifies as a HIPAA breach and states that “[w]hether or not the presence of ransomware would be a breach under the HIPAA Rules is a fact-specific determination.”

A threshold issue in qualifying a ransomware attack as a breach is determining whether or not the attack involved protected health information. To date, the reported ransomware attacks have dealt with a virus that has infected and halted the use of a medical care provider’s computer systems, but they have not involved the removal, use or dissemination of protected health information. OCR clarified this issue in its guidance, stating that “[w]hen electronic protected health information (ePHI) is encrypted as the result of a ransomware attack, a breach has occurred because the ePHI encrypted by the ransomware was acquired (i.e., unauthorized individuals have taken possession or control of the information), and thus is a ‘disclosure’ not permitted under the HIPAA Privacy Rule.” As a result, OCR seems to indicate that if a ransomware attack that takes control of a healthcare provider’s computer system, including ePHI, the attack would be considered a HIPAA breach. However, OCR reiterates that a healthcare provider would need to conduct a risk assessment to see if it can demonstrate that there is a “low probability that the PHI has been compromised” to determine whether or not the attack triggered the breach notification requirements which would include individual notification, notification to the Secretary of HHS, and possibly 22

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to the media for breaches affecting over 500 individuals.

The key question for healthcare providers when determining whether or not a ransomware attack qualifies as a HIPAA breach is whether or not the protected health information was compromised.20 To qualify as a “breach” that would require notification, the unauthorized acquisition, use, or disclosure must compromise the security or privacy of the protected health information.21 An unauthorized use or disclosure is presumed to be a breach, unless the covered entity demonstrates that there is a low probability that the protected health information has been compromised. Furthermore, the healthcare provider must conduct a risk assessment, focusing on the risk that protected health information has been compromised. Notification is not required if the covered entity can demonstrate, through its risk assessment, that there is a low probability that the protected health information has been compromised.22 A covered entity may develop its own risk assessment, but it must include four specific factors.

First, the covered entity must determine if protected health information was involved.23 On its face, this seems like a simple analysis, but the healthcare provider should investigate the nature and the extent to which protected health information was involved in the event. This analysis would include examining the types of identifiers and the likelihood for re-identification. The healthcare provider should also identify if the information contains sensitive information such as credit card numbers, social security numbers or other information that could be used for identity theft. As noted above, OCR’s position is that if the attack encrypts ePHI on a healthcare provider’s system, this would qualify as an unauthorized disclosure of protected health information.

Second, the covered entity must determine who used or received the protected health information.24 The covered entity should analyze the person or entity that improperly viewed or received the protected health information to determine if that entity has an obligation to further guard protected health information. For instance, the improper disclosure might have been made to another HIPAA covered entity who understands the requirements for safeguarding protected health information.

Third, the covered entity should investigate whether or not protected health information was actually acquired.25 Many times, this would include forensic analysis to determine

if the file containing the protected health information was opened or viewed. If the healthcare provider can show through its risk analysis that the file or email containing the protected health information was not actually opened or viewed it could support the healthcare provider’s analysis that the incident does not qualify as a breach that would require notification.

Lastly, the healthcare provider should determine to what extent risks have been mitigated.26 This allows the healthcare provider the opportunity to work to decrease or eliminate further damage after protected health information has been improperly viewed or disclosed. This factor in the risk analysis emphasizes the need for the healthcare provider to quickly identify, investigate and respond to a possible breach. There are a number of ways that a healthcare provider might be able to mitigate risks and it would be fact specific as to the information disclosed and entity that improperly received or viewed the protected health information. With regard to ransomware, the OCR guidance states that the healthcare provider may want to consider the impact of the ransomware on the integrity of the PHI. OCR provides some specific risk mitigation techniques that may be used for a ransomware attack: Frequently, ransomware, after encrypting the data it was seeking, deletes the original data and leaves only the data in encrypted form. An entity may be able to show mitigation of the impact of a ransomware attack affecting the integrity of PHI through the implementation of robust contingency plans including disaster recovery and data backup plans.

Conducting frequent backups and ensuring the ability to recover data from backups is crucial to recovering from a ransomware attack and ensuring the integrity of PHI affected by ransomware. Test restorations should be periodically conducted to verify the integrity of backed up data and provide confidence in an organization’s data restoration capabilities. Integrity to PHI data is only one aspect when considering to what extent the risk to PHI has been mitigated. Additional aspects, including whether or not PHI has been exfiltrated, should also be considered when determining the extent to which the risk to PHI has been mitigated.27

Each of these four factors must be evaluated to determine whether or not a reportable breach has occurred. None of the factors are dispositive and additional factors may need to be considered depending on the facts. While HHS has provided these four required factors in conducting a risk assessment, it has not specifically defined what it means for protected health information to be “compromised.”

During the risk assessment, a healthcare provider must evaluate the overall probability that the protected health information has been compromised by considering all the factors in combination. A risk assessment must be documented and the conclusions reached must be reasonable. If an evaluation of the factors fails to demonstrate that there is a low probability that the protected health information has been compromised, breach notification is required. The type of notification will be dependent on the number of individuals affected by the breach. The healthcare provider has the burden of proof that notification was not required and must maintain documentation sufficient to meet that burden of proof.

The OCR guidance on ransomware indicates that a ransomware attack, without a risk assessment showing a low probability that protected health information was compromised, is probably a reportable breach requiring notification. However, the guidance also indicates that if a healthcare provider can demonstrate, through its risk assessment, that there is a low probability of compromise of the protected health information, then the healthcare provider may not need to report the incident. Based on the guidance, it is paramount for the healthcare provider to act quickly to conduct a diligent investigation into the ransomware attack to quickly assess whether HIPAA notification is required. Because ransomware attacks are continuing to increase, healthcare providers must be diligent in making sure that they have appropriate policies and procedures currently in place to address security incidents of this nature, so that they continue to meet their HIPAA obligation to protect patient information even in these unusual circumstances.

Endnotes: 1. http://www.latimes.com/business/technology/la-me-ln-hollywood-hospital-bitcoin-20160217-story.html.

2. https://www.wired.com/2016/03/ransomware-why-hospitals-are-the-perfect-targets/.

3. http://www.latimes.com/business/technology/la-me-ln-hollywood-hospital-bitcoin-20160217-story.html.

4. http://www.healthcareitnews.com/news/ two-more-hospitals-struck-ransomware-california-and-indiana.

5. http://krebsonsecurity.com/2016/03/ hospital-declares-internet-state-of-emergency-after-ransomware-infection/.

6. http://wvmetronews.com/2016/03/22/ data-safe-after-computer-issues-at-ruby-memorial/.

7. https://www.wired.com/2016/03/ransomware-why-hospitals-are-the-perfect-targets/.

8. http://www.healthcareitnews.com/ news/kansas-hospital-hit-ransomware-pays-then-attackers-demand-second-ransom.

9. http://www.newsweek.com/ransomware-wreaking-havoc-american-and-canadian-hospitals-439714.

10. https://www.wired.com/2016/03/ ransomware-why-hospitals-are-the-perfect-targets/.

11. https://www.wired.com/2016/03/ ransomware-why-hospitals-are-the-perfect-targets/.

12. Police departments, sheriff’s offices, newspapers, schools and churches have all been targeted in ransomware attacks in 2016. http://www.newsweek.com/ransomware-wreaking-havoc-american-and-canadian-hospitals-439714. http://www.latimes.com/local/lanow/ la-me-ln-two-more-so-cal-hospitals-ransomware-20160322-story.html.

13. http://www.pri.org/stories/2016-03-06/ after-hollywood-presbyterian-hospital-hack-how-much-threat-are-ransom-driven.

14. http://www.nbcnews.com/tech/security/big-paydays-force-hospitals-prepare-ransomware-attacks-n557176.

15. 45 C.F.R. § 164.308(a)(6).

16. 45 C.F.R. § 164.304.

17. https://www.hhs.gov/sites/default/files/ RansomwareFactSheet.pdf.

18. Id. 19. 45 C.F.R. § 164.402.

20. Id. 21. Id. 22. 45 C.F.R. § 164.402(2).

23. 45 C.F.R. § 164.402(2)(i).

24. 45 C.F.R. § 164.402(2)(ii).

25. 45 C.F.R. § 164.402(2)(iii).

26. 45 C.F.R. § 164.402(2)(iv).

27. https://www.hhs.gov/sites/default/files/ RansomwareFactSheet.pdf.  Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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Standards for Examination of Real Estate Titles in Arkansas

By Robert M. Honea

Lawyers have opinions, and are not much inclined to acknowledge the validity of another lawyer’s contrary opinion. In most areas of the law, this is not a problem. The observation that lawyers have opinions is equivalent to the observation that lawyers have egos—that and a quarter buys you a cup of coffee. When it comes to examining title to real property and expressing an opinion as to the marketability of title, however, this inherent side effect of practicing law is a problem. For the reasons discussed in this article, real property is an area of the law where it is critical that lawyers’ opinions be consistent. The purpose of title standards is to provide that consistency.

What Are Title Standards?

The theory behind title standards is that if you have objective and unambiguous rules of property, and those rules of property are uniformly and consistently interpreted and applied, anyone can look at the deed records at the courthouse, apply the rules, and know with certainty who owns a particular piece of real property. Title standards are intended to be a compilation of the rules of property and a statement of the proper interpretation and application of those rules.

Why Do We Need Title Standards?

To understand why we need title standards, you must first understand why we need rules of property. The Arkansas Supreme Court has defined the phrase “rules of property” and explained in detail why we need rules of property in multiple decisions. A good example is Kirkham v. Malone,1 where the Court had this to say about rules of property: In our body of law there have grown up a number of rules and principles governing the law of real estate which have

Robert M. Honea is partner in the Fort Smith firm of Hardin, Jesson and Terry.

He has devoted a substantial portion of his practice to oil and gas related matters, including title examination.

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become known as “Rules of Property.” While it may be argued that many of such rules are based upon technicalities, it is nevertheless true that these rules, and the technicalities upon which they are based, have come into existence and have been continued because of the ever present need for stability and predictability in this field of the law. Were this not the case then chaos soon would be the result and property values would diminish in direct relationship to the degree of instability existing in the law of this or any other state as it might be applied to real property. Consequently, economic and moral necessity have dictated the establishment of such rules, and the technical basis of many of them. Thus it is that the maintaining of the integrity of such rules devolves upon this tribunal.

The general welfare requires a continuation of the observance of such rules and may in special cases, as in the case at bar, be found to require a decision in accordance with these principles even though the Court may entertain great sympathy for individuals in a particular situation.2 Knowing the rules of property only provides half of the equation, however. Rules of property, in and of themselves, are useless unless and until they are interpreted and applied.

The recording system only makes available the evidence of title, evidence which is meaningless until interpreted by a title examiner. [Rules of property] exist primarily to make it possible for title examiners to interpret the evidence they find in the recorder’s office. Without such objective rules of construction, marketable title, and thus a market in mineral rights, would not be possible.3 As the old saying goes, “the devil is in the details,” and in this case the details are the inevitably non-uniform opinions of lawyers with respect to the question of the interpretation and application of the rules of property to the documents which are recorded at the courthouse. The public policy goal of achieving uniformity in this area of the law is defeated absent a means of bringing uniformity to lawyers’ opinions. Title standards are intended to bridge this gap, and thereby provide the desired degree of consistency in this area of the law.

Arkansas’ Title Standards At last count 32 of the 50 states had adopted some version of title standards. The earliest record of the adoption of title standards was a set of 14 standards adopted by the Livingston County, Illinois,

Bar Association in 1923. The state bar of Connecticut adopted the nation’s first set of statewide title examination standards in 1938.

Arkansas’ first attempt at adopting a set of title standards came in the early 1960s when a draft of title standards was prepared by the Jurisprudence and Law Reform Committee of the Arkansas Bar Association. This draft of the standards was set out in full in the Arkansas Law Review, Vol. 16, No. 4. No further action was taken, and the standards were never officially adopted.

In the early 1990s, several lawyers who devoted a significant portion of their practice to preparing oil and gas title opinions revived the idea of title standards. A joint committee comprised of members of the Natural Resources Law and Real Property Law Sections of the Arkansas Bar Association was formed and tasked with the job of preparing a set of title standards. The title standards which the committee prepared were ultimately adopted by the Arkansas Bar Association in 1995. The title standards committee has continued to meet on a quarterly basis from 1995 to the present, and has been responsible for insuring that the title standards are kept up to date.

Beginning with their adoption in 1995 the Arkansas Bar Association has published the title standards as an official publication of the bar association.4 A copy of the standards may be purchased from the bar association for a relatively nominal fee. The Title Standards Subcommittee recently released its fifth edition of the Standards for Examination of Real Estate Titles in Arkansas. The book is available for purchase on the Arkansas Bar Association’s website in both hard copy and electronic form.

How Useful Are Arkansas’ Title Standards?

Some states have seen fit to give their title standards the force of law. For example, Oklahoma has a statute which provides that if oil and gas royalties are not timely paid the producer must pay a 12% penalty unless the royalty owner’s title is not marketable.5 The statute incorporates by reference Oklahoma’s title standards as the standard by which marketability of title is to be measured.

Similarly, the Oklahoma Supreme Court has held that although Oklahoma’s title standards are not binding authority, they are “persuasive authority…because of their general acceptance by members of the Oklahoma Bar.”6 Arkansas’ title standards have not been

given the force of law. There is no statute which references the title standards, and there is no reported decision which mentions the title standards. Absent the adoption of a statute or a reported decision recognizing the authority of the standards, the usefulness of the standards is limited to four areas. First, in real estate transactions where marketability of title is relevant, the attorney drafting the contract documents would be wise to consider including a provision that incorporates the title standards by reference as the standard by which marketability of title will be determined. Second, in litigation where marketability of title is an issue, the title standards are useful in the sense that they support the testimony of an expert witness concerning the question of whether the title is or is not marketable. Third, in a situation where an attorney has expressed an opinion concerning title, and the attorney is sued for malpractice, adherence to the title standards provides a defense to the malpractice claim. Fourth, the title standards are useful to anyone dealing with a real property issue as a reference source, along the lines of a learned treatise or law review article.

Should Arkansas’ Title Standards be Given the Force of Law? The title standards represent a synthesis of the opinions of the members of the Title Standards Committee concerning the proper application of law (the rules of property) to fact. As such the title standards are not hard and fast rules in and of themselves. The Title Standards Committee is therefore opposed to codification of the title standards.

At the same time the Title Standards Committee agrees with the approach which

has been taken in Oklahoma. The Title Standards Committee believes it would be entirely appropriate for Arkansas courts to recognize the title standards as persuasive authority, along the lines of a learned treatise.

The Title Standards Committee is also of the opinion that it would be appropriate for the legislature to incorporate the title standards by reference as the standard by which statutory compliance is to be measured.

Conclusion For those of you who occasionally have to deal with a real property issue, a copy of the title standards is an excellent reference source.

It is one-stop shopping for a list of most of the rules of property, along with a statement of the consensus opinion of lawyers who routinely examine title with respect to the question of how to interpret and apply those rules of property in the real world.

For those of us who routinely handle real estate transactions, it is our hope that Arkansas’ courts and legislature will see fit to expand the usefulness of the title standards by giving them the force of law.

Endnotes: 1. Kirkham v. Malone, 232 Ark. 390, 336 S.W.2d 46 (1960).

2. Id. at 396, 336 S.W.2d at 49.

3. Peterson v. Simpson, 286 Ark. 177, 690 S.W.2d 720 (1985).

4. The official title of the publication is “Standards for Examination of Real Estate Titles in Arkansas.”

5. 52 Okl. St. Ann. § 570, 10.

6. Stump v. Cheek, 179 P.3d 606 (Okla.

2007). 

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The Emerging Field of Drone Law

By Michael A. Thompson

This article surveys the laws related to the private use of drones. It first examines the Federal Aviation Administration’s (“FAA”) new drone regulations and then explores the potential civil and criminal liability for both the private drone operator (for harm to persons or property) and others (for harm to a drone).

What is a drone?

“Drone” is the common term for “unmanned aircraft,” which includes any aircraft without a human pilot on board. For example, the FAA defines an unmanned aircraft as “an aircraft operated without the possibility of direct human intervention from within or on the aircraft.”1 Likewise, in an Arkansas statute criminalizing the use of drones to surveil critical infrastructure, discussed more fully below, an “unmanned aircraft system” generally includes any unmanned, powered aircraft that: “(i) Does not carry a human operator; (ii) Can be autonomous or remotely piloted or operated; and (iii) Can be expendable or recoverable.”2

Michael A. Thompson is a partner at Wright Lindsey Jennings where he practices in the areas of insurance defense, products liability, professional liability, trucking litigation, and commercial litigation.

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The FAA’s New Drone Regulations The FAA has recently promulgated new final rules applicable to drones. These regulations impose a registration requirement, with an effective date of December 21, 2015, and restrictions on the use of drones, with an effective date of August 29, 2016. First, the FAA regulations require that all non-military drones that weigh more than 0.55 pounds at takeoff (including the aircraft and any payload) be registered before their first outdoor flight.3 For “small unmanned aircrafts,” which are ones that weigh less than 55 pounds, the registration process is online and requires only the owner’s email address, physical/mailing address, information regarding the drone (other than a “model aircraft”), and payment of a $5 registration fee.4 The drone must then be marked with a unique identifying number provided by the FAA.5 Drones

weighing more than 55 pounds are required to be registered and labelled in accordance with the requirements of ordinary aircraft.6 The minimum weight limit is large enough to exclude many toy drones.7 Registration is also not required for drones used exclusively indoors.8 However, the possible fines for failing to register as required are steep, including up to $27,500 in civil penalties, $250,000 in criminal penalties, and up to three years in prison.9 Somewhat comfortingly, the FAA’s website states that the FAA will first attempt education for registration violations and will only impose fines under “egregious circumstances.”10 The restrictions on use depend first on whether or not the drone qualifies as a “model aircraft.” In its Special Rule for Model Aircraft, Congress has generally prohibited the FAA from regulating “model aircraft” that meet certain operational requirements.11 A model aircraft is an unmanned aircraft that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”12 The key requirement that distinguishes a “model aircraft,” subject only to the operational requirements discussed below, from an ordinary drone, subject to all of the FAA’s small unmanned aircraft regulations, is that the use of a “model aircraft” must be limited to “hobby” or “recreational” purposes. The FAA has interpreted these terms in accordance with their plain meaning and has, therefore, defined “hobby” as a “pursuit outside one’s regular occupation engaged in especially for relaxation” and “recreation” as “refreshment of strength and spirits after work; a means of refreshment or diversion.”13 The FAA has noted that this requirement clearly excludes all commercial uses, including uses that are in furtherance of, incidental to, or within the scope of the user’s business.14 As to the line-of-sight requirement, the FAA has interpreted this statute as requiring the operator to have an unobstructed view of the model aircraft, without the aid of other people or binoculars, night-vision goggles, or other visionenhancing devices.15 In addition, to qualify for the “model aircraft” exemption from regulation, the drone must meet the following operational requirements: •The drone must be flown strictly for

hobby or recreational use.

•The drone must be operated in accordance with a community-based set of safety guidelines from a nationwide communitybased organization [e.g., the Academy of Model Aeronautics].

•The drone must be limited to not more than 55 pounds unless otherwise certified by a community-based organization.

•The drone must be operated in a manner that does not interfere with and gives way to any manned aircraft.

•The drone operator must provide prior notification to the airport and air traffic controller, if one is present, when flying within five miles of an airport.16 Between the minimum weight requirement for registration (0.55 pounds) and the statutory exemption for “model aircraft,” a great deal of non-commercial drone use will be untouched by the FAA’s new drone regulations. However, if a drone’s use does not comply with the Special Rule for Model Aircraft, then the operator generally must comply with the FAA’s new drone regulations, 14 C.F.R. Part 107.17 First, this means that the operator must have a remote pilot certificate with a small UAS rating or be operating under the supervision of a certified remote pilot.18 To obtain the required license, the drone operator must be at least 16 years old, must pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center, and must be vetted by the Transportation Safety Administration.19 In addition, a Part 107 drone must be operated in accordance with the following operating rules: •The drone must weigh less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.20

•The drone must stay in Class G airspace, which is airspace not subject to air traffic control, unless the air traffic controller gives his or her prior approval.21 •The operator must keep the aircraft in a visual line-of-sight.22 One distinction between Part 107 drones and “model aircraft” is that Part 107 allows the use of a “visual observer” and requires that the aircraft be in sight of either the visual observer or the remote pilot.

•The drone must fly under 400 feet.23 •The drone may fly only during the day.24 Day is defined as the period from the 30 minutes after sunrise until the 30 minutes before sunset. With special lighting, a drone can be flown from sunrise to sunset.

•The drone must fly at or below 100 mph.25 •The drone must yield the right of way to manned aircraft.26 •The drone must not fly over people (other than someone participating in the drone’s operation).27 •The operator must not be in a moving vehicle.28 As noted above, all commercial use of drones must generally comply with Part 107. However, as a practitioner, there are at least two reasons you might advise a recreational or hobby user to voluntarily comply with Part 107, rather than stay within the confines of the “model aircraft” exemption.

First, Part 107 is somewhat more liberal on certain issues, like its allowance of “visual observers.” Second, most of the requirements of Part 107 are subject to waiver by the FAA.29 Thus, by accepting Part 107’s requirements, your client may be able to obtain some relief from a provision that hampers his or her intended use. Likewise, if you are advising a commercial drone operator, it may be possible to obtain a waiver of any regulation that conflicts with your client’s business plan.

The Harm Drones Can Do: Criminal and Civil Liability for the Use of Drones Complying with the FAA’s new regulations is only the first step to appropriately and safely using a drone. This section highlights potential issues of Arkansas criminal and civil law that are particularly applicable to drone operation.

On criminal liability, in 2015, the Arkansas General Assembly enacted two statutes prohibiting certain uses of drones.

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First, Arkansas law prohibits the use of drones for video voyeurism, which includes the knowing use of a drone that is concealed, flown in a manner to escape detection, or disguised to secretly or surreptitiously videotape, film, photograph, record, or view by electronic means a person: (1) For the purpose of viewing any portion of the person’s body that is covered with clothing and for which the person has a reasonable expectation of privacy; (2) Without the knowledge or consent of the person being videotaped, filmed, photographed, recorded, or viewed by electronic means; and (3) Under circumstances in which the person being videotaped, filmed, photographed, recorded, or viewed by electronic means has a reasonable expectation of privacy.30 A person also commits the offense of voyeurism if for the purpose of sexual arousal or gratification, he or she knowingly: (1) Without the consent of each person who is present in the private place, personally or through the use of an unmanned vehicle or aircraft, looks into a private place that is, or is part of, a public accommodation and in which a person may reasonably be expected to be nude or partially nude; or (2) Enters personally or through the use of an unmanned vehicle or aircraft another person’s private property without the other person’s consent and looks into any person’s dwelling unit if all of the following apply: (A) The person looks into the dwelling with the purpose to intrude upon or interfere with a person’s privacy; (B) The person looks into a part of the dwelling in which an individual is present; (C) The individual present has a reasonable expectation of privacy in that part of the dwelling; and (D) The individual present does not consent to the person’s looking into that part of the dwelling.31 Second, Arkansas law prohibits the knowing use of “an unmanned aircraft system to 28

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conduct surveillance of, gather evidence or collect information about, or photographically or electronically record critical infrastructure without the prior written consent of the owner of the critical infrastructure.”32 “Critical infrastructure” includes power plants, petroleum refineries, chemical factories, and petroleum and chemical storage facilities.33 This statute does not apply to orbiting satellites, government users, or users authorized by the government.34 It likewise contains exceptions for a person surveilling his or her own property and for an insurance company using a drone to evaluate a risk or survey damage.35 A separate statute creates a private right of action against the drone operator for violating these provisions, including statutory damages of $10,000 and the possibility of treble damages if the violation resulted in profit or monetary gain.36 On civil liability, although issues specific to drones will no doubt arise, generally, the common law will likely be sufficient and adaptable to drones. For example, the owner of a drone that caused injury to a person or property could be sued for his own negligence in operating the drone or for negligent entrustment to another operator.37 Likewise, a drone manufacturer or supplier could be sued under a strict products-liability theory or other common-law products-liability claims.

The Arkansas Supreme Court is generally reticent to recognize new causes of action,38 and drones would not appear to require the creation of any new claims out of whole cloth.

One issue that seems ripe to lead to new disputes, however, is the law of trespass. “[T]he airspace is a public highway.”39 Thus, under Arkansas law, ownership of the airspace above a parcel of land “extends only so far as is necessary to the enjoyment of the use of the surface without interference and is subject to the right of passage or flight of aircraft.”40 Generally, then, “[f]light through the space over and above land or water at a sufficient height and without interference to the enjoyment and use of the land or water beneath is not an actionable wrong unless the flight results in actual damage to the land or water or property thereon or therein or use of the land or water beneath.”41 As such, for an aircraft’s flight to constitute a trespass, the aircraft must make a non-emergency landing on someone else’s property, cause physical damage to the land below, or fly so low as to interfere with then existing uses of the land.42 In the absence of direct physical contact

with or damage to the land, then, whether a trespass has occurred is essentially a question of whether the flight constitutes a nuisance.43 Thus, there are no hard-and-fast rules for precisely where a landowner’s property ends and the “public highway” of the skies begins.

Instead, whether a particular flight constitutes a trespass depends on a consideration of all relevant factors, including the altitude of the flight, the frequency of flights over the land, the noise generated by the flights, and the existing use of the land below.44 For example, in the leading Arkansas case on the subject, Aviation Cadet Museum, Inc. v. Hammer, flights landing at an aviation museum were deemed an actionable nuisance based on the fact that the 24 take-offs and departures that occurred each year were crossing the plaintiff’s property at “extremely low” altitudes (perhaps lower than 15 feet), caused “excessive noise,” and interfered with the established “RC plane” use on the plaintiff’s property.45 Curiously, based on their description, the plaintiff’s “RC planes” would today meet the definition of an “unmanned aircraft” under the FAA’s new drone regulations and the Arkansas statutes cited above.46 Accordingly, in the leading Arkansas case on this issue, the flights in question constituted a nuisance in part because they interfered with drone use.47 There is nothing in the cited statute or Arkansas case law that would suggest that special rules of trespass apply to drones. Thus, flying a drone over someone else’s property is not necessarily a trespass. However, drones fly at fairly low altitudes (as noted above, Part 107 of the FAA’s new drone regulations generally limits flights to 400 feet), and many landowners would likely have concerns for their safety and privacy at the sight of a drone overhead. Further, it is not difficult to imagine a landowner who claims that the use, enjoyment, and value of his or her land has been impaired by the sights and sounds of frequent overhead drone flights, even in the absence of physical damage to the property.

Thus, drones would seem to raise significant questions as to what constitutes unreasonable interference with existing use and enjoyment or “actual damage” to land, and the courts and/or the legislature may be called upon to balance the privacy and security concerns of landowners with the right of drone operators to use the “public highway” of this state’s airspace.

The Harm You Can Do to Drones; or: Can I Shoot It? In casual conversation, one frequent question that comes up about drones is: “If a drone flies over my property, can I shoot it?”

Generally, the answer is no.

From state law, the Arkansas criminal code prohibits “purposely and without legal justification” or “recklessly” destroying or causing damage to the property of another.48 As noted above, a drone flying above your house is not necessarily trespassing, and it would likely be difficult to find a legal justification for shooting down a drone flying at a sufficient height so as to not pose a threat to you, your family, or your property or to interfere with the existing use and enjoyment of your property.

Thus, depending on the value of the drone and your mental state, shooting down the offending drone could constitute a felony. Of course, the civil law could impose liability for damage to the drone as well.49 Federal law may also cause problems for the would-be drone assassin. Federal law prohibits the willful destruction or damage of “any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce.”50 An “aircraft” for the purposes of this statute is defined simply to include any “contrivance invented, used, or designed to navigate, fly, or travel in the air.”51 This definition would, on its face, appear to apply to a drone. As such, shooting down a drone could constitute a federal offense.

Conclusion At all stages of their use and operation, from initial registration, to proper use, to addressing harm caused by drones or those who would do harm to drones, drones raise significant issues that will require careful legal analysis and advice. Practitioners would be well served by becoming knowledgeable about the issues that will eventually confront their drone-using clients.

Endnotes: 1. 14 C.F.R. § 1.1.

2. Ark. Code Ann. § 5-60-103(a)(2)(A).

3. 14 C.F.R. § 48.15.

4. 14 C.F.R. §§ 48.30, 48.100.

5. 14 C.F.R. §§ 48.200, 48.205.

6. See 14 C.F.R. Part 47.

7. The FAA has provided a handy illustrated guide to commercially available drones

that do and do not require registration. See https://www.faa.gov/uas/getting_started/fly_ for_fun/media/UAS_Weights_Registration. pdf.

8. 14 C.F.R. § 48.15.

9. FAA, Unmanned Aircraft Systems (UAS) Frequently Asked Questions/Help, available at https://www.faa.gov/uas/faqs/#reg.

10. Id. 11. See FAA Modernization and Reform Act of 2012, PL No. 112-95 § 336 (Feb. 14, 2012).

12. See id.

13. FAA Interpretation of Special Rule for Model Aircraft 9, available at https://www. faa.gov/uas/media/model_aircraft_spec_rule. pdf (quoting Merriam-Webster Dictionary).

14. Id. at 10.

15. Id. at 8.

16. See FAA Modernization and Reform Act of 2012, PL No. 112-95 § 336 (Feb. 14, 2012).

17. 14 C.F.R. § 107.1.

18. 14 C.F.R. § 107.12.

19. 14 C.F.R. § 107.61.

20. 14 C.F.R. § 107.3.

21. 14 C.F.R. § 107.41.

22. 14 C.F.R. § 107.31.

23. 14 C.F.R. § 107.51.

24. 14 C.F.R. § 107.29.

25. 14 C.F.R. § 107.51.

26. 14 C.F.R. § 107.37.

27. 14 C.F.R. § 107.39.

28. 14 C.F.R. § 107.25.

29. 14 C.F.R. § 107.205.

30. Ark. Code Ann. § 5-16-101(b).

31. Ark. Code Ann. § 5-16-102(b).

32. Ark. Code Ann. § 5-60-103(b).

33. Ark. Code Ann. § 5-60-103(a)(1).

34. Ark. Code Ann. § 5-60-103(a)(2)(B).

35. Ark. Code Ann. § 5-60-103(c).

36. Ark. Code Ann. § 16-118-111.

37. See Central Flying Service v. Crigger, 215 Ark. 400, 402-03, 221 S.W.2d 45, 46 (1949) (recognizing cause of action for negligent entrustment of an aircraft).

38. See Paulino v. QHG of Springdale, Inc., 2012 Ark. 55, at 11, 386 S.W.3d 462, 468.

39. United States v. Causby, 328 U.S. 256, 264 (1946).

40. Ark. Code Ann. § 27-116-102(a).

41. Ark. Code Ann. § 27-116-102(b).

42. See Ark. Code Ann. § 27-116102(c), (d); Aviation Cadet Museum, Inc. v.

Hammer, 373 Ark. 202, 212, 283 S.W.3d 198, 206 (2008).

43. See Aviation Cadet Museum, 373 Ark. at

212, 283 S.W.3d at 205-06 (“Stated another way, section 27-116-102(c) makes flight lawful, unless such flight amounts to a nuisance, trespass, or otherwise poses a danger to the ground.”).

44. See id.

45. Id. at 210-11, 283 S.W.3d at 205.

46. See id. at 204, 283 S.W.3d at 200 (“RC planes generally weigh up to fifty-five pounds, with wingspans up to ten feet, and fly at altitudes of 50 to 400 feet at speeds up to eighty miles per hour.”).

47. The defendant in Aviation Cadet Museum originally filed a counterclaim alleging that the plaintiff’s “RC plane” use likewise constituted a nuisance. See id. at 206, 283 S.W.3d at 202. The circuit court dismissed this claim, and that dismissal apparently was not appealed. See id. at 207, 283 S.W.3d at 202.

48. Ark. Code Ann. §§ 5-38-203, -204.

49. AMI Civil 2227 (2016 ed.).

50. 18 U.S.C. § 32.

51. 18 U.S.C. § 31(a)(1). 

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

29

Report from the

2016 National Conference of Commissioners on Uniform State Laws

By Lynn Foster

T

he Uniform Law Commission (ULC) held its 125th annual National Conference in Stowe, Vermont, from July 8th through 14th, 2016. Representing Arkansas were Lynn Foster, Elisa White, Carolyn Witherspoon and Vince Henderson, who serves as an associate commissioner. Arkansas continues to be the first and only state with all-female voting commissioners. Elisa White served on the Scope and Program Committee, following a year as a Division Chair. She also chaired the Committee on Declarations of Quarantine and the newly formed national Committee to Monitor Health Law. The Conference approved six new acts, including a revision to the Uniform Unclaimed Property Act. Also in May, the Arkansas Bar Association House of Delegates ratified the inclusion of three uniform acts in the Bar Association’s “legislative package” for the 2017 session of the General Assembly. All nine acts are discussed below.

Lynn Foster is the Arkansas Bar Foundation Professor of Law at the UALR Bowen School of Law, and has served as one of Arkansas’ Uniform Law Commissioners since 2009.

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Adopted by the ULC in July 2016 The Revised Uniform Unclaimed Property Act is the fifth in a series of uniform unclaimed property acts going back to 1954. Arkansas enacted the 1995 uniform law,1 which this act is intended to replace. The act is not short (96 sections), but unclaimed property—property that is almost all intangible, held by a “holder” and presumed abandoned by the owner— is a big business. In 2010 states held an estimated $40 billion as custodians. The revised act updates provisions on numerous issues, including escheat of gift cards, life insurance benefits, securities, dormancy periods, and use of contract auditors.

The Uniform Unsworn Declarations and Uniform Unsworn Domestic Declarations Acts (UUDA) and (UUDDA) are intended to provide the same flexibility that federal courts and agencies have with regard to unsworn declarations made pursuant to 28 U.S.C. § 1746. Federal law permits the use of unsworn declarations made under penalty of perjury, whether the declaration was made inside or outside of the United States. The Arkansas Bar Association has recommended for passage

a third uniform law, the Uniform Unsworn Foreign Declarations Act (UUFDA), which pertains to declarations made outside of the United States. UUFDA has been enacted in more than 20 states at this time. The UUDDA applies the basic law of UUFDA to unsworn domestic declarations, and UUDA, the newest of the three, allows courts and agencies to recognize appropriate unsworn declarations whether made inside or outside of the U.S. and thus a state enacting UUDA need not enact either UUDDA or UUFDA. The acts exclude use of unsworn declarations for depositions, oaths related to self-proved wills, declarations recorded under certain real estate statutes, and a few other types of categories of declarations.

The Uniform Wage Garnishment Act is needed because currently, state laws differ significantly and are often outdated.

Businesses that operate in multiple states must know and abide by these different laws for their employees, which can lead to processing errors, confusion, and inefficiency. Current processes also impose significant burdens on courts, unfairly reward creditors that act more quickly than

other creditors, and provide protections for employees that vary greatly and are difficult to apply. The act seeks to simplify and clarify wage garnishments for employers, creditors, and consumers by standardizing how the wage garnishment process works and offering plain-language notice and garnishment calculation forms.

The Uniform Family Law Arbitration Act standardizes the arbitration of family law from state to state. It is based in part on the Revised Uniform Arbitration Act (enacted by Arkansas2), though it differs from the RUAA in areas in which family law arbitration differs from commercial arbitration, e.g. standards for arbitration of child custody and child support; arbitrator qualifications and powers; protections for victims of domestic violence. This Act is intended to create a comprehensive family law arbitration system for the states.

The Uniform Employee and Student Online Privacy Protection Act arose in response to incidents in which employers and educational institutions demanded that employees and students provide them with access to their personal online accounts. The act addresses employers’ access to employees or prospective employees’ social media and

From the ordinary to the most complex, no appeal is too small or large Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court

other online accounts accessed via username and password or other credentials of authentication. It also addresses the same type of access by educational institutions to information of students and prospective students.

The Amendment to the Revised Uniform Law on Notarial Acts, which is optional for the states, authorizes notaries public to perform notarial acts within their state for individuals who are located outside the United States. Arkansas has not enacted the original or revised Uniform Law on Notarial Acts.

The following uniform laws have been approved by the House of Delegates for inclusion in the bar package. (Editor’s note: see page 32 of this magazine for a summary of the Association’s legislative package.

The Revised Uniform Fiduciary Access to Digital Assets Act represents a compromise between the ULC, ACTEC, the ABA on the one hand and social media and Internet privacy entities on the other. The extreme need of fiduciaries for this act can be shown by the fact that since its adoption by the ULC in 2015, it has been enacted in 20 states and has been introduced and is currently under consideration in 12.

The Uniform Unsworn Foreign Declarations Act (UUFDA), is discussed above. This uniform law became desirable in the years after 9/11, when access to U.S. embassies and consulates became more difficult.

The Amendments to the Uniform Voidable Transaction Act (formerly the Uniform Fraudulent Conveyances Act, adopted by Arkansas) make only a few changes to the original uniform law, clarifying the choice of law provisions, addressing emerging legal technology issues, and including the burden of proof for each side in a UVTA lawsuit.

If you are interested in following any of the acts still in committee, you can sign up for all committee submissions and reports at www. uniformlaws.org. The Arkansas uniform law commissioners are happy to assist with any questions you may have about uniform laws.

Endnotes: 1. Ark. Code Ann. §§ 18-28-201 through 231.

2. Ark. Code Ann. §§ 16-108-201 through 230.

3. Ark. Code Ann. §§ 4-59-201 through 214. 

TSCHIEMER

LEGAL BRIEFING Handling all your briefing needs Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries, available at www.arkbar.com.

For a complete list of decisions see www.tschiemerlegalbriefing.com

Robert S. Tschiemer

Ark. Bar 84148 P.O. Box 549 Mayflower, AR 72106-0549 501.951.3303 (p) 501. 377.9866 (f) robert@tschiemerlegalbriefing.com www.tschiemerlegalbriefing.com

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

31

2017

ArkBar Legislative Package

B

elow is a summary of the five bills included in the Arkansas Bar Association’s Legislative Package for the 2017 session of the General Assembly. During the session, ArkBar’s Legislation Committee will meet every Friday afternoon to review bills filed each week. I encourage each member to be connected with the substantive sections of our Association in your practice area because the Association’s Legislation Committee will be contacting the sections, chairs of the sections and the experts assisting the Legislation Committee in those substantive areas of the law. Our Legislation Committee reviews every proposed bill or constitutional amendment that is filed during the legislative session. We then refer items of interest to the sections. When we reach out to the sections, we will be providing information about proposed legislation, the Association taking positions on the legislation, and ways in which we might suggest improvements to the proposed legislation. We have excellent resources in our legal community in this state which can be put to good use through our sections and committees. We also have excellent communication access through our ArkBar Community Exchange (ACE) where we post information about legislation which affects the fair administration of justice or the practice of law. Please make sure you are plugged into your ACE community.

—Arkansas Bar Association President Denise Reid Hoggard

Transfer Tax Clarification Bill The Act to Clarify that the County Recorder Shall Not collect a recording fee for a receipt generated through the electronic payment of the real property transfer tax and to clarify that instruments exempt from the payment of the real property transfer tax are not required to contain a receipt or affidavit of compliance form if the instrument is notated that the instrument is exempt from the payment of the real property transfer tax; and for other purposes.

Uniform Voidable Transactions Act The Uniform Voidable Transactions Act (UVTA) is a set of amendments to the Uniform Fraudulent Transfers Act, which was enacted in Arkansas in 1987.

Although the amendment changed the name of the act, the revised version addresses only a small number of narrowly-defined issues; it is not a comprehensive revision.

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The amendments were approved by the National Uniform Law Conference (ULC) in late 2014 and have been enacted in nine jurisdictions to date. The legislation is pending in three jurisdictions at this time.

The UVTA, formerly Uniform Fraudulent Transfer Act, is the law in 47 jurisdictions, including Arkansas. The act provides a creditor with the means to reach assets a debtor has transferred to another person to keep them from being used to satisfy a debt. In 2014, the UVTA was amended to address the following: • Rename the act to more accurately describe what it does. The original title was a misleading description because fraud has never been a necessary element of a claim under the act, and the act has always applied to the incurrence of obligations as well as to transfers of property.

• Provide a clear choice-of-law provision because court cases addressing

•

•

•

choice-of-law have been inconsistent and unpredictable.

Eliminate the requirement that the net worth of a general partner be included when determining the insolvency of a partnership.

Clarify that the “preponderance of the evidence” standard applies throughout the act because court cases have been inconsistent in applying this evidentiary standard.

Modernize the act by addressing issues such as electronic communications and series organizations.

Revised Uniform Fiduciary Access to Digital Assets Act The Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA) was approved by the ULC in the summer of 2015, following on the heels of the ULC’s approval of the original act in 2014. The original act was introduced in 27 states, including Arkansas, in 2015, but it was defeated in every state due to pressure from Facebook, Google and other similar companies. Since it was finalized in July of 2015, the revised act has been enacted in 10 states and is being considered by the legislatures in 18 other states, which is a strong indication of its popularity.

Brief Summary: UFADAA updates state fiduciary law for the Internet age. Most people now own a great variety of digital assets, including photographs, documents, social media accounts, web sites, and more, some of which present special privacy concerns.

UFADAA provides the legal authority for a fiduciary to manage digital assets according

to the user’s estate plan, while ensuring that a user’s private electronic communications remain private unless the user consented to the disclosure (as required by federal law).

Uniform Unsworn Foreign Declarations Act The Uniform Unsworn Foreign Declarations Act (UUFDA) was completed and approved by the ULC in 2008. The act was drafted at the request of the American Bar Association, which recognized that state courts did not have the same flexibility enjoyed by federal courts when recognizing foreign declarations. UUFDA has been enacted in 22 jurisdictions and is pending in two others.

Brief Summary: The UUFDA will extend to state proceedings the same flexibility that federal courts have employed for over 30 years. Since 1976, federal law (28 U.S.C. § 1746) has allowed an unsworn declaration executed outside the U.S. to be recognized and valid as the equivalent of a sworn affidavit if it includes language substantially similar to: “declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).” Courts have held that 28 U.S.C. § 1746 does not apply to state court proceedings.1

already existent in Arkansas law. The task force proposing this legislation believes there are serious constitutional and ethical concerns with the present statute and improvements can be made as to how forensic mental examinations are performed under state law.

As Judge Looney states in his letter to the Jurisprudence and Law Reform Committee, the changes to current law are largely “organizational.”

The most significant change to Arkansas law that is not strictly organizational in the legislation is the adoption of the Model Penal Code test of a defendant’s fitness-toproceed.

Endnote: 1. See, e.g., Hayes v. State, 779 S.E.2d 609 (Ga. 2015).  To access the member-only Legislative Resources website, go to www.arkbar. com and login. Then go to For Attorneys/ Legislative Resources.

An Act to Define the Affirmative Defense of Lack of Criminal Responsibility The legislation clarifies the two different types of forensic mental examinations (fitness-to-proceed and criminal responsibility)

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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Arkansas Mediators: A Search for Mediation Success

By Stanley A. Leasure

I. Introduction A recent survey of Arkansas mediators explored their views on the process of mediation generally and the techniques they employ.1 The purpose of this article is threefold: report the survey results; explore some of the issues affecting mediators in the state; and consider the implications for “mediation success.”

Lying just below the surface in many of the survey responses is a question: what is mediation and what constitutes mediation success? The views expressed in the survey responses are insightful, but before we deconstruct some of the difficult issues tied to this question, consider the following characterizations of mediation and mediation success. The Model Standards of Conduct for Mediators—2005 describes mediation and its purposes this way: [A] process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements when desired.2 Kenneth Roberts, in his article on the evaluative-facilitative debate, provides this description of mediation success:

Stanley A. Leasure, J.D., is a Professor at Missouri State University and a certified Arkansas Civil and Appellate mediator.

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Success in mediation is not characterized by a settlement between the parties. Instead, a successful mediation is one that provides decision makers with information they can use to reevaluate their positions, make informed business decisions, and engage in a systematic modification of their initial positions, or an “organized retreat.” Further, a successful mediation provides decision makers with new information, a better understanding of the case, or a clearer grasp of their chances of prevailing or losing at the next level.3

In Section II of this article, we examine the respondents’ mediation-practice areas, experience levels, and the amount of time they devote to conducting mediations. Particularly germane considering the nationwide decline in the utilization of joint sessions, Section III describes how Arkansas mediators use joint sessions and caucuses. Finally, in Section IV, the tension between the facilitative and evaluative approaches to mediation is explored from the viewpoints of our respondents and mediators nationwide.

II. The Arkansas Mediators The first section of the survey is entitled “About You.” The answers to these questions add context to the substantive responses. Most of the Arkansas mediators spend a relatively small percentage of their work time mediating. Well over half (65%) devote one-quarter or less of their work time to mediation. Only 12% of them spend more than three-quarters of their professional time mediating. And finally, full-time mediators constitute a scant 6% of the respondents.4 The amount of mediation experience varied widely among the mediators. Those with two years or less experience represented 16% of those surveyed. As might be expected, the majority fall in the middle. Arkansas mediators with three to five years in the field constitute 30% of respondents while those with 6 to 20 years of service represented 45% of those reporting. Finally, the second most seasoned group, those with more than two decades of practice, represented only 8% of the total.5 The array of practice areas was broad. The mediators were asked to identify the type of cases they most frequently mediate. They were instructed to select up to three practice areas from a list of 13 presented. The five most selected categories were Domestic Relations/ Family Law 70%, Personal Injury 26%, Business 26%, Other 24%, and Contract 20%. The five fewest selected categories were Intellectual Property 0%, Securities 2%, Professional Malpractice 2%, Real Estate 4%, and Landlord/Tenant 4%.6 III. Joint Session and Caucuses Joint sessions and caucuses have long been the twin pillars of mediation. Joint sessions usually open the mediation, beginning with introductions and an overview of the process.

Next, the attorneys—and sometimes the parties themselves—present a summary of the

facts, legal arguments, interests, and issues pertinent to an understanding of the case. In a caucus format, each side goes into a separate room, followed by a series of private meetings with the mediator.

In some parts of the country, the joint session—a traditional fixture of mediation—is falling into disuse.7 The cause is not readily apparent, but several studies provide insight based on evidence from mediators, lawyers, and parties.8 Participants report increasing disillusionment with the joint session on the part of the attorneys in some areas, which some attribute to the increasing predominance of “law and economics” in mediation practice.

This, they say, has converted mediation to little more than the “last off-ramp on the road to the courthouse.”9 Advocates disenchanted with mediation complain that the joint session is a waste of time; little new information comes forth, and the parties end up more polarized than before.10 Some argue that these objections bring market pressure to bear on the mediators. When lawyers raise objections to the joint sessions and resist, or outright refuse to attend, the argument goes, mediators yield because of concern over the loss of mediation business.11 Notwithstanding the general decline of joint sessions in some areas, Arkansas mediators employ them most of the time. In our survey, only 7% of the mediators indicated that they never use a joint session. Nearly a third of the respondents, 29%, reported conducting joint sessions in all of their mediations, and an overwhelming 70% utilize them in more than three-quarters of their mediations.12 The following comments illustrate some of the reasons our survey respondents gave for the manner in which they utilize the joint session: If you do conduct joint sessions, please describe their primary purposes/benefits.

(37 mediators responded to this question.)

It allows each attorney to speak directly to the other party (sometimes for the first time) and can be instrumental in personal-injury cases if the party needs to hear an apology before moving to settlement emotionally.

It is much easier to discuss issues regarding children in joint sessions. It is also for transparency. “In domestic relations mediations, it’s sometimes hard to avoid the “he’s/she’s on so-and-so’s side!” argument when you are caucus-

ing. In joint sessions, everyone knows what is being said.

If you do not conduct joint sessions, please describe the primary reasons you don’t.

(9 mediators responded to this question.)

In high conflict domestic matters, the attorneys usually do not want to expose their clients to the heightened stress of being in the presence of the other parent.

Party/attorneys do not believe it is beneficial.13 The caucus and the joint session are on opposite ends of the mediation spectrum.

Caucus devotees, typically from the evaluative approach, make strong arguments supporting their use: “[C]aucus mediation, except in family law and employment disputes where there is to be an ongoing relationship, can best reincorporate the lost element of conciliation into the mediation process.”14 In the caucuses, the mediator’s heavy lifting takes place in the process of “shuttle diplomacy.” The mediator undertakes myriad tasks such as gathering information about the facts, interests, goals, and options, as well as assisting with the bargaining process. The evaluative mediator almost always offers opinions and suggestions within the safe confines of the caucus.15 The caucus appears to be alive and well in Arkansas mediation practice. Our survey reflected that 98% of the respondents use caucuses in at least some of their mediations and 45% of Arkansas certified mediators use them in all of their mediations.16 The reasons, as reflected in the following comments, track mainly along facilitative/evaluative lines: If you do conduct private caucuses, please describe their primary purposes/benefits.

(38 mediators responded to this question.)

This allows the parties to speak more openly with me about their concerns and allows us to discuss some alternative solutions to their disputes.

To reality test, to de-escalate emotions; probe positions and generate options.

Safe way to offer some insight into the other party’s way of thinking or reality testing without jeopardizing their position as to the opponent.

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How many years have you been a mediator?

50% 40% 3-5 30.61%

30% 11-20

20%

0-2

10%

More than 20

20.41%

6-10 24.49%

16.33%

8.16%

0%

If you don’t conduct private caucuses, briefly describe the primary reasons you don’t.

(5 mediators responded to this question.)

In ongoing relationships, people need to be able to move forward and communicate effectively. More importantly, people need to believe that they have been heard and the problem is truly solved.

I encourage the parties to stick with the process as long as possible and work through the tensions and conflict and disagreement, and many times we are able to work everything out without having to caucus.17 IV. Facilitative and Evaluative Approaches Probably no issue in the field of dispute resolution has been the subject of more controversy than the facilitative/evaluative debate.

Broadly speaking, facilitative mediators focus on process, emphasizing communication.

They help the parties think through and brainstorm their interests, goals, and potentially acceptable outcomes. Facilitative mediators eschew evaluations of what could or should be done to reach an agreement. Evaluative mediators evaluate and assess. They offer opinions on a broad range of topics including appropriate solutions, the outcome of contested evidentiary or legal issues, or even the result of the trial.

Many mediators employ both facilitative and evaluative techniques in the same mediation.18 The question of the most appropriate approach to mediation is rife with controversy.

Two diverging rationales support the methods under discussion. To the advocate of facilitative mediation, resolution is best achieved: (a) in a “neutral, safe, and supportive” environment; (b) where the focus is on the interests of 36

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the parties; and (c) the goal is to collaborate to examine those interests and develop a solution.19 Under the evaluative model the focus is on: (a) legal rights; (b) the relative merits; and (c) the evaluation of any number of issues by a mediator with subject matter knowledge.20 On the other side of the argument, the devotee of evaluative mediation argues that it: (a) induces reevaluation by the parties; (b) satisfies emotional need for “a day in court”; (c) provides cover to individuals who need a rationale to make concessions or other difficult decisions arising in the mediation.21 In a groundbreaking series of articles, Professor Leonard Riskin distilled the facilitative and evaluative approaches and provided a much-needed vocabulary for discussing mediation generally and these two approaches in particular.22 His analysis begins with two questions: “Does the mediator define problems narrowly or broadly?” and “Does the mediator think it is appropriate to make evaluations, assessments, predictions, or proposals for agreements?” According to Riskin’s thesis, the answer to these questions reflects the mediator’s view of the nature of mediation itself.23 A broadly focused mediator endeavors to identify the vital interests underlying the stated positions and sees the objective as helping the parties understand and fulfill those interests.24 The facilitative mediator is convinced that it is the parties who can and should develop the solution. Many advocates of the facilitative approach consider the evaluative approach not only inappropriate but unethical. As they see it, evaluative mediation impinges on mediator impartiality, and the neutral’s lack of sufficient information and knowledge precludes an informed opinion.25 Conversely, a neutral with a narrow view thinks the parties have identified the problem

by their win-lose/distributive legal positions.

This mediator concludes that the parties seek her assistance with a straightforward issue such as, “Who pays how much to whom?” As such, this mediator will assume that the parties will have an adversarial approach to the mediation to be effectuated by positional bargaining. The answer to the second question differentiates the facilitative mediators, who seek to augment communication and help the parties decide how they wish to resolve the dispute, from the evaluators, who assume the disputants want their input.26 Riskin’s dichotomy is the source of disagreement between the two camps. More recently, scholars and practitioners have found that mediators commonly employ a combination of facilitative and evaluative techniques in the same mediation, often beginning in a full facilitative mode, but further into the process, initiating evaluative techniques. One study revealed that switching back and forth between facilitative and evaluative techniques is a response to the posturing of the parties and attorneys and not the result of the mediator’s innate orientation.27 One of the strongest conclusions to be drawn from the survey is that, based on the circumstances of the mediation, survey respondents use facilitative or evaluative methods, either separately or in tandem, in most of their mediations. These findings are consistent with our survey. A detailed breakdown of the responses with respect to use of both the facilitative and evaluative approaches illustrates the point: I use a facilitative approach (though not necessarily exclusively) in the following percentage of my mediations: Answer Choices

Responses 0%

7.50% 1% to 25% 7.50% 26% to 50% 15.00% 51% to 75% 17.50% 76% to 99% 37.50% 100% 15.00% I use an evaluative approach (though not necessarily exclusively) in the following percentage of my mediations: Answer Choices

Responses 0%

10.26% 1% to 25% 17.95% 26% to 50% 25.64% 51% to 75% 15.38% 76% to 99% 15.38% 100% 15.38%28

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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What type cases do you most frequently mediate?

100% 90% 80%

DomRel/FamLaw

70%

69.57%

60% 50% 40% 30%

Contract Employment 19.57% 20% 10% 0%

Other

Business Personal Injury 26.09%

8.70% 6.52% 4.35% 4.35%

Professional Mal. Securities Intellectual Prop.

10.87%

Probate/EstatePlan.

Debtor/Creditor Landlord/Tenant Real Estate

A detailed breakdown of the responses reveals that more than 7.5% use both methods in all their mediations. Also significant is the fact that 15% of mediators report always using the facilitative approach, and 15% reported always using the evaluative approach, both on a nonexclusive basis. Conversely, the survey data indicate that only 7.50% report never using the facilitative approach and 10.26% report never using the evaluative approach. This means that, overall, 82.24% of the responding mediators use both methods, either separately or in tandem, during some of their mediations. Furthermore, on a non-exclusive basis, nearly 70% employ facilitative techniques, and approximately 46% use evaluative techniques in more than half of the mediations they conduct. These data demonstrate that Arkansas mediators use a variety of approaches, facilitative, evaluative, or a combination of the two.29 The representative comments that follow were provided by survey respondents in connection with their use or nonuse of facilitative and evaluative approaches. It is important to note the comments in which attorney or party request is the reason for use or nonuse of a particular mediation approach.

If you do use a facilitative approach (e.g. 1% to 100%), please describe its primary purposes/benefits.

(31 mediators responded to this question.)

The solution is the parties. They own it.

The parties feel that they have helped form the resolution themselves, which leaves them feeling much more satisfied with the outcome usually.

True mediation does not allow mediator to become the decision maker, 38

26.09%

23.91%

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2.17% 2.17% 0.00%

rather a facilitator for parties to collaboratively determine their resolution.

If you do not use a facilitative approach (e.g. 0%) please describe the primary reasons you don’t.

(8 mediators responded this question.)

The parties/their attorneys request that I use an evaluative approach.

If you do use an evaluative approach (e.g. 1% to 100%), please describe its primary purposes/benefits.

(29 mediators responded to this question.)

Most times I find that the parties are interested in my opinions and they ask for it.

Helps settle cases and attorneys and parties want it.

The evaluative approach is what the attorneys in my area expect from me as a mediator who is also an attorney. …

It is particularly useful when assisting the clients with some reality-testing and to get movement from the parties.

It allows the parties to feel more secure that their agreement will be accepted by the judge.

To help the parties see their case weaknesses and strengths.

If you do not use an evaluative approach (e.g. 0%), please describe the primary reasons you don’t.

(7 mediators responded to this question.)

I think it is best for the parties to determine their resolution.

Not consonant with my mediation cases and style.30

V. Conclusion Our survey of Arkansas certified mediators provides useful information regarding the current state of mediation in Arkansas, particularly with respect to joint sessions, caucuses, and facilitative versus evaluative approaches to mediation. Mediation’s basic framework is relatively straightforward. The parties, usually with the assistance of their attorneys, select a mediator, file certain pre-mediation paperwork and attend a mediation session with their attorneys and mediator. Given the expertise of the mediator and the skills of the parties’ legal counsel, the rest is—or at least should be— flexible enough to be tailored to meet the needs of the parties and not the result of the arbitrary application of a cookie-cutter approach.

Current research and the experiences of our survey respondents suggest that “mediation success” increases as mediators customize the process to meet individual needs of the parties.

The mediator’s professional judgment—after consideration of the parties, subject matter, and attendant circumstances—provides the basis for the selection of mediation techniques.

A mediation process which is the product of the mediator’s professional judgment provides the best opportunity for parties to “define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements when desired.”31 Regardless of the mediation techniques ultimately selected, the parties to the mediation are at the center of the process and entitled to the best chance to achieve mediation success. Accordingly, it is incumbent on the mediators to remember that they must adapt their strategy to give these parties the best chance to achieve that success.

Endnotes: 1. In March/April 2016 the author conducted a survey of mediators certified by the Arkansas ADR Commission. Invitations to participate in the survey were sent via email to the 176 active mediators listed on the ADR Commission’s website. Of these emails, 163 were delivered and 13 were returned as undeliverable. The survey response rate was 30% (49/163). The survey contained 22 questions. Those portions of the survey pertinent to the issues raised in this article appear in Appendix A. 2. American Arbitration Association, American Bar Association, & Association for Conflict Resolution (2005). Model Standards of Conduct for Mediators. [Online] available: http://www.americanbar.org/content/dam/ aba/migrated/dispute/documents/model_stan-

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dards_conduct_april2007.authcheckdam.pdf.

The mediation process is relatively straightforward: the parties select a mediator, file a written mediation statement, and attend a session at which the disputing parties, attorneys, and mediator are present. The mediation usually begins with a joint meeting followed by a series of private caucuses involving shuttle diplomacy by the mediator who, using one of the mediation approaches, provides direct assistance with negotiation.

3. Kenneth Roberts, Mediating the Evaluative Facilitative Debate: Why Both Parties Are Wrong and a Proposal for Settlement, 39 Loy. U. Chi. L. J. 187, 188 (Fall 2007).

4. See infra App. A. 5. Id. 6. Id. Because respondents could identify a maximum of three areas of practice, the percentages across all the sectors total more than 100%.

7. Eric Galton and Tracy Allen, Don’t Torch the Joint Session, 21 No.1 Dispute Resolution Magazine 25 (Fall 2014); Lynne Bassis, Face-to Face Sessions Fade Away: Why Is Mediation’s Joint Session Disappearing? 21 No.1 Dispute Resolution Magazine 30, 31 (Fall 2014); Jay Folberg, The Shrinking Joint Session: Survey Results, 22 No.2 Dispute Resolution Magazine 12 (2016).

8. Galton and Allen, supra note 7, at 25; Bassis,

supra note 7, at 24; Jay Folberg, supra note 7, at 13-16 (2016).

9. Bassis, supra note 7, at 30-31. In this article, the author interviewed advocates and mediators seeking their perspectives on the joint session and its declining use. See also Galton and Allen, supra note 7, at 25.

10. Bassis, supra note 7, at 30-31.

11. Galton and Allen, supra note 7, at 25-27.

12. See infra App. A. 13. Id. 14. Richard Calkins, Caucus Mediation Putting Conciliation Back into the Process: The Peacemaking Approach to Resolution, Peace, and Healing, 54 Drake L. Rev. 259, 271-72 (Winter 2006).

15. Id. 16. See infra App. A. 17. Id. 18. Kenneth Dunham, Practical Considerations in Mediation Training: Should Mediators be Trained to Adapt to the Circumstances of Each Case? 11 Appalachian J.L. 185, 188-91 (Spring 2012). See also, infra App. A. 19. Roberts, supra note 3, at 193-94.

20. Id. at 195.

21. Marjorie Corman Aaron, Merits Barriers: Evaluation and Decision Analysis, in D. Golann, Mediating Legal Disputes 145 (2009).

22. Leonard L. Riskin, Understanding

Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv.

Negot. L. Rev. 7 (1996); Leonard L. Riskin, Retiring and Replacing the Grid of Mediator Orientations, 21 Alt. To High Cost Litig.

No.4, 69 (April 2003); Leonard L. Riskin, Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 Notre Dame L. Rev. 1 (December 2003).

23. Leonard L. Riskin, Retiring and Replacing the Grid of Mediator Orientations, 21 Alt. To High Cost Litig. No. 4, 69 (April 2003).

24. Id. 25. Id. 26. Id. 27. See Jay Folberg, et al., Resolving Disputes Theory, Practice, and Law, 277-78 (2d ed. 2010). “[O]ne of the authors filmed several mediators mediating the same civil case in role-play format. He found, as Professor Riskin suggests, that good neutrals do not maintain a single orientation, but instead adapt their approach to fit the circumstances of a dispute.” See also Roberts, supra note 3, at 191: “In truth, most mediators will adapt their strategy throughout the mediation in order to suit the parties’ needs”; and Dwight Golann, Variations in Mediation: How-and Why-Legal Mediators Change Styles in the Course of the Case, 2000 J. Disp. Resol. 41

Pharmacists Optometrists

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(2000).

28. See infra. App. A. 29. Id. 30. Id. 31. American Bar Association, & Association for Conflict Resolution (2005). Model Standards of Conduct for Mediators. [Online] available: http://www. americanbar.org/content/dam/ aba/migrated/dispute/documents/model_standards_ conduct_april2007.authcheckdam.pdf.

Appendix A Survey of Arkansas Certified Mediators In March/April 2016 the author conducted a survey of mediators certified by the Arkansas ADR Commission. Invitations to participate in the survey were sent via email to the 176 active mediators listed on the ADR Commission’s website. Of these emails, 163 were delivered and 13 were returned as undeliverable. The survey response rate was 30% (49/163). The survey contained 22 questions. The following 15 questions were pertinent to the subject matter of this article.

How much of your work time is spent as a mediator?

Answered: 48 Skipped: 1

Answer Choices

• 0%

• 1% to 25% • 26% to 50% • 51% to 75% • 76% to 99% • 100%

Responses 12.50% 64.58% 10.42% 0.00% 6.25% 6.25%

• Debtor/Creditor • Landlord/Tenant • Real Estate • Professional Mal. • Securities • Intellectual Prop.

How many years have you been a mediator?

Answered: 49 Skipped: 0 Answer Choices

Responses • 0-2

16.33% • 3-5 30.61% • 6-10 24.49% • 11-20 20.41% • More than 20 8.16% What type cases do you most frequently mediate? Select maximum of three.

(Note: Total exceeds 100% since each respondent could select up to three categories.)

Answered: 46 Skipped: 3 Answer Choices

Responses • DomRel./FamLaw 69.57% • Personal Injury 26.09% • Business 26.09% • Other 23.91% • Contract 19.57% • Employment 10.87% • Probate/EstatePlan.

8.70%

6.52% 4.35% 4.35% 2.17% 2.17% 0.00%

I conduct a joint session in the following percentage of my mediations: Answered: 41 Skipped: 8 Answer Choices

Responses • 0%

7.32% • 1% to 25% 17.07% • 26% to 50% 0.00% • 51% to 75% 4.88% • 76% to 99% 41.46% • 100% 29.27% If you do conduct joint sessions, please describe their primary purposes/benefits.

Answered: 37 Skipped: 12 Comments from 37 respondents were received.

Selected comments are set forth in the body of the article.

If you do not conduct joint sessions, please describe the primary reasons you don’t.

Answered: 9 Skipped: 40 Comments from 9 respondents were received.

Selected comments are set forth in the body of the article.

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I conduct private caucuses in the following percentage of my mediations: Answered: 42 Skipped: 7 Answer Choices

Responses • 0%

2.38% • 1% to 25% 11.90% • 26% to 50% 2.38% • 51% to 75% 11.90% • 76% to 99% 26.19% • 100% 45.24% If you do conduct private caucuses, please describe their primary purposes/benefits.

Answered: 38 Skipped: 11 Comments from 38 respondents were received.

Selected comments are set forth in the body of the article.

If you don’t conduct private caucuses, briefly describe the primary reasons you don’t.

Answered: 5 Skipped: 44 Comments from 5 respondents were received.

Selected comments are set forth in the body of the article.

I use a facilitative approach (though not necessarily exclusively) in the following percentage of my mediations: Answered: 40 Skipped: 9 Answer Choices

Responses • 0%

7.50% • 1% to 25% 7.50% • 26% to 50% 15.00% • 51% to 75% 17.50% • 76% to 99% 37.50% • 100% 15.00%

I use an evaluative approach (though not necessarily exclusively) in the following percentage of my mediations: Answered: 39 Skipped: 10 Answer Choices

Responses • 0%

10.26% • 1% to 25% 17.95% • 26% to 50% 25.64% • 51% to 75% 15.38% • 76% to 99% 15.38% • 100% 15.38%

If you do use a facilitative approach (e.g.

1% to 100%), please describe its primary purposes/benefits.

Answered: 31 Skipped: 18 Comments from 31 respondents were received.

Selected comments are set forth in the body of the article.

If you do use an evaluative approach (e.g.

1% to 100%), please describe its primary purposes/benefits.

Answered: 29 Skipped: 20 Comments from 29 respondents were received.

Selected comments are set forth in the body of the article.

If you do not use a facilitative approach (e.g.

0%) please describe the primary reasons you don’t.

Answered: 8 Skipped: 41 Comments from 8 respondents were received.

Selected comments are set forth in the body of the article.

If you do not use an evaluative approach (e.g.

0%), please describe the primary reasons you don’t.

Answered: 7 Skipped: 42 Comments from 7 respondents were received.

Selected comments are set forth in the body of the article. 

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Prior-Acts vs. Tail Coverage on Claims-Made Insurance Policies —Capson v. MMIC Illustrates the Difference

By Patrick McAlpine

The Eighth Circuit’s recent decision in Capson Physicians Ins. Co. v.

MMIC Ins. Inc.1 is instructive on a question that insurance practitioners deal with often—what is the difference between prior-acts coverage and tail coverage in insurance policies, and when is it appropriate to consider purchasing each type of coverage? Although Capson dealt with medical malpractice insurance, the distinction between prior-acts coverage and tail coverage is still pertinent to understanding claims-made insurance policies, including legal professional liability policies.

Insurance policies generally fall into two categories: occurrence or claims-made. General Liability, Automobile Liability, and Workers’ Compensation policies are usually occurrence policies,2 while professional liability policies (medical malpractice, legal malpractice, or architects/engineers professional liability) are claims-made.3 The difference is important because the type of policy determines whether an insured’s current policy or a past policy applies. If, for instance, a malpractice claim is made against a law firm, the current claims-made policy covers that claim, even if the allegations in the claim or complaint occurred before that specific policy was written.4 In other words, with claims-made policies, the important date for coverage purposes is the date a claim was first made upon an insured, not the date the incident giving rise to the claim occurred.5 Thus, an appropriate program of professional-liability insurance requires insureds to keep in force a claims-made policy in order to have coverage ready to respond to claims that occurred in the past but have not yet matured into a demand or claim.

Challenges arise when a professional wants to retire or sell a practice, Patrick McAlpine is Senior Vice President and General Counsel for Stephens Insurance, LLC. Stephens Insurance, LLC is ArkBar’s exclusive insurance broker overseeing Lawyers Professional Liability (LPL) insurance as well as property, casualty, life and health benefits to its more than 5,000 members.

Insurance Services Exclusively Powered by Stephens Insurance

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change jobs, or change insurance carriers. When a change happens, events which have occurred but have not yet matured into demands or claims must be considered. The insurance market provides two solutions in this scenario: tail coverage and prior-acts coverage.

Tail Coverage Tail coverage6 allows an insured to report claims of which the insured becomes aware after a claims-made policy expires.7 The important thing to remember about tail coverage is that it only covers claims which arose during the original policy period—it does not provide additional coverage.8 Tail coverage is usually not appropriate for professionals who continue to practice after the change event unless prior-acts coverage is not available for some reason. Rather, tail coverage is used for individuals who quit practicing because of retirement, disability, or changing careers, or if prior acts is not available due to high claims activity.

Prior-Acts Coverage Prior-acts coverage allows a new claims-made policy to offer coverage for acts occurring prior to the policy inception date but which are reported after the new policy begins.9 It is a methodology used to prevent coverage gaps between policies. A key element of prior-acts coverage is the “Retroactive Date” provided in the policy.10 Prior-acts coverage is usually a better option than tail coverage when professionals change policies but continue to practice. A current policy providing prior-acts coverage will cover more claims than an expired policy with tail coverage. Depending on the circumstances, a policyholder could have a combination of the two concepts—an expired policy and a new policy with no prior-acts coverage. In that case, the insured should purchase tail coverage on the expired policy to protect against claims that occurred during the prior policy period but which are not yet mature, and which will not be covered under the new policy because it has no prior acts coverage.

Given the intricate nature of coverage in claims-made policies, care must be taken when transitioning from one policy to another. Two main issues arise: (1) how to notify the outgoing carrier of circumstances that have not yet matured; and (2) what must be disclosed on the application for the new policy.

1. Notifying the Outgoing Carrier of Circumstances Which Might Lead to a Claim When transitioning to a new policy, insureds should conduct a thorough review of outstanding matters that they believe may be grounds

for claims.11 In doing so, insureds should pay particular attention to the definition of “claim” in the outgoing policy.12 Obviously, if any matter meets the definition of “claim” then it should be reported to the outgoing insurance company before the policy expires. However, if a circumstance has not yet matured to the point where it meets the definition of a “claim,” the outgoing insurance company might reject that notice. The insured must then give the mature claim to the new carrier (assuming the new policy has prior-acts coverage), which will understandably be upset they were not notified of a prior event.

2. What Should Be Disclosed About NonMature Claims Every application for a new insurance policy asks a question about any circumstances the applicant is aware of which could give rise to a claim.13 As the recent Capson case instructs, it is best for insureds to very carefully respond to that question,14 and to be diligent about updating their responses if their knowledge changes while the application is pending but before the new policy has been bound.

Capson, Prior Acts, Tail Coverage, and the Duty To Supplement In Capson, a physician moved from Paragould, Arkansas, to Denison, Iowa. Prior to his move, the doctor purchased a claimsmade policy from Capson Physicians Insurance Company (“Capson”) with prior-acts coverage retroactive to the date he started practicing in Paragould. Upon accepting the job in Iowa, the hospital in Iowa submitted an application for coverage to its carrier, MMIC Insurance Inc. (“MMIC”). The hospital then asked each insurance company for quotes to cover the doctor: Capson for a tail coverage quote and MMIC for a prior-acts quote. The hospital intended to make a financial decision based on which coverage was the “better financial option.”15 In the application to MMIC, the doctor answered “No” to the question about potential claims or circumstances.16 While the quotes were pending, the hospital received notice of a serious claim against the doctor arising out of his practice in Paragould. Days after receiving notice of the Arkansas suit, the hospital accepted the quote from MMIC including prior-acts coverage.17 Once the endorsement granting prior-acts coverage was received, the hospital submitted the Arkansas claim for coverage by MMIC. Predictably, MMIC denied coverage.18 Capson moved for a declaratory judgment in Arkansas that MMIC had primary coverage for the claim. The district court granted

MMIC’s summary judgment motion allowing MMIC to rescind its policy based on misrepresentation in the application. On appeal, Capson argued that the representation about no claims was accurate when it was made, and therefore that there was no misrepresentation made by the policyholders. However, the Eighth Circuit found that there was a continuing duty on the part of the insured to supplement its application until the time the coverage was bound. Thus, the court affirmed the equitable rescission of MMIC’s prior-acts coverage.19 The lesson of Capson (beyond its very good comparison of prior-acts and tail coverage) is that if there is a time lapse between application and binding, any claims which develop must be reported to the new carrier or the insured risks having no coverage.20 Implications for Legal Professional Policies The concepts discussed in Capson can be extended to legal professional liability policies.

Attorneys should be aware that when they move or dissolve firms, retire, or change to a new insurance policy, they must be aware of the advantage and disadvantages of prior-acts and tail coverage. The general rule is that when continuing practice, prior-acts coverage with

an appropriate retroactive date will provide better coverage. A knowledgeable insurance broker can help firms through the claims notification process to the outgoing carrier and advise about the new insurer’s application to prevent coverage gaps.

Endnotes 1. 829 F.3d 951 (8th Cir. 2016).

2. See generally 3 New Appleman on Insurance Law Library Edition §§ 16.0116-02.

3. 4 New Appleman on Insurance Law Library Edition § 25.01[1] (the “overwhelming majority” of professional liability coverage is written on a claims-made basis).

4. The Eighth Circuit defined a claims-made policy as one which “provides coverage for claims that are first made and reported to the insurer during the term of the policy regardless of when the insured’s alleged negligent act was committed.” Capson, at *3 (citing 3 New Appleman on Insurance Law Library Edition § 16.07[5][a].)

5. See 4 New Appleman on Insurance Law Library Edition § 25.01[1].

6. Tail coverage is usually called “Extended Reporting Period” (“ERP”) in most policies.

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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For simplicity’s sake, this article will refer to it by the colloquial term “tail coverage.” See also 4 New Appleman on Insurance Law Library Edition § 25.03[11].

7. 4 New Appleman on Insurance Law Library Edition § 23.05[10].

8. Id. 9. Id. at § 25.03[6].

10. Id. at § 25.01[3]. A retroactive date is the date after which the negligent act must have occurred in order to be covered.

11. In the absence of a specific definition in the policy, “claim” is generally interpreted to mean a demand for money or services. Id. at § 25.03[3].

12. Consider this definition of “claim” from a legal malpractice policy: Claim means a demand received by you for money or services based upon or arising from your rendering or failure to render legal services for others. A claim shall include, but is not limited to, the service of suit or the institution of an arbitration proceeding against the Insured or a request to toll the statute of limitations. Claim does not include a demand for money or services in criminal proceedings of

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any type brought against an Insured, or in any proceedings that seek injunctive, declaratory, equitable or nonpecuniary relief or remedies.

13. 4 New Appleman on Insurance Law Library Edition §§ 25.01[3]; 25.03[1].

14. See 4 New Appleman on Insurance Law Library Edition § 25.02[1] for a discussion of various cases considering what constitutes a reportable “circumstance.”

15. Capson, at *4.

16. Id. at *5 (“When asked whether he was aware of any potential claims or circumstances that might reasonably lead to a claim or lawsuit being brought against him, Dr. Hasik responded ‘No.’”).

17. Id. at *6-7.

18. Id. at *7.

19. Id. at *14.

20. Capson was decided using Iowa substantive insurance law. In the author’s opinion, since it affirmed a decision arising out of a case in the Eastern District of Arkansas, it might have somewhat more than ordinary persuasive authority in an Arkansas jurisdiction. 

Lawyer The Arkansas

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JLAP

The Latest Data on Lawyers, Drinking, and Mental Health

By Sarah Cearley, PhD, LCSW

A recent opinion piece in The New York Times explores the space between the habitual drinker and the addict,1 a space that is important for lawyers to consider, according to a new survey that shows us how slippery a slope it can be. Our culture sends us messages beginning with family get-togethers during our childhood and continuing to tailgate parties with friends at school that drinking is an integral part of our world.

When a child grows up and chooses to enter the adult world of lawyers, she finds the drinking culture continues. This study, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, pulled the curtain of acceptable drinking aside and showed us the real picture in a profession that greatly influences our society, economy, and government.2 Lawyers Drink—A Lot Recently, the Hazelden Betty Ford Foundation and the American Bar Association collaborated on a study of substance abuse, depression and anxiety among America’s lawyers that is the most significant research of its kind. This landmark study gave us hard data that, in the end, support our many anecdotal accounts. The numbers tell us that lawyers drink. They drink a lot. And they suffer from stress, anxiety, and depression at a higher rate than the general population. And, of course these issues often intersect in an individual’s life.

We should stop and take notice.

Close to 13,000 lawyers in 15 state bar associations in 19 states were included in

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the study. Nearly equal numbers of men and women participated, identifying their respective age groups, job position types, and whether they worked in private firms, state bar associations, government or nonprofit organizations, or other working environments. The findings showed that 21% scored significantly for problematic drinking (defined as hazardous, harmful use, and the potential for alcohol dependence), more than the 15% of physicians and surgeons and twice the percentage of highly educated workers.3 As a point of comparison, the most recent, cited research in 1990 of 1,200 attorneys in the state of Washington found that 18% of lawyers were problematic drinkers and that 19% suffered from depression.4 Problematic Drinking Starts Early In the 2016 study, men, younger lawyers, and those working in the field a shorter duration had significantly higher rates of problematic drinking than other respondents. Digging deeper into the numbers, we see that 44% of lawyers reported that their use of alcohol was problematic during the 15-year-period that followed graduation from law school. The study suggests that, as opposed to an old notion that problem drinking gets worse with years in the profession, the risk of developing a drinking problem is highest for attorneys in their early years of practice. The drinking culture in the legal community begins early and appears to be stronger than ever.

Location of work also had influences.

Attorneys in private firms had higher rates of problem drinking than those in other

Sarah Cearley, PhD, LCSW, is the Executive Director of the Arkansas Judges and Lawyers Assistance Program. confidential@arjlap.org 501-907-2529 work environments. In the firms, lawyers at the junior (31%) or senior (24%) associate level showed higher levels of problematic drinking than their peers who had practiced longer.

Mental health concerns often coincide with alcohol use disorders, a fact the study confirms. It reveals significantly higher levels of depression, anxiety, and stress among those screening positive for problematic alcohol use. The most common mental health conditions reported were anxiety (61.1%), depression (45.7%), and social anxiety (16.1%). Men revealed higher levels of depression and women identified higher levels of stress and anxiety.

We have known for some time that people use drinking as a way to cope with difficult feelings. We also know that others develop mental health problems as a result of their drinking. Whichever way this equation resolves, we also know when alcohol as the common denominator is removed lives improve. But, here lies another problem: resistance to treatment. The study found that only 7% reported that they ever had sought treatment and only 22% had used lawyer assistance programs for help. The largest barriers to treatment are not wanting others to find out (67%) and privacy and confidentiality concerns (64%).

To Encourage Treatment Confidentiality Is Guaranteed The Arkansas Supreme Court addressed these concerns in 1999 when it created the program. If you are a lawyer worried about your drinking or mental health, do take the time to look up the Court Rules on

the Arkansas Judges and Lawyers Assistance Program. JLAP Rule 10 creates levels of confidentiality and immunity much higher than that of most mental health providers. This program is designed for you, the lawyer. It is yours at no cost because a portion of your license fee pays for it. Call, email, text, or go to our website and email from there. There are many ways for you to get the help you need.

Endnotes: 1. Tsui, B., Drinking by Numbers, New York Times, Sunday, June 19, 2016.

2. P. Krill, R. Johnson, L. Albert, The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys, J. Addiction Medicine, Jan./ Feb. 2016.

3. Forward, J., Landmark Study: U.S. Lawyers Face Higher Rates of Problem Drinking and Mental Health Issues, Wisconsin Lawyer, Feb. 2016, Vol. 86, No. 2.

4. Benjamin G.A., Darling E., Sales B., The prevalence of depression, alcohol abuse, and cocaine abuse among United States lawyers, Int. J. Law Psychiatry 1990;13:233–246.

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DISCIPLINARY ACTIONS

Attorney Disciplinary Actions Final actions from July 1 - October 3, 2016, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC).

Full text documents are available online 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.]

SURRENDER: ROBERT L. BARROW, Bar No. 78010, of Little Rock, had his petition to surrender

license accepted by the Court on September 22, 2016, in Case No. D-16-774. In his petition to surrender his law license voluntarily, Dr. Barrow acknowledged that in the United States District Court, Eastern District, he entered a guilty plea to one felony count of conspiracy to commit health care fraud, a Class C felony, and was sentenced on July 26, 2016, to two years’ imprisonment. Dr. Barrow stated that he wished to avoid the expense, stress, and publicity of addressing his misconduct through disbarment proceedings.

JAMES H. PILKINTON, JR., Bar No. 73094, of Hope, had his petition to surrender license accepted by the Court on September 15, 2016, in Case No. D-16-780.

In his petition to voluntarily surrender his law license, Mr. Pilkinton acknowledged an investigation by the Committee on Professional Conduct regarding irregularities in his IOLTA account related to real estate transactions and stated that he wished to avoid the expense, distress, and

embarrassment of disbarment proceedings.

SUSPENSION: BYRON C. RHODES, Bar No. 79186, of Hot Springs, in Committee Case No. CPC 2014-031, after a hearing, by Findings & Order filed October 3, 2016, for violations of Rules 1.5(a) and 8.4(c) had his Arkansas law license suspended for 18 months starting January 1, 2017, and was assessed $2,002.75 in hearing costs for his conduct in 2013 in a guardianship matter involving Richard Cole and Rhodes’ client Cynthia Stovall, one of Cole’s children, in Montgomery County Circuit Court. In February 2013, Stovall employed Rhodes at a $175 hourly rate. Rhodes did not enter his appearance in the guardianship case or file any pleadings.

Rhodes attended one hearing, on May 10, 2013, where the guardianship of Cole’s estate was continued. From April 5, 2013, on Cole had a court-appointed attorney ad litem, Robin Smith. Rhodes would meet with Stovall, with Cole present.

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DISCIPLINARY ACTIONS

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During May 2013, Smith communicated to Rhodes that he should not have contact with her ward Cole. On May 20, 2013, Stovall took Cole to Rhodes office, where Rhodes reviewed and had Cole execute estate planning documents, including a will and durable power of attorney. On May 28, 2013, Rhodes presented Stovall with a bill for $22,228.54 for 112.45 hours of time, that included 73 hours of “research” time, including time Rhodes claimed he spent thinking about the Cole matter. Rhodes 52

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told Stovall and Cole that there remained work to be done in the Cole matter and that $25,000 should cover all work billed and to be done. Cole signed a $25,000 personal check and it was handed to Rhodes. Smith, Cole’s guardian, was unaware of this activity. Cole’s bank stopped payment on the check. After learning of the $25,000 check, Smith filed a complaint on Rhodes at the Office of Professional Conduct in early June 2013. Stovall dismissed Rhodes as her attorney.

Smith filed a motion for contempt against Rhodes. By September 2013, Stovall had obtained a required bond by herself and been appointed her father’s guardian. At a hearing in February 2014, it was discovered that Rhodes had recently sent Stovall and Cole a reduced bill of $11,296.04, with a demand for payment or the account would be turned over to collection. Rhodes testified the reduced bill basically represented his original billing less the “research” time in it. Neither Cole nor Stovall paid the bill. At age 82 and in poor health since 2012, Cole died in a nursing home in March 2015, two months after being deposed for the hearing. The hearing panel found Rhodes’ total billings to Stovall in the Cole matter of $23,415 were excessive and unreasonable and that he falsely billed Stovall for services in what was a simple guardianship matter where his client was attempting to be qualified as her father’s guardian. The panel acquitted Rhodes of three other rule violations charged. In exchange for extra time to wind down his law practice and a suspension start date of January 1, 2017, Rhodes agreed to not appeal the hearing decision.

CAUTION: JAMES E. EVANS, JR., Bar No. 74050, of Springdale, in Committee Case No. CPC 2016-051, by Consent Findings and Order filed July 15, 2016, for violations of Rules 1.1, 1.3, and 8.4(d), was cautioned and assessed $50 costs for his conduct in the representation of Lloyd and Betty Thurman in a civil case in Washington County Circuit Court in which Evans filed responses to request for admissions one day late, resulting in the requests being deemed admitted and summary judgment being granted to a foreclosing bank.

TERRI WESTBROOK KIENLEN, Bar No. 2001181, of Conway, in Committee Case No. CPC 2016-100, by Consent Findings and Order filed September 16, 2016, for violations of Rules 1.3, 1.4(a)(4), and 1.16(d), was cautioned for her conduct in the representation of Patricia Mize (now Kammers) in a domestic relations matter.

Kammers initially hired attorney Tolleson,

but had difficulty getting in contact with him and he had not filed her divorce action.

Kammers went to Tolleson’s office, and he was not there; however, she was met

by Kienlen. Kienlen informed Kammers that Tolleson was having health issues and that Kienlen would be taking over Kammers’ divorce. Kienlen requested that Kammers pay her $1,200 for the divorce action. Kammers informed Kienlen that she had already paid Tolleson $600 for an uncontested divorce, showing Kienlen the receipt. Kienlen advised Kammers that if she would give Kienlen the $165 filing fee, Kienlen would file the divorce action for her. Kammers paid Kienlen the $165 filing fee and Kienlen gave Kammers a receipt.

Kammers’ attempts to contact Kienlen after that were unsuccessful. The divorce action was not filed by Kienlen. Kammers then hired another attorney for a fee of $900.

The divorce was filed by her new attorney on January 10, 2013, and completed by entry of a divorce decree on March 19, 2013. Kammers never received a refund from Kienlen of the $165 she paid for the filing fee.

HERBERT C. SOUTHERN, Bar No. 99105, of Fayetteville, in Committee Case No. CPC 2016-094, by Findings and Order filed September 26, 2016, for violations of Rules 1.1 and 1.4(b), was cautioned and assessed $50 costs for his conduct in the representation of Marcio De Oliveira in a criminal case in U.S. District Court for the Western District of Arkansas in which his client entered a guilty plea in 2009 without Southern sufficiently being aware of the mental state requirements for the charge and without Southern sufficiently explaining matters and the mental state requirements to his client. The issue was whether Oliveira knew certain foreign nationals he employed, who were supplied by a third party contractor who was to do alien status background checks, were illegally in the country. In 2013, Oliveira’s plea and sentence were vacated on a finding that Southern provided ineffective assistance of counsel. 

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IN MEMORIAM Nicholas Alexander of Little Rock died July 9, 2016, at the age of 27.

Nick was an attorney at Kutak Rock LLP in Little Rock. He was a member of the Young Lawyers Section of the Arkansas Bar Association.

Robert Gilbert “Bob” Brockmann of Fayetteville died September 9, 2016, at the age of 87. Before moving to Fayetteville in September of 2015, he was a long-time resident of Little Rock and Maumelle. He received a B.S. in Business Administration in 1950 from the University of Arkansas. He received his Juris Doctorate in 1963, where he was a member of the Law Review and graduated first in his class.

Upon graduation from law school, Bob joined Gene Moore’s practice in Harrison, later known as Moore and Brockmann.

In 1968, he became a member of the faculty at the U of A School of Law. He also served as chief attorney for the Arkansas Department of Revenue and retired as a Federal Administrative Law Judge hearing Social Security matters.

John Cameron Burnett of Atkins died September 30, 2016, at the age of 63. He graduated from Atkins High School in 1971. After graduating from Arkansas Tech University he attended the University of Arkansas School of Law. He served in several roles for his community over the course of his life, most recently as a Public Defender for Johnson County. He also previously served as Atkins City Judge, Chairman of the Benton County Election Commission and on the quorum court, as well as an Arkansas delegate to the 1984 Democratic National Convention.

Judge Larry W. Chandler of Magnolia died July 12, 2016, at the age of 73. Judge Chandler obtained his bachelor’s degree from Hendrix College and his law degree from the University of Arkansas School of Law. He moved to Magnolia in 1969 and entered private law practice.

Chandler was a longtime Magnolia attorney and circuit judge in the 13th Judicial District.

In 2001, he began serving at the Columbia County Adult Drug Court Judge, and in 2002 he began serving at the Columbia County Juvenile Drug Court Judge. He was a member of the Arkansas Bar Association.

Robert “Bob” L. Depper, Jr., of El Dorado died August 24, 2016, at the age of 63. Bob attended high school in Wood River, Illinois, graduating in 1970. He subsequently attended Westminster College in Fulton, Missouri, on an R.O.T.C .scholarship. Following college he served four years in the United States Army at Fort Knox, Kentucky. He began his career in the law in 1978, attending the University of Arkansas School of Law, Fayetteville, Arkansas.

Following graduation in 1981, he joined the law firm of his late father-in-law, James V. Spencer Jr., in El Dorado, Arkansas. He was a member of the Arkansas Bar Association where he served on the Debtor/Creditor Law Committee and the Indigent Representation Committee. He was a Fellow of the Arkansas Bar Foundation.

John F. Stroud III, of Texarkansa died September 4, 2016, at the age of 54. He graduated from Arkansas High School in 1980. He earned a BA in History from Hendrix College in 1984, but spent a year studying at the University of Arkansas, where he was a member of Sigma Nu Fraternity.

He earned a Juris Doctorate degree from the University of Arkansas School of Law in 1989. He was a member of Delta Theta Phi

legal fraternity. He was thereafter admitted to practice law in all courts in the states of Arkansas and Texas. Following law school John moved to Washington, D.C., the city of his birth, where he worked as a General Attorney in the Office of Review and Appeals at the U.S. Equal Employment Opportunity Commission. His passion for protecting the disadvantaged continued when he returned to his hometown of Texarkana to start his own law practice. John engaged in the general practice of law and also worked as a part-time public defender in Miller County, Ark. John cared deeply about his clients and worked tirelessly on their behalf throughout his career. He was a member of the Arkansas Bar Association.

Winfred Allen “Win” Trafford of Pine Bluff, died September 14, 2016, at the age of 76.

He received his pre-law at LRU, UAM, and the U of A at Fayetteville.

He graduated from Arkansas Law School, and was licensed to practice law on May 17, 1972. In 1973 and 1974 he was a part-time Deputy Prosecuting Attorney for Jefferson, Lincoln, and Desha counties, while practicing law full-time. He was a past president of the Jefferson County Bar Association. He was a member of the Arkansas Bar Association where he served on the Insurance Committee for many years. He also served as chair of the Member Benefits Committee and served on the Social Security Law and Specialization Committees. He was a Fellow of the Arkansas Bar Foundation. He was appointed by the Arkansas Supreme Court to serve on its Professional Conduct Committee, and served as chairman of this committee for many years.

He was on active duty with the U.S. Army from June until December 1963, and served in the United States Army Reserve, the 431st Civil Affairs Division, on the LRU campus.

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

Editor’s Note: The photo of Elton A. “Bubba” Rieves, III that appeared in the Summer 2016 issue of this magazine was the photo of him that was included in the newspaper printing of his obituary but was not his photo.

Vol. 51 No. 4/Fall 2016 The Arkansas Lawyer

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